As Fleet unquestionably held a valid security interest in all Anson assets, and Peters did not establish that their fair value exceeded the amount due Fleet under its security agreement, see supra Section II.A, the Anson property conveyed to C J did not constitute an "asset" and no cognizable "transfer" occurred under section 6-16-4(a). See also Richman v. Leiser, 465 N.E.2d 796, 798 (Mass.App.Ct. 1984) ("A conveyance is not established as a fraudulent conveyance upon a showing of a fraudulent intention alone; there must also be a resulting diminution in the assets of the debtor available to [unsecured] creditors."). b. The Wrongful Foreclosure Claim and Uniform Commercial Code ("UCC") Section(s) 9-504

May 17, 2007), aff'd, Kingsley v. Wetzel, 518 F.3d 874 (11th Cir.2008)(bankruptcy court did not abuse discretion in equitably adjusting recovery from initial transferee who committed actual fraud but later repaid funds to estate). Patts contends that the result is the same under Massachusetts state law, relevant here because the Trustee has asserted a right to recover under Mass. Gen. Laws ch. 109A, citing Northborough Nat'l Bank v. Risley, 384 Mass. 348, 424 N.E.2d 522 (1981), and Richman v. Leiser, 18 Mass.App.Ct. 308, 465 N.E.2d 796 (1984). With respect to her second argument, Patts asserts that, even if there were a transfer to avoid, there can be no recovery for the estate because the Property is subject to the valid homestead exemptions of both the Debtor and Patts.

In order to make out a cause of action under § 7, a creditor must show not only intent to hinder, delay or defraud, but also harm: a "hurtful act," "prejudice to creditors," or "actual fraud, hindrance, or delay." Richman v. Leiser, 18 Mass. App. Ct. 308, 312, 465 N.E.2d 796 (1984) (applying G.L. c. 109A, § 7). And the harm that fraudulent conveyance law is designed to remedy is the wrongful diminution of assets. A conveyance is not established as fraudulent conveyance upon showing of a fraudulent intention alone; there must also be a resulting diminution in the assets of the debtor available to creditors.

A transfer, even if made with intent to defraud, is not deemed fraudulent in fact unless there has been a resulting diminution of the assets available to the creditor. See Richman v. Leiser, 18 Mass.App.Ct. 308, 312–313, 465 N.E.2d 796 (1984); Shamrock, Inc. v. Federal Deposit Ins. Corp., 36 Mass.App.Ct. 162, 170, 629 N.E.2d 344 (1994); Innis v. Robertson, 67 Mass.App.Ct. 388, 391, 854 N.E.2d 105 (2006) (“We acknowledge the truth of the concept”). Similarly, “[w]here a creditor ‘could not have reached the property before the conveyance, it follows that the conveyance itself could not have been fraudulent as to him,’ notwithstanding the debtor's fraudulent intent.”

The defendants argue first that the real estate transfers that took place in 1991 cannot be deemed to be fraudulent conveyances because, by virtue of the characteristics of the tenancy by the entirety estate, the conveyances did not reduce George's ability to satisfy his obligation to the plaintiff. They rely for the proposition on Richman v. Leiser, 18 Mass. App. Ct. 308, 312 (1984), and similar cases, where it is stated: "A conveyance is not established as fraudulent conveyance upon showing of a fraudulent intention alone; there must also be a resulting diminution in the assets of the debtor available to creditors." We acknowledge the truth of the concept, but conclude that it is not applicable here.

To recover under the Massachusetts Uniform Fraudulent Transfer Act, Chapter 109A, a creditor must prove that it suffered harm from the transfer, such as the diminution of the debtor's assets. Yankee Microwave, Inc. v. Petricca Communications Systems, Inc., 53 Mass.App.Ct. 497, 516 (2002); Richman v. Leiser, 18 Mass.App.Ct. 308, 312 (1984). If a creditor "could not have reached the property before the conveyance, it follows that the conveyance itself could not have been fraudulent as to him."

To recover under the Massachusetts Uniform Fraudulent Transfer Act, Chapter 109A, a creditor must prove that it suffered harm from the transfer, such as the diminution of the debtor's assets. Yankee Microwave, Inc. v.Petricca Communications Systems, Inc., 53 Mass. App. Ct. 497, 516 (2002); Richman v. Leiser, 18 Mass. App. Ct. 308, 312 (1984). If a creditor "could not have reached the property before the conveyance, it follows that the conveyance itself could not have been fraudulent as to him."

As neither party has pressed such a position, however, we follow their lead, noting that the result would likely be the same in any event. Cf. Northborough Nat'l Bank v. Risley, 384 Mass. 348, 350–51, 424 N.E.2d 522 (1981); Modin v. Hanron, 346 Mass. 629, 631, 195 N.E.2d 61 (1964); Richman v. Leiser, 18 Mass.App.Ct. 308, 314, 465 N.E.2d 796 (1984). Even if there is no actual retransfer, a transferee might reduce his liability by showing that he used the property to pay the transferor's debts (at least if those debts had priority over the transferor's tax liability).

Nothing in the statute qualifies the term "property" or in any way indicates a legislative intent to limit the statute's reach to conveyances involving property having a positive market value. Finding no comfort in the language of the UFCA, Romano falls back upon the decision in Richman v. Leiser, 18 Mass. App.Ct. 308, 465 N.E.2d 796 (1984). That decision cannot carry the weight that Romano loads upon it.

Plaintiff has made claims for fraud/fraudulent conveyance, and fraudulent inducement of employment (Counts II & XIV). Fraudulent conveyance is an action that requires allegations of an attempt to hide assets to avoid a debt, for example in bankruptcy or in litigation. See Richman v. Leiser, 18 Mass. App. Ct. 308, 312, 465 N.E.2d. 796, 798 (1984) (stating, "[a] conveyance is not established as a fraudulent conveyance upon showing of a fraudulent intention alone; there must also be a resulting diminution in the assets of the debtor available to creditors."); Jorden v. Ball, 357 Mass. 468, 470, 258 N.E.2d. 736, 737 (1970) (stating, "[t]o benefit from the rights [the statute] creates, a person must qualify as a 'creditor,' defined in the act as 'a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent.'"). In this case, there are no facts on the record that show that Defendants hid the book of business for the purpose of defrauding Plaintiff out of the money for a future cause of action.