Richard F. Burkhart v. Genworth Financial, Inc. ( 2022 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
RICHARD F. BURKHART, )
WILLIAM E. KELLY, RICHARD S. )
LAVERY, THOMAS R. PRATT, and )
GERALD GREEN, individually and on )
behalf of all other persons similarly )
situated, )
)
Plaintiffs, )
)
v. ) C.A. No. 2018-0691-JRS
)
GENWORTH FINANCIAL, INC., )
GENWORTH HOLDINGS, INC., )
GENWORTH NORTH AMERICA )
CORPORATION, GENWORTH )
FINANCIAL INTERNATIONAL )
HOLDINGS, LLC and GENWORTH )
LIFE INSURANCE COMPANY, )
)
Defendants. )
OPINION
Date Submitted: January 28, 2022
Date Decided: May 10, 2022
Peter B. Andrews, Esquire, Craig J. Springer, Esquire and David M. Sborz, Esquire
of Andrews & Springer LLC, Wilmington, Delaware and Edward F. Haber, Esquire,
Michelle H. Blauner, Esquire, Thomas V. Urmy, Jr., Esquire and Patrick J. Vallely,
Esquire of Shapiro Haber & Urmy LLP, Boston, Massachusetts, Attorneys for
Plaintiffs.
Daniel A. Dreisbach, Esquire, Srinivas Raju, Esquire and Angela Lam, Esquire of
Richards, Layton & Finger, P.A., Wilmington, Delaware and Reid L. Ashinoff,
Esquire, Kenneth J. Pfaehler, Esquire and Carter White, Esquire of Dentons US LLP,
New York, New York, Attorneys for Defendants.
SLIGHTS, Vice Chancellor
Defendant, Genworth Life Insurance Company (“GLIC”), among other
insurance products, writes a line of long-term care (“LTC”) insurance policies that
provide coverage for the notoriously costly burden of funding LTC expenses.
Plaintiffs, a putative class of GLIC LTC policyholders and GLIC insurance agents
who sold LTC policies for deferred commissions, allege that GLIC’s corporate
parent, Genworth Financial, Inc. (“Genworth”), and certain of its subsidiaries,
fraudulently removed assets and capital support from GLIC when it became clear
that the LTC insurance line was unprofitable. It is alleged that these fraudulent
transfers have jeopardized GLIC’s ability to pay LTC claims to its policyholders and
LTC commissions to its insurance agents. Invoking Delaware’s Uniform Fraudulent
Transfer Act (“DUFTA”),1 Plaintiffs ask the Court to unwind these transactions and
restore GLIC to its previous state of solvency.
Plaintiffs’ claims as initially pled survived a pleadings stage dismissal bid.
In that motion, Defendants maintained that Plaintiffs lacked standing to challenge
the allegedly fraudulent transfers since none of the putative class members had
actually been denied LTC coverage or commissions on sales of LTC policies.2
1
6 Del. C. §§ 1301–1311.
2
LTC policyholders typically acquire their insurance years before they require LTC with
the expectation that coverage will be available when that time comes. As discussed below,
the class members who hold LTC policies maintain that the fraudulent transfers have
rendered GLIC unable to honor its coverage obligations when their claims become due.
The class members who are GLIC insurance agents allege that GLIC will be unable to pay
1
The Court rejected that argument and held that Plaintiffs had standing under DUFTA
as “contingent creditors,” but dismissed some of Plaintiffs’ claims as time-barred
under the applicable statute of limitations.3
Having failed to attain dismissal, Defendants allegedly orchestrated a series
of transactions to divert assets from the transferees of the initial allegedly fraudulent
transfers. By Plaintiffs’ lights, these transactions were intended to limit or eliminate
the class’s ability to secure remedies for the initial fraudulent transfers. Specifically,
Plaintiffs allege that a Genworth subsidiary, Genworth Financial International
Holdings, LLC (“GFIH”), an alleged transferee of the initial fraudulent transfer, sold
its interests in valuable international subsidiaries, which comprised a substantial
portion of its holdings. Those proceeds moved up the corporate chain and were
ultimately distributed to affiliates as dividends. Plaintiffs amended their complaint
to add three new claims challenging the distribution of these proceeds as intentional
and constructive fraudulent transfers.
Defendants have moved to dismiss the new claims on two grounds. First, they
argue Plaintiffs have not asserted viable claims under DUFTA because Plaintiffs and
GFIH do not have the predicate creditor/debtor relationship necessary for DUFTA
deferred commissions owed on sales of LTC policies when those commissions become
due.
3
Burkhart v. Genworth Fin., Inc., 250 A.3d 842 (Del. Ch. 2020) (“Burkhart I”).
2
to apply. To the extent Plaintiffs are creditors (or contingent creditors) of any
Defendant entity, say Defendants, they are contingent creditors of GLIC based only
on the underlying LTC policies (as policyholders entitled to coverage or insurance
agents entitled to commissions). In this regard, Defendants argue that Plaintiffs
cannot use their DUFTA claims against GFIH (as transferee of alleged fraudulent
transfers) to establish the debtor/creditor relationship because DUFTA, as a matter
of law, does not bestow creditor status to the DUFTA plaintiff. According to
Defendants, DUFTA codifies remedies; it does not codify substantive claims that,
when proven and rendered to judgment, create judgment creditor standing. Second,
even assuming Plaintiffs could have creditor standing under DUFTA for purposes
of the new claims, because Plaintiffs seek only the remedies of unwinding certain
transactions and restoring others, as opposed to a payment of what is (or potentially
could be) owed them, their new DUFTA claims fail because they are not, in fact,
“claims” under the statute, defined in part as a “right to payment.” Without a “claim”
that fits the statutory definition, say Defendants, Plaintiffs are not “creditors” under
DUFTA and cannot, therefore, invoke that statute for redress with respect to their
newly asserted claims.
The parties have found no Delaware authority that directly addresses
Defendants’ first argument, and the Court’s search has fared no better. Courts in
other jurisdictions, interpreting similar statutes, have held that a plaintiff must have
3
a right to payment independent of a right created by the state’s uniform fraudulent
transfer statute to qualify as “creditors” under the statute. But Plaintiffs have
persuasively argued that a blanket holding to that effect would not capture the
statute’s nuance and would be in tension with official commentary to the uniform
act explaining the statute’s purpose and reach.
Defendants’ second argument, however, has more purchase. In connection
with their amended claims, Plaintiffs indisputably do not seek monetary damages or
even an equitable “right to payment.” Thus, the amended “claims” do not fit within
the DUFTA’s definition of a “claim” and, as such, Plaintiffs do not satisfy the
statutory definition of “creditor” as required to have standing to pursue their
amended claims under the statute. The partial motion to dismiss must be granted.
I. BACKGROUND
I draw the facts from the allegations in the Second Amended and
Supplemental Complaint (the “Complaint”)4 and documents incorporated by
reference or integral to that pleading.5 For purposes of this partial motion to dismiss,
4
Second Am. and Suppl. Class Action Compl. (“SAC”) (D.I. 132).
5
In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168–69 (Del. 2006); see also
Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 320 (Del. 2004) (“On a motion
to dismiss, the Court may consider documents that are ‘integral’ to the complaint . . . .”).
4
I accept as true all well-pled factual allegations and draw all reasonable inferences
in Plaintiffs’ favor.6
To avoid needlessly repeating the extensive factual background of this case,
I refer the reader to Burkhart I. Below I summarize only the facts pertinent to the
motion sub judice.
A. The Parties
Defendant, Genworth Financial, Inc. (as previously defined), sits atop the
Genworth corporate tree and wholly owns Genworth Holdings, Inc. (“Holdings”),
which, in turn, owns Genworth Financial International Holdings, LLC (“GFIH”) and
Genworth North America Corporation (“Genworth NA”).7 Genworth NA wholly
owns Genworth Life Insurance Company (“GLIC”).8 GLIC is the LTC insurer that
wrote the LTC policies at issue in this case.9 GFIH owned interests in international
subsidiaries that conduct mortgage insurance business in Canada and Australia that
are implicated in the amended claims.10 Counts V–VII of the Complaint are the
6
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002).
7
SAC ¶¶ 7–10.
8
SAC ¶¶ 9, 11.
9
SAC ¶ 11.
10
SAC ¶ 18.
5
claims at issue in this motion, and they are asserted only against Genworth, Holdings
and GFIH.11
The following chart illustrates part of Genworth’s organizational structure12:
Plaintiffs, Richard F. Burkhart, William E. Kelly, Richard S. Lavery,
Thomas R. Pratt, and Gerald Green, are holders of LTC insurance policies issued by
11
SAC ¶¶ 206–20.
12
SAC ¶ 127 fig. 3.
6
GLIC or insurance agents entitled to commissions earned from selling GLIC
policies.13 They assert claims on behalf of a putative class of GLIC LTC
policyholders and insurance agents.
B. The Motivation for the Alleged Fraudulent Transfers
As early as 2012, Genworth’s management knew that GLIC’s LTC business
was sinking.14 To prevent the LTC business from destroying the overall share value
of Genworth, Defendants “engaged in an intentional plan to syphon off GLIC’s
assets before it was too late” by removing assets and capital support from GLIC for
the benefit of other Genworth subsidiaries.15 These transfers were intended to place
assets beyond the reach of GLIC’s policyholders and insurance agents when their
claims for coverage or sales commissions came due.16
1. The Initial Claims
Plaintiffs’ initial complaint asserted four counts against Defendants. Counts I
and II asserted intentional and constructive fraudulent transfer claims regarding what
13
SAC ¶¶ 2–6.
14
SAC ¶¶ 52, 116, 137, 139.
15
Burkhart I, 250 A.3d at 846; SAC ¶¶ 132–39. It appears this goal was openly
acknowledged. See, e.g., SAC ¶ 136 (“[W]e announced that one of our strategic objectives
was to separate, then isolate, through a series of transactions, our long-term care insurance
business from our other U.S. life insurance business.”) (quoting from Genworth 10-K).
16
SAC ¶¶ 17, 152–54, 167, 184–86.
7
Plaintiffs term the “GLIC Dividends.” From 2012 to 2015, GLIC paid hundreds of
millions of dollars as dividends to Genworth NA, Holdings and Genworth while
intentionally concealing its inadequate capitalization and insolvency.17
Counts III and IV asserted intentional and constructive fraudulent transfer
claims regarding the so-called “Reinsurance Termination.” As illustrated in the
organizational chart, Brookfield Life and Annuity Insurance Company Limited
(“BLAIC”) reinsured 50% of GLIC’s LTC insurance obligations in order to spread
risk.18 In turn, GFIH entered into a capital maintenance agreement with BLAIC
(the “Capital Maintenance Agreement”), under which GFIH agreed to back
BLAIC’s reinsurance obligations to GLIC.19 GFIH owned valuable interests in
Genworth’s mortgage insurance businesses, so the Capital Maintenance Agreement
functionally backstopped GLIC’s obligations to policyholders with the value of the
mortgage insurance assets.20 Notably, GFIH was not required by contract to
17
SAC ¶¶ 23, 58–59, 76.
18
Originally, GLIC had a “quota share” agreement with an affiliated entity called
Brookfield Life Assurance Co, Ltd. (“Brookfield”), in which GLIC retained 50% of the
LTC premiums it received for the benefit of Brookfield, and in exchange, Brookfield
agreed to pay 50% of the cost of claims. SAC ¶ 123. At the time, Brookfield’s obligation
was indirectly backed by Genworth’s valuable Canadian and Australian mortgage
insurance business. See SAC ¶ 127. Brookfield’s obligations were later assumed by
BLAIC. SAC ¶ 126.
19
SAC ¶ 128.
20
Id.
8
maintain a certain level or type of assets,21 and in the Capital Maintenance
Agreement, GFIH expressly disclaimed any contractual or other obligations to
GLIC’s policyholders or other persons.22 Neither BLAIC’s reinsurance agreement
nor the Capital Maintenance Agreement restricted GFIH from selling its own
subsidiaries or other assets, or from disposing of any related sale proceeds.23
On October 1, 2016, Genworth caused BLAIC to merge with and into GLIC,
which had the effect of terminating BLAIC’s reinsurance agreement with GLIC.24
The parties then terminated the Capital Maintenance Agreement.25 The combination
of these two actions (together, the “Reinsurance Termination”) cut off GLIC from
the capital support of GFIH’s assets.26 Plaintiffs allege that the Reinsurance
21
See generally Opening Br. in Supp. of Defs.’ Mot. to Dismiss Counts V, VI and VII of
the Second Am. Compl. (“DOB”) (D.I. 142) Ex. 2.
22
DOB Ex. 2 ¶ 4 (“[N]o policy holder or any other person or entity shall have any right to
recover damages or other losses allegedly sustained as a result of GFIH’s failure to comply
with the provisions of this agreement, and (ii) this agreement is not, and nothing herein
contained and nothing done pursuant hereto by GFIH shall be deemed to constitute,
a guarantee, directly or indirectly, by GFIH of the payment of any claims pursuant to
reinsurance policies issued by BLAIC.”). Similarly, the reinsurance contract specifically
stated that “[t]his Agreement shall not create any legal relationship whatsoever between
Reinsurer and the persons who are either insured under the LTC Policies or reinsured under
the Assumed Reinsurance Agreements.” Ex. 1 at 3 § 2.1.
23
See DOB Exs. 1–2.
24
SAC ¶ 129.
25
Id.
26
SAC ¶ 130.
9
Termination was a fraudulent transfer because Defendants intentionally removed the
support GLIC needed to pay future claims and commissions by engaging in the
Reinsurance Termination without giving any consideration to GLIC.27
2. Motion Practice Related to the Initial Complaint
Defendants moved to dismiss Counts I–IV of the initial complaint on two
theories.28 First, they argued Plaintiffs lacked standing because they had not suffered
(and have yet to suffer) an actual injury because GLIC has not defaulted on any
obligations; Plaintiffs only “fear that GLIC may someday fail to pay their insurance
claims or sales commissions.”29 Second, Defendants argued Plaintiffs’ attempts to
reverse some of GLIC’s allegedly fraudulent dividends in Counts I and II were time-
barred under DUFTA’s statute of limitations.30
While the motion to dismiss was pending, Plaintiffs filed a motion for a status
quo order.31 Defendants entered into agreements to sell GFIH’s shares in its valuable
mortgage insurance companies and stated their intent to pay the proceeds as
27
SAC ¶¶ 24, 129–32, 138.
28
D.I. 9, 24; Burkhart I, 250 A.3d at 846.
29
Burkhart I, 250 A.3d at 846.
30
Id.
31
D.I. 48.
10
dividends to Holdings.32 Plaintiffs sought an order restraining GFIH from
transferring proceeds of that sale so that, should they succeed in unwinding the
Reinsurance Termination in Counts III and IV, GFIH would not be left without those
valuable assets to support the reinsurance agreements Plaintiffs sought to have
reinstated. Viewing the motion as essentially a motion for a preliminary injunction,
the Court denied it as inadequately supported.33
On January 31, 2020, the Court denied the motion to dismiss the initial claims
to the extent Defendants argued Plaintiffs lacked standing, holding that Plaintiffs
have standing under DUFTA as contingent creditors of GLIC.34 The Court held,
however, that Plaintiffs’ claims regarding the GLIC Dividends made from 2012 to
2014 were time-barred under DUFTA’s statute of limitations.35
C. The New Counts
On May 26, 2021, Plaintiffs filed the now-operative Complaint.36 The
Complaint added three new counts, Counts V–VII, against Genworth, Holdings
32
Opening Br. in Supp. of Pls.’ Mot. for a Status Quo Order (D.I. 48) at 3.
33
D.I. 83. Specifically, the Court held, “I don’t think the plaintiffs have shown a reasonable
probability of success on the merits or that the balance of equities tips in favor of granting
injunctive relief.” D.I. 84 at 5:9–12.
34
Burkhart I, 250 A.3d at 846, 852–57.
35
Id. at 858–62.
36
D.I. 132.
11
and GFIH.37 In these counts, Plaintiffs allege that Defendants’ distribution of the
sale proceeds from the Canada and Australian mortgage insurance assets was a
fraudulent transfer under DUFTA because it was made “for the benefit of Genworth
and Holdings” and for “no consideration.”38 They seek avoidance of these dividends
or other equitable relief because “[t]he Plaintiffs and the Class will be deprived of
any meaningful relief in this action against GFIH [as transferee of the initial
fraudulent transfers] unless the Canada/Australia [mortgage insurance] [t]ransfers
are avoided or other relief is granted.”39
D. Procedural History
Defendants filed their partial motion to dismiss Counts V–VII on July 26,
2021.40 After briefing,41 the Court held argument on December 7, 2021.42 The Court
then requested supplemental briefing, which the parties submitted on January 28,
2022.43 The motion was deemed submitted on that date.
37
SAC ¶¶ 206–20.
38
SAC ¶ 167.
39
SAC ¶ 219.
40
D.I. 141.
41
D.I. 142, 159, 163.
42
D.I. 172.
43
D.I. 188, 190.
12
II. ANALYSIS
Counts V–VII of the Complaint assert fraudulent transfer claims against
GFIH, Holdings and Genworth, and seek injunction orders that unwind the transfers
of the Canada and Australian mortgage insurance assets and “[restore] to GFIH all
of the value [allegedly] fraudulently transferred to Genworth and Holdings by means
of the Canada/Australia MI Transfers.”44 By definition, “claims” under DUFTA are
only available to “creditors,” so Plaintiffs assert they are “contingent creditors” of
GFIH based on their DUFTA claims asserted in Counts III and IV where they
challenge the Reinsurance Termination.45
Defendants move to dismiss Counts V–VII, arguing Plaintiffs have failed to
state a claim against GFIH because Plaintiffs are not “creditors” of GFIH (nor is
GFIH Plaintiffs’ “debtor”) as defined under DUFTA. According to Defendants,
possessing a claim under DUFTA “does not make one a creditor” as defined in the
statute;46 one must, instead, possess a “right to payment” separate from a right to
pursue relief from a fraudulent transfer under DUFTA to have creditor standing
44
SAC at 85 (Prayer); see also SAC ¶¶ 206–20.
45
Opp’n to Defs.’ Mot. to Dismiss Counts V, VI, and VII of the Second Am. Compl.
(“PAB”) (D.I. 159) at 12, 14, 17.
46
DOB at 16 (quoting In re Skinner, 636 F. App’x 868, 870 (3d Cir. 2016)).
13
under the statute.47 Separately, Defendants argue that even if a DUFTA claim can
be the basis of a subsequent DUFTA claim, Plaintiffs still cannot be deemed
“creditors” because they do not (and cannot) seek a “right to payment,” a prerequisite
to creditor status under DUFTA.48 I address the arguments in turn after summarizing
the standard of review.
A. Standard of Review
The standard of review on a motion to dismiss under Court of Chancery
Rule 12(b)(6) is well-established:
(i) all well-pleaded factual allegations are accepted as true; (ii) even
vague allegations are ‘well-pleaded’ if they give the opposing party
notice of the claim; (iii) the Court must draw all reasonable inferences
in favor of the non-moving party; and (iv) dismissal is inappropriate
unless the plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof.49
I accept as well-pled the allegations regarding the nature and intent of the transfers
at issue here. The issues framed for decision require me to determine whether these
well-pled facts state a claim under DUFTA as a matter of law. For the reasons
explained below, I am persuaded they do not.
47
Reply Br. in Supp. of Defs. Genworth Fin., Inc., Genworth Hldgs., Inc. and Genworth
Fin. Int’l Hldgs., LLC’s Mot. to Dismiss Counts V, VI and VII of the Second Am. Compl.
(“DRB”) (D.I. 163) at 10–13.
48
DOB at 17; DRB at 6.
49
Savor, 812 A.2d at 896–97.
14
B. Counts V–VII Do Not State Viable DUFTA Claims
In 1984, the Uniform Law Commission enacted the Uniform Fraudulent
Transfer Act (“UFTA”) to reconcile the prior uniform law, the Uniform Fraudulent
Conveyance Act (“UFCA”), with the updated language of the 1978 federal
Bankruptcy Code.50 As expressed in UFTA’s official commentary, the purpose of
the Act, like its predecessors, is to “[declare] rights and [provide] remedies for
unsecured creditors against transfers that impede them in the collection of their
claims.”51 As explained below, UFTA is generally considered a remedial statute
meant to facilitate the collection of other existing claims.52 Adopted by the Delaware
50
David Gray Carlson, Fraudulent Transfers: Void and Voidable, 29 Am. Bankr. Inst. L.
Rev. 1, 6 (2021); see also Peter A. Alces, Law of Fraudulent Transactions § 1.15
(Nov. 2021 Update) (“The UFTA was drafted to overcome shortcomings in existing
fraudulent disposition law and to bring the state uniform enactments in line with the Federal
Bankruptcy Reform Act of 1978.”).
51
Unif. Fraudulent Transfer Act § 1 cmt. 2 (Am. L. Inst. & Unif. L. Comm’n 1984).
52
See, e.g., Hullett v. Cousin, 63 P.3d 1029, 1034 (Ariz. 2003) (“[T]he UFTA is remedial;
it does not create new claims.”); Deford v. Soo Line R. Co., 867 F.2d 1080, 1087
(8th Cir. 1989) (“The [UFTA] is not substantive in nature, but instead merely confers an
alternate remedy for protecting preexisting creditor rights. . . . The purpose of the statute
is to grant creditors additional enforcement possibilities when a debtor transfers his assets
to a third party.”) (emphasis added and citation omitted); Fini v. J.W. Boudreau Corp.,
18 N.E.3d 1135, 2014 WL 5150712, at *2 (Mass. App. Ct. 2014) (TABLE) (“As the
language of the UFTA makes clear, an action for relief under [UFTA] depends upon the
existence of an independently valid claim.”) (citing Kraft Power Corp. v. Merrill,
981 N.E.2d 671, 681 (Mass. 2013)).
15
legislature in 1996, DUFTA is Delaware’s version of the UFTA and its language is
nearly identical to that of the uniform act.53
In 2014, the Uniform Law Commission updated its fraudulent conveyance
statute for a second time and named the new law the Uniform Voidable Transaction
Act (“UVTA”). Despite its new name, UVTA remained substantially similar to
UFTA, with minor additions, style edits and changes to comments.54
DUFTA protects creditors from fraudulent transfers made by debtors.
As explained in Burkhart I:
The DUFTA protects a “creditor” from two types of fraudulent
transfers. First, 6 Del. C. § 1304(a)(1) prohibits “transfer[s]” by debtors
that are made “with actual intent to hinder, delay or defraud”
(“actual fraudulent transfers”). Second, 6 Del. C. § 1304(a)(2) prohibits
“transfer[s]” by debtors where the debtor (i) did not receive “reasonably
equivalent value” and (ii) was rendered insolvent (“constructively
fraudulent transfers”).55
53
S.B. 308, Delaware 138th Gen. Assemb., 2d Sess. (Del. 1996); see also Ki-Poong Lee v.
So, 2016 WL 6806247, at *3 (Del. Super. Ct. Nov. 17, 2016) (observing that “Delaware
has adopted the federal UFTA”); In re Trace Int’l Hldgs., Inc., 287 B.R. 98, 105 n.5
(S.D.N.Y. 2002) (“Not surprisingly, Delaware’s fraudulent transfer law is virtually a
carbon copy of the fraudulent transfer law under the Bankruptcy Code.”).
54
See Unif. Voidable Transaction Act Prefatory Note (Am. L. Inst. & Unif. L. Comm’n
2014) (“The amendment project was instituted to address a small number of narrowly-
defined issues, and was not a comprehensive revision.”); id. (detailing the changes between
UFTA and UVTA); see also RPB SA v. Hyla, Inc., 2020 WL 6108210, at *9 (C.D. Cal.
May 17, 2020) (“[T]he UFTA and UVTA are quite similar.”); Klein v. Armand, 2021 WL
1647908, at *8 n.65 (D. Utah Apr. 27, 2021) (“The statutes are substantially similar . . . .”);
Kruse v. Repp, 543 F. Supp. 3d. 654, 673 n.16 (S.D. Iowa 2021) (observing that the Iowa
UVTA update “mostly reflected grammatical and stylistic alterations and is substantially
similar to its predecessor in almost every regard”).
55
Burkhart I, 250 A.3d at 854.
16
Plaintiffs bring both actual (Count V) and constructive (Count VI) fraudulent
transfer claims, as well as a related request for injunctive relief (Count VII).56
As noted, the thrust of Defendants’ motion is that Plaintiffs have failed to state
viable claims in Counts V–VII “because they are not creditors and the transfer [under
challenge] was not made by their debtor,” as defined in DUFTA.57 Under DUFTA,
“[a] transfer made or obligation incurred by a debtor is fraudulent as to a creditor . . .
if the debtor made the transfer or incurred the obligation: (1) [w]ith actual intent to
hinder, delay or defraud any creditor of the debtor; or (2) [w]ithout receiving a
reasonably equivalent value in exchange for the transfer or obligation,” and was
thereby rendered insolvent.58 By its terms, DUFTA is inapplicable to non-creditors
or non-debtors.59
56
SAC ¶¶ 206–20. In their Complaint, Plaintiffs note that 6 Del. C. § 1307 “empowers the
Court to grant such relief as equity may require.” SAC ¶ 220. I address this more fully
below.
57
DOB at 13.
58
6 Del. C. § 1304(a) (emphasis added).
59
See, e.g., Infinity Glob. Consulting Gp., Inc. v. Tilray, Inc., 2021 WL 880391, at *7
(C.D. Cal. Jan. 7, 2021) (“[A] plaintiff is not entitled to the remedy of setting aside a
fraudulent conveyance unless he has shown that he is a creditor of the transferor.”) (internal
quotation marks omitted); Woodard v. Funderburk, 846 So. 2d 363, 366 (Ala. Civ.
App. 2002) (“[W]hat might be considered ‘a fraudulent conveyance is valid as to all the
world except creditors of the grantor.’”) (quoting Bank of Lexington v. Jones, 456 So. 2d
784, 785 (Ala. 1984)).
17
Section 1301(4) of DUFTA defines a “creditor” as “a person who has a
claim.”60 Similarly, a “debtor” is “a person who is liable on a claim.”61
Section 1301(3), in turn, defines a “claim” as 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.”62 To be a
creditor, therefore, one must possess (and allege) a “right to payment.” Likewise, to
be a debtor, one must be liable on a “right to payment.” Because “[o]nly a
creditor . . . has standing to pursue a claim to contest a debtor’s conveyance of assets
or property as fraudulent,”63 Plaintiffs must satisfy DUFTA’s definition of a
“creditor” to have standing to bring a claim under DUFTA.
1. Does a DUFTA Claim Make One a “Creditor” Under DUFTA?
To qualify as creditors under DUFTA, Plaintiffs must have some relationship
with Defendants that provides them a “right to payment.” Plaintiffs assert they are
“contingent creditors” of GFIH for purposes of Counts V–VII based on their
DUFTA claims asserted against GFIH as transferees of the initial fraudulent
60
6 Del. C. § 1301(4) (emphasis added).
61
6 Del. C. § 1301(6) (emphasis added).
62
6 Del. C. § 1301(3) (emphasis added).
63
37 C.J.S. Fraudulent Conveyances § 42 (Mar. 2022 Update); see id. (observing that
“noncreditors can find no relief under fraudulent transfer laws”).
18
transfers, as alleged in Counts III and IV of the Complaint.64 They also assert that
because they are contingent creditors of GFIH, they can bring claims against
Genworth and Holdings as “transferees/recipients” of the fraudulent transfers at
issue in Counts V–VII.65 For their part, as already explained, Defendants argue that
a DUFTA claim cannot create the creditor status necessary to sustain a subsequent
DUFTA claim.66 In other words, Defendants assert that a “right of payment”
independent of DUFTA is required to have standing under the statute.67
To begin, I note there appears to be no Delaware case on point. Neither party
has found such a case, nor have I. Since DUFTA is modeled on UFTA, a uniform
act, I turn to the decisions of other jurisdictions interpreting the same
(or substantially similar) model statutes for guidance.68
64
SAC ¶¶ 148, 207 (alleging that Plaintiffs “became contingent creditors of GFIH” because
of the Reinsurance Termination); see also PAB at 9–14.
65
PAB at 3–4.
66
DOB at 14; DRB at 10–13; Suppl. Post-Hearing Br. in Supp. of Defs. Genworth Fin.,
Inc., Genworth Hldgs., Inc. and Genworth Fin. Int’l Hldgs., LLC’s Mot. to Dismiss
Counts V, VI and VII of the Second Am. Compl. (“DSB”) (D.I. 188) at 3–10.
67
DOB at 14; DRB at 10–13; DSB at 3–10.
68
Delaware courts may look to other states when interpreting uniform acts, particularly
when there is no guidance from Delaware courts. See, e.g., Bragdon v. Bayshore Prop.
Owners Ass’n, Inc., 251 A.3d 661, 683 (Del. Ch. 2021) (considering authority from other
states that have adopted similar versions of the enforcement provision of the Delaware
Uniform Common Interest Ownership Act where there was no applicable Delaware
precedent); DMS Properties-First, Inc. v. P.W. Scott Assocs., Inc., 748 A.2d 389, 393 (Del.
2000) (considering “decisions of other jurisdictions that have enacted a form of the
19
Defendants have cited several authorities for the proposition that a plaintiff
must have an independent claim to bring an action under UFTA because UFTA is
exclusively remedial in that it is designed to assist only in the collection of separate,
independent claims.69 Subject matter treatises and legal encyclopedias support this
Uniform Arbitration Act”); Kronenberg v. Katz, 872 A.2d 568, 598 (Del. Ch. 2004)
(observing that a court “would likely look to decisions of other states interpreting the
identical provisions in their versions of the Uniform [Securities] Act”).
69
See, e.g., Alliant Tax Credit 31, Inc. v. Murphy, 924 F.3d 1134, 1151 (11th Cir. 2019)
(“[A] fraudulent-transfer action is derivative of some other right to relief. [Plaintiff]’s
approach would collapse into one the action and the claim that gave rise to that action. . . .
[A] fraudulent-transfer action is predicated on a claim that already exists.”); Hanks v.
Anderson, 2021 WL 6428041, at *7 (D. Utah Dec. 16, 2021) (“[T]he only allegations which
specifically mention these entities address their involvement in the alleged fraudulent
transfers. The proposed amendment contains no specific allegations supporting an
underlying ‘right to payment’ against these particular entities. . . . Thus, the proposed
amendment fails to allege these entities are ‘debtors’ under Utah’s Voidable
Transactions Act, and any claim against these entities under this statute must be based
on their status as transferees.”), report and recommendation adopted, 2022 WL 111160(D. Utah Jan. 12, 2022); Kraft Power Corp., 981 N.E.2d at 681–82 (“As the language of
the UFTA makes clear, an action for relief . . . depends on the existence of an independently
valid claim. In other words, the remedies available under the UFTA furnish a convenient
and expeditious method by which creditors may satisfy their claims but they do not create
claims.”) (internal quotation marks omitted); In re Skinner, 636 F. App’x at 870
(“The UFTA does not make one a creditor; instead it serves as a tool for creditors to recover
fraudulent transfers.”); Deford, 867 F.2d at 1087 (“The [UFTA] is not substantive in nature,
but instead merely confers an alternate remedy for protecting preexisting creditor rights.
The creditor rights a party seeks to enforce must exist under independent law, such as
contract law . . . . The purpose of the statute is to grant creditors additional enforcement
possibilities when a debtor transfers his assets to a third party.”) (emphasis added)
(citation omitted); cf. Blumenthal v. Blumenthal, 21 N.E.2d 224, 247 (Mass. 1939)
(“The statutes upon which the present bill is based furnish a convenient and expeditious
method by which creditors may satisfy their claims but they do not create claims.”)
(emphasis added). Even some of Plaintiffs’ authorities indirectly support this proposition.
See, e.g., SuVicMon Dev., Inc. v. Morrison, 991 F.3d 1213, 1221 (11th Cir. 2021)
(noting that “fraudulent transfer claims must be based on an underlying claim by a creditor
20
characterization of the statute,70 as does language from cases interpreting UFCA, the
prior model statute.71 Indeed, Plaintiffs admitted earlier in this litigation that
“[t]o bring a DUFTA action, a plaintiff must have a right to payment independent
from DUFTA.”72
Despite this apparent support for Defendants’ portrayal of DUFTA as purely
remedial, the cases upon which Defendants rely appear factually dissimilar from the
present case, as Plaintiffs go to great lengths to point out.73 For example,
which the creditor could have sought to satisfy out of the asset that was transferred” before
observing that “as a distinct cause of action, a fraudulent transfer claim is a claim distinct
from the claims on which it is predicated”).
70
See, e.g., Peter Spero, Fraudulent Transfers, Prebankruptcy Planning and Exemptions
§ 1.22 (Aug. 2021 Update) (“Because a fraudulent-transfer action is predicated on a claim
that already exists, it does not include a claim for relief under, e.g., the UFTA . . . . The
distinction between the existence of a ‘claim’ that is a prerequisite to bring a UFTA action
and ‘claim for relief,’ that is part of UFTA action, was clarified by the UVTA, which
excludes from the definition of ‘claim’ a ‘claim for relief’ under the UVTA.”) (emphasis
added) (internal quotation marks omitted); 37 C.J.S. Fraudulent Conveyances § 43
(Mar. 2022 Update) (“There must be a debt due the creditor, as an independently valid
claim, and the statutes do not create for creditors claims that do not already exist.”)
(footnotes omitted).
71
See DSB at 7 (citing, among others, Clark v. Rossow, 657 P.2d 903, 904 (Ariz. Ct.
App. 1982) (stating that the “fraudulent transfer conveyance act does not create a new
claim”); Lind v. O.N. Johnson Co., 282 N.W. 661, 667 (Minn. 1938) (stating that the
fraudulent transfer statute is “remedial” and “does not vest in the judgment creditor any
new rights or remedies not theretofore his”); Jahner v. Jacob, 515 N.W.2d 183, 185
(N.D. 1994) (“Without a debt enforceable against the transferor, a creditor has no claim
against the transferee.”)).
72
See Letter to the Hon. Joseph R. Slights from Peter B. Andrews (D.I. 76) at 1.
73
PAB at 14–18.
21
Defendants’ authorities involve cases where the plaintiff was never a creditor to
begin with,74 the plaintiff lost creditor status,75 or the plaintiff asserted standing
based only upon an UFTA claim, as opposed to here where Plaintiffs have standing
to invoke DUFTA, at least initially, based on their contractual entitlement to LTC
coverage or sales commissions.76 Perhaps the closest case to this one is Crystallex
International Corp. v. Petróleos De Venezuela, S.A., but there, the defendant was
the transferee of an alleged fraudulent transfer as opposed to the transferor. 77 The
factual scenario here is unique, at least in relation to the cases cited by the parties.
74
See, e.g., In re Wickes Tr., 2008 WL 4698477, at *7–8 (Del. Ch. Oct. 16, 2008) (holding
that the plaintiff lacked UFTA standing because she had failed to prove in a prior court
action that her deceased ex-husband was liable to her for failing to make child support
payments and therefore had no “claim” against his estate); Harbinger Cap. P’rs Master
Fund I, Ltd. v. Granite Broad. Corp., 906 A.2d 218, 224 (Del. Ch. 2006) (holding that
plaintiff, a preferred stockholder, did not hold debt and therefore was not a creditor with
standing under the New York uniform fraudulent transfer act).
75
See, e.g., Kraft Power Corp., 981 N.E.2d at 681–82 (fraud claim extinguished upon
debtor’s death); RRR, Inc. v. Toggas, 98 F. Supp. 3d 12, 19 (D. D.C. 2015) (judgment
extinguished by passage of time).
76
See, e.g., In re Skinner, 636 F. App’x at 870 (rejecting the plaintiff’s attempt to assert
standing as a “creditor” based on the same UFTA claim for which it sought standing).
77
See Crystallex Int’l Corp. v. Petróleos de Venezuela, S.A., 879 F.3d 79, 84 (3d Cir. 2018)
(reversing the lower court and holding that “transfers by non-debtors are not fraudulent
transfers under DUFTA as it has been interpreted by Delaware courts”); PAB at 18
(distinguishing Crystallex on the grounds that “[t]he fatal problem with Crystallex’s
DUFTA claim was that the transfers in question had been made to Venezuela, not by it”)
(emphasis in original).
22
Moreover, Plaintiffs have identified authorities that suggest a claim under
UFTA can, in and of itself, make one a “creditor” in certain situations. These include
various authorities observing that UFTA and related uniform acts are simply
“codification[s] of the common law of fraudulent transfer” and, therefore, “create[]
a substantive cause[s] of action.”78 Perhaps the most persuasive authority Plaintiffs
identify comes from the official comments of the UVTA, the latest uniform version
of DUFTA. Comment 2 to Section 8 explains in part:
A transfer of property by the transferee of a voidable transfer might, on
appropriate facts, be avoidable for reasons independent of the original
voidable transfer. In such a case the subsequent transferee may be
entitled to a [good faith purchaser for value] defense to an action based
on the original voidable transfer, but that defense would not apply to an
action based on the subsequent transfer that is independently voidable.
For example, supposed that X transfers property to Y in a transfer
voidable under this Act, and that Y later transfers the property to Z, who
is a good-faith transferee for value. In general, C-1, a creditor of X,
would have the right to a money judgment against Y pursuant to § 8(b),
but C-1 could not recover under this Act from Z, who would be
protected by [the good faith purchaser for value exception]. However,
it might be the case that Y’s transfer to Z is independently voidable as
to Y’s creditors (including C-1, as a creditor of Y by dint of its rights
under this Act). Such might be the case if, for example, the value
received by Y in exchange for the transfer is not reasonably equivalent
and Y is in financial distress, or if Y made the transfer with the intent
to hinder, delay, or defraud any of its creditors. In such a case, creditors
78
Pls.’ Suppl. Mem. in Opp’n to Mot. to Dismiss (“PSB”) (D.I. 190) at 11–12; see also
37 C.J.S. Fraudulent Conveyances § 137 (Mar. 2022 Update) (“A state fraudulent transfer
statute can provide the basis for imposing personal liability on the transferee . . . .”);
Challenger Gaming Sols., Inc. v. Earp, 402 S.W.3d 290, 295 (Tx. App. 2013)
(“A fraudulent transfer under the UFTA is a tort.”); In re B.L. Jennings, Inc., 373 B.R. 742,
768 (Bankr. M.D. Fla. 2007) (“A fraudulent transfer under the UFTA is tortious
conduct . . . .”).
23
of Y may pursue remedies against Z with respect to that independently
voidable transfer, and the defense afforded to Z [as a good faith
purchaser for value] would not apply to that action.79
Put simply, according to this comment, when a transferee of an initial fraudulent
transfer engages in a second fraudulent transfer, that second fraudulent transfer may
be actionable both as a subsequent transfer and as an independent fraudulent transfer.
This comment, Plaintiffs argue, “confirms that the creditor of the first fraudulent
transfer (C-1) becomes a ‘creditor’ of the transferee ‘by dint’ of, or because of, the
statute.”80 Other authorities support the idea that, “[i]n a fraudulent conveyance by
a debtor to avoid creditors, subsequent transferees may be liable to the debtor’s
creditors under specified conditions.”81
I acknowledge, as Defendants point out, that the Comment’s hypothetical is
not directly analogous.82 In the hypothetical, the property being fraudulently
79
Unif. Voidable Transactions Act § 8 cmt. 2 (Unif. L. Comm’n 2014) (emphasis added).
80
PSB at 5–7.
81
37 C.J.S. Fraudulent Conveyances § 144 (Mar. 2022 Update); see also Nisenzon v.
Sadowski, 689 A.2d 1037 (R.I. 1997) (finding that the plaintiff had an UFTA claim against
his debtor’s attorney based on Rhode Island’s version of UFTA because the attorney was
the transferee of a fraudulent transfer from the debtor and subsequently transferred the
property to another entity).
82
DSB at 5 n.4. I note that Defendants also argue that Delaware has enacted only UFTA
and not the new UVTA (with its explanatory comments), so it should not be entitled to
weight. See Kallop v. McAllister, 678 A.2d 526, 530 (Del. 1996) (“In interpreting a statute,
we give considerable deference written to an official commentary written by the statute’s
drafters and available to the General Assembly before the statutory enactment.”)
(emphasis added). In Kallop, the Court held that “the official commentary to the UCC . . .
24
transferred from the initial transferor to the transferee and then from the transferee
to the second transferee is the same property. That the uniform statute discourages
this type of behavior makes perfect sense; Y is not immune from liability simply
because she transferred the property she received by fraudulent transfer to another
transferee. If Y’s transfer met the other elements of a fraudulent transfer under the
statute, then Y’s transfer to Z may be independently voidable. In other words, C-1,
a creditor of X, may be a “creditor” of Y as transferee of the property subject to the
original fraudulent transfer.
This case is different. Defendants are not simply moving the same assets from
entity to entity, using the corporate form to hide the fraudulent transfers. Instead,
the “property” allegedly transferred in Counts III–IV is the amorphous (but real)
value of the reinsurance agreements terminated by Defendants. The factual
predicate of the fraudulent transfers at issue in Counts V–VII is that after the
Reinsurance Termination occurred, GFIH sold its Canadian and Australian mortgage
insurance assets––assets, which, although indirectly available to support GLIC when
the reinsurance agreements were in place, were never GLIC’s “property” that it
owned or to which it had any contractual right. Liability is not imposed on “transfers
which existed when the Uniform Commercial Code was adopted in Delaware” supported
a certain interpretation of the UCC. Id. But Kallop does not prohibit this Court from
considering uniform law comments as persuasive authority, even if they are not entitled to
“considerable deference.”
25
of non-debtor property.”83 Indeed, “the UVTA . . . confirms that ‘claim’ excludes
relief awarded for the fraudulent transfer itself.”84
All in all, the competing authorities make for a nice gumbo, but they don’t
provide a clear answer to the question of whether a claim under DUFTA, alone, can
create creditor standing. One the one hand, Defendants have extracted language
from cases that strongly suggest a right to payment independent of DUFTA is
necessary to make one a creditor for purposes of the statute. But those cases are
factually distinct. On the other hand, Plaintiffs point to authorities, including
commentary from the most recent version of the uniform act, that suggest a claim
under DUFTA is itself enough to create creditor status. But that commentary
presents an illustrative hypothetical that is also factually distinct. Even so, the
commentary does support the notion that the uniform statute, at least in some narrow
circumstances, does expressly contemplate a scenario whereby a plaintiff has a
83
In re NewStarcom Hldgs. Inc., 816 F. App’x 675, 678 (3d Cir. 2020). Plaintiffs assert
that “UFTA’s express terms permit[] a creditor to recover not only transferred assets or the
proceeds from any sale of those assets, but also ‘other property of the transferee.’”
PSB at 13 (citing Robinson v. Coughlin, 830 A.2d 1114, 1118 (Conn. 2003)). Even if that
is true, however, just because a creditor may recover on more than just the transferred
assets does not necessarily mean that liability can be imposed on transfers of non-debtor
property. As Defendants point out, such a rule could “spawn an endless chain of voidable
conveyance claims against an unlimited number of unrelated transactions by affiliated
corporations.” DSB at 10 (internal quotation marks omitted).
84
Alliant Tax Credit, 924 F.3d at 1151.
26
“claim” solely “by dint of its rights under [the] Act.”85 In other words, while the
commentary and Plaintiffs’ other authorities are not definitive, they do cause me to
hesitate to declare as a matter of law that DUFTA standing can never exist in the
absence of a claim independent of a claim for fraudulent transfer.
For reasons explained below, no such definitive declaration is required here.
As noted, Defendants have argued alternatively that even if a claim under DUFTA
could be the basis of another actionable fraudulent transfer claim, Plaintiffs do not
plead a “right to payment” as a predicate to their claims in Counts V–VII. In other
words, even if Plaintiffs could potentially be “creditors” of GFIH by virtue of their
DUFTA claims in Counts III–IV, they cannot meet the definition of “creditor”
because they do not have a “claim,” given that they do not plead (and will not
receive) a “right to payment” in Counts V–VII. As explained below, I agree.
2. Plaintiffs Have Not Well-Pled Creditor Status in Counts V–VII
As noted, a “claim” under DUFTA is defined as “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.”86
While this definition of “claim” is certainly broad, the plain meaning of the statute
85
Unif. Voidable Transactions Act § 8 cmt. 2 (Unif. L. Comm’n 2014).
86
6 Del. C. § 1301(3) (emphasis added).
27
requires that any claim that is to meet this definition must ultimately comprise a
“right to payment.” Plaintiffs assert they are “creditors” under DUFTA for purposes
of Counts V–VII by virtue of their claims in Counts III–IV, but Plaintiffs have not
actually pled any right to payment from GFIH (or any subsequent transferee) in their
Complaint.
In Counts III and IV, the Complaint asks the Court to “[e]nter an appropriate
order requiring defendants to unwind the Reinsurance Termination and restore to
GLIC from Genworth, Holdings, and GFIH all of the value fraudulently transferred
from GLIC in the Reinsurance Termination.”87 There is no claim for money
damages, and no judgment for money damages will be entered if Plaintiffs prevail
on Counts I–IV.88 Nevertheless, the claims are based on a “right to payment”––for
the policyholders it is a right to payment of insurance benefits and for the insurance
87
SAC at 85 (Prayer) (emphasis added).
88
Not only do Plaintiffs fail to plead damages, but it is hard to see how they would be
entitled to them even if they had. As the Court observed in Burkhart I, Plaintiffs’ alleged
injury is a risk of future harm—“an unmature and contingent claim.” Burkhart I, 250 A.3d
at 855. I agree with Defendants that “[a] damages award to Plaintiffs who have not yet
suffered damages in not contemplated by DUFTA, or contract law, or common sense.”
DRB at 7. After all, “[t]he overarching goal in applying [remedies under UFTA] is to put
a creditor in the position she would have been in had the fraudulent transfer not occurred.”
August v. August, 2009 WL 458778, at *10 (Del. Ch. Feb. 20, 2009); see also id. at *10 n.62
(collecting cases from other jurisdictions supporting this point); DRB at 8 (“Permitting
current damages would not put Plaintiffs in the position they were in in 2016[;] it would
give them a windfall.”).
28
agents it is a right to sales commissions. There is, therefore, a “claim” upon which
the DUFTA claims rest.
As they requested in Counts I–IV, in Counts V–VII, Plaintiffs request that the
Court “[e]nter an appropriate order unwinding the Canada/Australian MI Transfers
and restoring to GFIH all of the value fraudulently transferred to Genworth and
Holdings by means of the Canada/Australian MI Transfers.”89 But this is where the
similarity ends. Unlike Counts I–IV, which are expressly predicated upon
contractual rights to payment, Counts V–VII rest on claims which, if reduced to
judgment, will not create any right to payment at all, but instead will result in the
unwinding of certain transactions and the restoration of others.90 In short, because
89
SAC at 85 (Prayer) (emphasis added).
90
To expand on this point, the claims that were the subject of Burkhart I provide an
illustrative contrast with respect to what is a “claim” and what is not a “claim.”
In Burkhart I, I held that Plaintiffs had standing to pursue their fraudulent transfer claims
as asserted in Counts I–IV. Recognizing the broad definition of “claim” under DUFTA,
I held Plaintiffs are contingent creditors of GLIC based on their contractual right to LTC
insurance coverage or sales commissions even though those claims had not yet matured
and may never mature. See Burkhart I, 250 A.3d at 854–55 (“[A] creditor with an unmature
and contingent claim does have standing to bring a claim under the DUFTA even though
her contractual right to payment is contingent and not yet mature.”). Put simply, Plaintiffs
held “contractual right[s] to payment” against GLIC based on underlying enforceable
contracts. Id. at 855. And they are entitled to pursue their “claims” against both the
transferor and the transferee(s). In this regard, Plaintiffs correctly note that “[t]he plain
text of the statute makes no distinction between sources of a ‘right to payment,’” so the
“right to payment” need not be contractual in nature. PAB at 12; see also id. at 19 (“The
case law on fraudulent transfer is replete with ‘claims’ (as defined in DUFTA) that arise
outside of contracts. There are cases involving tort claims . . . marital claims . . . and claims
based on statutes.”). But, as explained, even if a DUFTA claim could create the necessary
“right to payment” separate from any contractual right to payment, Plaintiffs would receive
29
their DUFTA claims in Counts III–IV do not and will not themselves create a
“right to payment,” Plaintiffs are not “creditors” under DUFTA for purposes of
Counts V–VII and cannot, therefore, state claims under the statute with respect to
those transfers.91
no right to payment via their DUFTA claim as asserted in Counts V–VII (based on the
alleged fraudulent transfers as alleged in Counts III and IV) because they will receive no
money judgment even if they prevail on Counts III and IV. Cf. Nisenzon, 689 A.2d at 1044(holding that a fraudulent transfer claim reduced to a money judgment can evince a “right
to payment” such that it could create creditor status for a separate fraudulent conveyance
claim under the uniform act).
91
At the risk of unnecessary belaboring, a count-by-count analysis may provide additional
clarity. Counts I and II—brought against GLIC, Genworth, Holdings and Genworth NA—
allege that those Defendants caused the GLIC Dividends to occur when GLIC was
inadequately capitalized and/or insolvent, and the transfers were made for no consideration.
Plaintiffs are contingent creditors of GLIC because they have a contractual right to payment
of LTC insurance benefits or sales commissions, and the other Defendants (Genworth,
Holdings and Genworth NA) controlled GLIC and were transferees and beneficiaries of
those alleged fraudulent transfers. The same goes for Counts III and IV. As previously
explained, Plaintiffs allege that Genworth, Holdings, GFIH and GLIC terminated the
reinsurance agreements to defraud creditors of GLIC, including Plaintiffs and other
members of the class. Plaintiffs’ “right to payment” (LTC insurance benefits or
commissions) from GLIC creates contingent creditor status with GLIC—the fraudulent
transferor—and the rest of the Defendants named in Counts III and IV are Genworth-
controlled transferees who allegedly caused the Reinsurance Termination to occur.
But Plaintiffs’ lack of a creditor/debtor relationship with GFIH presents an entirely
different situation for Counts V–VII. Those counts are not anchored by Plaintiffs’
contractual right to payment from GLIC (indeed, GLIC is not named as a defendant in
Counts V–VII). Instead, as explained, Plaintiffs assert that the claims against GFIH in
Counts III and IV themselves provide the necessary “right to payment” to create a
creditor/debtor relationship between Plaintiffs and GFIH even though no separate right to
payment is alleged or provable there. That is where the amended fraudulent transfer claims
fall flat.
30
Perhaps the closest thing to any “right to payment” Plaintiffs have pled is
found in paragraph F of their prayers for relief. There, Plaintiffs ask the court to
“[e]nter Judgment for the Plaintiffs and the Class against Genworth, Holdings,
Genworth NA, GLIC and GFIH for the value of the Fraudulent Transfers to the
extent necessary to satisfy the expected claims of the Plaintiffs and the Class.”92
Plaintiffs assert that this language amounts to a prayer for damages.93 I disagree.
It would have been easy enough for Plaintiffs to put Defendants on notice that they
are seeking damages by pleading for “damages,” but that word appears nowhere in
the prayer for relief or in the rest of the Complaint. Indeed, paragraph 29 of the
Complaint asserts that “the damage the Fraudulent Transfers have caused and will
cause can be remedied only by injunctions requiring the unwinding of the GLIC
Transfers” and “setting aside the Canada/Australian MI Transfers.”94 An injunction,
by definition, provides no right to payment.95
92
SAC at 86 (Prayer).
93
PAB at 10.
94
SAC ¶ 29 (emphasis added). This, of course, makes perfect sense given that no member
of the putative class has yet to be denied LTC insurance coverage or sales commissions for
sales of LTC policies such that money damages could be calculated with even a remote
degree of reliability.
95
See State v. Del. State Educ. Ass’n, 326 A.2d 868, 875 (Del. Ch. 1974) (holding that
injunctive relief is only appropriate when money damages are inadequate).
31
Plaintiffs also argue they have pled an “equitable” right to payment, which is
sufficient under DUFTA.96 DUFTA expressly provides that an equitable “right to
payment” qualifies as a “claim,”97 but I disagree with Plaintiffs that they have pled
an equitable right to payment here. Equitable relief, by itself, is not an equitable
“right to payment.”98
There is another reason to find that Plaintiffs have not asserted a “claim” here.
As observed earlier, the law is settled that liability under DUFTA will not imposed
on “transfers of non-debtor property.”99 But that is precisely what Plaintiffs allege
96
PSB at 10 n.8.
97
See 6 Del. C. § 1301(3) (“‘Claim’ means 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.”) (emphasis added).
98
In this regard, Plaintiffs cite to Wiand v. Lee, 753 F.3d 1194 (11th Cir. 2011). Wiand is
inapposite. In that case, a receiver sought to recover transfers made to investors in a Ponzi
scheme. The Eleventh Circuit affirmed the district court’s ruling that the entities in
receivership were “creditors” under Florida’s version of DUFTA because they had a
“claim” against the Ponzi scheme organizer when he “transferr[ed] assets rightly belonging
to the corporations and their investors in breach of his fiduciary duties.” Id. at 1203.
But there, unlike in this case, the receiver had actually requested, was entitled to, and
received a monetary award from the defendants. See id. at 1203–04 (“Since the undisputed
facts show that Nadal’s transfers to the Lee Defendants satisfy all the elements of FUFTA
[Florida’s adoption of UFTA], the district court’s grant of summary judgment in favor of
the Receiver is due to be affirmed as is the judgment for the receiver and against the
Lee Defendants in the amount of $935,631.51.”) (emphasis added). That is simply not the
case here.
99
In re NewStarcom Hldgs., 816 F. App’x at 678 (emphasis in original); see also id.
(“Fraudulent transfer liability under DUFTA does not attach to a transfer by a non-
debtor.”) (citing Crystallex Int’l, 879 F.3d at 81, 84–86).
32
occurred in Counts V–VII.100 This is not a case where Plaintiffs allege that GFIH,
as GLIC’s transferee, fraudulently transferred property it received from GLIC in
order to facilitate GLIC’s avoidance of a right to payment. Rather, it is alleged that
GFIH transferred its own assets––assets over which GLIC had no claim or rights.
This, alone, takes the transfers outside the realm of DUFTA.
As a final note, I am sympathetic to Plaintiffs’ argument that “absent the relief
sought in Counts V, VI, and VII, Plaintiffs’ victory on their Count III and IV claims
could be pyrrhic.”101 Of course, I have no desire to convert DUFTA into “dead letter
against complex corporate groups,” as Plaintiffs argue might be the case if
Defendants prevail here.102 And I wholeheartedly agree that DUFTA should
“provide[] for flexible, open-ended remedies to enable a court to fashion a just,
equitable outcome in a particular case.”103 Nevertheless, I am obliged to construe
100
See, e.g., SAC ¶ 151 (“GFIH engaged in a series of transactions by which it transferred
its interests in Genworth MI Canada and Genworth MI Australia . . . .”) (emphasis added);
SAC ¶ 152 (explaining that Plaintiffs seek “a restoration of the Capital Maintenance
Agreement through which GFIH’s assets (i.e., its interests in Genworth Canada and
Genworth Australia) were available to back BLAIC’s reinsurance obligations to GLIC”)
(emphasis added); SAC ¶¶ 153, 157, 162, 164 (identifying shares in the international
mortgage insurance subsidiaries as assets of GFIH); SAC ¶ 18 (“GLIC has no interest in
GFIH or its subsidiaries.”).
101
PAB at 29.
102
Id.
103
SE Prop. Hldgs., LLC v. Center, 2018 WL 279989, at *3 (S.D. Ala. Jan. 2, 2018).
33
DUFTA’s provisions and definitions by their plain terms.104 For reasons just
explained, I am not persuaded that Plaintiffs ever pled (or would be entitled to) any
right to payment from Defendants with respect to Counts V–VII. Because a “right
to payment” is a necessary predicate to a viable DUFTA claim, Plaintiffs have failed
to state a claim in Counts V–VII as a matter of law.105
III. CONCLUSION
For the foregoing reasons, the motion to dismiss Counts V–VII must be
GRANTED.
IT IS SO ORDERED.
George & Lynch, Inc. v. Div. of Parks and Recreation, Dep’t of Nat. Res. and Env’t
104
Control, 465 A.2d 345, 350 (Del. 1983).
105
Plaintiffs argue that the Court should not dismiss Count VII because Defendants do not
address Count VII in their opening brief and thus “that aspect of their motion to dismiss
has been waived.” PAB at 22. They also argue that “Count VII is a broad invocation of
the Court’s equitable powers under DUFTA § 1307, for relief with respect to all of
Plaintiffs’ claims in the Second Amended Complaint in Counts I-VI.” PAB at 23
(emphasis added). I disagree on both fronts. First, Count VII is mentioned in Defendants’
opening brief many times and is subject to the same arguments regarding dismissal as
Counts V and VI. See DOB at 3–5, 11–13, 17, 20 (addressing Count VII); id. at 13
(“Counts V, VI and VII of the SAC Fail to State a DUFTA Claim”) (emphasis added).
Second, as pled, Count VII does not apply to all of Plaintiffs’ other claims. It does not
refer to Counts I–IV or incorporate those counts by reference. Indeed, it is labeled
“The Canada/Australia MI Transfers,” like Counts V and VI, and it is brought against only
the Defendants named in Counts V and VI. See SAC at 84. Count VII, therefore, suffers
from the same fatal flaws that plague Counts V and VI. With that said, I agree with
Plaintiffs that “Section 1307 of DUFTA equips the Court with several flexible tools”
to provide relief should Plaintiffs prove that fraudulent transfers have occurred. PAB at 25;
6 Del. C. § 1307. Accordingly, should Plaintiffs succeed on the surviving claims
(Counts I–IV), the Court can and will craft an appropriate remedy.
34