UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1234

JOSEPH LAROSA; DOMINICK LAROSA,

Plaintiffs - Appellants,

v.

VIRGIL D. LAROSA; SANDRA LAROSA,

Defendants – Appellees,

and

ANDREA PECORA, a/k/a Andrea Fucillo; JENNIFER LAROSA WARD; 

CHRIS WARD; CHEYENNE SALES COMPANY, INCORPORATED,

Defendants,

JOAN LAROSA, individually and as the Executrix of the Estate 

of Virgil B. LaRosa,

Party-in-Interest.

No. 11-1306

JOSEPH LAROSA; DOMINICK LAROSA,

Plaintiffs - Appellees,

v.

VIRGIL D. LAROSA; SANDRA LAROSA,

Defendants – Appellants,

and
2

CHEYENNE SALES COMPANY, INCORPORATED; ANDREA PECORA, a/k/a 

Andrea Fucillo; JENNIFER LAROSA WARD; CHRIS WARD,

Defendants,

JOAN LAROSA, individually and as the Executrix of the Estate 

of Virgil B. LaRosa,

Party-in-Interest.

Appeals from the United States District Court for the Northern 

District of West Virginia, at Clarksburg. Frederick P. Stamp, 

Jr., Senior District Judge. (1:07-cv-00078-FPS-JSK)

Argued: March 21, 2012 Decided: April 30, 2012

Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.

Reversed, vacated, and remanded by unpublished opinion. 

Judge Gregory wrote the opinion, in which Judge Floyd joined. 

Judge Niemeyer wrote a dissenting opinion.

ARGUED: David Bruce Salzman, CAMPBELL & LEVINE, LLC, Pittsburgh, 

Pennsylvania, for Joseph LaRosa and Dominick LaRosa. James 

Strother Crockett, Jr., SPILMAN, THOMAS & BATTLE, PLLC, 

Charleston, West Virginia, for Virgil D. LaRosa and Sandra 

LaRosa. ON BRIEF: Mark S. Frank, Frederick D. Rapone, Jr., Erik 

Sobkiewicz, CAMPBELL & LEVINE, LLC, Pittsburgh, Pennsylvania, 

for Joseph LaRosa and Dominick LaRosa. Matthew P. Heiskell, 

SPILMAN, THOMAS & BATTLE, PLLC, Morgantown, West Virginia, for 

Virgil D. LaRosa and Sandra LaRosa.

Unpublished opinions are not binding precedent in this circuit.
3

GREGORY, Circuit Judge:

On appeal and cross-appeal from the district court’s 

judgment, we address two issues. First, whether the plaintiffs’ 

West Virginia Uniform Fraudulent Transfer Act (“WVUFTA”) claim 

based on a corporation’s drawdown on its line of credit and 

purchase of annuities was time-barred. Second, whether the 

district court’s denial of the plaintiffs’ Rule 59(e) motion to 

increase the damage award was an abuse of discretion. As to the 

first issue, we reverse the district court’s determination that 

the WVUFTA claim was not time-barred. Regarding the second 

issue, we vacate the district court’s denial of the plaintiffs’ 

Rule 59(e) motion, and we remand this case to the district court 

for further proceedings consistent with this opinion.

I.

This case has an extensive history. Because in an 

unpublished opinion we write for only the parties, we set forth 

the facts only as necessary to treat the issues in this appeal.

Brothers Joseph LaRosa and Dominick LaRosa (the 

“Creditors”), made a loan in 1982 to their cousin Virgil B. 

LaRosa and his wife Joan LaRosa (the “Debtors”) for $800,000. 

Debtor Virgil B. was the sole shareholder of defendant Cheyenne 

Sales Company, Incorporated (“Cheyenne”) until his death in 

2006, at which time Debtor Joan LaRosa became the sole owner of 
4

Cheyenne, which is not a party here. The Debtors never made a 

payment on the loan, and on November 3, 1994, the Creditors

obtained a judgment against them for $2,844,612.87 plus $10,000 

in attorneys’ fees.

On November 19, 2003, the Debtors filed for a Chapter 

11 bankruptcy. Three reorganization plans filed by the Debtors 

in their bankruptcy proceedings proposed that Cheyenne’s 

operations would allow the Debtors’ estate to make payments of 

$7,000 per month for 60 months to repay the Debtors’ obligation 

to the Creditors. As far as this Court is aware, none of the 

plans were confirmed, and the bankruptcy case was converted to a 

Chapter 7 bankruptcy.

After a series of disputes about the finality of the 

Creditors’ judgment against the Debtors, settled by this Court’s 

per curiam opinion LaRosa v. LaRosa, 108 F. App’x 113 (4th Cir.

2004), the Creditors tried to collect on the judgment by 

indexing it in counties in West Virginia where the Debtors owned 

real property.

Around that time, however, the Debtors initiated a 

series of transactions that fraudulently put their assets beyond 

the reach of the Creditors. Debtors used Cheyenne to funnel 

some of their assets toward Virgil D. LaRosa and Sandra LaRosa 

(the “Transferees”). Transferee Virgil D. is the son of the 

Debtors and the sole shareholder of Regal Coal Company, Inc. 
5

(“Regal”), though the company is not a party to this litigation

because the claims against it have been severed due to a 

bankruptcy stay.

The Creditors sued the Transferees in the Northern 

District of West Virginia on June 12, 2007, to recover the 

alleged fraudulently transferred assets. After extensive 

discovery, a bench trial occurred in mid-2009. The parties 

filed proposed findings of law and fact and written closing 

arguments. At that time, the Creditors settled with the nonparty defendants, and the parties filed supplemental proposed 

findings of fact and law.

On September 15, 2010, the district court issued its 

memorandum opinion, finding that the Transferees engaged in a 

series of intentionally fraudulent transfers designed to hinder, 

delay, and defraud the Creditors’ efforts to collect on their 

judgment against the Debtors -- violations of the WVUFTA. The 

district court found that “Cheyenne [was] operated as a conduit 

through which a portion of debtor’s wealth is passed on its way 

to defendants or others.” J.A. 3669. There were three types of 

transfers alleged to be violations of the WVUFTA, and the 

district court found all three types were indeed violations. 

The court ordered judgment against the Transferees for 

$1,191,609 but attached the Transferees’ property worth 
6

$6,799,161.42. The amount of the attachment was the amount owed 

to the Creditors by the Debtors after including interest.

The judgment in the amount of $1,191,609 is based on 

two categories of transfers. The first of these is based on a 

$491,609 transfer from Virgil B. LaRosa to Cheyenne, which

eventually found its way to the Transferees. Virgil B. LaRosa’s 

transfer occurred a few weeks after the Creditors began to 

execute judgment against the Debtors. This transfer is not 

disputed on appeal. The second transfer was Cheyenne’s purchase 

of annuities, the accounts of which were used for the benefit of 

Virgil D. LaRosa and Regal, using $700,000 obtained from 

Cheyenne’s line of credit that encumbered Debtors’ securities. 

These transfers total the judgment awarded: $1,191,609.

The district court also found that the third category 

of transfers -- a series of business dealings between Cheyenne 

and Regal -- likewise constituted violations of the WVUFTA. The 

district court did not award an increased judgment consistent 

with that finding. This failure to assign a value to the 

Cheyenne-Regal transfers forms the basis of the Creditors’

appeal.

Both parties filed Rule 59(e) motions. The Creditors

requested a judgment worth $6,799,161.42, and the Transferees

requested a reduction of the attachment to the amount of the 

judgment -- $1,191,609. The court agreed with the Transferees
7

and reduced the amount of the attachment accordingly. The 

instant appeal and cross-appeal followed.

II.

The Transferees’ contention on cross-appeal is that 

there can be no liability stemming from Cheyenne’s annuities 

purchase based on Cheyenne’s $700,000 drawdown of its credit 

line. They argue that because Virgil B. LaRosa’s pledge of 

securities that served as guaranty of the line of credit 

occurred more than four years before the Creditors filed the 

instant action, the claim is time-barred by the WVUFTA. We 

review de novo the construction and application of the statute 

of repose. See Higgins v. E.I. DuPont de Nemours & Co., 863 

F.2d 1162, 1167 (4th Cir. 1988). Because the language and 

history of the statute of repose make clear that it runs from 

the date of the security pledge, we reverse the district court 

and hold that the Creditors’ WVUFTA claim on the line of credit

was time-barred.

On January 25, 2001, Cheyenne entered into a Loan 

Agreement with Huntington National Bank (the “Bank”), that 

permitted Cheyenne to borrow up to $950,000 on a line of credit. 

Debtor Virgil B. LaRosa pledged a series of securities to secure 

the line of credit. On June 26, 2003, Transferee Virgil D. 

LaRosa drew down $700,000 under Cheyenne’s line of credit with 
8

the Bank. With this money Cheyenne purchased over a million 

dollars in annuities, which were owned and controlled by 

Cheyenne but whose accounts were used to transfer money to 

Virgil D. LaRosa and Regal. The transfers were made according 

to a sham land renewal lease. The district court found the 

scheme to be fraudulent under the WVUFTA and awarded the 

Creditors $700,000 on this claim.

The Transferees argue that the statute of repose had 

passed on this transaction. Crucial to the argument is the 

interpretation of W. VA. CODE § 40-1A-6(d), which provides:

A transfer is not made until the debtor has acquired 

rights in the asset transferred and an obligation is 

incurred. If the obligation is oral, a transfer is 

made when the obligation becomes effective. If the 

obligation is evidenced by a writing, the obligation 

becomes effective when the writing is delivered to or 

for the benefit of the obligee.

The Transferees argue that while the drawdown occurred 

in 2003, the written security agreements that established the 

collateral pledge were delivered to the Bank on January 30, 

2001. The WVUFTA’s statute of repose should therefore run from 

the January 30, 2001 date. Because the Creditors filed their 

action in 2007, the Transferees argue, the statute of repose

period had passed. See W. VA. CODE § 40-1A-9(a), (b) 

(establishing a four-year statute of limitations period for 

violations of W. VA. CODE §§ 40-1A-4(a)(1)-(2), 40-1A-5). 

Creditors respond that the statute of repose did not begin until 
9

the securities were actually encumbered by a drawdown on the 

credit line, which occurred at the time of the $700,000 drawdown

in 2003.

We agree with the the Transferees. According to the 

WVUFTA, the securities were encumbered at the time they were 

pledged as collateral for the line of credit because the written

credit-facility agreement created a security interest held by 

the Bank on the pledged securities. See W. VA. CODE § 40-1A6(a)(1) (defining a “transfer” as occurring for real property 

“when the transfer is so far perfected that a good-faith 

purchaser of the asset from the debtor against whom applicable 

law permits the transfer to be perfected cannot acquire an 

interest in the asset that is superior to the interest of the 

transferee”); W. VA. CODE § 40-1A-6(a)(2) (defining a “transfer” 

as occurring for other assets “when the transfer is so far 

perfected that a creditor on a simple contract cannot acquire a 

judicial lien otherwise than under this article that is superior 

to the interest of the transferee”).

As the West Virginia Code states, “A transfer is not 

made until the debtor has acquired rights in the asset 

transferred and an obligation is incurred.” W. VA. CODE § 40-1A6(d). Cheyenne’s obligation is contained in the promissory 

note. At the time the note was created, Cheyenne incurred the 

obligation to pay back, at whatever time the Bank should demand 
10

it, the full value of the Note outstanding at the time of the 

demand, and in return, Cheyenne received the benefit of being 

able to obtain advances on the $950,000 at will. The line of 

credit extended to Cheyenne was a revolving credit line; under 

the terms of the promissory note, Cheyenne could request 

advances without further due diligence by the Bank. J.A. 2270 

(promissory note). “If the obligation is evidenced by a 

writing” -- here, the writing is the promissory note -- “the 

obligation becomes effective when the writing is delivered to or

for the benefit of the obligee,” and the note was delivered in 

2001. W. VA. CODE § 40-1A-6(d). No other party could “on a 

simple contract . . . acquire a judicial lien . . . that is 

superior to the interest of the transferee.” W. VA. CODE § 40-1A6(a)(2). The security interests held by the Bank were perfected 

and attached at the time the credit-facility agreement was

signed because value had been given by the Bank: the Bank was 

now required to make advances at the request of the Debtors on 

the full $950,000 value of the note. See W. VA. CODE § 46-9-

203(a)(1) (stating that attachment of the security interest

occurs when “value has been given” by the security holder). 

Furthermore, the West Virginia codification of the Uniform 

Commercial Code (“WVUCC”) specifically provides that a person 

gives “value” for rights when he acquires the rights “[i]n 

return for a binding commitment to extend credit or for the 
11

extension of immediately available credit, whether or not drawn 

upon.” W. VA. CODE § 46-1-204(1). The note and security pledges 

are indisputably transfers under the WVUFTA.

Because the original commitment made by the Bank to 

Cheyenne contained in the promissory note constitutes the 

transfer of the full value -- Cheyenne thereafter had a right 

under the agreement to $950,000 -- the subsequent advances are 

not transfers within the meaning of the WVUCC and the WVUFTA. 

Furthermore, because “asset” does not include “[p]roperty to the 

extent it is encumbered by a valid lien,” W. VA. CODE § 40-1A1(b)(1), the text of the WVUFTA does not support the argument 

that the transfer is the movement of value from the encumbered 

security to Cheyenne upon each advance. Thus, the assets were 

transferred for purposes of the WVUFTA only on January 30, 2001, 

the date the credit agreement was signed and the security 

interests were perfected and attached; the advances themselves 

did not constitute transfers under the WVUFTA. See Steven L. 

Schwarcz, The Impact of Fraudulent Conveyance Law on Future 

Advances Supported by Upstream Guaranties and Security 

Interests, 9 CARDOZO L. REV. 729, 740 (1987) (arguing that a future 

advance made pursuant to a committed loan agreement does not 

constitute a transfer of value under the Uniform Fraudulent 

Transfer Act, the Uniform Commercial Code, or the federal 
12

bankruptcy code’s fraudulent transfer prohibition, 11 U.S.C. 

§ 548).

The conclusion that the credit agreement constituted 

the only transfer with respect to the credit line for WVUFTA 

purposes is bolstered by the comments to the Uniform Fraudulent 

Transfer Act’s (“UFTA”) 1984 amendments. Prior to 1984, the 

UFTA’s predecessor statute said, “A transfer is not made until 

the debtor has acquired rights in the asset transferred and an 

obligation is incurred.” The statute was amended in 1984 to add 

§ 6(5), which says, “If the obligation is oral, a transfer is 

made when the obligation becomes effective. If the obligation 

is evidenced by a writing, the obligation becomes effective when 

the writing is delivered to or for the benefit of the obligee.” 

Uniform Fraudulent Transfer Act § 6(5) (1985). The current West 

Virginia Code includes the 1984 amendments. W. VA. CODE § 40-1A6(d) (2010).

Reading the comments to the UFTA, one learns that 

§ 6(5) was added to “resolve the uncertainty arising from Rubin 

v. Manufacturers Hanover Trust Co., 661 F.2d 979, 989-91 (2d 

Cir. 1981), insofar as that case holds that an obligation of 

guaranty may be deemed to be incurred when advances covered by 

the guaranty are made rather than when the guaranty first became 

effective between the parties.” Uniform Fraudulent Transfer Act

§ 6, cmt. 3 (1985). The amendment drafters likely considered 
13

the significant costs that inure to loan creditors who, under 

the Rubin model, would be responsible for doing due diligence or 

seeking professional opinions every time a drawdown on a 

revolving credit facility occurred, which is precisely the sort 

of extra diligence that revolving facilities are meant to 

bypass. The UFTA makes “the relevant time for testing the 

transfer . . . the outset of the transaction when the writings 

are delivered,” and thereby “assure[s] that with respect to 

guarantors, a separate fraudulent conveyance analysis will not 

be made each time an advance is made to the principal debtor --

which could be over a period of months or years -- but only at 

the time the guaranty is signed.” 1-3 COLLIER LENDING INSTITUTIONS &

THE BANKRUPTCY CODE ¶ 3.06 (2011). See Schwarcz, supra, at 740 

(noting that Rubin would essentially force banks to “obtain, as 

a condition to making each future advance, the same 

representations and warranties as to the subsidiary’s financial 

condition . . . as was obtained at the time the loan facility 

was originally extended. . . . A lender could gain additional 

comfort by performing the same level of due diligence regarding 

these financial tests as was made originally”).1

 These opinions 

 1 There is a strong argument that Rubin itself does not 

stand for the principle that drawdowns on credit facilities 

always create new obligations. The credit facility in Rubin did 

not allow for advances at the sole insistence of the borrower; 

the creditor decided each time an advance was requested whether 

(Continued)
14

and investigations cost lenders money and therefore increase the 

cost of credit by an amount incommensurate with the benefit of 

protecting potential defrauded plaintiffs -- that was the 

judgment of the drafters of the UFTA amendment. The four-year 

repose period is best understood as balancing the potential 

injuries to banks and defrauded creditors. Within four years of 

the establishment of the credit line, banks bear the burden of 

fraudulent conveyance; the guaranty to the bank could be set 

aside if made with fraudulent intent or for less than equivalent 

value. Afterwards, plaintiffs bear the risk. Of course, even 

in the latter case, there is no windfall for the debtor because 

the bank still has its security interest in the debtor’s 

property.2

We reverse the judgment of the district court on this 

issue and hold that because the Creditors did not file their 

claim within four years of the establishment of the line of 

 

to extend the advance, and therefore the creditor had the 

ability to analyze the risk that the borrower was skirting legal 

obligations to pay. See Schwarcz, supra, at 733-36.

2 This admittedly becomes more complicated in the case of 

preferential payment of creditors’ claims in which the debtor 

receives an indirect benefit when some claims are paid before 

others.
15

credit, their claim was barred by the WVUFTA’s statute of 

repose.3

III.

The Creditors argued below that the Debtors and 

Transferees instituted a scheme that channeled assets from

Cheyenne to Regal through a series of transfers for which 

Cheyenne received little value from Regal in exchange for assets 

of significant value. The district court found that the 

transfers violated the WVUFTA but did not assign a value to the 

transfers fraudulently made and did not award the Creditors a 

remedy on this issue. The parties filed cross Rule 59(e) 

motions, and the court granted the Transferees’ motion to lower 

 3 Although not raised by the parties, we decline to affirm 

on the alternative grounds -- that the transfer occurred when 

Cheyenne purchased the annuities -- because to do so would 

violate the purpose of statutes of repose: to provide a strict 

maximum time limit for causes of action. Certainly, we may 

collapse “a series of transactions and treat[] them as a single 

integrated transaction.” In re Sunbeam Corp., 284 B.R. 355, 370 

(Bankr. S.D.N.Y. 2002). But we do not think it appropriate in 

this case to use the collapse doctrine to count the dates of the 

withdrawals from the annuity accounts, or some other CheyenneTransferee transfer date, as the start of the statute of repose 

for the challenged series of transactions. See Mills v. Everest 

Reinsurance Co., 410 F. Supp. 2d 243, 255 (S.D.N.Y. 2006)

(rejecting the use of the collapse doctrine for statute of 

limitations purposes in the fraudulent conveyance context). 

Quite simply, Cheyenne is not a debtor to the Creditors; even a 

fraudulent transfer by Cheyenne to another party would not start 

the clock under the WVUFTA. The clock must start with a 

transfer from the covered parties, the Debtors.
16

the amount of the attachment and denied the Creditors’ motion to 

increase the amount of the judgment. The Creditors appeal the 

denial of the Rule 59(e) motion. We review for abuse of 

discretion. Collison v. International Chem. Workers Union, 34 

F.3d 233, 236 (4th Cir. 1994).

We vacate and remand the district court’s denial of 

the Rule 59(e) motion for two reasons. First, we hold that it 

was an abuse of discretion for the district court to find the 

transfers violated the WVUFTA but refuse to assign an award to 

the Creditors in the amount fraudulently transferred. We remand 

so that the district court may engage in further fact-finding to 

determine the amount of the award owed to the Creditors. 

Second, assuming the district court maintains its finding that 

the Cheyenne-Regal transfers violated the WVUFTA, we remand in 

order for the district court to make specific findings as to 

which property of the Debtors was transferred that brought the 

Cheyenne–Regal transactions within the reach of the WVUFTA.

Rule 59(e) is used, as relevant here, to correct a 

clear error of law or prevent manifest injustice. Pacific Ins. 

Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 

1998). The judgment awarded by the court totaled $1,191,609, 

“which is based upon the aggregate value of the cash infusion of 

$461,609.00 and the draw down of $700,000.00.” J.A. 3681. The 

court did not include a figure for the Cheyenne–Regal transfers
17

despite having found that the transfers violated the WVUFTA. 

This discrepancy was raised by the Creditors in their Rule 59(e)

motion, but the court did not give a clear statement as to why 

it did not award damages for this claim. The court apparently 

was under the impression that it did not need to resolve the 

dispute between the parties’ experts as to the value of 

fraudulently transferred assets between Cheyenne and Regal.4

 See

J.A. 3649 (“For the purposes of a complete ruling in this civil 

action, this Court does not believe that it is necessary to 

resolve this disputed testimony.”).

We agree with the Creditors. Given that the district 

court found a violation of the WVUFTA, that the amount of the 

outstanding judgment against the Debtors is greater than the 

amount awarded to the Creditors in the decision below, and that 

the Creditors asked for damages against the Transferees in the 

amount of the judgment against the Debtors, the district court 

needed to resolve the factual discrepancy as to the value of the 

 4 It is possible that the district court believed that it 

need not reach the issue because it thought it gave the 

Creditors everything that they had asked for when it awarded a 

judgment of $1,191,609.00. Although the Creditors admittedly 

omitted the larger amount in its supplemental findings of fact 

and law, they sought the larger amount in their initial findings 

of fact and law. It is clear that they recognized that the 

district court could rule against them on some of the issues and 

award a lesser amount, so they asked for alternative judgments. 

The Creditors’ poor draftsmanship should not prevent the factual 

resolution needed to determine the amount of the award to which 

they are entitled in accordance with the law.
18

fraudulently transferred assets between Cheyenne and Regal. It 

was an abuse of discretion for the district court to not give a 

reason why it chose one damages award over another. To simply 

state that the Creditors asked for this award does not suffice 

given that the Creditors also requested a larger amount in their

proposed findings. It would be a “manifest injustice” to allow 

the ruling to stand given the district court’s findings that the 

Cheyenne-Regal transactions violated the WVUFTA and the lack of 

a corresponding remedy.

We also remand so that the district court can make 

specific findings as to what asset of the Debtors was 

transferred in conjunction with the Cheyenne–Regal transfers.

The district court said that it “has examined the transactions 

between Cheyenne and Regal and regards these transactions as a 

transfer of assets away from the debtors. Cheyenne was operated 

to avoid the accrual or distributions of substantial profits and 

other entitlements which could have been made available to [the 

Debtors].” The court went on to say

The transactions between Cheyenne and Regal, whether 

or not ‘collapsed,’ must be viewed as a transfer of 

wealth away from the debtors because Cheyenne was 

operated so as to avoid the accrual or distributions 

of substantial profits and other opportunities or 

entitlements to [the Debtors]. Debtors either 

directed or permitted their son, Virgil D. LaRosa, to 

operate their business and that of Regal, their son’s 

corporation, as essentially a single business 

enterprise to transfer business opportunities and 

profits from Cheyenne to Regal in such a way as to 
19

hinder, delay and defraud the [judgment-creditors].

. . . Debtors did not receive reasonable equivalent 

value in exchange for these profits and business 

opportunities from Cheyenne through Regal to Virgil 

David LaRosa and Sandra LaRosa.

J.A. 3678-69.

While the court certainly made findings with respect 

to the treatment of Cheyenne and Regal as a single entity, the 

court did not make a factual finding as to what was transferred 

away from the Debtors -- a necessary precondition of the WVUFTA. 

In other words, the WVUFTA does not prohibit the fraudulent 

transfer of assets from Cheyenne to Regal; it prohibits 

fraudulent transfers from the Debtors to others. See W. VA. CODE

§ 40-1A-1(b) (“‘Asset’ means property of a debtor.”); W. VA. CODE

§ 40-1A-1(b) (“‘Transfer’ means every mode, direct or indirect, 

absolute or conditional, voluntary or involuntary, of disposing 

of or parting with an asset or an interest in an asset, and 

includes payment of money, release, lease and creation of a lien 

or other encumbrance.”). And while the collapse doctrine can be 

used to show that seemingly innocuous transfers from a sole 

shareholder to his corporation were in fact part of a nefarious

scheme that defrauded the shareholder’s creditors, there must 

nevertheless be a transfer from the shareholder to the 

corporation of some asset.

The district court said that the Debtors “either 

directed or permitted their son, Virgil D. LaRosa, to operate 
20

their business and that of Regal, their son’s corporation, as 

essentially a single business enterprise to transfer business 

opportunities and profits from Cheyenne to Regal in such a way 

as to hinder, delay, and defraud the debtors’ creditors.” J.A. 

3678-79. So far the district court has not specified what asset 

of the Debtors was transferred that would enable the instant 

Creditors to have a cause of action under West Virginia law. In 

order to perform our function as an appellate court, we need to 

know what we are reviewing. On remand, the district court 

should make explicit what were the specific assets transferred 

away from the Debtors in violation of the WVUFTA.

We vacate and remand the district court’s denial of 

the Creditors’ Rule 59(e) motion for reconsideration of the 

motion consistent with this opinion. Assuming that the district 

court maintains its view that the Cheyenne–Regal transactions 

violated the WVUFTA, the court will have to resolve the 

significant factual dispute surrounding the amount fraudulently 

transferred through these transactions and specificy what asset 

of the Debtors was transferred in connection with the CheyenneRegal transactions that brought them within the purview of the 

WVUFTA. If the district court alters its judgment, it will

likely, of course, need to alter the amount of the attachment.

IV.
21

We reverse the district court on the statute of repose 

issue, vacate the court’s denial of the Creditors’ Rule 59(e) 

motion, and remand this case to the district court for further 

proceedings consistent with this opinion.

REVERSED, VACATED, AND REMANDED
22

NIEMEYER, Circuit Judge, dissenting:

I

In addressing West Virginia’s statute of repose, W.V. 

Code § 40-1A-9, the majority has, I respectfully suggest, 

focused on the wrong transaction and thus has applied the 

statute of repose in a manner that could bar causes of action 

for fraudulent transfers under West Virginia’s Uniform 

Fraudulent Transfers Act even before the fraudulent transfers 

had been made.

While it is true that Virgil B. LaRosa created a line 

of credit for Cheyenne Sales Company with its bank in 2001, 

pledging his stock to secure the line, the line of credit was 

like a bank account on which Cheyenne could in the future draw 

as needed. There is no suggestion in the record, or by counsel, 

that in creating this line of credit, LaRosa acted with any 

fraudulent intent or purpose. The line of credit was simply a 

standing source of funds on which Cheyenne could thereafter draw 

for any purpose, legitimate or illegitimate.

The fraudulent transfer at issue in this case took 

place in 2003 when LaRosa ordered the bank to pay Cheyenne 

$700,000 from its line of credit for the purpose of avoiding 

creditors’ efforts to seize his pledged stock. The effect of 

this payment to Cheyenne was a sale of the stock for $700,000 to 
23

place it beyond the reach of creditors. And it was this 2003 

transaction that the district court found was fraudulent, in 

violation of West Virginia’s Uniform Fraudulent Transfers Act, 

W. Va. Code § 40-1A-4(a), not the 2001 transaction that created 

the line of credit.

To find now that the limitations period for bringing a 

suit on the 2003 fraudulent transfer began before the cause of 

action accrued results in an absurdity, which we should not 

impute to the West Virginia legislature. More importantly, the 

language of the limitation provision does not support this 

construction. The statute provides in relevant part:

A cause of action with respect to a fraudulent 

transfer . . . under this article is extinguished 

unless action is brought . . . [u]nder [§ 40-1A-4(a)]

. . . within four years after the transfer was made.

W.V. Code § 40-1A-9(b) (emphasis added). By employing the 

definite article, the last clause, “within four years after the 

transfer was made,” refers back to the opening clause -- “[a] 

cause of action with respect to a fraudulent transfer.” West 

Virginia’s statute, therefore, does not extinguish fraudulent

transfer suits by reference to related, but nonfraudulent, 

transfers. Instead, like any sensible statute of repose, the 

provision only bars causes of action for fraudulent transfers 

that have accrued. Because the fraudulent transfer in this case 

took place in 2003, as the district court found, the subsequent 
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suit, filed within four years of that transfer to obtain relief 

from it, was therefore timely filed.

I respectfully conclude that the district court 

analyzed the statute of repose correctly and would therefore 

affirm its ruling on this issue.

II

In calculating the amount of relief, the majority has 

again focused, I respectfully submit, on the wrong transactions 

-- those between Cheyenne and a related corporation, Regal Coal 

Company, and between Regal and its principals. In doing so, the 

majority has lost sight of the fact that the only transactions 

that could be addressed for purposes of relief are those by 

which assets were transferred from Virgil B. LaRosa to others. 

See W.V. Code § 40-1A-1(b) (limiting the definition of 

“[a]sset[s]” covered by the statute to “property of a debtor”)

(emphasis added). LaRosa was the judgment debtor (along with 

his wife, Joan), and only transfers from him could be considered 

fraudulent with respect to the judgment creditors.

To be sure, the subsequent transfers from Cheyenne to 

Regal and from Regal to its principals are necessary links in 

the story, connecting the judgment debtor’s initial transfer to 

Cheyenne with the eventual receipt of assets by Regal’s 

principals. But no evaluation of those transactions would be 
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relevant to the amount of relief that could be granted, as the 

amount of relief would be limited by the amount of the transfers 

from LaRosa as the judgment debtor to others, which, as the 

district court found, was $1,191,609. Accordingly, I also 

conclude that the district court analyzed this issue correctly 

and therefore would affirm its judgment.

In short, I would affirm entirely the judgment of the 

district court.