Foster v. Conner et al

Filing 109

ORDER: Conners motion for summary judgment and attorney fees 68 is GRANTED in part and DENIED in part. 1. Conners motion for summary judgment on the preferential transfer claim is GRANTED. Count I preferential transfer of the Amended Complaint 39 is DISMISSED with prejudice. 2. Conners motion for attorney fees is DENIED. Both parties shall bear their own costs. Fosters motion for summary judgment 64 on the preferential transfer claim is DENIED. Conners motion for summary judgment on the fraudulent transfer claim and attorney fees 71 is DENIED. Signed by Judge Brian Morris on 11/13/2020. (TLO)

Case 4:18-cv-00084-BMM Document 109 Filed 11/13/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

JEREMIAH FOSTER, as trustee of the
STM Liquidating Trust,

CV-18-84-GF-BMM

Plaintiff,
ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT ON
COUNT I AND DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT ON COUNTS II−IV.

vs.
DENNIS CONNER, an individual, and
JOHN DOES 1−10,
Defendants.

Plaintiff Jeremiah Foster (“Foster”) filed an Amended Complaint against
Defendant Dennis Conner (“Conner”) and John Does 1−10, alleging claims related
to the bankruptcy of several Shoot the Moon entities (“STM”). Doc. 39. Count I of
the Amended Complaint alleges Preferential Transfer under 11 U.S.C.
§§ 547 & 550. Id. at 7. Foster filed a Motion for Summary Judgment on Count I.
Doc. 64. Conner filed a Cross-Motion for Summary Judgment on Count I and for
attorney fees. Doc. 68. Counts II−IV of the Amended Complaint allege Fraudulent
Transfer under 11 U.S.C. §§ 548 & 550, Mont. Code Ann. § 31-2-333(1)(b), and
Mont. Code Ann. § 31-2-334(1). Conner filed a Motion for Summary Judgment on

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Counts II−IV and for attorney fees. Doc. 71 at 9−11. The Court held a hearing on
September 28, 2020. Doc. 104.

BACKGROUND.
Foster alleges various claims against Conner that stem from loans and
transfers made between Conner and STM. Doc. 39 at 7−12. Conner acquired a onequarter membership interest in STM in 2005. Doc. 90 at 7. Conner provided STM
multiple with loans over the subsequent years, including $1,000,000 in June 2012
and $200,000 in July 2012. Doc. 70 at 4.
Conner expressed concerns in late 2012 regarding STM’s financial situation.
Doc. 90 at 7. Conner sought to relinquish any membership interest in STM. Id. at 8.
STM and Conner reached a redemption agreement regarding Conner’s membership
interest under which STM would transfer the ownership of certain real property (“the
bank property”) to Conner. Id. Conner accepted the bank property subject to a
secured debt owed to Global Mortgage and Credit, LLC, in August 2014. Id. at 8−9.
Conner paid the debt to Global Mortgage with a loan that Conner financed through
Prairie Mountain Bank. Id. at 9. Conner sold the bank property for $975,000.00 in
December 2014 and assigned the lease to Steve Galloway for $975,000.00. Doc. 39
at 7. Conner paid the balance of the loan to Prairie Mountain Bank. Id.

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Conner and STM consolidated the 2012 loans with a promissory note in
February 2014. Doc. 70−3 at 1. The promissory note required STM to repay
$1,248,352.15 in weekly installments of $5,000 plus 10 percent interest. Id. at 6−10.
STM made 74 payments to Conner between February 2014, and August 2015.
Doc. 70−4 at 1.
On October 21, 2015, STM filed a voluntary petition for relief under
Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy
Court for the District of Montana. Doc. 39 at 3. Foster filed an Amended Complaint
against Conner in federal district court on November 1, 2019. Doc. 39 at 1. Foster
alleges the following claims: (1) the transfer of the bank property constitutes
fraudulent transfer under 11 U.S.C. §§ 548 & 550, Mont. Code Ann.
§ 31-2-333(1)(b), and Mont. Code Ann. § 31-2-334(1); and, (2) the three payments
made on the promissory note (7/27/15, 8/10/15, and 8/31/15) constitute preferential
transfers under 11 U.S.C. §§ 547 and 550. Id. at 7−12. Foster asks the Court to
grant summary judgment on the preferential transfer claim. Doc. 64. Conner asks
the Court to grant summary judgment on the preferential transfer and fraudulent
transfer claims. Doc. 68 & 71.

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LEGAL STANDARD.
The Court “shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a).

COUNT I—PREFERENTIAL TRANSFER.
The Bankruptcy Code, 11 U.S.C. § 547(b), authorizes a bankruptcy trustee to
avoid any transfer of an interest of the debtor in property if the following five
conditions are satisfied: (1) the transfer benefits a creditor; (2) the transfer was made
on account of antecedent debt; (3) the transfer was made while the debtor was
insolvent; (4) the transfer was made within 90 days of bankruptcy; and, (5) the
transfer enables the creditor to receive a larger share of the estate than if the transfer
had not been made. Union Bank v. Wolas, 502 U.S. 151, 154−55 (1991).
The fifth condition of a preferential transfer claim requires satisfying the
“greater-amount test.” In re Lewis W. Shurtleff, Inc., 778 F.2d 1416, 1421 (1985).
To satisfy the “greater-amount test,” the bankruptcy trustee must prove that the
creditor received from the alleged preferential transfer a greater amount than the
creditor would have received from the bankruptcy proceeding. The parties dispute
the application of the greater-amount test in this case. The Court need not resolve
this dispute, however, because Foster’s claim for preferential transfer can be
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resolved on other grounds. The Court outlines below the parties’ arguments on the
greater-amount test for context.
CONNER’S ARGUMENT.
Conner contends that the Court should grant summary judgment on Count I—
Preferential Transfer because Foster cannot prove that Conner received a greater
amount from the transfers than Conner would have received from a hypothetical
Chapter 7 Bankruptcy proceeding. Doc. 69 at 5−7. STM transferred $20,123.08 to
Conner during the 90-day preferential period of the STM bankruptcy. Doc. 39 at 8.
Conner has a claim against the bankruptcy estate for $923,351.12. Doc. 69 at 6.
Conner’s claim amounts to roughly 4.3% of STM’s $21,400,000.00 total unsecured
debt. As of April 2020, the bankruptcy estate had approximately $800,000 to
distribute to unsecured creditors. Id. Conner argues, that even if the trustee fails to
acquire any more assets, Conner would be entitled to at least $34,000.000 (4.3% of
$800,000) in a Chapter 7 bankruptcy proceeding. Id. at 8. Conner argues that Foster
fails to satisfy the greater-amount test because Conner would receive approximately
$14,000 more from a Chapter 7 Bankruptcy proceeding ($34,000) than he had
received in transfers ($20,123.08). Id.
FOSTER’S ARGUMENT.
Foster seeks a different application of the greater-amount test. Doc. 94.
Foster contends that § 547(b) requires that Foster must establish that unsecured
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creditors “would receive less than 100% of his claims in a chapter 7 bankruptcy if
the transfer had not been made.” Doc. 65 at 9 (citing Palmer Clay Prods. Co. v.
Brown, 297 U.S. 227, 229 (1936)). Foster alleges that if “the distribution in
bankruptcy is less than one-hundred percent, any payment ‘on account’ to an
unsecured creditor during the preference period will enable that creditor to receive
more than he would have received in liquidation had the payment not been made.”
Id. at 10 (citing In re Lewis W. Shurtleff, Inc., 778 F.2d at 1421).
The holding in Palmer Clay results from the application of the greater-amount
test to a unique set of circumstances. 297 U.S. at 229. Palmer Clay determined that
when a creditor receives a transfer of any amount during the preferential period, plus
the amount the creditor was entitled to receive from a Chapter 7 liquidation, that
transfer necessarily would be a preferential transfer under § 547(b) when the estate
distributes less than 100 percent of the debtor’s unsecured debt. In re Lewis W.
Shurtleff, Inc., 778 F.2d at 1420−21 (citing Palmer Clay Prods. Co. v. Brown, 297
U.S. at 229). Foster concludes that Foster satisfied the greater-amount test because
Conner received $20,123.08 in transfers and the bankruptcy estate will distribute
less than 100 percent of the debtor’s unsecured debt.
ORDINARY COURSE OF BUSINESS EXCEPTION.
The Bankruptcy Code provides several exceptions to a preferential transfer
claim. 11 U.S.C. § 547(c). Under the ordinary course of business exception, the
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trustee may not avoid a transfer under § 547(b) if the transfer was (1) in payment of
a debt incurred by the debtor in the ordinary course of business or financial affairs
of the debtor and the transferee; (2) made in the ordinary course of business or
financial affairs of the debtor and the transferee; and, (3) made according to ordinary
business terms. 11 U.S.C. § 547(c)(2)(A−C). Conner bears the burden of proving
these elements by a preponderance of the evidence. In re Food Catering & Housing,
Inc., 971 F.2d 396, 398 (9th Cir. 1992).
(1) DEBT INCURRED IN THE ORDINARY COURSE OF BUSINESS.
The first element of the ordinary course of business exception requires that
Conner prove that the debtor made the transfer in payment of a debt incurred in the
ordinary course of business or financial affairs of the debtor and the transferee.
11 U.S.C. § 547(c)(2).

This element requires an inquiry into the “pattern of

interaction between the actual creditor and the actual debtor in question.” In re
Ahaza Sys., Inc., 482 F.3d 1118, 1124 (9th Cir. 2007) (emphasis omitted).
Conner loaned STM a large amount of money on multiple occasions between
2010 and 2012. Doc. 70 at 4. Conner loaned STM $201,300.00 in November 2010;
$60,000.00 in February 2011; $1,000,000.00 in June 2012; and, $200,000 in July
2012. Id. Conner and STM consolidated the 2012 loans into a promissory note in
the amount of $1,248,356,15 in February 2014. Doc. 70−3 at 1. These loans present
a pattern of interaction between Conner and STM in which STM regularly secured
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loans from Conner. See In re Ahaza Sys.,Inc., 482 F.3d at 1124. Conner satisfies the
first element of the ordinary course of business exception. See § 547(c)(2).
(2) PAYMENT IN THE ORDINARY COURSE OF BUSINESS.
The second element of the ordinary course of business exception requires that
the transfer be made in the ordinary course of business or financial affairs of the
debtor and the transferee. 11 U.S.C. § 547(c)(2)(A). Conner provided history of
payments on the promissory note that STM made to Conner. Doc. 70−4. STM made
74 payments of $5,000 plus 10 percent interest to Conner. Id. STM made 44
payments between February 2014 and December 2014. Id. STM made 30 payments
from January 2015 through August 2015. Id. STM made these payments on a nearweekly basis. Id. These payments ranged from $6,698.08 (August 31, 2015) to
$7,752.83 (February 21, 2014). Id.
The amount and regularity of payments proves particularly revealing in
determining whether STM made the transfers in the ordinary course of its business.
See In re Food Catering & Housing, Inc., 971 F.2d at 398. STM’s payments to
Conner prove remarkably consistent in amount and regularity. There exists no
distinguishable quality between the final 3 payments at issue here and the proceeding
71 payments except for the fact that the final 3 payments fell within the preferential
period of § 547. Id. Conner satisfies the second element of the ordinary course of
business exception. See 11 U.S.C. § 547(c)(2)(A).
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(3) ACCORDING TO ORDINARY BUSINESS TERMS.
The third element of the ordinary course of business exception requires that
the transfer be made according to ordinary business terms. 11 U.S.C. § 547(c)(2)(B).
This element “does not pose a particularly high burden for creditors.” In re
Healthcare.com, 504 F.3d 775, 791 (9th Cir. 2007). Conner’s expert witness
asserted that the interest-principal payments that STM made to Conner during this
time period were not unusual for the restaurant industry, and that nothing about these
payments would be considered “an aberration in the restaurant industry.”
Doc. 70 at 14−15.
Foster contends STM’s financial distress removes the transfers from being
made according to ordinary business terms. Doc. 94 at 10. This argument ignores
the reality of preferential transfers and the ordinary course of business exception.
The ordinary course of business exception applies to preferential transfers under
§ 547, and preferential transfers require that the debtor be insolvent. 11 U.S.C. §
547(b). The statute’s effect requires that every preferential transfer excluded under
the ordinary course of business exception necessarily occurs while the debtor is in
financial distress. Id.
The burden for § 547(c)(2)(B) is not particularly high. In re Healthcare.com,
504 F.3d at 791. Nothing in the record indicates that the 74 payments STM made to
Conner between February 2014 and August 2015 fell outside the ordinary business
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terms of the restaurant industry. See In re Healthcare.com, 504 F.3d at 791. Conner
satisfies the third element of the ordinary course of business exception.

See

§547(c)(2)(B).
CONCLUSION.
Foster filed a Motion for Summary Judgment on Count I for preferential
transfer. Doc. 64. Conner filed a Cross-Motion for Summary Judgment on Count I
for preferential transfer and attorney fees. Doc. 68. The parties disagree about the
applicable test for the final element of a preferential transfer—the greater-amount
test. The Court need not resolve this dispute because Conner established that the
transfers are excluded from scope of § 547 preferential transfers under the ordinary
course of business exception. See § 547(c)(2). Foster’s Cross-Motion for Summary
Judgment on Count I for preferential transfer is denied. Conner’s Motion for
Summary Judgment on Count I for preferential transfer is granted.

COUNTS II−IV—FRAUDULANT TRANSFER.
The Amended Complaint alleges three different claims against Conner for
fraudulent transfer. Doc. 39. Count II alleges fraudulent transfer under 11 U.S.C.
§ 548. Id. at 9−10. Count III alleges fraudulent transfer under Mont. Code Ann.
§ 31-2-333(1)(b). Id. at 10−11. Count IV alleges transfer fraudulent as to creditors
under Mont. Code. Ann. § 31-2-334(1). Id. at 11−12.
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Each of these claims for fraudulent transfer requires the plaintiff to prove that
the debtor transferred property without receiving something of “reasonably
equivalent value.” See 11 U.S.C. § 548; Mont. Code Ann. § 31-2-333(1)(b); Mont.
Code Ann. § 31-2-334(1). The moving party must present evidence of the value
transferred and the value received. The trier of fact must then determine, after
considering the totality of the circumstances, whether the transfer was for
“reasonably equivalent value.” In re Jordan, 392 B.R. 428, 441 (Bankr. D. Idaho
2008).
Foster must prove that STM transferred the bank property to Conner without
STM having received something of “reasonably equivalent value.” See 11 U.S.C. §
548; Mont. Code Ann. § 31-2-333(1)(b); Mont. Code Ann. § 31-2-334(1). STM
transferred the bank property to Conner in August 2014 allegedly to redeem
Conner’s membership interest in STM. Doc. 39 at 6. Conner received the bank
property subject to secured debt owed to Global Mortgage and Credit, LLC. Id.
Foster must prove that STM did not receive in this transfer something of “reasonably
equivalent value.” See 11 U.S.C. § 548; Mont. Code Ann. § 31-2-333(1)(b); Mont.
Code Ann. § 31-2-334(1).
As the record currently stands, the value of the bank property and Conner’s
membership interest remain disputed material facts. See Fed. R. Civ. P. 56(a). The
Court cannot determine at this stage of litigation whether either party would be
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entitled to judgment as a matter of law. Id. The parties remain free at trial to
introduce evidence of the terms of the transfer of the bank property from STM to
Conner, including the bank property’s outstanding secured debt, the value of the
bank property at the time of the transfer, and the value of Conner’s membership
interest in STM. The trier of fact will determine whether these values constituted a
transfer of “reasonably equivalent value” under 11 U.S.C. § 548, Mont. Code Ann.
§ 31-2-333(1)(b), and Mont. Code Ann. § 31-2-334(1). See In re Jordan, 392
B.R. at 441. The Court denies Conner’s motion for summary judgment on Counts
II−IV (Doc. 71) because these disputed material facts regarding the alleged
fraudulent transfer must be resolved. See Fed. R. Civ. P. 56(a).
“REASONABLY EQUIVALENT VALUE” AND INDIRECT BENEFIT.
Foster argues that he does not need to prove the value of the bank property to
succeed with his fraudulent transfer claim. Foster claims that STM necessarily
received less than a “reasonably equivalent value” when it transferred the bank
property to Conner because Conner provided nothing in return. Doc. 90 at 15. In
short, Foster argues that something and nothing cannot be of “reasonably equivalent
value.”
Foster’s analysis fails to consider the totality of the circumstances surrounding
the transfer of the bank property. In re Jordan, 392 B.R. at 441. Conner did not
provide STM direct consideration for the bank property, but determining
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“reasonably equivalent value” requires considering the totality of the circumstances.
The trier of fact may look beyond the terms of a quid pro quo transaction. The trier
of fact may consider any indirect benefits that a party may have received if the
benefits are sufficiently concrete and identifiable. In re Fox Bean Co., 287 B.R. 270,
281 (Bankr. D. Idaho 2002).
STM transferred the bank property to redeem Conner’s membership interest
in STM. Doc. 39 at 6. Conner assumed the outstanding debt on the bank property
owed to Global Mortgage and Credit, LLC. Doc. 90 at 7. The values of any benefit
to STM remains unclear at this point. The parties remain free at trial to introduce
evidence of these disputed values, including the bank property’s outstanding secured
debt, the value of the bank property at the time of the transfer from STM to Conner,
and the value of Conner’s membership interest in STM. The Court cannot in the
meantime determine whether either party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a). The Court also cautions that Conner’s efforts to introduce
evidence of the benefit to STM in the form of the redemption of his membership
interest in STM potentially opens the door to the introduction of evidence and
testimony as to why STM chose to redeem Conner’s membership interest and not
interests of other members.

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WHITE-STEVENS AND EXPERT TESTIMONY.
Conner argues that Foster cannot prove as a matter of law that STM did not
receive something for the bank property of “reasonably equivalent value.” In order
to prove that STM did not receive something of “reasonably equivalent value,”
Foster must present evidence of the value of the bank property at the time of the
transfer from STM to Conner. Conner contends that Foster cannot prove the value
of the bank property without expert testimony because the bank property suffers
from structural problems. Doc. 72 (citing United First Federal Sav. and Loan Ass’n
v. White-Stevens, LTD, 833 P.2d 170, 173 (Mont. 1992)). Conner overstates the
holding in White-Stevens. Foster has not disclosed expert witnesses to provide
testimony related to the value of the bank property. Expert witnesses do not
represent the only mechanism, however, by which parties can introduce evidence of
the value of real property. See Marsh, 833 P.2d 170, 173 (Mont. 1992).
The Montana Supreme Court determined in White-Stevens that testimony
regarding the cost of floodproofing a piece of property and the impact that the
floodproofing would have on the value of that property fell beyond the ordinary
training and intelligence of the average person. White-Stevens, 833 P.2d at 173−75.
The Montana Supreme Court concluded that the parties needed to introduce such
testimony through expert witnesses. Id. at 171. The Montana Supreme Court did

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not proclaim that expert witnesses represent the only mechanism by which a party
may introduce evidence of the value of real property.
The facts of White-Stevens make this clear. An appraisal firm provided a
borrower with appraisals for two properties in Missoula, Montana. Id. at 171. The
lender relied on these appraisals when it subsequently provided the borrower with
loans to purchase these two properties. Id. The borrower defaulted on the loans. Id.
The lender purchased both properties at the sheriff’s sale. Id. The lender resold the
first property for less than half of the appraisal firm’s appraised value. Id. The
lender could not resell the second property because the property had potential
problems with flooding. Id. The borrower sued the appraisal firm for negligent
misrepresentations regarding the appraisal values. Id.
The lender’s case required it to prove that the appraisal firm negligently had
overstated the value of the appraised property. Specifically, the lender needed to
prove at trial that the true market value of the second property was significantly less
than the appraisal firm’s appraised value. The lender lacked any other evidence of
the second property’s market value other than the appraisal firm’s appraised value.
The lender did not have recent sale prices or appraisals related to those sales with
which to attack the accuracy of the appraisal firm’s appraisals. This deficiency
forced the lender to provide evidence that the character of the second property made
its true market value significantly less than the appraisal firm’s appraised value. Id.
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To this end, the lender called several witnesses to testify at trial that the second
property required extensive floodproofing before anyone would ever buy the
property. Id. at 172−74. The lender called a land-use consultant to testify regarding
the costs of floodproofing the second property and the effect that the floodproofing
would have on the property’s true market value. Id. at 172. The appraisal firm
objected to this testimony on the basis that this testimony constituted expert
testimony that the lender should have disclosed before trial. Id. The trial court
overruled the objection. Id. The Montana Supreme Court reversed. Id. at 174.
The Montana Supreme Court determined that the land use consultant’s
testimony regarding the cost of floodproofing the second property and the effect that
the floodproofing would have on the property’s value fell beyond “the range of
ordinary training and intelligence.” Id. at 173. As a result, the Montana Supreme
Court concluded that the lender should have disclosed the land use consultant as an
expert witness pursuant to Rule 26 of the Montana Rules of Civil Procedure.
Id. at 173−75
The Montana Supreme Court did not conclude, as Conner argues, that expert
witnesses represent the only mechanism by which parties may introduce evidence
related to the value of real property. The Montana Supreme Court recognized the
complicated interplay between the cost of floodproofing and the effect that
floodproofing the second property would have on the property’s market value.
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Testimony regarding this complicated interplay fell outside the ordinary training and
intelligence of the average person. Id. at 173. The lender had sought to present
expert testimony under the guise of lay testimony without having disclosed the
testimony during discovery as required by Rule 26. The Montana Supreme Court
was clear: “The days of disclosure are here.” Id. White-Stevens serves as a shield
to protect litigants from opposing parties who attempt to sneak in expert testimony
under the veil of lay testimony without having complied with the disclosure
requirements of Rule 26. Connor now seeks to use White-Stevens as a sword to
defeat Foster’s fraudulent transfer claim.
The parties possess verified sale prices for the bank property from the
purchase by STM in 2013 and the sale by Conner in December 2014. These sales
presumably involved arms’ length transactions between willing buyers and willing
sellers.

The 2013 and December 2014 sale prices, and any appraisal reports

generated in connection with these sales, would represent probative evidence of the
value of the bank property at the time that STM transferred the bank property to
Conner in August 2014. The parties remain free, subject to the Federal Rules of
Evidence, to introduce evidence of the 2013 and December 2014 sale prices.
If Conner wishes to attack at trial the probative value of the 2013 and
December 2014 sale prices, Conner would be in a similar situation as the lender in
White-Stevens. Conner would need to present, subject to the disclosure requirements
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in White-Stevens and Rule 26 of the Federal Rules of Civil Procedure, expert
testimony at trial explaining to the trier of fact why the 2013 and December 2014
sale prices do not accurately reflect the true market value of the bank property either
at the time of those sales or at the time at which STM transferred the bank property
to Conner in August 2014. For example, similar to White-Stevens, this testimony
could be that the bank property needed structural improvements, the extent of the
structural problems, and the cost of making the structural improvements.
White-Stevens, 833 P.2d at 172−74. The Court does not attempt to predict all the
possible theories that Conner might propound to attack the evidentiary value of the
2013 and December 2014 sale prices.
THE LANDOWNER-WITNESS RULE.
Connor, as a former owner of the bank property, also may testify as to the
value of the bank property during the time he was an owner. Marsh, 575 P.2d at 38.
Montana courts follow the “landowner-witness rule” in eminent domain cases where
the parties dispute the value of the property. The landowner-witness rule allows a
landowner in eminent domain cases, subject to limitations, to estimate the value of
the landowner’s property. State v. Schumacher, 590 P.2d 1110, 1115 (Mont. 1979)
(internal quotations omitted). The landowner need not be a technical expert. Id.
Disputes on property value in eminent domain cases usually lack verified sale
prices from recent sales. The parties in this case have verified sale prices from 2013
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and December 2014 that provide relevant evidence as to the value of the property in
August 2014. The Court sees no reason, however, why Conner would be excluded
from testifying about what he believes was the value of the property during the time
he owned it in light of the manner in which he acquired the property as part of alleged
efforts by STM to redeem Conner’s membership interest in STM. State v. Marsh,
575 P.2d at 41.
The landowner-witness rule limits the landowner’s testimony in several ways.
The landowner’s testimony regarding the value of the property must be reasonable.
Id. The trier of fact may use the actual 2013 and December 2014 sale prices to assess
the reasonableness of Conner’s testimony. As the Court noted above, Conner
remains free at trial to introduce evidence explaining to the trier of fact why Conner
believes the 2013 and December 2014 sale prices do not accurately reflect the value
of the bank property at the time STM transferred the bank property to Conner. See
White-Stevens, 833 P.2d at 171−74. This testimony must comply with the disclosure
requirements of White-Stevens and Rule 26 of the Federal Rule of Civil Procedure.
The landowner-witness rule also limits a landowner’s testimony when the
landowner seeks to testify about the value of the property regarding uses of the
property different than how the landowner used the property. Marsh, 575 P.2d at
41. Before a landowner may testify to the value of his land for other uses, he must
lay a foundation that demonstrates the basis for his knowledge. See State v. Barnes,
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443 P.2d 16, 20 (1968). The landowner must “have some peculiar means of forming
an intelligent and correct judgment . . . beyond what is presumed to be possessed by
[persons] generally.” Marsh, 575 P.2d at 41 (ellipsis in original, internal quotations
omitted); Cf. Cedar Creek Grazing Assoc. v. Encore Operating, L.P., 2007 WL
9709795 (D. Mont. 2007).
CONCLUSION.
Conner filed a motion for summary judgment on Counts II−IV for fraudulent
transfer. Doc. 71 at 9−11. A claim for fraudulent transfer requires Foster to prove
that STM received something less than the “reasonably equivalent value” in
exchange for the bank property. See § 548. There remains a dispute regarding the
value of the bank property. Summary judgment is inappropriate. See Fed. R. Civ. P.
56(a).
ORDER
Accordingly, IT IS ORDERED:
 Conner’s motion for summary judgement and attorney fees (Doc. 68) is
GRANTED in part and DENIED in part.
1. Conner’s motion for summary judgment on the preferential transfer
claim is GRANTED. Count I preferential transfer of the Amended
Complaint (Doc. 39) is DISMISSED with prejudice.

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2. Conner’s motion for attorney fees is DENIED. Both parties shall
bear their own costs.
 Foster’s motion for summary judgment (Doc. 64) on the preferential transfer
claim is DENIED.
 Conner’s motion for summary judgment on the fraudulent transfer claim and
attorney fees (Doc. 71) is DENIED.
DATED this 13th day of November, 2020.

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