1 CBS Records, Inc. subsequently became Sony Music Entertainment, Inc. United States Court of Appeals,

Fifth Circuit.

No. 94-60718.

BMG MUSIC; Sony Music Entertainment, Inc., Plaintiffs-Appellees,

v.

Hugo Adrian MARTINEZ; Martha Alicia Martinez, Defendants-Appellants.

Robbye R. Waldron, Trustee, Trustee-Appellee.

Feb. 6, 1996.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and WISDOM and STEWART, Circuit Judges.

WISDOM, Circuit Judge:

The defendants/appellants ask this Court to review the district court's award of sum m ary

judgment in favor of the plaintiffs/appellees. After a review of the record, we find that the appellants

did not produce fact s sufficient to create a genuine issue of material fact and, accordingly, we

AFFIRM.

I.

In August 1989, BMG Music and CBS Records, Inc., 1 the plaintiff/appellees, filed suit against

Musiofertas Cassettes (Musiofertas) for willful copyright infringement. Hugo Adrian Martinez

(Hugo), the defendant/appellant, and Julio Alvarez, his brother, were partners in this venture. BMG

and CBS personally served Hugo with a copy of the complaint on September 8, 1989. Ten days later,

on September 18, 1989, Hugo transferred five tracts of land, which are valued in excess of $800,000,

to his sister, Martha Alicia Martinez, the co-defendant/appellant, for no consideration. Hugo states

that he was never directly involved in the operati on of Musiofertas and relied on his brother's promise

to tend to the matter. Neither Hugo nor Julio, however, respo nded t o plaintiffs' complaint. On

October 31, 1990, thirteen months after having filed suit, the plaintiffs obtained a default judgment

against Hugo and Julio, as the partners of Musiofertas, in the amount of $450,000 for damages and2 Hugo and his father allegedly discussed this transfer with an attorney nine to ten months

before it occurred. They state that the delay between the meeting and the transfer stemmed from

the death of Hugo's brother.

3 Because the district court voided the transfer, Hugo regained title to the property in question.

Robbye Waldron, the bankruptcy trustee overseeing Hugo's estate, gained control over the

property. Waldron, after obtaining valid court orders, sold the property. The sale of the

property, however, does not moot the issue in this case because the proceeds from the sale have

not been distributed; thus, this Court's ruling effects the ownership of those proceeds but not the

title held by the bona fide purchasers of that property.

4 Dupre v. Chevron U.S.A., Inc., 20 F.3d 154, 156 (5th Cir.1994). $8,224 for attorney's fees.

On December 14, 1992, the plaint iffs filed a suit from which this appeal arises against Hugo

and Martha. The plaintiffs sought to void the September 18, 1989, property transfer from Hugo to

Martha as a fraudulent transfer. Hugo and Martha admitted that Martha gave no consideration for

the property

, but denied that the transfer was an attempt to defraud Hugo's creditors; rather, the

defendants assert that their father insisted that Hugo transfer the p roperty to Martha to prevent

Hugo's new wife from claiming an interest in the property in the event that their marriage soured. 2

Hugo admits that Martha agreed to reconvey a one-half interest in the property if the marriage was

successful.

The plaint iffs moved for summary judgment. A federal magistrate considered the motion and

submitted a report to the district court recommending that summary jud g ment be granted.

Subsequently, both Hugo and Martha filed for bankruptcy under Chapter 7 of the United States

Bankruptcy Code. The district court reviewed the motion de novo and granted summary judgment.

The defendants then filed a motion for reconsideration, which the district c ourt denied. The

defendants now assert that the district court erred in granting the plaintif f's mot ion for summary

judgment. 3

II.

The de novo standard o f review applies to the district court's decision to grant summary

judgment. 4 This Court can affirm the district court's decision based on any legally sufficient ground,5 New

Hampshire Ins. Co. v. Martech U.S.A., Inc., 993 F.2d 1195, 1200 (5th Cir.1993).

6 F ED .R.C IV .P. 56(c); see also Capital Concepts Properties 85-1 v. Mutual First, Inc., 35 F.3d

170, 174 (5th Cir.1994).

7 Capital Concepts, 35 F.3d at 174; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (stating that summary judgment is not

appropriate when "there are any genuine factual issues that properly can be resolved only by a

finder of fact because they may reasonably be resolved in favor of either party").

8 T EX .B US

. & C OM .C ODE A NN . § 24.005(a)(1) (West 1987). The district court based its

decision upon T EX .B US

. & C OM .C ODE A NN . § 24.005(a)(2) as amended in 1993. See id. §

24.005(a)(2) (West Supp.1995). The amended provision provides that a transfer is fraudulent

when the debtor does not receive reasonably equivalent consideration and believed or "reasonably

should have believed" that he was about to incur a debt that he would be unable to pay. Id. The

amended version of this statute, however, is not applicable in the instant case because the effective

date, which is September 1, 1993, occurred after the transfer. The district court, therefore, erred

by relying on the "reasonably should have believed" language in the amended statute.

9 Id. § 24.005(b). even one not relied upon by the district c ourt. 5 When deciding this issue, this Court looks to the

"pleadings, depositions, answers to interrogatories, and admissions on file, t ogether wi th any

affidavits" to determine whether the appella nt has established that genuine issues of material fact

exist. 6 Summary judgment is appropriate when the record does not contain evidence that would lead

a reasonable jury to find in favor of the non-moving party. 7

III.

The Uniform Fraudulent Transfers Act is designed to prevent debtors from transferring their

property in bad faith before credito rs can reach it. With respect to the instant case, the relevant

portion of the act provides:

(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether

the creditor's claim arose within a reasonable time before or after the transfer was made or the obligation was incurred, if the debtor made the obligation:

(1) with actual intent to hinder, delay, or defraud any creditor of the debtor.... 8

The statute aids the court in determining the debtor's actual intent by providing a list of factors that

serve as "badges of fraud". 9

The defendants admit numerous facts that constitute badges of fraud: the transfer was to an

insider (Hugo's sister), Hugo was sued shortly before he made the transfer, the transferred property10 Id. § 24.005(b)(1), (4), (5), (9), (10); see also Texas Sand Co. v. Shield, 381 S.W.2d 48,

52-53 (Tex.1964); Adams v. Wilhite, 636 S.W.2d 851, 855-56 (Tex.Ct.App.); rev'd on other

grounds, 640 S.W.2d 875 (Tex.1982).

11 Id. § 24.005(b) (stating that the list of indicia of fraudulent intent is not exclusive); see also

id. § 24.005(a)(2) (providing that the debtor's failure to receive consideration for the transfer of

property is one indicator of a fraudulent conveyance).

12 See Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769, 774 (1957) (stating that the existence

of "fraudulent intent is only to be deduced from the facts and circumstances which the law

considers as mere badges of fraud and not fraud per se, ... [requiring this issue] to be submitted to

the trier of fact"); Adams, 636 S.W.2d at 856.

13 Adams, 636 S.W.2d at 855-56; see Roland v. United States, 838 F.2d 1400, 1403 (5th

Cir.1988).

14 See Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 803 S.W.2d 762, 765

(Tex.Ct.App.), aff'd in part, rev'd in part on other grounds, 813 S.W.2d 499 (Tex.1991); Letsos

v. H.S.H., Inc., 592 S.W.2d 665, 670 (Tex.Ct.App.1979).

15 Connell v. Connell, 889 S.W.2d 534, 542 (Tex.Ct.App.1994).

16 Letsos, 592 S.W.2d at 670.

17 Connell, 889 S.W.2d at 542; Southw estern Paper Co. v. Campbell, 97 S.W.2d 520, 522

(Tex.Ct.App.1936). constituted substantially all of Hugo's assets, Hugo became insolvent after the transfer and once the

default judgment was rendered, and the transfer occurred shortly before Hugo became liable under

the default judgment. 10 Additionally, the fact t hat Hugo did not receive any consideration for the

transfer of this property to his sister also suggests that the transfer was not in the ordinary course of

business. 11 While t

hese facts do not constitute fraud per se, 1 2 they are sufficient to raise a strong

inference of fraud. 13

The defendants argue that summary judgment is never proper when the court must rule on

whether the defendant had an "intent to defraud", asserting that this is an issue that must be decided

by the trier of fact. 14 Intent to defraud, however, can be decided as a matter of law. 1 5 For example,

summary judgment is appropriate in "intent to defraud" cases when the defendant admits the fraud,

the conveyance instrument is fraudulent on its face, the defendant retains an interest in the property

inconsistent with the conveyance alleged, 16 or the evidence indisputably reveals that the transfer was

made without an intent to defraud. 17 Texas law, then, does not mandate that a case go to the jury18 The record also contains answers to interrogatories and an affidavit by Martha in which she

also states that her father insisted on the transfer. This Court, however, cannot consider her

answers or affidavit with respect to this assertion because it is not clear that Martha has personal

knowledge of any agreement between her brother and father with respect to this transaction. See

F ED .R.C IV .P. 56(e); Akin v. Q-L Investments, Inc., 959 F.2d 521, 530 (5th Cir.1992); Garside v.

Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir.1990). In the interrogatories, Martha did execute a

statement declaring that she has personal knowledge of all facts contained therein, but her

answers also state Hugo provided her with information to complete the answers. Given the

inconsistencies of these statements and no comparable declaration of personal knowledge in the

affidavit, this Court cannot consider those materials.

19 Capital Concepts, 35 F.3d at 174.

20 Id.

21 Adams, 636 S.W.2d at 856. Hugo, by his own admission, also retained an interest in the

transferred property that is inconsistent with a true conveyance. This interest is in the form of an

agreement between Hugo and Martha under which she promised to reconvey a one-half property

interest to Hugo once his marriage became established. Such an agreement is inconsistent with a

bona fide conveyance and, in itself, is strongly indicative of fraud. See Letsos, 592 S.W.2d at 670. merely because one of the elements of the claim is intent to defraud.

The defendants, while admitting the above facts, assert that the transfer occurred at the

insistence of their father. In his answers to the plaintiffs' interrogatories, Hugo states that his father

w anted the property transferred to Martha to ensure that Hugo's wife could not cl aim any of the

proceeds from that property in the event that Hugo and his wife obtained a divorce. 18 The defendants

assert that this Court must consider the statements made in Hugo's answers to the interrogatories in

the light most favorable to them and draw the inference that Hugo transferred the property to appease

his father, not to defraud the plaintiffs. 19

The ultimate determination to be made by this Court, however, is whether the defendants have

put forth sufficient facts to "lead a rational jury to find for [the defendants]". 20 The numerous badges

of fraud, which the defendants admit, make out a strong case that Hugo had an intent to defraud the

plaint iffs. 21 Considering that the only evidence in support of the defendants' theory is a conclusory,

self-serving statement by the defendant Hugo, the inference that the defendants ask this Co urt t o

make is unreasonable. The record contains no other evidence to overcome the strong inference of

fraud raised by Hugo's admissions; thus, a reasonable jury could only find that the transfer by Hugo

was made with the intent to "hinder, delay, or defraud" the plaint iffs. Accordingly, the district court'sdecision to grant summary judgment is AFFIRMED.