In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1995
H ONG K ONG E LECTRO -C HEMICAL W ORKS, L TD.,
Plaintiff-Appellant,
v.
G ARRY L ESS, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 3582—Samuel Der-Yeghiayan, Judge.
____________
A RGUED JANUARY 16, 2008—D ECIDED A UGUST 27, 2008
____________
Before M ANION, W OOD , and S YKES, Circuit Judges.
W OOD , Circuit Judge. This appeal is part of a long effort
by Hong Kong Electro-Chemical Works, Ltd. (“HKEW”) to
get paid for goods that it sold to defendant Garry Less and
a business he and his wife Michelle ran under the name
Todd Industries. (We refer to them all as Less, unless the
context requires otherwise.) The district court found that
Less owes HKEW $166,252.88 plus interest. Less did not
pay, leading HKEW to search for assets that would satisfy
2 No. 07-1995
its judgment. The dispute here centers on a house that Less
and his family occupied and arguably owned. The district
court rejected HKEW’s claim that a 2002 conveyance of
that house to Michelle Less’s mother, Charlene Werner,
and a later 2006 conveyance of the same house to Roth
Holdings, LLC, were fraudulent transfers and were
voidable under the Illinois Uniform Fraudulent Transfer
Act (IUFTA), 740 ILCS 160/1 et seq. We reverse.
I
Garry Less earned a significant sum of money in 1988
as a commodities trader. He failed, however, to set aside
enough money to pay his taxes, and as 1989 opened, his
luck ran out. Less wound up with tax debts he could not
pay, liens imposed by the IRS, and a young family to
support. During this period, Less refrained from pur-
chasing a house in his own name. Instead, Less and his
wife Michelle entered into an agreement with Werner,
under which Werner would purchase a house for the
Lesses to live in and the Lesses would cover the mortgage
payments. This led to the 2002 conveyance at issue here. In
that year, Werner purchased from Scott Warren (an
unrelated third party) a house in Riverwoods, Illinois, that
Garry picked out. The Lesses moved in and made the
mortgage payments for the next few years.
In the meantime, Less went into business as an importer
of frying pan handles. He conducted this business through
Todd Industries, a corporation wholly owned by Michelle.
In July 2000 the corporation was dissolved by the Illinois
Secretary of State for failure to file an annual report and
No. 07-1995 3
pay statutory fees. After dissolution, Less nonetheless
entered into a contract supposedly on behalf of Todd
Industries to purchase frying pan handles from HKEW; in
that agreement, he misrepresented the legal status of Todd
Industries. After receiving the wares, neither Less nor
Todd Industries paid for them. In June 2005 HKEW
(relying on diversity jurisdiction) filed a breach of contract
claim against Less, Michelle, and Todd Industries to
recover $166,252.88.
While that suit was pending, Less made arrangements
for the Riverwoods house to be sold to his lawyer, Mitchell
Roth. Roth purchased the house through his wholly-owned
corporation, Roth Holdings, LLC. (When appropriate, we
refer to them collectively as “Roth.”) Mitchell Roth is,
according to Less, a very old and close friend of Less, as
well as the registered agent for Todd Industries. Roth’s law
firm was handling the litigation with HKEW for Less. A
central condition of the sale of the house was that the Less
family be permitted to remain on the premises. (In looking
for a buyer who was amenable to this arrangement, Less
also approached the accounting firm that handled his
taxes and another party whose relationship to Less is
uncertain; both declined.) In 2006, Less signed the sale
contract as “attorney-in-fact” for Werner. (This is the
transaction referred to in these proceedings as the 2006
conveyance.) Less also signed the lease from Roth to the
Lesses, which required the Lesses to pay all mortgage, tax,
and other expenses of the property and gave them an
option to buy the property within a year. Notably, in the
meantime the IRS liens had been extinguished by opera-
tion of law; this meant that Less could once again own
4 No. 07-1995
property without worrying that the IRS would seize it in
satisfaction of his debt for the 1988 taxes. As of the time
the district court awarded summary judgment to HKEW
for the full amount of $166,252.88, making HKEW a
judgment-creditor of the Lesses, the Riverwoods house
had been conveyed to Roth.
HKEW filed a motion in the district court to void the
2006 conveyance to Roth as a fraudulent effort on Less’s
part to avoid creditors. It also asked the court to set aside
the 2002 conveyance in which Werner purchased the
Riverwoods house, although a closer look at the motion
shows that it was really a request to reform the 2002 title
and to establish a constructive trust that recognizes Less
as the true purchaser and that allows HKEW to reach
the property to satisfy its judgment. The district court
denied the motion, and HKEW now appeals.
II
We review the district court’s legal conclusions de novo,
and its findings of fact for clear error. Here, the primary
legal issues concern what rule to apply for evaluating
resulting trusts, constructive trusts, and fraudulent con-
veyances. The facts are largely uncontested. Illinois
law governs in this diversity suit.
The first issue for us is whether the district court erred in
finding that the Lesses did not have any ownership interest
in the Riverwoods house at any point. HKEW recognizes
that Less avoided taking legal title to the house, but it
argues that he had an equitable interest in it that it is
entitled to reach. The district court had this to say:
No. 07-1995 5
HKEW has not pointed to any evidence that indicates
that the Less Defendants ever had any legal or equitable
interest in the House, either in whole or in part. The
parties agree that Werner purchased the House from
Warren. However, HKEW has not pointed to any
connection between the Less Defendants and Warren.
Nor has HKEW shown that the Less Defendants gave
any money to Werner for the purchase of the House. Thus,
the undisputed facts show that the 2002 Conveyance
did not involve a transfer of any interest to or from
the Less Defendants.
(Emphasis added.)
The district court seems to have been assuming that,
under Illinois law, an equitable interest (such as a benefi-
ciary’s interest via a resulting trust) cannot arise unless the
party who enjoys the beneficial interest in the house
and who pays the mortgage also contributed some of the
up-front money toward the purchase of the house. As we
explain below, this is not the case, and any decision based
on that assumption cannot stand. Moreover, the italicized
language in the preceding quote demonstrates that Roth
is incorrect when it argues that HKEW waived the re-
sulting-trust argument by failing to raise it below. The
district court’s language leaves no doubt that it con-
sidered the question whether Less had an equitable
interest in the house. The resulting-trust argument has not
been waived, and this court may review the district
court’s resolution of this claim.
“[A] resulting trust [arises] wherever the circumstances
surrounding the disposition of property raise an inference,
not rebutted, that the transferor does not intend that the
6 No. 07-1995
person taking or holding the property . . . should have the
beneficial interest therein.” Kaibab Indus., Inc. v. Family
Ready Homes, Inc., 444 N.E.2d 1119, 1126 (Ill. App. Ct. 1983)
(omission in original). A resulting trust “comes into being
at the instant the title vests or not at all.” Suwalski v.
Suwalski, 240 N.E.2d 677, 679 (Ill. 1968). Nevertheless,
“[u]nder Wright, Suwalski, and West, the supreme court has
examined the conduct of the parties subsequent to the
questioned conveyance to determine the intent of the
parties at the time of the conveyance.” Key v. Key, 443 N.E.2d
812, 816 (Ill. App. Ct. 1982) (emphasis added). “[T]he
burden of proof rests upon the party seeking to establish a
resulting trust, and the evidence to be effective for this
purpose must be clear, convincing, unequivocal, and
unmistakable.” Kaibab, 444 N.E.2d at 1126. The “crucial
element in creating a resulting trust is ‘intent’ ” and “such
intent can be proved by surrounding circumstances, but
such proof must be clear and convincing.” Id. at 1126.
Applying those principles to this case, the district court
should have conducted an analysis of the circumstances
before, during, and after the 2002 conveyance to ascertain
the intent of the parties, rather than relying on the
single indicium of up-front payment of purchase price.
Illinois courts have found resulting trusts in a variety of
circumstances. See Key, 443 N.E.2d at 816 (finding
resulting trust in favor of a father where the conveyance
was in the names of his two sons but the father paid part of
the down payment and made all payments toward princi-
pal and interest on the mortgage indebtedness, as well as
payments for repairs, insurance, and taxes, and received
the crops from the land). See also Suwalski, 240 N.E.2d at
679 (reversing appellate court and holding that a resulting
No. 07-1995 7
trust, rather than a co-tenancy, was created in favor of the
parents where the son fronted $1,500 toward purchase
price of property and co-signed for the loan but paid none
of the mortgage payments, taxes, insurance premiums, or
costs of repairs and improvements, all of which were
paid by the father and mother).
In Wright v. Wright, 118 N.E.2d 280, 281-82 (Ill. 1954),
plaintiff requested defendant to apply for a “G.I. loan”
to assist her in raising the purchase price. . . . Plaintiff
said that she would pay the mortgage debt. . . . Plaintiff
testified that at the time of the transaction defendant
said: “I don’t want the property because it is in my
name only and you will have to pay for it, Mother,
because I don’t want it.”
The Wright court found that “[t]itle was taken in the son’s
name for the convenience of his mother and for her sole
benefit.” Id. at 283-84 (reversing trial court and holding that
plaintiff established a resulting trust, where plaintiff
paid no part of the purchase price of the house but did pay
$206 up front for the painting of the house, as mandated
by the sale contract, and paid the monthly mortgage
payments).
The identity of the parties to the transaction in question
is also relevant under Illinois law. In Kaibab, the court
observed that the purchaser in a suspect conveyance “was
a business associate and friend of the judgment debtor.
Evidence further discloses that [the judgment debtor] and
his wife resided in the premises . . . probably continuously
from sometime in the 1950’s”—that is, both before and
after the transfer of title from the judgment debtor to the
8 No. 07-1995
friend-purchaser. 444 N.E.2d at 1126. The purchaser
was “a crony of the judgment debtor. . . . Throughout the
years, the property was titled in a mother-in-law, son and
friend of the judgment debtor.” Id. at 1127 (reversing trial
court and holding that a resulting trust was created in
favor of the judgment debtor, thus allowing the judgment
creditor to reach the property that the judgment debtor
had conveyed to the crony).
The district court in this case noted that “Werner also
had a personal incentive to allow the Less Defendants to
reside in the House since it would assist her daughter
with housing and it would allow her grandchildren to
remain in the same school district.” As HKEW points out,
however, this “personal incentive” is not a personal
benefit; it is instead a willingness to accept a detriment
(liability to pay for the house), and is highly consistent
with an intent to create a resulting trust for the benefit
of Werner’s daughter and son-in-law, the Lesses.
The court also stated that “HKEW has not shown that the
rent payments made to Werner provided the Less Defen-
dants with anything other than temporary housing from
month to month.” The circumstantial evidence shows
otherwise. The Lesses admit that they went shopping for
a house, found one they liked, arranged for Michelle’s
mother to purchase it because Less allegedly could not
obtain credit, and promised to “pay rent in the form of
mortgage payments.” In addition, although Roth repeat-
edly claims that Werner was responsible for paying the
property taxes (presumably to show that she shouldered
the responsibilities of ownership), there is reason to believe
No. 07-1995 9
that this is not true either. Werner technically owned the
house for three and a half years, and she was three years
behind on the property taxes. When it came time to sell
(whether because a creditor’s judgment loomed on the
horizon or because the Lesses could no longer afford to
make the mortgage payments), it was Less who scouted
out a (crony) buyer and negotiated and signed the sale
contract as “attorney-in-fact” for Werner. This is com-
pelling evidence that Less was the true owner but the
paperwork had to be done in Werner’s name. The circum-
stances of the Roth-Less “lease” lend additional weight to
the inference that Less intended all along to act as the true
owner of the Riverwoods house: he agreed to pay
all mortgage, tax, insurance, maintenance, and other
ownership expenses of the property, and he obtained a
right-to-purchase clause in the lease.
HKEW has presented compelling evidence of a resulting
trust in favor of the Lesses. The district court failed to
evaluate this evidence in accordance with the standards
established by Illinois law. Instead, it used an inappropri-
ately narrow legal standard when it should have
evaluated Less’s intent by examining all the circumstances.
Before leaving this topic, we add a word about the kind
of equitable interest Less may have had. In briefing this
case, the parties referred interchangeably to an equitable
interest and to both constructive and resulting trusts. The
doctrine of resulting trust recognizes and gives effect to the
actual mutual intent of the parties. By contrast, the doctrine
of constructive trust is an equitable remedy based on
fairness. A court may impose a constructive trust on
10 No. 07-1995
property acquired through fraud or theft, with the
victim as beneficiary, even though the defrauding party
certainly did not intend such an outcome.
Although in the end it does not matter much for HKEW
whether we proceed under the law of resulting trusts or
constructive trusts, it seems to us that the 2002 transaction
is better approached under the theory of resulting trusts.
The evidence suggests that both Werner and the Lesses
actually intended, at the time the Riverwoods house
was purchased by Werner, that the Lesses enjoy the
beneficial interest in the property. The theory of construc-
tive trusts becomes more applicable for the potentially
fraudulent 2006 transaction. We need not dwell on which
judicially created remedy is better suited to this case,
however, because in IUFTA Illinois has enacted a statute
to address specifically the fraudulent transfer of property
with intent to evade creditors. We therefore turn to the
other principal question on appeal, whether Less fraudu-
lently transferred his interest in the Riverwoods house
(whether a resulting trust or a constructive trust) in
2006 when it was conveyed to Roth.
III
IUFTA, 740 ILCS 160/1 et seq., establishes that a debtor’s
transfer of an asset before or after a creditor’s claim arose
is fraudulent if the transfer was made “with actual intent
to hinder, delay, or defraud any creditor of the debtor . . . .”
740 ILCS 160/5(a). In determining whether a transfer was
made with “actual intent,” courts should consider the
following factors:
No. 07-1995 11
(1) the transfer or obligation was to an insider;
(2) the debtor retained possession or control of the
property transferred after the transfer;
(3) the transfer or obligation was disclosed or con-
cealed;
(4) before the transfer was made or obligation was
incurred, the debtor had been sued or threatened with
suit;
(5) the transfer was of substantially all of the debtor’s
assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the
debtor was reasonably equivalent to the value of the
asset transferred or the amount of the obligation
incurred;
(9) the debtor was insolvent or became insolvent
shortly after the transfer was made or the obligation
was incurred;
(10) the transfer occurred shortly before or shortly
after a substantial debt was incurred; and
(11) the debtor transferred the essential assets of the
business to a lienor who transferred the assets to an
insider of the debtor.
740 ILCS 160/5(b).
The district court held that, even supposing that Less
possessed an ownership interest in the Riverwoods
12 No. 07-1995
house, there are insufficient indicia pointing to fraudulent
intent in the 2006 conveyance. In support, it noted that “the
Less Defendants make rent payments to” Roth, that
“HKEW has not shown that the [2006 purchase] price of
[$590,000] was unreasonable in light of factors such as
unpaid real estate taxes,” and (conclusorily) that “no
evidence has been presented of wrongdoing on the part
of Werner, [Roth], or the Less Defendants.”
This analysis is inadequate. Essentially, the district
court addressed only factor (8). It apparently did not
consider the other factors, for if it had it would surely have
noticed how many point to fraud. (1) Roth, the transferee,
was an insider; (2) the Lesses retained possession of the
property after the transfer; (3) there is some evidence that
the transfer was concealed because the Lesses were
evasive to HKEW about their home address, possibly to
avoid inquiry into the history of their relation to the
Riverwoods property; (4) before the transfer was made, the
Lesses had been sued by HKEW; (5) the transfer was of
substantially all of the Lesses’ assets; (7) there is evidence
of concealment of assets: in highly evasive testimony,
Less acknowledges that he told the HKEW attorney that
he had no money and later admitted that he paid his
expenses out of a drawer full of cash and that “I’ve had
cash that I’ve kept on the side”; (9) the Lesses were alleg-
edly insolvent (though it is hard to tell how the cash
drawer figures into this); and (10) the transfer occurred
shortly before summary judgment was entered against
the Lesses in an amount exceeding $160,000. The district
court erred by failing to conduct the thorough inquiry
required by IUFTA to determine whether the transfer
was fraudulent.
No. 07-1995 13
IV
HKEW has shown that it is entitled to one more chance
to show that the Riverwoods house should be treated as
an asset belonging to Less and that it may reach that asset
in satisfaction of its debt. We R EVERSE the judgment of
the district court and R EMAND for further proceedings
consistent with this opinion. On remand, Circuit Rule 36
shall apply.
8-27-08
Hong Kong Electro-Ch v. Less, Gary
Combined Opinion