Powell v. Charles Dhyse Trust

STATE OF MAINE SUPERIOR COURT
WALDO, ss. DKT. NO. CV-12-41
)
JOHN M. POWELL and KATHLEEN M. )
POWELL, )
)
Plaintiffs, )
)
~ ) DECISION AND JUDGMENT
)
CHARLES DHYSE TRUST, TEMPLE )
HEIGHTS MAINE LLC, FREDERICK G. )
DHYSE REVOCABLE TRUST, and )
ALAN TETERVIN, )
)
Defendants. )

A trial on the pending Complaint was held before the Court on January 2 and 3, 2019.

Fallowing the trial, the parties filed written Closing Arguments and Reply memoranda for the

Court's further consideration.

PROCEDURAL BACKGROUND

Plaintiffs John and Kathleen Powell filed a Complaint against a number of defendants in

2012 alleging violations of the Maine Uniform Fraudulent Transfer Act, 14 M.R.S. §§ 3571-3582

(2018) ("UFTA"). A default was entered against Charles Dhyse, the person at the center of this

controversy, on May 7, 2013. Charles Dhyse thereafter sought to set aside the default, but this

Court denied that motion on September 18, 2013. In the same order, the Court deferred ruling on

a request for a default judgment made by Plaintiffs. The case proceeded along until it was removed

to federal bankruptcy court on June 1, 2015. It remained there through December 29, 2016, when

the federal banlauptcy court remanded it back to this Court. Thereafter, on February 22, 2017, the

parties stipulated to the dismissal of Charles Dhyse as a defendant. Eventually, the case was set

for a bench trial that was held on January 2 and 3, 2019.

Attorney Susan Thiem represented Plaintiffs at trial; attorney Stephen Wade represented

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Defendants the Charles Dhyse Trust, the Frederick G. Dhyse Revocable Trust, and Temple Heights

Maine LLC; 1 attorney Aaron Fethke represented Defendant Alan Tetervin. At the start of trial,

the parties stipulated to the admission of Plaintiffs' Exhibits 1-16, 28-44, and 46-49. They further

stipulated to the admission of the Trust Defendants' Exhibits 1-16, 19, 44-45, 51-53, and 56. The

remainder of the exhibits admitted during the course of the trial are reflected in the recording log.

Mark Powell, Ashley Landry, James Nealley, Ronald Recht, Charles Dhyse, and Alan Tetervin

were called to testify by Plaintiffs. The Trust Defendants called Edward Collins to testify.

FACTS

These factual findings are made from the exhibits stipulated for admission, the exhibits

admitted without objection, the exhibits admitted over objection, and the testimony of the

witnesses that the Coutt found helpful and credible.

This case involves a number of separate pieces of real estate in Northport, Maine. Plaintiffs

seek to have three transfers of interests made by Charles Dhyse in two pieces ofreal estate declared

to be fraudulent transfers. The first piece of real estate at issue in this case was acquired by Charles

Dhyse in October 2004 (the "Stowers Property"). The second piece ofreal estate (the "Boathouse

Property") is located along Rt. 1. Charles Dhyse acquired an interest in the Boathouse Property in

February 1996. Plaintiffs attack subsequent transfers of these properties due to Charles Dhyse's

default on a loan Plaintiffs had made to him (the "Powell Loan") in order to facilitate Charles

Dhyse's purchase of other real estate in Northport. The Court will address each of the relevant

pieces of property and associated transactions in turn.

1. The Stowers Property.

Charles Dhyse purchased the Stowers Property from Stanley Stowers on October 13, 2004.

1
The Court will refer to these Defendants collectively as the "Trust Defendants" unless it is necessary to
refer to one separately.

2
The purchase was financed by Camden National Bank ("CNB"), and CNB took back a mortgage

on the Stowers Property in the amount of$157,540. Charles Dhyse soon defaulted on his payments

on the loan for the Stowers Property, and CNB obtained a judgment of foreclosure on June 5, 2006.

The judgment of foreclosure reflects that Charles Dhyse owed CNB $130,911 at that time. CNB

swept Charles Dhyse's personal accounts and recovered approximately $40,000.

Following that, Charles Dhyse attended the foreclosure sale for the Stowers Property in

late 2006 and, with his parents' trust's assistance,2 he was the successful bidder. He attended the

foreclosure auction at his parents' request because they were trying to help him out at a time of

severe financial difficulty. The reacquisition of the Stowers Property was paid for by the Frederick

Trust through its attorneys at the time, Kelly & Associates. The amount paid by Kelly &

Associates was $105,000. The Frederick Trust then took back a mortgage on the property for

$105,000 to secure that payment to Charles Dhyse to purchase the property. 3 CNB deeded the

property to Charles Dhyse on December 5, 2006, and Charles Dhyse executed the aforementioned

mortgage in the Frederick Trust's favor on January 19, 2007. Both the deed and the mortgage

were recorded in the Waldo County Registry of Deeds on January 29, 2007. Despite reacquiring

the Stowers Property from CNB, Charles Dhyse's financial issues persisted.

Shortly after the sale back to Charles Dhyse, CNB obtained and recorded against all real

property of Charles Dhyse's the following: (1) an ex parte order of attachment; (2) a deficiency

order and judgment; and (3) a writ of execution. By the time the writ of execution was issued on

2
Charles Dhyse's parents were Frederick and Suzanne Dhyse. At the times relevant to this case, before
their passing in 2008, they were the trustees of the Frederick G. Dhyse Revocable Trust. When referring
to this trust separately, the Court will refer to it as the "Frederick Trust."
3
The total amount paid to CNB-as reflected in its paperwork-was $115,500, which included a $10,500
bid deposit. Charles Dhyse testified that all money for the purchase at the foreclosure sale came from the
Frederick Trust. The discrepancy between the final sale price and the amount of the Frederick Trust's
mortgage on the Stowers Property was not explained by the evidence at trial.

3
January 19, 2007, the total amount owed to CNB by Charles Dhyse was more than $55,000. Soon

thereafter, Edward Collins, a Rockland-area attorney, became the Frederick Trust's attorney.

Upon his hiring, Attorney Collins began investigating title encumbrances on the Stowers

Property that might affect the Frederick Trust's mortgage on that property. Collins's investigation

revealed a number of duly recorded liens against Charles Dhyse's property, including the Stowers

Property. The liens against Charles Dhyse's property included Town of Northport real estate tax

liens, State of Maine sales tax liens, the CNB execution lien, and a lien from a local lumber yard

(Viking, Inc.). Attorney Collins discussed these vulnerabilities to the Frederick Trust's mortgage

on the Stowers Property with Frederick and Suzanne. In those discussions, he laid out two possible

paths. First, the Frederick Trust could walk away from its $105,000 mortgage on the Stowers

Property. Second, the Frederick Trust could clean up all the liens against Charles Dhyse's property

and, in return, Charles would convey the property to an LLC to be formed to own the property.

After consultation with Attorney Collins, Frederick and Suzanne chose the latter path.

The Frederick Trust then commenced the plan to clean up the liens. All liens were

eventually discharged or released after the Frederick Trust paid the amounts of the liens, and the

discharges and releases were recorded with the Waldo County Registry of Deeds. Payment was

made to CNB for the mmtgage deficiency in the amount of$51,769.91. The Frederick Trust also

paid $3,633.24 to the State of Maine for the sales tax liens, $2,217.39 for the Town ofNorthport

real estate tax liens, and $5,705.39 for the Viking, Inc. execution lien.

Then, in accordance with the plan, Attorney Collins formed an LLC for the purpose of

holding the Stowers Property once Charles Dhyse transferred it following the satisfaction of the

liens. An LLC was formed (Temple Heights Maine LLC) on May 8, 2007, and the membership

units of the LLC were set to be wholly owned by Frederick and Suzanne Dhyse as trustees of the

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Frederick Trust. Thus, in consideration of satisfaction of the $105,000 mortgage and the

$63,325.60 paid to clear the liens against Charles Dhyse's property held by his creditors, Charles

Dhyse executed a deed for the Stowers Property to Temple Heights Maine LLC. 4• 5 At the time

Charles Dhyse deeded the property to the LLC, it was encumbered by valid liens totaling more

than $168,000. 6 The deed was recorded with the Waldo County Registry of Deeds on May 14,

2007. 7

Both Frederick and Suzanne Dhyse passed away in 2008. Suzanne passed away on May

8, 2008, and Frederick passed away shortly thereafter on June 25, 2008. Upon their passing, a new

trust came into existence. That trust was the Charles Dhyse Trust (CDT). The CDT inherited and

now owns the membership interest in Temple Heights Maine LLC. Ronald Recht, an attorney in

Maryland and Washington, D.C., is the co-trustee of the CDT with another individual who is an

4
Temple Heights Maine LLC is still the owner of the Stowers Property. The sole purpose of the LLC is to
own the Stowers Property.
5
Though Plaintiffs proclaim otherwise, at the time of the transfers in question, neither the Frederick Tmst
nor the LLC were "insiders." See 14 M.R.S. § 3572(7)(A)(l )-(4) ("If the debtor is an individual[, an insider
includes] ... [a] relative of the debtor or ofa general partner of the debtor; ... [a] partnership in which the
debtor is a general paitner; ... [a] general partner in a partnership described in subparagraph (2); or ... [a]
corporation of which the debtor is a director, officer or person in control, ...").
6
Attorney Collins did not know if Charles Dhyse had ever paid taxes on this exchange which relieved
Dhyse of over $168,000 in debt. Attorney Collins also did not know if a 1099 form was ever issued to
Dhyse as part of this exchange.
7
There is no evidence that the $105,000 mortgage was ever discharged. Attorney Collins testified that he
never filed a discharge of the mmtgage because he believed the mortgage merged out of existence when
the Frederick Trust, whose naine the mortgage was in, obtained title to the Stowers Property by way of
owning all of the membership units of the LLC. See, e.g., Wyman v. Porter, 108 Me. 110, 120, 79 A. 371,
375 (1911) ("A merger takes place only when the whole title equitable as well as legal unites in the same
person."). The Court does not find it necessary to the decision in this case to conclude one way or the other.

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accountant. 8, 9 Since Temple Heights Maine LLC became the owner of the Stowers Property it

has paid approximately $2, 100 per year in real estate taxes and liability insurance. There is some

evidence of work being done on the property in the early part of the 2010s, but Attorney Recht

was not aware of any work being done in the past several years. The Stowers Property was listed

for sale in 2012 for $95,000, with that price being at the recommendation of the listing broker.

However, it received no interest from any buyers and was taken off the market when this lawsuit

was commenced.

2. The Boathouse Property.

In 1996, Charles Dhyse decided he wanted to operate a boat business and he identified a

location on Rt. 1 in Northport. He had known Alan Tetervin10 since the 1980s, and Charles Dhyse

convinced Tetervin to purchase the location for Dhyse to run the boat business. Tetervin agreed

to purchase the property for Dhyse to run his boat business. II As part of the purchase, the

Boathouse Property was deeded to Tetervin and Dhyse as tenants in common. Because Tetervin

was putting up all the money for the purchase, Tetervin and Dhyse entered into a co-tenancy

8
Attorney Recht was an attorney for Frederick and Suzanne until their passing in 2008. As stated above,
he is now a trustee of the CDT, which now owns the membership interest in the LLC.

9
Among other findings that apply with equal weight here due to the principles of collateral estoppel, the
Court found in its February 21, 2018 Order Regarding Defendants' Motion in Limine the following: the
CDT was created automatically upon the passing of both Suzanne and Frederick; Charles Dhyse did not
have legal control over bust assets and has not been able to do anything other than call Mr. Recht and ask
that certain bills be paid; the CDT is a valid existing funded trust under Maryland law; the CDT has a
spendthrift provision, valid and enforceable under Maryland law; and, the spendthrift provision ofthe CDT
and the discretionary distribution provision prohibif.the Powells, the Chapter 13 bankruptcy trustee, and
other creditors of Charles Dhyse from reaching assets of the CDT.

10
Alan Tetervin has never lived in Maine before.

11
There was evidence of three parcels of property on Rt. 1 being purchased, but Tetervin could only recall
purchasing two.

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agreement in 1996 that dictated the terms of the relationship regarding the property . 12 The co­

tenancy agreement called for Tetervin to put up all the money for the purchase. In the event the

property was sold, Tetervin would get his money back first (assuming it was sold for a profit). The

agreement required Dhyse to operate his business and to pay the taxes on the property. IfDhyse

were to fail in his obligations, title to the Boathouse Property was to revert fully to Tetervin.

Dhyse paid real estate taxes for several years, but Tetervin has been consistently making

the tax payments on the property since approximately 2006. 13 Tetervin never worked at the

Boathouse business and he never received any funds from any sales for Dhyse's Boathouse

business. On March 27, 2009, Dhyse executed a quitclaim deed for the Boathouse Property

releasing all of his interest in the property. 14 The deed was recorded in the Waldo County Registry

of Deeds on April 1, 2009.

3. The Powells' Loan and Foreclosure Judgment.

Plaintiff John "Mark" Powell, from Richmond, Virginia, is in the real estate business. He

makes loans to assist individuals with purchasing properties, and he has been doing so for

approximately twenty-five years. Powell met Charles Dhyse in 2004. In the late summer of 2004,

the Powells agreed to loan Dhyse money in order to facilitate Dhyse's purchase of some real estate

12
At trial, Alan Tetervin's counsel attempted to have a copy of the co-tenancy agreement admitted into
evidence. The Court did not admit it because it had surfaced shortly before trial. However, before
Tetervin's counsel attempted to have the agreement admitted, Tetervin testified to his understanding of the
agreement. The Court found his testimony regarding the details ofthe agreement to be credible, and it finds
as fact that the co-tenancy agreement was valid.
13
According to Dhyse, the Boathouse was a successful business until the moment of the CNB foreclosure
on the Stowers Property, and the Boathouse as a business was thereafter fully inoperative by 2006.

14
Charles Dhyse testified that he last worked at the Boathouse in 2005, though he has sold boats since 2005.
There was some evidence at trial of Charles Dhyse being present at the Boathouse Property after this time
and of him storing at least one boat at the property. However, there was not clear and convincing evidence
that he retained actual control or possession of the property from that point onward. He testified to storing
some boats at the Boathouse that he sold individually after he ceased operating the business, but there are
none stored there now.

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in Northport. The loan amount was for $180,000 over 12 months plus 10% interest unless

renewed. Dhyse was given the option to renew after 12 months for $7,200 with the interest

increasing to 12%. 15 Dhyse signed a promissory note and, in exchange for the loan, the Powells

took back a mortgage on the property Dhyse was purchasing in addition to a separate parcel in

Northport that Dhyse owned. 16 The Powells soon ran into collection issues with Dhyse.

On August 17, 2006, Mark Powell sent Charles Dhyse a letter notifying Dhyse that he was

in default of his obligations on the loan. 17 Eventually, after Mark Powell could no longer get in

contact with Dhyse, the Powells filed a complaint for foreclosure on April 23, 2008. The Powells

obtained a judgment of foreclosure on August 26, 2008, in the amount of $276,057. At the

foreclosure sale, the Powells purchased the property and executed a quitclaim deed to themselves.

They filed a report of sale with the court on February 26, 2009. They further moved for a

deficiency judgment, but it was denied because the Powells were the successful bidders at the

foreclosure sale and did not offer an independent appraisal as required by 14 M.R.S. § 6324 (2018).

The Powells never appealed this denial of a deficiency judgment and never filed an independent

appraisal.

Instead of ultimately obtaining a deficiency judgment in the foreclosure action, the Powells

15
Charles Dhyse renewed once.
16
These properties which were subject to the mortgage held by the Powells were different from any of the
parcels described as the Stowers Property or the Boathouse Property.

17
Apparently, this was not the default that prompted the eventual foreclosure action because there is
evidence in the record that Charles Dhyse paid the $7,200 renewal fee after the date ofthis first letter. There
is further evidence in the record that communications regarding the debt may have continued into early
2008. What exact payments were made when (following the August 2006 letter) is not clear. It is also not
clear from the record exactly when Dhyse was truly in default for purposes of Plaintiffs bringing a
foreclosure action. The next known date is the filing ofthe April 23, 2008 foreclosure complaint.

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filed a separate action seeking to collect on the promissory note. 18 This action was filed on May

21, 2009. Charles Dhyse was served by publication and eventually defaulted. The court entered

judgment for the Powells on the promissory note on August 29, 2009. Charles Dhyse attempted

to set aside the default but was denied. 19

DISCUSSION

First, as an initial matter, Plaintiffs contend that Charles Dhyse's earlier default in this case

caused the allegations in Plaintiffs' Complaint to be deemed true and become findings of fact,

citing Haskell v. Bragg, 2017 ME 154, 167 A.3d 1246, therefore binding all other defendants in

this case to the facts as alleged. The Trust Defendants incisively point out that Haskell does not

stand for that expansive proposition; Haskell merely stands for the proposition that "[t]he entry of

default establishes the defaulting party's liability as set faith in the complaint and precludes that

party from litigating any of the elements of liability related to the claim." Id. 1 14 (emphases

added). Charles Dhyse would be precluded from litigating his liability. However, Charles Dhyse

was dismissed as a defendant in this action in 2017. The Trust Defendants and Alan Tetervin did

not default and certainly can contest their liability on Plaintiffs Complaint.

Second, the Trust Defendants challenged Plaintiffs' status as "creditors" with a "claim"

owed a "debt," as those terms are defined under the UFTA. Fundamentally, the UFTA is meant

to remedy fraudulent transfers made to avoid "creditors" with a "claim." The Trust Defendants'

position reads the definitions of "debt" and "claim" too narrowly. A "claim" under the UFTA

18
None of the present defendants-the Charles Dhyse Trust, the Frederick G. Dhyse Revocable Trust,
Temple Heights Maine LLC, or Alan Tetervin-were parties to the Powells' action on the promissory note.

19
The Trust Defendants moved for judgment as a matter of law both at the end of the Plaintiffs' case and
after all the evidence was presented. See M.R. Civ. P. 50(d). That challenge was based, in part, on whether
the Plaintiffs had a valid debt owed to them due to the failure to obtain a deficiency judgment in the
foreclosure proceeding. The Court deems this motion moot due to its decision in this case.

9
"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." 14 M.R.S. § 3572(3). This definition of"claim" is expansive and should

be read broadly. The Trust Defendants' argument that there is no "debt" because the Plaintiffs

failed to properly obtain a deficiency judgment as part of the original foreclosure proceeding too

narrowly limits the applicability of the UFTA. Undoubtedly, the Plaintiffs loaned Charles Dhyse

money and were never paid back all that they were owed. Such a circumstance fits within the

definition of a "claim." The question is whether the other statutory elements are met in this case.

1. The Maine Uniform Fraudulent Transfer Act.

As the name of the statute suggests, the UFTA is meant to address fraudulent transfers.

There are two different sections in the UFTA that make transfers fraudulent for varying reasons.

The first defines transfers that are fraudulent as to present and future creditors. 14 M.R.S. § 3575.

A transferor violates that section if the debtor made the transfer "[w]ith actual intent to hinder,

delay or defraud any creditor of the debtor," id § 3575(l)(A), or if the transfer was not for

"reasonably equivalent value," id § 3575(l)(B). The statute then provides examples of particular

circumstances that could demonstrate "actual intent." Id § 3575(2). The next section of the statute

defines transfers that are fraudulent as to present creditors for debts that arose before the transfer

was made. A transfer is fraudulent pursuant to that section if the transfer is made without the

receipt of reasonably equivalent value, id § 3576(1 ), or is a preferential transfer to an insider, id

§ 3576(2). 20 A litigant seeking to prove that a transfer was fraudulent must do so by clear and

20
Plaintiffs' Complaint does not expressly state which section they are relying on to prove a fraudulent
transfer. In their post-trial briefing, Plaintiffs cite only to section 3575 as a basis for finding the transfers
to be fraudulent. The arguments regarding Charles Dhyse's transfer of the Stowers Prope1ty to the LLC
and his transfer of his one-half interest in the Boathouse Prope1ty to Alan Tetervin reference evidence that
would go to the factors in section 3575(2) that can be evidence of actual intent in section 3575(l)(A).
Plaintiffs cite expressly to section 3575(l)(B)(2) regarding Charles Dhyse's grant of a mortgage to the

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convincing evidence. Morin v. Dubois, 1998 ME 160, ,r 3, 713 A.2d 956. "Whether a conveyance

is fraudulent under the [UFTA] is a question of fact, and we will not overturn the trial court's

findings of fact unless they are clearly erroneous." Id.

In this case, there are two definitions from the statute that are of particular impmiance in

rendering the judgment on one transfer. The first is the definition of an "asset," which means

"property of a debtor, but does not include ... [p]roperty to the extent that it is encumbered by a

valid lien; or ... [p]roperty to the extent that it is generally exempt under nonbanlauptcy law." Id.

§ 3572(2)(A)-(B). In other words, the encumbered pmiion of a property cannot be considered an

asset. Then, the other important term in the statute in this case is "transfer," which is defined to

mean "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 or creation of a lien or other encumbrance." Id. § 3572(12). These terms are

important to keep in mind regarding the transfer to the LLC.

2. The Trust Defendants.

a. The Mortgage to the Frederick Trust.

In reference to section 3575(1 )(B)(2), Plaintiffs contend that the m01igage Charles Dhyse

executed in favor of the Frederick Trust in early 2007 for the Stowers Property was fraudulent

because Charles Dhyse, "without receiving reasonably equivalent value for the transfer[,] intended

to incur debts beyond his ability to pay or reasonably believed that he would incur debts." (Pl.s'

Br. 4-5.) The Comi disagrees. At trial, the evidence demonstrated that Charles Dhyse's parents,

in an attempt to help him out of a financial hole, loaned him (through the Frederick Trust) at least

Frederick Trust. (Pl.s' Br. 4-5.) They did not raise section 3576 as a basis for any of the transfers being
fraudulent. The Court addresses only those positions put forth; it does not address contentions that were
not raised.

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$105,00021 to purchase the Stowers Property from CNB at the foreclosure sale. In exchange for

taking this money from the Frederick Trust, Charles Dhyse executed a mortgage on the Stowers

Property for $105,000 in the Frederick Trust's favor. On its face, taking a loan of at least $105,000

in exchange for executing a mortgage of $105,000 in the loaning party's favor is a transfer for

reasonably equivalent value. Plaintiffs have not proved this transfer was fraudulent by clear and

convincing evidence.

b. The Deed to the LLC.

Most fundamentally, the Court concludes that Plaintiffs have not proved by clear and

convincing evidence that Charles Dhyse made a "transfer" of an "asset," as those terms are defined

in the statute. At the time Charles Dhyse deeded the Stowers Property to the LLC, it was

encumbered by a $105,000 mortgage and other liens (real estate tax liens, State of Maine sales tax

liens, the CNB execution lien, and the Viking, Inc. write of execution) totaling $63,325.67.

Therefore, the property was encumbered by valid liens totaling more than $168,000. Plaintiffs

have not brought forth clear and convincing evidence to show that the value of the Stowers

Property at the time Charles Dhyse deeded it to the LLC exceeded the extent to which it was

encumbered by these liens. See Achille Bayart & Cie v. Crowe, 238 F.3d 44, 47 (1st Cir. 2001)

("To recover under the Maine UFTA, a plaintiff must prove that there was some determinable

amount of value in the assets of the debtor over and above the amount ofthe secured debt."). Even

if Charles Dhyse "transferred" an "asset" when he deeded the property to the LLC, he received

reasonably equivalent value in return. Specifically, he was relieved of more than $168,000 worth

of debt obligations in exchange for his conveying the title to the Stowers Property to the LLC,

which was controlled by the Frederick Trust. Plaintiffs have not proved a fraudulent transfer of

21
See the discussion in footnote 3 regarding CNB's records reflecting a $10,500 bid deposit in addition to
the $105,000 paid to purchase the property.

12
the Stowers Property by clear and convincing evidence.

3. Alan Tetervin.

The transfer ofDhyse's one-half interest in the Boathouse Property is unique. There is no

question that Dhyse executed the deed to his interest in the Boathouse Property after Plaintiffs

obtained the judgment of foreclosure and shortly before Plaintiffs commenced the lawsuit on the

promissory note. He received no monetaiy payment in return at the time he executed the deed to

Tetervin in 2009. He continued some limited use of the property, though not to the extent of

retaining possession or control. One or all of these could point toward an actual intent to hinder,

delay, or defraud. See 14 M.R.S. § 3575(2)(B), (D), (H). However, the Court is not limited to

considering only the statutorily enumerated factors and must instead consider all circumstances

surrounding the transfer. See Fed. Deposit Ins. Corp. v. Proia, 663 A.2d 1252, 1254 (Me. 1995)

("The court may consider factors other than [those in section 3575(2)], and any combination of

factors may support a determination of actual intent. Id. comment. See also U.F .T.A. § 4 comment

(1984) (stating that in considering the listed factors a court should evaluate all relevant

circumstances and take into account all indicia negativing as well as suggesting fraud)."). Here,

there is one factor that is patiicularly persuasive to the Court, namely the co-tenancy agreement

(that established Tetervin's right to Dhyse's one-half interest) entered into before the Powells ever

met Charles Dhyse.

As the agreement between Dhyse and Tetervin stipulated, Tetervin paid the full price of

the original purchase. Dhyse was to operate his Boathouse business and pay expenses to hold up

his end of the bargain. Dhyse complied with his obligations under the co-tenancy agreement for a

period of time when he made minimal payments of expenses and operated his business prior to

2006. As Charles Dhyse testified, however, his boat business operations ceased to be operative,

13
for all intents and purposes, around 2006 when CNB foreclosed on the Stowers Property. Thus,

once Dhyse effectively defaulted on his obligation under the co-tenancy agreement by failing to

conduct his business and to pay the expenses for the Boathouse Property after a ce1iain period,

Tetervin was entitled to recover Dhyse's one-half interest pursuant to the co-tenancy agreement

between the two. Whether Dhyse transferred his interest in 2006 when the Boathouse business

ceased to be operative, or 2009 when he actually did, or any other time in between, Tetervin was

entitled to the other one-half interest in the property pursuant to his agreement with Dhyse. There

was no actual intent to hinder, delay, or defraud when the transfer was made pursuant to an

agreement that was entered into before the Powells ever loaned Dhyse money. Plaintiffs have not

proved they are entitled to void a transfer made pursuant to a valid agreement.

CONCLUSION

Plaintiffs have not proved any of the transfers were fraudulent by clear and convincing

evidence. All defendants are entitled to judgment on Plaintiffs' Complaint, and the recovery of

costs in accordance with 14 M.R.S. §§ 1501-1522 (2018) and M.R. Civ. P. 54.

The entry is:

1. Judgment for the Charles Dhyse Trust, the Frederick G. Dhyse Revocable Trust, and
Temple Heights Maine LLC on Plaintiffs' Complaint for fraudulent transfer pursuant
to 14 M.R.S. §§ 3571-3582.
2. Judgment for Alan Tetervin on Plaintiffs' Complaint for fraudulent transfer pursuant
to 14 M.R.S. §§ 3571-3582.
3. The Clerk is directed to incorporate this Order into the docket by reference pursuant
to M.R. Civ. P. 79(a).

Dated: 6 /;1
---11--71-~-­
I/ J T urray
Justice, Maine Superior Court
l

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