1994); Bennett v. Genoa Ag Ctr., Inc. (In re Bennett ), 154 B.R. 140, 147 (Bankr.N.D.N.Y.1992); Consumers Credit Union v. Widett (In re Health Gourmet, Inc.), 29 B.R. 673, 676 (Bankr.D.Mass.1983); Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 405 N.E.2d 985, 987 (1980); accord, analysis in United States v. Shepherd, 834 F. Supp. 175 (N.D.Tex.1993), though that decision was later reversed for lack of federal jurisdiction to overturn a state forfeiture, 23 F.3d 923 (5th Cir.1994)).Mussetter v. Lyke, 10 F. Supp. 2d 944, 959 (N.D. Ill. 1998), aff'd, 202 F.3d 274 (7th Cir. 1999)(applying California Fraudulent Transfer Act to collusive foreclosure sale).

See Steel Co. v. Morgan Marshall Indus., Inc., 278 Ill.App.3d 241, 250–252, 214 Ill.Dec. 1029, 662 N.E.2d 595 (1996) (although no dispute that art. 9 of Uniform Commercial Code was complied with, genuine issue of material fact remained whether transfers made with actual intent to defraud). Cf. Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass.App.Ct. 47, 50, 405 N.E.2d 985 (1980), quoting 1B Coogan, Hogan, & Vagts, Secured Transactions Under the Uniform Commercial Code § 13.07(1), at 1381 (1980) (“Clearly, article 9 does not replace the Uniform Fraudulent Conveyance Act”). Cases decided before the enactment of the UFTA in Massachusetts have stated that when a debtor has paid one creditor over another, even when the payment comprised substantially all of the debtor's assets, this fact by itself is insufficient to establish an intent to hinder, delay, or defraud.

In seeking to secure payment on an indebtedness which is owed, a creditor may bring an action to reach and apply property of the debtor. Bethlehem Fabricators, Inc. v. H.D. Watts Co., 286 Mass. 556, 562 (1934), Sheffield Progressive, Inc. v. Kingston Tool Co., Inc., 10 Mass.App.Ct. 47, 51 (1980). Actions to reach and apply involve a two-step process, requiring the establishment of an indebtedness on the part of the principal defendant to the plaintiff, and second, the process for collecting the debt out of property rights which cannot be reached on an execution.

All inferences are to be taken in favor of the plaintiff. Sheffield Progressive, Inc. v. Kingston Tool Co., Inc., 10 Mass. App. Ct. 47, 48 (1980). His complaint centers on a claim for damages for the amount of the check drawn to him and his client.

All inferences are to be taken in favor of the plaintiff. Sheffield Progressive, Inc. v. KingstonTool Co.. Inc., 10 Mass. App. Ct. 47, 48 (1980). The factual allegations of the complaint, as supplemented by the motion judge's voluntary report, present the following scenario:

8. It is equally self-evident that a collusive foreclosure sale may be set aside as involving a fraudulent transfer (BFP v. RTC, 511 U.S. 531, 545, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994)) (interpreting the Bankruptcy Code's fraudulent transfer provision, 11 U.S.C. § 548, which is comparable to UFTA § 4); Garrett v. Walker (In re Garrett, 172 B.R. 29, 30 (Bankr.E.D.Ark. 1994); Bennett v. Genoa Ag Ctr., Inc. (In re Bennett), 154 B.R. 140, 147 (Bankr.N.D.N.Y. 1992); Consumers Credit Union v. Widett (In re Health Gourmet, Inc.), 29 B.R. 673, 676 (Bankr.D.Mass. 1983); Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 405 N.E.2d 985, 987 (1980); accord, analysis in United States v. Shepherd, 834 F. Supp. 175 (N.D.Tex. 1993), though that decision was later reversed for lack of federal jurisdiction to overturn a state forfeiture, 23 F.3d 923 (5th Cir. 1994)). 9. It must be held here, and this Court concludes, that the transfers at issue involved a collusive foreclosure sale.

However, it has not been determined when the plaintiff's daughter was allegedly advised that an appeal would be futile. It is well established that a motion to dismiss for failure to state a claim should not be allowed unless there is no set of facts which will entitle plaintiff to relief. Sheffield Progressive, Inc. v. Kingston Tool Co., Inc., 10 Mass. App. Ct. 47, 48 (1980). If plaintiff's daughter was improperly advised that an appeal would be futile on or after April 14, 1997, then plaintiff filed her appeal within 120 days of the alleged improper conduct, and the hearing officer improperly dismissed her appeal for lack of timely filing. Therefore, because such possibility has not been negated, defendants' motion to dismiss must fail, and the matter must be remanded to the hearing officer to determine whether the DTA engaged in improper conduct, and, if so, whether this occurred within 120 days of the time she filed her appeal.

In the instant case, of course, there is no suggestion that Peters was not in default under its loan restructuring agreement with Fleet. Finally, Peters relies on Sheffield Progressive, Inc. v. Kingston Tool Co., 405 N.E.2d 985 (Mass.App.Ct. 1980), which upheld a denial of a motion to dismiss a "collusive foreclosure" claim that collateral worth over $3 million had been sold in a private foreclosure sale for only $879,159, the full amount of the secured debt. Id. at 987.

Because the transaction involved a foreclosure by BayBank on Continental's assets, the plaintiffs would also have to show that Continental colluded with BayBank in effecting the transfer. See Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 49, 405 N.E.2d 985 (1980). A transaction could fit within this category even if it was technically insolvent before the transaction if the sale was without fair consideration and had the effect of further diminishing the assets available to creditors.

The debtor has the right under section 9-507(1) to recover for "any loss caused by a failure to comply" with section 9-504's requirement that the disposition of the collateral be made in a commercially reasonable manner. ( United States v. Conrad Publishing Co. (8th Cir. 1978), 589 F.2d 949, 955; Sheffield Progressive, Inc. v. Kingston Tool Co. (Mass. Ct. App. 1980), 405 N.E.2d 985, 988.) The debtor may recover monetary damages.