specially concurring.
I concur in the majority's reasoning and the result reached. I write separately because the result in this case points to a potential flaw in the Colorado Uniform Fraudulent Transfer Act (CUFTA), sections 38-8-101 to -112, C.R.8.2010, which the General Assembly may wish to address.
CUFTA provides remedies to creditors of debtors who transfer property with the intent to defraud creditors. §§ 38-8-105, -106, -108, C.R.$.2010.
Here, plaintiff Monica Vickery's complaint alleges the following facts pertinent to her claim under section 38-8-105, which we must assume are true for purposes of reviewing the dismissal of her complaint under C.R.C.P. 12(b)(5), see Public Serv. Co. v. Van Wyk, 27 P.3d 377, 386 (Colo.2001):
e The Evelyn V. Trumble Living Trust was created by Evelyn Trumble.
e As settlor and trustee, Evelyn had the sole possession and control over the trast.
e Before the trust was amended, Evelyn had designated her daughter, Merry Gayle Vickery, as the sole beneficiary and successor trustee, and the assets of the trust were to be distributed to Merry Gayle upon Evelyn's death.
@ The jury returned a verdict for Monica and against Evelyn for $92,502 in compensatory damages plus $41,500 in punitive damages.
e The jury returned a verdict for Monica and against Merry Gayle for $155,002 in compensatory damages and $144,500 in punitive damages.
® Within about a month after these verdicts were returned against Evelyn and Merry Gayle, and shortly after Monica had filed a motion for award of costs jointly against Evelyn and Merry Gayle and a bill of costs, Evelyn, knowing of these events, amended the living trust.
e The amendment of the trust changed the sole beneficiary and successor trustee from Merry Gayle to Merry Gayle's daughter, Kerry.
e When Evelyn amended the trust to change the beneficiary and successor trustee, she knew that she had a serious illness, and she made the change with the specific purpose and intent of defrauding Monica as a judgment creditor by diverting to Kerry assets that Merry Gayle otherwise would have received from the trust upon Evelyn's death, and to defeat Monica's efforts to collect the judgment against Merry Gayle.
e Within a month after the trust amendment, the trial court entered judgment against Evelyn individually for $141,389; entered judgment against Merry Gayle individually for $282,071; and entered a costs judgment jointly and severally against Evelyn and Merry Gayle for $48,574.
® Within a month after entry of judgment, Evelyn died.
e Two days after Evelyn's death, counsel for Evelyn offered to settle Monica's claims against Evelyn in exchange for the full amount of the judgment against her, plus certain postjudgment interest, and half the amount of the joint and several costs award, and Monica accepted the offer. Evelyn's counsel did not *873disclose the change in trust beneficiary prior to the settlement.
® "Merry Gayle ... and/or Kerry ..., acting in concert with the Evelyn V. Trum-ble Living Trust [sic]}, by express or tacit agreement, participated in a common plan, scheme or design to defeat and frustrate [Monica's] legitimate rights as a creditor by concealing the existence of the Amended Trust and inducing [Monical to accept [Evelyn's] offer of settlement."
@The amendment of the trust was a "transfer" under section 838-8-102(13), C.R.S.2010, and no value was given for the transfer, which was fraudulent.
@ Merry Gayle has had access to the income and assets of the trust to pay for personal expenses, including her legal fees.
® Counsel for Merry Gayle has admitted that Evelyn amended the trust for the specific purpose of frustrating and defeating any attempt by Monica to collect the judgment from Merry Gayle.
These allegations contain many of the elements necessary to sustain a claim under CUFTA section 38-8-105. Because of the division's resolution of the issues, we do not decide (1) whether the trust amendment was a transfer under section 88-8-102(18); or (2) whether the trust was an "asset" of Merry Gayle as defined in section 38-8-102(2) before the change of beneficiary-a prerequisite to finding a "transfer" under section 38-8-102(18).
Assuming that, as the complaint alleges, the trust amendment was a "transfer," a critical element is missing to sustain a CUF-TA claim as it relates to the judgment owed by Merry Gayle: the complaint does not allege that the debtor whose debt she mow seeks to collect (i.e., Merry Gayle) made the transfer, as required by the statute. See § 38-8-105 (imposing liability for fraudulent transfers made "by a debtor" under enumerated circumstances); see also § 38-8-106(1)-(2) (same).
Monica contends on appeal that because Evelyn was a debtor at the time she made the transfer, the statute applies to her conduct. That contention is unavailing. Because it is alleged that Evelyn knew that a jury verdict was pending against her when she made the transfer, we must assume she knew she was a "debtor" (defined in section 38-8-102(7) as "a person who is liable on a claim"). However, the complaint alleges that just after Evelyn's death, her estate entered into a settlement that resulted in her being fully released from her own liability to Monica. Thus, to the extent Evelyn is alleged to have tried to defraud Monica, she could not have defrauded her with respect to Evelyn's own debt.
Rather, the only relevant allegation pertaining to Evelyn is that she was trying to defraud Monica with respect to Merry Gayle's debt. But Evelyn was not the debt- or with respect to Merry Gayle's debt. To the extent that, on the date of the trust amendment, Evelyn knew she might soon be found jointly and severally liable with Merry Gayle as to the costs award, Evelyn could potentially have been viewed as attempting to defraud Monica with regard to Evelyn's own debt; however, the trial court correctly ruled that Monica's CUFTA claim for that conduct is barred by the terms of the settlement.
Again assuming the trust amendment could qualify as a transfer, it strikes me as anomalous that there is no CUFTA claim that could be sustained against Merry Gayle, Kerry, or the trust for the alleged conduct with respect to Merry Gayle's debt. Taking the complaint allegations as true, the trust, in concert with Merry Gayle or Kerry, conceived a scheme to defraud Monica as Merry Gayle's creditor; Merry Gayle was the intended beneficiary of the trust, and expected to receive it; Evelyn changed the beneficiary from Merry Gayle to Kerry, the daughter of Merry Gayle, specifically to ensure Monica would not be able to recover her judgment against Merry Gayle; and, despite the change in beneficiary, Merry Gayle received monetary benefits from the trust.
Again assuming this transaction could qualify as a transfer, it appears to have defeated a creditor's rights in a manner for which CUFTA was intended to provide a remedy, and resembles cases where a debtor has transferred assets to a spouse or other family member for the purpose of defrauding creditors, while the transferor continued to *874receive the benefit of those assets after the transfer. See, e.g., Filip v. Bucurenciu, 129 Cal.App.4th 825, 28 Cal.Rptr.3d 884, 888-90 (2005) (transfers of real estate parcels among debtor, spouse, and family trust for purpose of defrauding ereditors held to violate Uniform Fraudulent Transfers Act).
Assuming, as I must in reviewing the dismissal of Monica's claims, that the complaint allegations are true, then Evelyn and Merry Gayle appear to have found a valid loophole in section 38-8-105. Specifically, if a debtor does not actually make a transfer, but conspires with another party-who has control over assets that are expected to become the debtor's-to have that party execute the transfer in order to defraud a creditor, while the debtor still obtains the benefit of the transferred assets, such a transfer does not appear to violate the statute, even if all the other elements are met. I question whether the General Assembly would have intended such a loophole to be present, had that body been aware of its existence.
Nevertheless, because it exists, I must agree with the majority that the elements of a fraudulent transfer under CUFTA have not been alleged here, and that the trial court's judgment must therefore be affirmed.