A bankruptcy court "ordinarily determines the value of the property to be the value at the time of the transfer, but has discretion on how to value the property so as to put the estate in its pretransfer position." Joseph v. Madray (In re Brun), 360 B.R. 669, 674 (Bankr. C.D. Cal. 2007); see also, Riske v. The David Austin Seitz Irrevocable Tr. (In re Seitz), 400 B.R. 707, 722 (Bankr. E.D. Mo. 2008) (noting that, typically, "courts equate 'value' with the fair market value of the subject property at the time of the transfer."). This is especially true when the property in question may have declined in value subsequent to the transfer.

red Creditors v. Citicorp N. Am., Inc. (In re TOUSA, Inc.), 422 B.R. 783, 869 (Bankr.S.D.Fla.2009) (citing Sherman, M & L Bus. Mach.). Courts applying an objective standard of good faith under Section 550(b) are: Bonded Fin., 838 F.2d at 897–98; Woods & Erickson, LLP v. Leonard (In re AVI, Inc.), 389 B.R. 721, 736 (9th Cir. BAP 2008) (citing Agri. Research, M & L Bus. Mach., Sherman ); Gallant v. Kanterman (In re Kanterman), 97 B.R. 768, 779 (Bankr.S.D.N.Y.1989) (citing Bonded Fin.); Lustig v. Hickey (In re Hickey), 168 B.R. 840, 848–49 (Bankr.W.D.N.Y.1994) (citing Bonded Fin. and others); Tavenner v. Smoot (In re Smoot), 265 B.R. 128, 140 (Bankr.E.D.Va.1999) (citing Bonded Fin. and others); Gold v. Laines (In re Laines), 352 B.R. 397, 406 (Bankr.E.D.Va.2005) (citing Agri. Research, Sherman and others); Enron Corp. v. Ave. Special Situations Fund II, LP (In re Enron Corp.), 340 B.R. 180, 208 (Bankr.S.D.N.Y.2006) (citing M & L Bus. Mach.); Riske v. David Austin Seitz Irrevocable Trust (In re Seitz), 400 B.R. 707, 721 (Bankr.E.D.Mo.2008) (citing Sherman ); CLC Creditors' Grantor Trust v. Howard Sav. Bank (In re Commercial Loan Corp.), 396 B.R. 730, 744–45 (Bankr.N.D.Ill.2008) (citing Bonded Fin.). And courts applying an objective standard of good faith under both Sections 548(c) and 550(b) are: Doeling v. Grueneich (In re Grueneich), 400 B.R. 688, 693 (8th Cir. BAP 2009) (citing Agri. Research ); Dev. Specialists, Inc. v. Hamilton Bank, N.A. (In re Model Imperial, Inc.), 250 B.R. 776, 797–98 (Bankr.S.D.Fla.2000) (citing Agri. Research, M & L Bus. Mach. and others).

Missouri precedent clearly provides that "the presence of one badge alone does not support a finding of actual intent to defraud." In re Seitz , 400 B.R. 707, 714 (Bankr. E.D. Mo. 2008). Considering the badges of fraud, a reasonable factfinder could not conclude that the Cash Transfers were made with fraudulent intent.

Missouri precedent clearly provides that "the presence of one badge alone does not support a finding of actual intent to defraud." In re Seitz, 400 B.R. 707, 714 (Bankr. E.D. Mo. 2008). Accordingly, a reasonable factfinder could not conclude that Harding or Enterprises had actual intent to defraud future creditors at the time of the 2012 Transfers.

The purchase price of the properties directly corresponded to the amount of indebtedness on the properties, not their fair market values.”); In re Seitz, 400 B.R. 707, 719 (Bankr.E.D.Mo.2008) ( “Austin admitted that he approached Thomas, hat-in-hand, advising Thomas of his need for $260,000.00 and inquiring as to whether Thomas would be interested in purchasing the Remaining Interest. Austin's openness about his financial straits (a tactic which generally defies both business and common sense) in approaching Thomas—a sophisticated businessman—made Thomas's offer more equivalent to a fire-sale price than a price reflecting reasonably equivalent value.”); Kemmer, 265 B.R. at 232 (“The Kemmers were not trying to sell the Property for its ‘reasonable’ value, and they had no incentive to negotiate with the Mundays for a higher and better price.

"The presence of one badge of fraud alone does not support a finding of actual intent to defraud; however, the presence of several indicia of fraud may give rise to a strong inference of fraud." In re Seitz, 400 B.R. 707, 714 (Bankr. E.D. Mo. 2008). In this case the Court finds the four of these indicia are present. First, the transfer here was to an insider.

Others have found that the valuation date should be determined based upon the circumstances of the case. See, e.g., Weinman v. Fidelity Capital Appreciation Fund (In re Integra Realty Resources, Inc.), 354 F.3d 1246, 1266 (10th Cir. 2004) (stating that "the only generally applicable rule in regard to § 550(a) valuation is that the time at which the value is measured depends upon the circumstances of the case") (internal quotations omitted); In re Gordos Rest. Corp., 643 B.R. at 36 (noting that the valuation date depends on the facts, including whether there is post-transfer appreciation in value, value added in good faith, and danger of either party receiving a windfall); In re Seitz, 400 B.R. 707 (Bankr. E.D. Mo. 2008) (finding that limiting the trustee's recovery to the value as of the transfer date would punish the estate and its creditors by depriving them of the appreciation in value and allowing bad faith transferees to capture it, and further concluding that the value should be determined as of the date of the judgment for recovery). As this Court previously noted, "it is important for trial courts to have broad discretion in valuing property or ordering recovery since the avoidance of transfers can range from conveyances to the innocent to conspiracies intended to defraud creditors and thus, the timing of the valuation can be important."

However, the Court has considered this issue in prior cases, and concluded that it "ordinarily determines the value of the property to be the value at the time of the transfer, but has discretion on how to value the property so as to put the estate in its pretransfer position." In re Parker , No. AP 16-8004-JDP, 2016 WL 6783222, at *5 (Bankr. D. Idaho Nov. 15, 2016) (citing Joseph v. Madray (In re Brun) , 360 B.R. 669, 674 (Bankr. C.D. Cal. 2007) ; Riske v. The David Austin Seitz Irrevocable Tr. (In re Seitz) , 400 B.R. 707, 722 (Bankr. E.D. Mo. 2008) (noting that, typically, "courts equate ‘value’ with the fair market value of the subject property at the time of the transfer.")). In this case, the Dec. Note and Dec. DOT attached to the complaint indicates the value of the lien was $84,389.

The Trustee has cited cases for the proposition that in the rare instance where there is direct evidence of a debtor's intent to defraud there is no need to resort to circumstantial evidence. See, e.g.,In re Seitz, 400 B.R. 707, 713 (Bankr. E.D. Mo. 2008). That is true; but, that does not mean that a court or creditors must blindly accept a debtor's statement regarding his own intent.

The rationale behind the requirement that a debtor be found insolvent in order to prove constructive fraud is that “[a]s long as creditors are not disadvantaged by the low sale price (because the debtor otherwise is sufficiently liquid to cover his debts), then the debtor is free to sell (or, more specifically, undersell) his property for whatever price he likes.” In re Seitz, 400 B.R. 707, 720 (Bankr.E.D.Mo.2008). In this case, the Court finds that the Debtors were insolvent at the time of the transfer.