FOURTH DIVISION

McFADDEN, C. J.,

DOYLE, P. J. and COOMER, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

March 13, 2020

In the Court of Appeals of Georgia

A19A1702. LYLE et al. v. FULCRUM LOAN HOLDINGS, LLC et

al.

DOYLE, Presiding Judge.

Plaintiffs Wayne Lyle and Charles Cary (“the plaintiffs”) filed the instant case

against defendantsLibertyCapital, LLC; Hampton Island,LLC(“HI”); FulcrumLoan

Holdings, LLC; andRonald S. Leventhal(collectively, “the defendants”), seeking the

following relief: (1) to set aside a 2013 consent judgment approving the transfer of

assets by Liberty and HI to Fulcrum, alleging that the lawsuit was collusive,

fraudulent, and intended to shelter the assets from a separate judgment later obtained

by the plaintiffs against Liberty; (2) fraudulent/voidable transfer; (3) constructive

trust/attachment; (4) piercing the corporate veil; and (5) bad faith. The defendants
moved to dismissthe case on multiple grounds, and the trial court granted the motion.

For the reasons that follow, we reverse.

The trial court granted the defendants’ motion to dismiss the complaint for

failure to state a claim under OCGA § 9-11-12 (b) (6).1

 Such a motion

should not be sustained unless (1) the allegations of the complaint

disclose with certainty that the claimant would not be entitled to relief

under any state of provable facts asserted in support thereof; and (2) the

movant establishes that the claimant could not possibly introduce

evidence within the framework of the complaint sufficient to warrant a

grant of the relief sought. In deciding a motion to dismiss, all pleadings

are to be construed most favorably to the party who filed them, and all

doubts regarding such pleadings must be resolved in the filing party’s

favor.2

1 Because the plaintiffs’ brief opposing the motion to dismiss exhibited

materials outside the pleadings, and the trial court’s order recitesthat it “consider[ed]

the submissions of the parties and arguments of counsel and party pro se,” we must

determine whether the motion was converted to one for summary judgment. See

Thompson v. Avion Systems, 284 Ga. 15, 16-17 (663 SE2d 236) (2008). We conclude

that it was not. The order, which cites only to the plaintiffs’ complaint, taken as a

whole, reflects that the trial court did not consider those exhibits.

2

(Citation and punctuation omitted.) Austin v. Clark, 294 Ga. 773, 774-775

(755 SE2d 796) (2014).

2
In other words, “[t]his [C]ourt reviews a trial court’s ruling on a motion to dismiss de

novo, viewing as true all well-pleaded material allegations in the complaint.”3

So construed, the allegations in the complaint stated that the plaintiffs are

judgment creditors of Liberty.Before the plaintiffs obtained their judgment, Liberty’s

sole owner, Leventhal, took steps to transfer Liberty’s assets away from that entity

and into Fulcrum, another entity that he owned and controlled. Leventhal did so with

the purpose of defeating Liberty’s creditors, including the plaintiffs. 

To that end, Leventhal had Liberty file a complaint in the Superior Court of

Fulton County against HI, another entity that he owned and controlled. Leventhal

verified that complaint, which contained material allegations that were untrue, and

concealed the fact that he owned and controlled both the plaintiff and defendant

entities. Among other things, Liberty’s complaint alleged that HI was in default on

notes in favor of Liberty, was likely to refuse to pay rents to Liberty, and was likely

to waste Liberty’s collateral on the notes, real property in which Liberty had a secured

interest. 

3 Villa Sonoma at Perimeter Summit Condo. Assn. v. Commercial Indus. Bldg.

Owners Alliance, 349 Ga. App. 666, 667 (1) (824 SE2d 738) (2019).

3
Liberty convinced the Fulton County court to appoint a receiver, which

Leventhal or his representatives selected and engaged. Leventhal or his

representatives also served as the receiver’s sole source of information and provided

the receiver with untrue information about HI’s alleged default and likely wasting of

Liberty’s collateral. To satisfy HI’s debt to Liberty, the receiver authorized a

foreclosure and sale of the collateral, which was sold to Fulcrum for $50,000, a

“fraction of its worth” and an amountsignificantly lessthan the amount Liberty owed

to the plaintiffs pursuant to their judgment against Liberty. Liberty and HI obtained

a consent judgment from the Fulton County court approving this transfer. 

The plaintiffs filed the instant case against Liberty, HI, Fulcrum, and

Leventhal, seeking the following relief: setting aside the consent judgment;

fraudulent/voidable transfer; constructive trust/attachment; piercing the corporate

veil; and bad faith. The defendants moved to dismiss the complaint in its entirety on

multiple grounds, including that it was untimely and failed to state a claim, and the

trial court granted the motion. This appeal followed.

1. Challenge to the consent judgment. The plaintiffs allege that the trial court

erred by dismissing their challenge to the prior consent judgment. We agree.

4
The plaintiffs sought to set aside the prior consent judgment under OCGA § 9-

11-60 and to attack the judgment as the result of the defendants’ fraud and collusion

under OCGA § 9-12-17. Their challenge under OCGA § 9-11-60 is without merit.

They cannot proceed under OCGA § 9-11-60 (a) because their challenge to the

judgment, as they have alleged it in their complaint, was not a defect that would have

“appear[ed] on the face of the record or pleadings.”4 They cannot proceed under

OCGA § 9-11-60 (b) because thatsubdivision concerns only motions for new trial or

to set aside, not complaints asserting the challenge as a cause of action. “A third

person not a party to the record cannot go into a court and move to set aside a

judgment which is not against him” under this Code section.

5

Thus, while the trial court properly analyzed the motion under OCGA § 9-11-

60, it erred by dismissing the plaintiffs’ challenge to the consent judgment under

OCGA § 9-12-17, which permits “[c]reditors or bona fide purchasers [to] attack a

judgment . . . for fraud or collusion, whenever and wherever it interferes with their

4

(Citation omitted.) Lawing v. Erwin, 251 Ga. 134, 135 (303 SE2d 444)

(1983). 

5

(Citations and punctuation omitted.) Peek v. Southern Guar. Ins. Co., 142 Ga.

App. 671, 672 (1) (236 SE2d 767) (1977), rev’d on other grounds, Peek v. Southern

Guar. Inc. Co., 240 Ga. 498, 499-500 (1) (241 SE2d 210) (1978).

5
rights, either at law or in equity.”6 We find meritless the defendants’ argument that

the procedures in OCGA § 9-11-60 of the Civil Practice Act superseded those in

OCGA § 9-12-17. Although OCGA § 9-11-60 (a) provides that “[i]n all . . . instances

[other than when a judgment is void on its face], judgments shall be subject to an

attack only by a direct proceeding brought for that purpose in one of the methods

6 We note that in their complaint, the plaintiffs sought to set aside the consent

judgment based solely on OCGA § 9-11-60, without citation to OCGA § 9-12-17, a

fact that complicated the trial court’s analysis when deciding the motion to dismiss.

The plaintiffs did, however, assert OCGA § 9-12-17 in response to the motion to

dismiss. And more importantly, they allege in the complaint that Leventhal, Liberty,

and HI employed “fraud, deception, and collusion” to convince the Fulton county

court to execute the consent judgment, and they list ten “direct and false

representations made by Leventhal under oath” in pleadings to that court. 

[T]he Georgia Civil Practice Act requires only notice pleading and,

under the Act, pleadings are to be construed liberally and reasonably to

achieve substantial justice consistent with the statutory requirements of

the Act. Thus, a motion to dismiss for failure to state a claim should not

be granted unlessthe allegations of the complaint disclose with certainty

that the claimant would not be entitled to relief under any state of

provable facts asserted in support thereof. Put another way, if, within the

framework of the complaint, evidence may be introduced which will

sustain a grant of relief to the plaintiff, the complaint is sufficient.

(Punctuation omitted.) Campbell v. Ailion, 338 Ga. App. 382, 384-385 (790 SE2d 68)

(2016). Here, because the allegations of the complaint gave the defendantsfair notice

that the plaintiffs sought to set aside the consent judgment based on fraud and

collusion, their failure to specifically cite OCGA § 9-12-17 is not fatal to their claim.

See id.

6
provided in [OCGA § 9-11-60],” Georgia courts have recognized OCGA § 9-12-17

as a “statutory exception” to this provision.

7 And when our General Assembly chose

to re-codify OCGA § 9-12-17 in 1983, it did so in light of both the set-aside

procedures of what is now codified as OCGA § 9-11-60 and the Georgia decisions

recognizing the statutory exception to those procedures. The General Assembly is

presumed to have had full knowledge of thisinterpretation when itre-codified OCGA

§ 9-12-17.

8

“At this time, it cannot be said that the allegations of the complaint disclose

with certainty that [the plaintiffs] would not be entitled to [the] relief [described in

OCGA § 9-12-17] under any state of provable facts asserted in support.”9 To the

contrary, the plaintiffs alleged that the defendants worked together to mislead both

7 See Wasden v. Rusco Indus., 233 Ga. 439, 444 (2) (211 SE2d 733) (1975)

(including predecessor to OCGA § 9-12-17 as one of the “statutory exceptions” to

procedures of predecessor to OCGA § 9-11-60), overruled in part on another ground

by Murphy v. Murphy, 263 Ga. 280, 283 (430 SE2d 749) (1993); Albitus v. Farmers

& Merchants Bank, 159 Ga. App. 406, 409 (2) (283 SE2d 632) (1981) (same). 

8 See generally First Nat. Bank of Atlanta v. Sinkler, 170 Ga. App. 668, 670 (1)

(317 SE2d 897) (1984) (“it is well settled in this jurisdiction that all statutes are

presumed to be enacted by the legislature with full knowledge of the existing

condition of the law and with reference to it”) (citations and punctuation omitted).

9

 (Emphasis in original.) Austin, 294 Ga. 775. 

7
the Fulton County court and the receiver appointed by that court in order to obtain a

transfer of real property (in which Liberty possessed a secured interest) to Fulcrum

at a fraction of its value so that those assets could not be used to satisfy Liberty’s

obligations to its creditors. Whether the plaintiffs ultimately will be able to prove

their allegationsis notrelevant at thisstage in the proceedings. Any “factual evidence

[on that point] which may or may not be developed during discovery . . . can be

considered on a subsequent motion for summary judgment.”10 Therefore, the trial

court erred in dismissing this claim.

2. Claim for fraudulent transfer. The plaintiffs also argue that the trial court

erred by dismissing their claim for fraudulent transfer. We agree.

The plaintiffs seek to void the transfer of assets to Fulcrum pursuant to OCGA

§ 18-2-70 et. seq. The version of that statute in effect at the time of the 2013 transfer

permits a creditor to bring an action for relief against a fraudulent transfer, OCGA §

18-2-77 (a) (2013), and it provides, among other things, that “[a] transfer made . . .

by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or

after the transfer was made or the obligation was incurred, if the debtor made the

10

 Id.

8
transfer or incurred the obligation . . . [w]ith actual intent to hinder, delay, or defraud

any creditor of the debtor[.]”

11

As we concluded with regard to the plaintiffs’ challenge to the consent

judgment, “[a]t this time, it cannot be said that the allegations of the complaint

disclose with certainty that [the plaintiffs] would not be entitled to [the] relief

[provided for in OCGA § 18-2-70 et seq. (2013)] under any state of provable facts

asserted in support.”

12 The complaint alleged that the plaintiffs are creditors with

claims against Liberty.

13 And the complaint alleged that, with intent to defraud its

creditors, Liberty took steps to have the real property in which it held security

interests transferred to Fulcrum through the bankruptcy sale. The statute broadly

defines “transfers” to include “every mode, direct or indirect, absolute or conditional,

11

 OCGA § 18-2-74 (a) (1) (2013).

12

 (Emphasis in original.) Austin, 294 Ga. at 775.

13 See OCGA § 18-2-71 (3) (2013) (defining “claim” to be “a right to payment,

whether or not the right is reduced to judgment, liquidated, unliquidated, fixed,

contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or

unsecured”); OCGA § 18-2-71 (4) (2013) (defining “creditor” to be “a person who

has a claim”). 

9
voluntary or involuntary, of disposing of or parting with an asset or an interest in an

asset. . . .”14

Given the breadth of these definitions, we are not persuaded by the defendants’

argument that the plaintiffslack standing because the foreclosure sale did not transfer

assets of their debtor, Liberty. We are also unpersuaded by their argument that

Liberty’s security interest in the real property, as described in the complaint

allegations, is excluded from the statute’s definition of “asset.”

15

It issimply too soon

in this case to conclude, as a matter of law, that the plaintiffs cannot present evidence

satisfying these statutory elements. Finally, we find meritless the defendants’

argument that the statute of limitation has expired on this claim. The complaint

alleges the fraudulent transfer to be the bankruptcy sale to Fulcrum, which occurred

on October 1, 2013.

16 The plaintiffs filed their complaint on September 22, 2017,

within the four-year limitation period set forth in OCGA § 18-2-79 (1) (2013).

14

 OCGA § 18-2-71 (12) (2013).

15 See OCGA § 18-2-71 (2) (2013) (“‘Asset’ means property of a debtor, but

the term does not include: (A) Property to the extent it is encumbered by a valid lien;

(B) Property to the extent it is generally exempt under nonbankruptcy law; or (C) An

interest in property held in tenancy by the entireties to the extent it is not subject to

process by a creditor holding a claim against only one tenant.”). 

16

 See OCGA § 18-2-76 (1) (A) (2013) (stating when transfer is made). 

10
Accordingly, the trial court erred by dismissing the plaintiffs’ claim for

fraudulent transfer.

4. Claimfor constructive trust. The plaintiffsfurther contend that the trial court

erred by dismissing their claim for a constructive trust. Again, we agree. 

The plaintiffs allege that pursuant to OCGA § 53-12-132, they have a

constructive trust on the assets transferred to Fulcrum. That Code section provides

that “[a] constructive trust is implied whenever the circumstances are such that the

person holding legal title to property, either fromfraud or otherwise, cannot enjoy the

beneficial interest in the property without violating some established principle of

equity.”17

It arises “by equity with respect to property acquired by fraud, or although

acquired without fraud where it is against equity that the property should be retained

by the one who holds it.”18It is true “that a claim for the imposition of a constructive

trust is not an independent cause of action. In this case, however, [the plaintiffs] have

sufficiently alleged a supporting cause of action[, the fraud discussed above].”19

17

 OCGA § 53-12-132 (a). 

18 Aetna Life Ins. Co. v. Weekes, 241 Ga. 169, 172 (1) (244 SE2d 46) (1978)

(construing predecessor statute). 

19 Morrison v. Morrison, 284 Ga. 112, 113 (1) (663 SE2d 714) (2008). 

11
Because evidence could show within the framework of the complaint that would

permit the imposition of a constructive trust over assets transferred to Fulcrum, the

trial court erred by dismissing this claim.

5. Claim for piercing the corporate veil. The trial court also erred by

dismissing the plaintiffs’ claim that the corporate veil between Leventhal and the

defendant entities was pierced. 

“Under the alter ego doctrine in Georgia, the corporate entity may be

disregarded for liability purposes when it is shown that the corporate form has been

abused.”20In their complaint, the plaintiffs alleged facts that, taken as true, show that

Leventhal abused the corporate form of the defendant entities: that he disregarded

corporate formalities; intermingled corporate and personal funds, staff, and property;

undercapitalized the entitiesto avoid creditors; used corporate fundsto pay individual

obligations; and siphoned off corporate funds for himself, his family, and other

entities he controls. While the defendants

are correct that to the extent [the plaintiffs] seek to reach the assets of

[the defendant entities] for any judgment debt personally incurred by

[Leventhal] under the theory of outsider reverse veil-piercing, such a

20 Baillie Lumber Co. v. Thompson, 279 Ga. 288, 289 (1) (612 SE2d 296)

(2005). 

12
claim is foreclosed by Georgia law. However, construed in the light

most favorable to [the plaintiffs] with all doubts resolved in their favor,

[their] complaint state[s] a claim for holding [Leventhal] liable for any

judgment debt incurred by [the defendant entities] under a veil-piercing

theory[.]21

Thus, the trial court erred by dismissing this claim.

6. Bad faith. Finally, the trial court erred by dismissing the plaintiffs’ claim for

attorney fees and expenses under OCGA § 13-6-11.

In support of this claim, the plaintiffs alleged that the defendants have acted in

bad faith, been stubbornly litigious, and caused unnecessary trouble and expense.

These allegations are sufficient to state a claim under OCGA § 13-6-11.

22

Accordingly, the trial court erred by dismissing this claim.

Judgment reversed. McFadden, C. J., and Coomer, J., concur.

21

(Citations omitted.) See TMX Finance, LLC v. Goldsmith, 352 Ga. App. 190,

211 (6) (833 SE2d 317) (2019). 

22

 See Siavage v. Gandy, 350 Ga. App. 562, 567 (3) (829 SE2d 787) (2019).

13