Walsh v. St. Denis

Filing 35

RULING granting, in part, and denying, in part, 15 Renewed Plaintiff's Emergency Application for Prejudgment Remedy. Signed by Judge Sarah A. L. Merriam on 9/20/2017. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
KENNETH G. WALSH
:
:
v.
:
:
FRANCIS ST. DENIS
:
:
------------------------------x

Civ. No. 3:17CV01032(AWT)

September 20, 2017

RULING ON RENEWED PLAINTIFF’S EMERGENCY APPLICATION FOR
PREJUDGMENT REMEDY [Doc. #15]
Plaintiff Kenneth G. Walsh (“plaintiff”) has filed a
renewed application for prejudgment remedy. [Doc. #15].1 For the
reasons articulated below, the Court GRANTS, in part,
plaintiff’s Renewed Emergency Application for Prejudgment Remedy
[Doc. #15] (“motion for PJR”).
I.

BACKGROUND
Plaintiff brings this action against Francis St. Denis

(“defendant” or “Francis St. Denis”), the father of plaintiff’s
former employer Thomas St. Denis. Plaintiff alleges that on
January 5, 2015, Thomas St. Denis fraudulently transferred
assets to defendant at a time when Thomas St. Denis and his
companies “owed Plaintiff in excess of $59,000 for unpaid
wages[.]” Doc. #1, Complaint at ¶53.

Plaintiff commenced this action as a self-represented party and
filed the motion for PJR in his self-represented capacity. On
August 31, 2017, Attorney Patrick Klingman filed an appearance
on behalf of plaintiff. [Doc. #27].
1

1

Plaintiff’s Complaint asserts three causes of action
against defendant, Francis St. Denis: (1) “Actual Fraud” in
violation of the Connecticut Uniform Fraudulent Transfer Act
(“CUFTA”), section 52-552e(a)(1) of the Connecticut General
Statutes; (2) “Constructive Fraud” in violation of CUFTA,
section 52-552e(a)(2) of the Connecticut General Statutes; and
(3) common law fraudulent transfer. See generally Doc. #1,
Complaint.
Simultaneously with the Complaint, plaintiff filed an Ex
Parte Application for Prejudgment Remedy (“initial PJR
application”). [Doc. #2]. On June 23, 2017, Judge Alvin W.
Thompson referred the initial PJR application to the
undersigned. [Doc. #8]. On June 26, 2017, the Court denied,
without prejudice to re-filing, plaintiff’s initial PJR
application on the grounds that: (1) plaintiff had failed to
demonstrate circumstances warranting ex parte consideration of
his application pursuant to Connecticut General Statutes section
52-278e; and (2) plaintiff’s application was procedurally
defective pursuant to Connecticut General Statutes section 52278d. See generally Doc. #9.
On July 24, 2017, plaintiff filed a motion for default
against defendant Francis St. Denis for failure to respond to
the Complaint. [Doc. #13]. The Clerk of the Court granted that

2

motion on July 25, 2017, and required that plaintiff file a
motion for default judgment by August 24, 2017. [Doc. #14].
On July 27, 2017, plaintiff filed the motion for PJR, with
two supporting affidavits. [Doc. #15]. On this same date,
plaintiff also filed a Motion to Disclose Property and Assets.
[Doc. #16]. On July 28, 2017, Judge Thompson referred those
motions to the undersigned. [Doc. #17]. On August 9, 2017, the
Court denied plaintiff’s Motion to Disclose Property and Assets
because it sought the disclosure of assets from a non-appearing
defendant, which is prohibited by the plain language of the
applicable Connecticut statute. See Doc. #19 (relying on Conn.
Gen. Stat. §52-278n(a)). The Court scheduled an evidentiary
hearing on plaintiff’s motion for PJR for September 5, 2017
[Doc. #20], and entered a pre-hearing scheduling order and order
for hearing and notice. [Doc. ##21, 22].
In compliance with the Court’s order, plaintiff filed a
pre-hearing memorandum in further support of his motion for PJR.
[Doc. #25]. Following a partially granted request for an
extension of time to August 30, 2017, [Doc. #24], on August 31,
2017, plaintiff filed his Motion for Default Judgment as to
defendant Francis St. Denis. [Doc. #26].
The Court held an evidentiary hearing on plaintiff’s motion
for PJR on September 5, 2017. [Doc. #29]. In support of
plaintiff’s motion, in addition to his own testimony, plaintiff

3

presented the testimony of: the general manager of Norwalk Self
Storage, Kurt Price; Thomas St. Denis’ former accountant, Paul
Costello; and the estranged wife of Thomas St. Denis, Daelte
Lima St. Denis. See Doc. #30. Plaintiff also offered documentary
exhibits in support of his motion for PJR. See id.2
II.

PROBABLE CAUSE STANDARD
Although the Federal Rules of Civil Procedure govern the

conduct of an action in federal court, state law determines when
and how a provisional remedy may be obtained. See Fed. R. Civ.
P. 64; Bahrain Telecomm. Co. v. DiscoveryTel, Inc., 476 F. Supp.
2d 176, 183 (D. Conn. 2007). “Under Connecticut law, a
prejudgment remedy is appropriate if the court, upon
consideration of the facts before it and taking into account any
defenses, counterclaims or setoffs, claims of exemption and
claims of adequate insurance, finds that the plaintiff has shown
probable cause that such a judgment will be rendered in the
matter in the plaintiff’s favor in the amount of the prejudgment
remedy sought.” Roberts v. TriPlanet Partners, LLC, 950 F. Supp.

On September 13, 2017, the Court held a telephonic status
conference to address the amount in controversy alleged on the
face of the Complaint and the existence of diversity
jurisdiction. See Doc. ##32, 33. Following that conference,
plaintiff filed a Supplemental Response addressing the Court’s
inquiry. See Doc. #34. At this time, and for the limited purpose
of proceeding with the disposition of plaintiff’s motion for
PJR, the Court finds that plaintiff has adequately addressed the
Court’s concerns regarding the sufficiency of the Complaint’s
allegations concerning the existence of diversity jurisdiction.
2

4

2d 418, 420 (D. Conn. 2013) (internal quotation marks omitted)
(quoting Conn. Gen. Stat. §52-278d(a)).
“Probable cause is a flexible common sense standard. It
does not demand that a belief be correct or more likely true
than false.” TES Franchising, LLC v. Feldman, 943 A.2d 406, 411
(Conn. 2008) (citation omitted). Connecticut courts have defined
“probable cause” in this context
as “a bona fide belief in the existence of the facts
essential under the law for the action and such as
would warrant a man of ordinary caution, prudence and
judgment, under the circumstances, in entertaining
it.” Three S. Development Co. v. Santore, 193 Conn.
174, 175, 474 A.2d 795 (1984) (citation omitted).
Thus, the plaintiff does not have to prove its case
by a preponderance of the evidence, but must show that
there is probable cause to sustain the validity of the
claim. New England Land Co., Ltd. v. De Markey, 213
Conn. 612, 620, 569 A.2d 1098 (1990).
Walpole Woodworkers, Inc. v. Atlas Fencing, Inc., 218 F. Supp.
2d 247, 249 (D. Conn. 2002). “A probable cause hearing for the
issuance of a prejudgment remedy is not contemplated to be a
full scale trial on the merits of the plaintiff’s claim. Rather,
the trial court’s function is to determine whether there is
probable cause to believe that a judgment will be rendered in
favor of the plaintiff in a trial on the merits.” Roberts, 950
F. Supp. 2d at 421 (internal citations and quotation marks
omitted).
“When a plaintiff is seeking a prejudgment remedy based on
a fraudulent transfer, ‘the plaintiff must establish probable

5

cause to believe that it can prove by clear and convincing
evidence that the transfer was fraudulent.’” Cendant Corp. v.
Shelton, 473 F. Supp. 2d 307, 312 (D. Conn. 2007) (quoting Hull
v. Joyner, No. CV055000206S, 2006 WL 2605708, at *3 (Conn.
Super. Ct. Aug. 25, 2006)).
III. DISCUSSION
Plaintiff’s motion seeks the entry of a prejudgment remedy
(“PJR”) on the entirety of his Complaint. See generally Doc.
#15. Plaintiff’s motion seeks to secure assets in two separate
locations: (1) Unit 4331, located at the Norwalk Self Storage
facility, held in the name of defendant Francis St. Denis; and
(2) two trailers parked on property in Weston, Connecticut,
which property is owned by a limited liability company allegedly
controlled by Thomas St. Denis. See Doc. #15 at 2. The proposed
order attached to plaintiff’s motion for PJR seeks a PJR in the
amount of $156,015.63. See Doc. #15-2. This amount roughly
matches a judgment entered against Thomas St. Denis for wages
owed to plaintiff, plus interest, attorney’s fees, and other
statutorily prescribed damages. See Doc. #1, Complaint at ¶47.
At the September 5, 2017, evidentiary hearing, plaintiff
clarified that he seeks a PJR against defendant Francis St.
Denis in the amount of $59,375.00, and seeks to attach only
storage unit 4331, and any contents contained therein, located
at the Norwalk Self Storage facility.

6

At the direction of the Court, on September 7, 2017,
plaintiff filed a supplemental submission addressing: (1) the
evidence before the Court supporting plaintiff’s claim for a PJR
on his common law fraudulent transfer claim; and (2) the import,
if any, of the possibility that the property held within the
storage unit is the marital property of Thomas St. Denis and
Daelte Lima St. Denis. See Doc. #31. In his supplemental
submission, plaintiff limits his motion for PJR to Count I of
the Complaint, which alleges actual fraud pursuant to CUFTA. See
Doc. #31 at 3.3
Accordingly, the Court turns to whether plaintiff has
established probable cause to support the entry of a PJR on
Count I of the Complaint.
A. Findings of Fact
After considering the well-pleaded allegations of the
Complaint,4 and the evidence presented at the September 5, 2017,
evidentiary hearing, the Court finds the following facts
established for the limited purpose of deciding the instant
motion for PJR.

As to the ownership of the contents of any items held within
the storage unit, the Court concurs that the issue of ownership
is premature at this stage of the proceedings.
3

The well-pleaded allegations of plaintiff’s Complaint have been
deemed admitted by virtue of defendant’s default. See Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158
(2d Cir. 1992).
4

7

1. Plaintiff’s Employment with the St. Denis Companies
Thomas St. Denis is the Chief Executive Officer and
President of Lumivisions Architectural Elements, Inc. (“LVAE”)
and the majority owner and manager of Lumivisions, LLC
(“Lumivisions”) (LVAE and Lumivisions are hereinafter
collectively referred to as the “St. Denis Companies”). See Doc.
#1, Complaint at ¶¶1, 10. On or about July 25, 2014, plaintiff
entered into an employment agreement with Lumivisions to serve
as general counsel for the St. Denis Companies effective as of
August 15, 2014 (the “Employment Agreement”). See id. at ¶8.
Thomas St. Denis acted as plaintiff’s employer under the
Employment Agreement. See id. at ¶¶9-10.5
The Employment Agreement provided that the St. Denis
Companies would pay plaintiff $6,250.00 per month, for a total
base salary of $75,000.00 per year. See Doc. #1, Complaint at

Although the uncontested allegations of the Complaint
sufficiently establish that Thomas St. Denis was plaintiff’s
employer for purposes of the Connecticut Wage Statute, see Doc.
#1, Complaint at ¶¶9-10, the Court takes judicial notice of its
prior finding in Walsh v. St. Denis, that Thomas St. Denis is
plaintiff’s employer for purposes of the Connecticut Wage
Statute. See Walsh v. St. Denis, No. 3:16CV945(AWT) (“Walsh I”),
Doc. #43 at 17-18 (D. Conn. Apr. 14, 2017); see also Fed. R.
Evid. 201(b)(2) (“The court may judicially notice a fact that is
not subject to reasonable dispute because it: ... (1) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”).
5

8

¶11.6 The Employment Agreement also provided that plaintiff was
to be immediately granted a five percent (5%) equity position in
Lumivisions. See Doc. #1, Complaint at ¶12. Under the Employment
Agreement, upon the “successful conclusion” of Lumivisions
Architectural Elements, Inc. v. Spanlite Projects Ltd., No.
3:13CV1729(JAM) (D. Conn. Nov. 19, 2013), plaintiff was also
entitled to a milestone payment of either $50,000.00 or an
additional three percent (3%) equity interest in Lumivisions.
See id. at ¶13. The Employment Agreement defined “successful
conclusion” as meaning that “Lumivisions will have the right to
market and sell Spanlite technologies or the next generation of
said technologies in North, South and Central America on terms
acceptable to the Company.” Id.
Plaintiff achieved a “successful conclusion” –- as defined
by the Employment Agreement –- of the Spanlite litigation. See
id. at ¶¶14-16. Specifically, in December 2014, the parties to

Plaintiff does not attach a copy of the Employment Agreement to
the Complaint, nor was this document offered as an exhibit at
the September 5, 2017, evidentiary hearing. However, plaintiff
quotes the relevant provisions of the Employment Agreement in
the Complaint. See Doc. #1, Complaint at ¶¶11-13. The Court also
takes judicial notice of the Employment Agreement, a copy of
which is attached to the complaint filed in Walsh I. See Walsh
I, Doc. #1-1 (D. Conn. June 16, 2016). Plaintiff testified that
the document attached to the complaint in Walsh I is the same
Employment Agreement referenced in the Complaint here. The Court
credits that testimony. Portions of the Employment Agreement
were also read into the record during the September 5, 2017,
evidentiary hearing.
6

9

the Spanlite litigation reached a settlement agreement pursuant
to which LVAE was granted the exclusive right to market, sell,
manufacture and distribute Spanlite technologies to the
architectural and designer communities in the United States,
Central and South America. See Doc. #1, Complaint at ¶15. Having
reached such a “successful conclusion” of the Spanlite
litigation, plaintiff was entitled to the milestone payment of
$50,000.00. See id. at ¶17. Plaintiff, however, has never
received that milestone payment. See id. Plaintiff also was not
paid wages for half of August 2014 and December 2014. See id.
2. Conveyance of the Storage Unit to Francis St. Denis
In connection with Walsh I, on February 24, 2017, the
undersigned issued a ruling granting, in part, plaintiff’s
renewed emergency motion for prejudgment remedies against the
assets of Thomas St. Denis. See Walsh I, Doc. #31 (D. Conn. Feb.
24, 2017); see also Doc. #1, Complaint at ¶45. Approximately two
months later, upon the motion of plaintiff, the Court modified
its order for prejudgment remedies, and entered an order
permitting plaintiff to secure the contents of storage unit
number 4331, located in the Norwalk Self Storage facility. See
Walsh I, at Doc. ##46, 47 (D. Conn. Apr. 24, 2017); see also
Doc. #1, Complaint at ¶¶49, 50. In support of that modification,
and also admitted into evidence in support of the motion for PJR
now under consideration, plaintiff presented a rental agreement

10

dated March 15, 2014, reflecting that storage unit number 4331,
located in the Norwalk Self Storage facility, was then held in
the name of Thomas St. Denis. See Pl. Ex. 1. Listed as an
“alternate name” on the March 15, 2014, agreement is that of
defendant, Francis St. Denis. See id.
When plaintiff attempted to secure the contents of the
storage unit, Kurt Price, the manager of Norwalk Self Storage,
stated that on January 5, 2015, Thomas St. Denis had executed a
document entitled “Release of Owner’s Interest in Personal
Property to Another Individual.” See Pl. Ex. 2 (hereinafter the
“Release of Interest”). The Release of Interest is dated January
5, 2015. See id. It is signed by Thomas St. Denis, and states:
I hereby declare that I am the sole legal owner of all
personal property stored in space number 4331 located at
Norwalk Self Storage in the City of Norwalk, state of
Connecticut.
I hereby release all my right, title and interest in and
to the above-described premises and convey all personal
property therein to Francis St. Denis whose address is
19 Paul Street Auburn MA 01510[.]
Id. Plaintiff also offered as an exhibit a rental agreement
reflecting the transfer of the storage unit to defendant,
Francis St. Denis, which was admitted into evidence. See Pl. Ex.
3; see also Doc. #30. That agreement provides that Francis St.
Denis became the “occupant” of the storage unit, and that Thomas
St. Denis became the “alternate name” on that unit. See Pl. Ex.
3. Mr. Price testified that the “alternate name” is provided for

11

circumstances when the storage facility is unable to reach the
occupant of the unit. Mr. Price also testified that, generally,
the “alternate name” can enter the facility. Mr. Price testified
that because the rental agreement listing Thomas St. Denis as an
alternate name does not prohibit Thomas St. Denis from entering
the unit, Thomas St. Denis would have had access to the storage
unit after it was transferred to defendant, Francis St. Denis.7
See also Doc. #1, Complaint at ¶55. At the time Thomas St. Denis
executed the Release of Interest, Thomas St. Denis owed
plaintiff $59,375.00 in unpaid wages. See id. at ¶53.
As testified to by plaintiff and Daelte Lima St. Denis,
defendant Francis St. Denis is the father of Thomas St. Denis,
and a retired school teacher. See also id. at ¶54. Francis St.
Denis currently resides in Auburn, Massachusetts. See id. at ¶5.
B. Analysis
Plaintiff seeks the entry of a PJR on Count I of the
Complaint, which asserts a claim for actual fraudulent transfer
pursuant to Connecticut General Statutes section 52-552e(a)(1).
Section 52-552e(a)(1) provides:
A transfer made or obligation incurred by a debtor is
fraudulent as to a creditor, if the creditor’s claim
arose before the transfer was made or the obligation was
Mr. Price testified that “the system” at Norwalk Self Storage
defaults to permitting the alternate named individual access to
the unit. Unless the occupant affirmatively seeks to prohibit
the alternate name from accessing the unit, the alternate name
is permitted access.
7

12

incurred and if the debtor made the transfer or incurred
the obligation: (1) With actual intent to hinder, delay
or defraud any creditor of the debtor[.]
Conn. Gen. Stat. §52-552e(a)(1); see also Canty v. Otto, 41 A.3d
280, 289 (Conn. 2012).
“To prove actual fraudulent transfer under section 52–
552e(a)(1) of the Connecticut General Statutes, the [plaintiff]
must ultimately prove (1) that a transfer of assets took place,
(2) that the claim arose before that transfer took place, and
(3) that the transferor intended to hinder, delay or defraud the
creditor by making the transfer.” Carney v. Horion Invs. Ltd.,
107 F. Supp. 3d 216, 231 (D. Conn. 2015). The Court addresses
each element in turn.8
1. Transfer of Assets
As to whether a transfer of assets has occurred, the
Connecticut statutes define both “transfer” and “assets” for
purposes of CUFTA. “‘Transfer’ means every mode, direct or
indirect, absolute or conditional, voluntary or involuntary, of
disposing of or parting with an asset or an interest in an
asset, and includes payment of money, release, lease and
creation of a lien or other encumbrance.” Conn. Gen. Stat. §52552b(12). An asset is generally defined as “property of a

Under CUFTA, plaintiff is not required to prove that the
transferee, here defendant Francis St. Denis, shared in the
fraudulent intent of the transferor, Thomas St. Denis. See
Kosiorek v. Smigelski, 54 A.3d 564, 584 (Conn. App. Ct. 2012).
8

13

debtor[.]” Conn. Gen. Stat. §52-552b(2). A “debtor” is “a person
who is liable on a claim[,]” Conn. Gen. Stat. §52-552b(6), and
“‘[p]roperty’ means anything that may be the subject of
ownership.” Conn. Gen. Stat. §52-552b(10).
Here, by virtue of defendant’s default, and the testimony
and documentary evidence received at the September 5, 2017,
evidentiary hearing, plaintiff has established probable cause to
believe that he will be able to prove by clear and convincing
evidence that a transfer of assets occurred. The allegations of
plaintiff’s Complaint, the testimony of plaintiff, and the
Court’s judicial notice of the findings in Walsh I, establish
probable cause to believe that Thomas St. Denis is a “debtor”
for purposes of CUFTA because he is an employer liable to
plaintiff for unpaid wages.9 The uncontested allegations of the
Complaint, the documentary evidence presented at the September
5, 2017, evidentiary hearing, and the testimony of plaintiff and
Mr. Price, also establish probable cause to believe that Thomas
St. Denis’ property, namely the contents of storage unit 4331,
were transferred to defendant Francis St. Denis by the Release

Plaintiff has also presented sufficient evidence to establish
probable cause to believe that he will be able to prove by clear
and convincing evidence that he is a “creditor” for purposes of
CUFTA, which is defined as “a person who has a claim.” Conn.
Gen. Stat. §52-552b(4). The Court will further address, infra,
the evidence establishing probable cause to believe that
plaintiff will be able to prove by clear and convincing evidence
that he has a “claim” against Thomas St. Denis.
9

14

of Interest. See Pl. Exs. 1-3; see also Doc. #1, Complaint at
¶52, Ex. A. Therefore, on the current record, there is probable
cause to believe that plaintiff will be able to establish the
first element of his actual fraudulent transfer claim by clear
and convincing evidence.
2. Plaintiff’s Claim Arose Before the Transfer
As to whether plaintiff’s claim arose before the transfer
at issue occurred, the Connecticut statutes broadly define what
constitutes a “claim.” For purposes of CUFTA, a claim “means a
right to payment, whether or not the right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or
unsecured.” Conn. Gen. Stat. §52-552b(3). “[A]ctual notice of
intended litigation is not required for a fraudulent transfer to
occur.” Hull, 2006 WL 2605708, at *3. “Knowledge that a claim
has arisen and fear of litigation for damages sustained is
sufficient.” Id. (citing White v. Amenta, 148 A. 345, 346 (Conn.
1930)).
By virtue of defendant’s default, and the testimony and
documentary evidence received at the September 5, 2017,
evidentiary hearing, plaintiff has established probable cause to
believe that he will be able to prove by clear and convincing
evidence that his claim arose before the transfer of assets
occurred. First, the uncontested allegations of the Complaint

15

and testimony of plaintiff establish probable cause to believe
that plaintiff will be able to prove by clear and convincing
evidence that plaintiff had a “claim” against Thomas St. Denis
for unpaid wages at least as of December 2014. See Doc. #1,
Complaint, at ¶¶12, 13-17, 53.
The uncontested allegations of the Complaint, documentary
evidence, and the testimony of plaintiff and Mr. Price establish
probable cause to believe that plaintiff will be able to prove
by clear and convincing evidence that Thomas St. Denis
transferred the storage unit and its contents to defendant,
Francis St. Denis on January 5, 2015, after plaintiff’s claim
for unpaid wages arose. See Doc. #1, Complaint at ¶¶52-53; see
also Pl. Exs. 1-3. Therefore, on the current record, there is
probable cause to believe that plaintiff will be able to
establish the second element of his actual fraudulent transfer
claim by clear and convincing evidence.
3. The Intent of the Transferor
As to whether the transferor, Thomas St. Denis, intended to
hinder, delay or defraud the creditor (here, plaintiff) by
making the transfer, “[t]he determination of the question of
fraudulent intent is clearly an issue of fact which must often
be inferred from surrounding circumstances.” Town Bank & Tr. Co.
v. Benson, 407 A.2d 971, 974 (Conn. 1978) (citation omitted).
The transferor’s intent “is not ordinarily proven by direct

16

evidence, but rather, by inference from other facts proven –the indicia or badges of fraud.” Citizens Bank of Clearwater v.
Hunt, 927 F.2d 707, 711 (2d Cir. 1991) (citations omitted)
(applying Connecticut law); accord The Cadle Co. v. White, No.
3:02CV30(TPS), 2006 WL 798900, at *6 (D. Conn. Mar. 21, 2006)
(“Because direct evidence of fraud is often lacking the badges
of fraud allow the fact finder to infer fraudulent intent from
other proven facts.” (citation omitted)).
Connecticut has “adopted the [Uniform Fraudulent Transfer
Act] factors for determining whether fraudulent intent is
present.” Greystone Cmty. Reinvestment Ass’n, Inc. v. Berean
Capital, Inc., 638 F. Supp. 2d 278, 292 (D. Conn. 2009)
(citations omitted) (alterations added). These factors, or
“badges of fraud” are codified at Section 52-552e(b) of the
Connecticut General Statutes:
In determining actual intent ..., consideration may be
given, among other factors, to whether: (1) The transfer
or obligation was to an insider, (2) the debtor retained
possession or control of the property transferred after
the transfer, (3) the transfer or obligation was
disclosed or concealed, (4) before the transfer was made
or obligation was incurred, the debtor had been sued or
threatened with suit, (5) the transfer was of
substantially all the debtor’s assets, (6) the debtor
absconded, (7) the debtor removed or concealed assets,
(8) the value of the consideration received by the debtor
was reasonably equivalent to the value of the asset
transferred or the amount of the obligation incurred,
(9) the debtor was insolvent or became insolvent shortly
after the transfer was made or the obligation was
incurred, (10) the transfer occurred shortly before or
shortly after a substantial debt was incurred, and (11)

17

the debtor transferred the essential assets of the
business to a lienor who transferred the assets to an
insider of the debtor.
Conn. Gen. Stat. §52-552e(b); see also The Cadle Co., 2006 WL
798900, at *6 (“To determine whether fraudulent intent is
present the statute directs the fact-finder to consider eleven
factors, otherwise known as the ‘badges of fraud.’” (citations
omitted)). Section 52-552e(b) “is not ambiguous. By its plain
language, it does not require that multiple factors be found by
the court before fraudulent intent can be found.” People’s
United Bank v. Lilly, No. HHD-CV-126031292-S, 2012 WL 6846573,
at *5 (Conn. Super. Ct. Dec. 17, 2012).
By virtue of the default entered in this matter, and the
testimony and documentary evidence received at the September 5,
2017, evidentiary hearing, plaintiff has established probable
cause to believe that he will be able to prove by clear and
convincing evidence that Thomas St. Denis transferred the
storage unit and its contents to defendant Francis St. Denis
with the intent to hinder, delay or defraud plaintiff by making
the transfer.
First, the uncontested allegations of the Complaint and
testimony of plaintiff and Mrs. St. Denis establish probable
cause to believe that plaintiff will be able to prove by clear
and convincing evidence that the transfer of the storage unit
and its contents was made to an “insider.” Both plaintiff and

18

Mrs. St. Denis testified that defendant Francis St. Denis is the
father of Thomas St. Denis. An “insider” is defined to include
“a relative of the debtor[.]” Conn. Gen. Stat. §52552b(7)(A)(i). Accordingly, Francis St. Denis is an “insider”
under CUFTA. “The courts have uniformly recognized ... that a
transfer to a closely related person warrants close scrutiny of
the other circumstances, including the nature and extent of the
consideration exchanged.” Lilly, 2012 WL 6846573, at *6
(citation and internal quotation marks omitted). No evidence has
been received regarding any consideration for the transfer.
Second, the uncontested allegations of the Complaint and
the testimony of plaintiff and Mr. Price establish probable
cause to believe that plaintiff will be able to prove by clear
and convincing evidence that Thomas St. Denis retained
possession or control of the storage unit and its contents after
its transfer. The documentary evidence indicates that Thomas St.
Denis remained an “alternate name” on the unit after its
transfer to defendant Francis St. Denis. See Pl. Ex. 2. This was
confirmed through the testimony of Mr. Price who testified that
Thomas St. Denis had access to the storage unit after its
transfer to defendant Francis St. Denis. The Court credits that
testimony. Therefore, plaintiff has established probable cause
to believe that he will be able to establish by clear and
convincing evidence this second badge of fraud. See, e.g., In re

19

Kaiser, 722 F.2d 1574, 1583 (2d Cir. 1983) (“The transfer of
property by the debtor to his spouse ... while retaining the use
and enjoyment of the property, is a classic badge of fraud.”
(citation omitted)).
Third, the testimony of Thomas St. Denis’ former accountant
Paul Costello, and that of Mrs. St. Denis, establish probable
cause to believe that plaintiff will be able to prove by clear
and convincing evidence that Thomas St. Denis concealed his
assets through various trusts and limited liability companies.
The Court credits the testimony of Mr. Costello that Thomas St.
Denis had such entities created for purposes of “asset
protection.” This testimony was consistent with that of Mrs. St.
Denis, who testified that the family’s cars were registered and
titled in the name of Francis St. Denis for “tax purposes.”
Therefore, plaintiff has established probable cause to believe
that he will be able to establish by clear and convincing
evidence this third badge of fraud. See, e.g., In re Kaiser, 722
F.2d at 1583 (“The shifting of assets by the debtor to a
corporation wholly controlled by him is another badge of fraud.”
(citation omitted)).
Fourth, there is probable cause to believe that plaintiff
will be able to prove by clear and convincing evidence that the
transfer at issue occurred shortly after Thomas St. Denis
incurred a $50,000.00 obligation to plaintiff. The uncontested

20

allegations of plaintiff’s Complaint and the testimony of
plaintiff establish that plaintiff became entitled to a
$50,000.00 payment upon the successful conclusion of the
Spanlite litigation on December 22, 2014. See Doc. #1, Complaint
at ¶¶15-17. Approximately two weeks later, on January 5, 2015,
Thomas St. Denis transferred the storage unit and its contents
to defendant Francis St. Denis. See Pl. Ex. 2; see also Doc. #1,
Complaint at ¶52. Therefore, plaintiff has established probable
cause to believe that he will be able to establish by clear and
convincing evidence this fourth badge of fraud.
Therefore, on the current record, there is probable cause
to believe that plaintiff will be able to establish at least
four badges of fraud by clear and convincing evidence. The Court
finds this sufficient to establish that plaintiff will be able
to prove the third element of his actual fraudulent transfer
claim by clear and convincing evidence. See, e.g., The Cadle
Co., 2006 WL 798900, at *7 (“That five of the eleven badges of
fraud are present raises a strong presumption of intent to
defraud.”); Hamrah v. Emerson, No. CV054012872, 2009 WL 2963281,
at *6 (Conn. Super. Ct. Aug. 20, 2009) (finding clear and
convincing evidence that property was transferred “with the
actual intent of defrauding” where four badges of fraud were
present).

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In light of the well-pleaded and uncontested allegations of
the Complaint, and the evidence presented at the September 5,
2017, evidentiary hearing, the Court finds that plaintiff has
established probable cause to believe that he will prevail on
Count I of the Complaint, alleging actual fraudulent transfer
pursuant to CUFTA.
A separate Order for Prejudgment Remedies implementing this
Ruling will issue.
IV.

CONCLUSION
For the reasons stated above, plaintiff’s Renewed Emergency

Application for Prejudgment Remedy [Doc. #15] is GRANTED, in
part. The motion is DENIED, without prejudice, to the extent
plaintiff seeks to attach the trailers located on the Weston,
Connecticut property, and to the extent the motion seeks to
attach in excess of $59,375.00 in assets.
This is not a Recommended Ruling.10 This is an order which
is reviewable pursuant to the “clearly erroneous” statutory
standard of review. See 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P.
72(a); and D. Conn. L. Civ. R. 72.2. As such, it is an order of

“It has long been the rule in this district that a PJR
application is a non-dispositive motion, and upon referral to a
Magistrate Judge, does not require a recommended ruling.”
Lafarge Bldg. Materials, Inc. v. A. Aiudi & Sons, LLC, No.
3:15CV1203(JBA)(JGM), 2015 WL 6551796, at *8 (D. Conn. Oct. 29,
2015) (collecting cases).
10

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the Court unless reversed or modified by the district judge upon
motion timely made.
SO ORDERED at New Haven, Connecticut, this 20th day of
September, 2017.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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