Boxer F2, L.P. v. Flamingo West, Ltd. et al.
ORDER. Defendants William Bronchick and Bronchick PC's motion in limine 179 is DENIED. By Judge Philip A. Brimmer on 10/23/15.(pabsec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-00317-PAB-MJW
BOXER F2, L.P., a Texas limited partnership,
FLAMINGO WEST, LTD., d/b/a Legalwiz Publications,
BRONCHICK & ASSOCIATES,
WILLIAM BRONCHICK, and
BRONCHICK & ASSOCIATES, P.C.,
This matter is before the Court on the Motion in Limine to Dismiss Plaintiff’s
Fourth Claim for Relief [Docket No. 179] filed by defendants William Bronchick and
Bronchick & Associates, P.C. (“Bronchick PC”).
Defendants seek an order excluding evidence and testimony bearing on alleged
fraudulent transfers between Flamingo West, Ltd. (“Flamingo West”) and Caroline
Bronchick and alleged fraudulent transfers between the Colorado Association of Real
Estate Investors, LLC (“CAREI”) and Paul Pedri. Id. at 1. Defendants also ask the
Court to dismiss plaintiff’s fourth claim for relief. Id.
“Relevant evidence” means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence. Fed. R. Evid. 401; Bitler v. A.O. Smith
Corp, 400 F.3d 1227, 1234 (10th Cir. 2004). Relevant evidence is generally admissible,
unless otherwise provided. Fed. R. Evid. 402.
Under Colorado law,
A transfer made or obligation incurred by a debtor is fraudulent as to a
creditor, whether the creditor’s claim arose before or after the transfer was
made or the obligation was incurred, if the debtor made the transfer or
incurred the obligation:
(a) With actual intent to hinder, delay, or defraud any creditor of the debtor;
(b) Without receiving a reasonably equivalent value in exchange for the
transfer or obligation, and the debtor:
(I) Was engaged or was about to engage in a business or a
transaction for which the remaining assets of the debtor were
unreasonably small in relation to the business or transaction; or
(II) Intended to incur, or believed or reasonably should have believed
that he would incur, debts beyond his ability to pay as they came due.
Colo. Rev. Stat. § 38-8-105(1).
To support its fraudulent transfer claims, plaintiff points to the sale or transfer of
assets from Flamingo West to Mr. Bronchick’s wife. Docket No. 187 at 3, ¶ 9. Plaintiff
also identifies asset sales from CAREI to Paul Pedri, that Flamingo West is the sole
member of CAREI, and that CAREI is a Colorado limited liability company organized by
Defendant William Bronchick. See id. at 3-4, ¶¶ 9-15. Boxer claims that the sale of
three residential properties owned by Flamingo West to Ms. Bronchick resulted in a
drop in value of Flamingo’s assets. Docket No. 187 at 3, ¶ 9. Flamingo West, by
contrast, claims that its sharp decline in gross income from 2012 to 2013 was due to its
sale of assets to CAREI. Id. at 3, ¶ 10. Boxer has shown the relevance of information
relating to alleged transfers between Flamingo West and Mr. Bronchick’s wife, and the
alleged transfers between CAREI and Paul Pedri, to its claims against William
Bronchick and Bronchick PC. Defendants’ motion in limine is thus denied. 1
Defendants’ motion to dismiss Boxer’s fourth claim for relief is denied for two
reasons. First, motions to dismiss were due on March 20, 2015; thus, it is untimely.
Docket No. 85; see Docket No. 81-1 at 12. Second, even if the Court reached the
merits, plaintiff has standing to assert its fourth claim of relief against Flamingo West
and Mr. Bronchick for fraudulent transfers. The facts already established by the
magistrate judge’s sanction order are adequate to give Boxer standing to assert its
fourth claim for relief. In particular, it has already been established that “Flamingo West
made fraudulent transfers to at least one transferee: Mr. Bronchick.” Docket No. 130 at
9. And defendants’ argument regarding plaintiff’s lack of standing to assert claims
against either Mr. Bronchick’s wife or CAREI is misplaced and irrelevant because Boxer
has not brought any claims against Mr. Bronchick’s wife or CAREI.
For the foregoing reasons, it is
ORDERED that Defendants William Bronchick and Bronchick PC’s motion in
limine [Docket No. 179] is DENIED.
Defendants argue that, pursuant to Colo. Rev. Stat. § 38-8-109, a claim for
fraudulent transfer is properly asserted against the transferee of the asset, not the
debtor. Docket No. 179 at 5, ¶ 9. Section 38-8-108, how ever, which describes the
remedies available to a creditor for fraudulent transfer, assumes the availability of
remedies against a debtor and not merely the transferee. See Colo. Rev. Stat. § 38-8108(1)(c) (for recovery available for willful intent to defraud, “[n]o judgment may be
entered pursuant to this paragraph . . . against a person other than the debtor unless
that person also acts with wrongful intent”); see also Colo Rev. Stat. § 38-8-108(1)(d)(I)
(providing for an injunction “against further disposition by the debtor . . . of the asset
transferred or of other property”).
DATED October 23, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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