# Gonzales v. AB Real Estate, LLC

> United States Bankruptcy Court, N.D. Texas · May 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11062417

## Case

- **Court:** United States Bankruptcy Court, N.D. Texas
- **Decided:** May 30, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11062417

## How later opinions describe it (automated extraction)

- finding promise was reasonably equivalent value despite fact that promise was not fulfilled, because “[h]ad the promise been performed, the creditors of the debtor would certainly have benefitted.”

## Opinion text

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LS ES NON CLERK, U.S. BANKRUPTCY COURT
Se oe? NORTHERN DISTRICT OF TEXAS
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The following constitutes the ruling of the court and has the force and effect therein described.

Signed May 30, 2025 Hb
United States Bankruptcy Judge

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

In re: Chapter 11
FRESH ACQUISITIONS, LLC, et al. Case No. 21-30721-sgj-11
(Jointly Administered)
Post-Confirmation/Liquidating Debtors.
DAVID GONZALES, TRUSTEE OF THE
FRESH ACQUISITIONS LIQUIDATING
TRUST
Adv. No. 23-03055-sgj
Plaintiff.
v.
Civ. Act. No. 3:22-cv-2659-M
AB REAL ESTATE, LLC
Defendant.
MEMORANDUM OPINION AND ORDER DENYING CROSS-MOTIONS FOR
SUMMARY JUDGMENT AS TO PLAINTIFF’S FRAUDULENT TRANSFER CLAIMS
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AS TO
PLAINTIFF’S CONSPIRACY TO COMMIT FRAUDULENT TRANSFER CLAIM
(INVOLVING THE 29" STREET WISCONSIN PROPERTY)

I. INTRODUCTION
The above-referenced post-confirmation adversary proceeding (“Adversary Proceeding”)
pertains to the bankruptcy cases of Fresh Acquisitions, LLC and fourteen related entities1
(collectively, the “Debtors”). The Debtors were in the restaurant business, mostly operating under
the names “Furr’s,” “Ryan’s,” “Old Country Buffet,” and “Tahoe Joe’s.” The Debtors filed
voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code (the
“Bankruptcy Code”) on April 20, 2021 (the “Petition Date”). This was not the first foray into
bankruptcy for most of these Debtors. These Debtors and affiliates had filed Chapter 11 bankruptcy
cases three separate times before (2008, 2012, and 2016). The 2016 Bankruptcy Case (herein so
called)2 has some relevance to this Adversary Proceeding, as will be later discussed. The Debtors’
most recently-filed cases were administratively consolidated and, ultimately, substantively
consolidated (the “2021 Bankruptcy Case”).
The Debtors’ organizational structure was broad and complex. There was more to the

enterprise than simply the fifteen entities that filed Chapter 11. The following people controlled
and majority-owned each of the Debtors:
Allen Jones (“Jones”),
Jason Kemp (“Kemp”),
Larry Harris (“Harris”).

(Jones, Kemp, and Harris, collectively, the “Owners”).

1 The 14 related entities which were also debtors along with Fresh Acquisitions, LLC were: Alamo Fresh Payroll, LLC;
Alamo Ovation, LLC; Buffets LLC; Hometown Buffet, Inc.; Tahoe Joe’s Inc.; OCB Restaurant Company, LLC; OCB
Purchasing Co.; Ryan’s Restaurant Group, LLC; Fire Mountain Restaurants, LLC; Food Management Partners, Inc.;
FMP SA Management Group, LLC; FMP-Fresh Payroll, LLC; FMP-Ovation Payroll, LLC; and Alamo Buffets Payroll,
LLC.
2 To be precise, seven of the 14 Debtors in the current bankruptcy case were also debtors in the 2016 Bankruptcy Case
and are implicated in this Adversary Proceeding.
The Owners mostly exercised their ownership and control indirectly—through personal
operating companies and various management companies. Suffice it to say, there were layers upon
layers of companies in the Fresh Acquisitions organizational structure.
An Official Committee of Unsecured Creditors (“UCC”) in the 2021 Bankruptcy Case
proposed a First Amended Joint Chapter 11 Plan of Liquidation (the “Plan”) for the Debtors. The

Plan was confirmed by the Bankruptcy Court in its Findings of Fact, Conclusions of Law, and Order
(I) Approving Disclosure Statement on a Final Basis and (II) Confirming The Official Committee of
Unsecured Creditors’ First Amended Joint Chapter 11 Plan of Liquidation (the “Confirmation
Order”), entered on December 20, 2021. Pursuant to the Plan, a trust known as the Fresh
Acquisitions Liquidating Trust (the “Liquidating Trust”) was created, and David Gonzales, the
plaintiff herein, was appointed as its trustee (the “Trustee” or “Plaintiff”). In accordance with the
terms of the Plan, the Confirmation Order, and the Fresh Acquisitions Liquidating Trust Agreement,
numerous “Causes of Action” of the Debtors were vested in the Liquidating Trust, and the Trustee
was granted standing to prosecute the Causes of Action. More generally, all the Debtors’ assets, as

defined in section 541 of the Bankruptcy Code, were transferred to and vested in the Trust. On the
effective date of the Plan, the holders of general unsecured claims against any of the Debtors
received a pro-rata beneficial interest in the Liquidating Trust “in full and final satisfaction” of their
claims.
This Adversary Proceeding seeks to avoid a transfer of real property made by one of the
Debtors known as OCB Restaurant Company, LLC (“Debtor OCB Restaurant”) that allegedly
occurred for little or no consideration in return (“Transfer”). This Transfer occurred approximately
two-and-a-half years before the Petition Date (i.e., in December 2018). The Transfer was to a newly
formed entity called AB Real Estate LLC (“ABRE” or “Defendant”). The property subject to the
Transfer was located in the state of Wisconsin. The Plaintiff argues that the Transfer either was
made with actual intent to defraud creditors or was a constructively fraudulent transfer, utilizing
section 544 of the Bankruptcy Code and state fraudulent transfer laws.3 The Plaintiff also tags on a
cause of action for “conspiracy” to commit a fraudulent transfer.
The complaint that governs this Adversary Proceeding is Plaintiff’s Verified Second
Amended Complaint (“Live Complaint”).4 This Adversary Proceeding happens to be one of three

involving allegedly fraudulent transfers of real property to Defendant ABRE (the “Three ABRE
Adversary Proceedings”): Adversary Proceeding Nos. 23-03054, 23-03055, and 23-03056. The
two other of the Three ABRE Adversary Proceedings involve transfers made by the Debtor Fire
Mountain Restaurants, LLC (“Debtor Fire Mountain”). The Plaintiff sometimes refers to the
allegations set forth in the Three ABRE Adversary Proceedings as the “ABRE Scheme.”
In each of the Three ABRE Adversary Proceedings, both Plaintiff and Defendant have filed
cross-motions for summary judgment regarding the fraudulent transfer causes of action. Defendant
also seeks a summary judgment regarding Plaintiff’s conspiracy to commit fraudulent transfer cause
of action. As to the cross-motions on the fraudulent transfer claims, the court concludes that neither

Plaintiff nor Defendant is entitled to a summary judgment under Rule 56 of the Federal Rules of
Civil Procedure because there are genuine issues of material fact on various elements of these causes
of action. But with regard to the conspiracy to commit fraudulent transfer claim, this court concludes

3 Because the Transfer occurred more than two years prior to the Petition Date, the Plaintiff does not have a fraudulent
transfer cause of action arising under § 548 of the Bankruptcy Code, which provides for a two-year look-back period;
the Plaintiff relies here on the more generous look-back period of four years for avoiding fraudulent transfers under
Texas law. Tex. Bus. & Com. Code §§ 24.001, et seq. (TUFTA).
4 Dkt. No. 1. Note that the claims against ABRE in this Adversary Proceeding were originally brought in an earlier-
filed adversary proceeding (Adv. Proc. No. 22-3087—hereinafter, the “Original Adversary Proceeding”) in which the
Plaintiff had named numerous defendants, including the Owners and related entities (including ABRE), for fraudulent
transfers and several other causes of action. The over-arching theme of the Original Adversary Proceeding was that all
defendants and claims asserted therein were collectively part of an overall fraudulent scheme perpetrated by the Owners.
The bankruptcy court ultimately ordered that the Original Adversary Proceeding be severed into seven different
adversary proceedings, in response to arguments by multiple defendants that Plaintiff was engaging in improper “group
pleading” (in other words, there were broad allegations against the general group of defendants in the Original Adversary
Proceeding without giving clear notice regarding which allegations and claims were being asserted against whom).
that Defendant is entitled to summary judgment as a matter of law, as this cause of action is
duplicative or redundant of the fraudulent transfer claims. The court’s reasoning pursuant to Rule
56 is set forth below.
II. PROCEDURAL HISTORY

The Live Complaint was filed on July 6, 2023 (after the bankruptcy court ordered severance
of the claims herein from the much broader claims asserted against numerous defendants in Adv.
Proc. No. 22-3087—defined herein as the “Original Adversary Proceeding” in footnote 4). The
Transfer that the Trustee seeks to avoid herein occurred on December 7, 2018, and pertained to an
industrial warehouse property, sometimes referred to as a millworks facility, located at 1915 E. 29th
Street, Marshfield, Wisconsin (the “29th Street Wisconsin Property”). As noted above, now pending
are cross-motions for summary judgment,5 responses,6 replies,7 and dense appendices.8 Defendant
ABRE argues that it is entitled to a summary judgment with respect to all of the Trustee’s claims in
the Live Complaint. The Trustee seeks partial summary judgment—i.e., summary judgment on his
fraudulent transfer claims, but not on his conspiracy to commit fraudulent transfer claims.

5 See Defendant AB Real Estate, LLC’s Motion for Summary Judgment. Dkt. No. 78. See also Defendant AB Real
Estate, LLC’s Memorandum in Support of Motion for Summary Judgment (“ABRE’s MSJ Brief”). Dkt. No. 79. See
also Plaintiff’s Motion for Partial Summary Judgment and Plaintiff’s Memorandum of Law in Support of Motion for
Summary Judgment. Dkt. No. 74.
6 See Response to ABRE’s Motion for Summary Judgment (“Trustee’s Response”) and Defendant AB Real Estate,
LLC’s Response in Opposition to Plaintiff’s Motion for Partial Summary Judgment (“ABRE’s Response”). Dkt. Nos.
91 and 94 (Response) and 95 (Response Brief), respectively.
7 See Defendant AB Real Estate, LLC’s Reply in Support of Motion for Summary Judgment (“ABRE’s Reply”). Dkt.
No. 99. See also Reply in Support of Motion for Partial Summary Judgment (“Trustee’s Reply”). Dkt. No. 101.
8 See Appendix in Support of Defendant AB Real Estate, LLC’s Motion for Summary Judgment and Memorandum in
Support. Dkt. Nos. 79-1 through 79-9. Citations to ABRE’s appendix shall be in the format of “ABRE App’x [page
#(s)].” See also Plaintiff’s Appendix in Support of Motion for Summary Judgment Dkt. No. 76. Citations to the
Trustee’s appendix in support of his Motion for Partial Summary Judgment shall be in the format of “Trustee App’x
[page #(s)].” The Trustee and ABRE each filed a separate appendix in support of their Responses. Dkt. Nos. 92 and
95-1 to 95-14, respectively. Citations to the Response appendices shall be in the format of “Trustee Resp. App’x [page
#(s)]” and “ABRE Resp. App’x [page #(s)].”
The court scheduled oral arguments on the cross motions for summary judgment for
February 12, 2025. It soon became apparent that there was no meeting of the minds or clear answer
regarding what choice of law should be applied in the Adversary Proceeding. The bankruptcy court
sits in Texas but the real property transferred is situated in Wisconsin. In his Live Complaint, the
Trustee stated that he was bringing his fraudulent transfer claims under “either the law of Texas or

Wisconsin, likely dependent on a conflict of law analysis” but failed to identify the appropriate
conflict of law analysis to be applied or take a position. Live Complaint, ¶ 91. Then in his motion
for summary judgment, he suggested that the fraudulent transfer laws of Wisconsin applied, and not
the laws of Texas, even though the Trustee acknowledged that both states apply the Uniform
Fraudulent Transfer Act.9 Nevertheless, the Trustee argued that he was entitled to summary
judgment on his fraudulent transfer claims under either state’s laws. ABRE argued, on the other
hand, that, under the appropriate choice of law analysis, the laws of Texas apply to the Trustee’s
claims.
The court required supplemental briefing on choice of law. In the subsequent briefing, the

parties agreed that the court should apply Texas choice-of-law rules (because the court sits in Texas),
with the Trustee conceding that, under Texas’ choice of law rules, the law of Texas applies to his
fraudulent transfer claims in this Adversary Proceeding.10 There is support in this District for a court
accepting the parties’ stipulation regarding the applicability of Texas law.11 Moreover, the court

9 See Trustee’s Motion for Partial Summary Judgment, 15 n.6. Texas’ version of the Uniform Fraudulent Transfer Act
(“TUFTA”) is contained in Tex. Bus. & Com. Code §§ 24.001, et seq. The Trustee noted that Wisconsin has adopted
the “successor” to the Uniform Fraudulent Transfer Act, the Uniform Voidable Transactions Act.
10 See Defendant AB Real Estate, LLC’s Supplemental Brief on Summary Judgment Issues and Trustee’s Supplemental
Brief filed on March 10, 2015. Dkt. Nos. 120 and 121, respectively.
11 See, e.g., DeWolff, Boberg & Associates, Inc. v. Clark, No. 3:22-CV-2489-K, 2023 WL 5437665, at *3 (N.D. Tex.
Aug. 23, 2023) (applying Texas law where “[t]he parties timely filed a joint Stipulation Regarding Choice of Law in
which they ‘stipulate that no conflict exists between Delaware and Texas law on the issue of enforceability of the
underlying restrictive covenants and that Texas law applies to the contract claim.”).
agrees with the parties’ choice-of-law analysis in their supplemental briefs, so it will apply Texas
law to the Trustee’s claims.12
III. UNDISPUTED FACTS

The Trustee and ABRE do not dispute the following basic facts.
Debtor OCB Restaurant was a Minnesota limited liability company.
Jones, Kemp, and Harris (i.e., the Owners) collectively controlled, and were indirect
majority owners of, each of the Debtors (including Debtor OCB Restaurant) through personal
operating companies and various management companies.
ABRE, a Texas limited liability company, is the Defendant herein and was formed on
November 28, 2018—just two weeks before the Transfer that is the subject to this Adversary
Proceeding. ABRE’s Limited Liability Company Agreement is dated November 28, 2018.13
Although ABRE itself is not a Debtor herein, it—at all times since its formation—has had the
Owners as its managers and indirect majority owners. This ownership was through entities known
as Larrac, LLC (owned and controlled by Harris), All Jones, LLC (owned and controlled by Jones),

12 See Vida v. T.W. Doers Investment Firm, Inc. (In re Benitez), No. 21-40734-ELM, 2023 WL 6395906, at *6 (Bankr.
N.D. Tex. Oct. 2, 2023), aff’d and adopted sub nom. Vida v. Crawford, No. 4:22-CV-0620-P, 2023 WL 7921146 (N.D.
Tex. Nov. 16, 2023) (applying Texas fraudulent transfer statutes, embodied in TUFTA, in an adversary proceeding
involving an alleged fraudulent transfer of Georgia real property); see also Janvey v. Brown, 767 F.3d 430, 434 (5th Cir.
2014) (choice of law issues for fraudulent transfer claims are generally governed by the forum state in which the
bankruptcy court is sitting); In re The Heritage Org., L.L.C., 413 B.R. 438, 462 (Bankr. N.D. Tex. 2009) (“It is well-
settled that choice of law issues for supplemental state law claims, such as the fraudulent transfer claims at issue here,
are governed by the forum state in which the federal court is sitting. Here, the forum state is Texas, and ‘Texas courts
follow the ‘most significant relationship’ test outlined in the Restatement (Second) of Conflict of Laws[.]’”) (citing
Janvey v. Brown, 767 F.3d at 434). The Trustee acknowledged as well that the court need not conduct a “most significant
relationship” analysis for the 29th Street Wisconsin Property because there is no conflict between Texas’ and
Wisconsin’s versions of the Uniform Fraudulent Transfer Act, which have “identical language.” Trustee’s Supplemental
Brief, 2 (citing Benitez, 2023 WL 6395906, at *6 (where the bankruptcy court found that the two states’ laws (Georgia’s
and Texas’) were “substantially identical” and, thus, it was not necessary for the court to conduct the “most significant
relationship” analysis)). The court agrees with the parties’ ultimate assessment that there is no actual conflict between
Wisconsin’s fraudulent transfer laws and TUFTA, so TUFTA applies to the Trustee’s fraudulent transfer claims here.
13 Trustee App’x 1-4.
and Dayspring Operating Company, LLC (owned and controlled by Kemp).14 These all have the
same address at 120 Chula Vista, Hollywood Park, Texas (an address that the Debtors have all used
as well).
Less than two weeks after ABRE was formed, it received three transfers of three different
real properties (in three different states) for no stated consideration. Those three transfers are the

subject of the Three ABRE Adversary Proceedings.
The 29th Street Wisconsin Property Transfer (the Transfer at issue in this Adversary
Proceeding) occurred on December 7, 2018, when Debtor OCB Restaurant transferred via a
quitclaim deed15 to the newly-formed ABRE the 29th Street Wisconsin Property. The 29th Street
Wisconsin Property was a larger, industrial warehouse property, sometimes referred to as a
millworks facility.16 Based on the face of the quitclaim deed, ABRE did not pay to Debtor OCB
Restaurant or any other Debtor cash consideration for the 29th Street Wisconsin Property. Also,
notably, it appears from the summary judgment record that this quitclaim deed from OCB Restaurant
to ABRE was not recorded at the time of its December 7, 2018 conveyance (which apparently was

only discovered in early 2020 when ABRE reached an agreement to sell it; the quitclaim deed from
Debtor OCB Restaurant to ABRE was belatedly recorded in January 22, 2020).17 An individual
named Peter Donbavand (“Donbavand”) executed the quitclaim deed on behalf of Debtor OCB
Restaurant as its “Vice President of Real Estate.”18

14 Larrac, LLC, All Jones, LLC, and Dayspring Operating Company, LLC each own 21.84% of ABRE. Another
company called BPTX Holdings, LLC, owned by an individual named Brian Padilla, also owns or owned a 21.84%
ownership interest in ABRE.
15 See Trustee App’x 764.
16 ABRE App’x 1316; Trustee App’x 654-660.
17 ABRE App’x 1350; Trustee App’x 764; 812-13; ABRE Resp. App’x 70; 148 (A. Wang Dep. Tr. 27:10-20); ABRE
Resp. App’x 228; 237.
18 See Trustee App’x 764.
The second of the three transfers occurred on December 7, 2018, when Debtor Fire Mountain
transferred to the newly-formed ABRE a property located at 204 Highway 28 Bypass, Anderson,
South Carolina (the “Highway 28 South Carolina Property”), a shuttered “Ryan’s” restaurant
property, via quitclaim deed19 that reflected the payment of “the sum of one dollar ($1.00) and other
valuable considerations.”20 Once again, an individual named Donbavand executed the quitclaim

deed on behalf of the Debtor/transferor—this time it was the Debtor Fire Mountain—as its “Vice
President of Real Estate.”21 In connection therewith, Donbavand also executed an affidavit claiming
an exemption from the deed recording fee because the quitclaim deed was a deed22
(8) transferring realty to a corporation, a partnership, or a trust in order to become,
or as, a stockholder, partner, or trust beneficiary of the entity provided no
consideration is paid for the transfer other than stock in the corporation, interest in
the partnership, beneficiary interest in the trust, or the increase in value in such stock
or interest held by the grantor. However, the transfer of realty from a corporation, a
partnership, or a trust to a stockholder, partner, or trust beneficiary of the entity is
subject to the fee even if the realty is transferred to another corporation, a partnership,
or trust.

The third relevant real property transfer occurred on December 10, 2018, when the Debtor
Fire Mountain transferred another closed and vacant restaurant property located at 1225 W. Reelfoot
Avenue, Union City, Tennessee (the “Reelfoot Tennessee Property”) to the newly-formed ABRE
via quitclaim deed23 that reflected the payment of “the sum of one dollar ($1.00) and other valuable
considerations.” The Reelfoot Tennessee Property, along with the 29th Street Wisconsin Property
and the Highway 28 South Carolina Property, will hereinafter be referred to as the “Three ABRE

19 See Trustee App’x 818-823.
20 The Trustee seeks to avoid the transfer by Debtor Fire Mountain of the Highway 28 South Carolina Property in a
separate adversary proceeding, Adv. Pro. No. 23-3054.
21 See Trustee App’x 819.
22 See Trustee App’x 821, 823.
23 See Trustee App’x 275-77.
Properties”).24 Once again, an individual named Donbavand executed the quitclaim deed on behalf
of Debtor Fire Mountain as its “Vice President of Real Estate.”25 Donbavand also executed an
“Acknowledgement” that was attached to the Reelfoot Tennessee Property quitclaim deed that
stated in all caps, “THE ACTUAL CONSIDERATION FOR THIS TRANSFER IS $0.00.”26
The following fact is highly relevant to the Trustee’s fraudulent transfer claims: Each of

the Three ABRE Properties (including the 29th Street Wisconsin Property that is the subject of this
Adversary Proceeding), at the time they were transferred in December 2018, were apparently subject
to liens in favor of an entity called META Advisors, LLC (“META”), which liens secured a
promissory note dated May 18, 2017, in the original amount of $5,250,000 (“META Note”).27 There
were actually seven Debtor entities that were makers on the META Note, including Debtors OCB
Restaurant and Fire Mountain, all of whom were jointly and severally liable on the note.28 All
seven makers on the META Note pledged all of their assets as collateral for the META Note,
pursuant to a Security Agreement (which is un-dated, shown as May __, 2017, in the summary
judgment record), apparently giving META a blanket lien on all of the seven Debtors’ assets.29

Specifically, the Security Agreement stated that META was receiving a security interest in all assets
of the makers, including: Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts,
Documents, General Intangibles, Goods, including Equipment and Fixtures, Instruments, Inventory,
Investment Property, Letters of Credit and rights pursuant thereto, Money, all rights under Leases

24 The Trustee seeks to avoid the transfer by Debtor Fire Mountain of the Reelfoot Tennessee Property in yet a third
adversary proceeding relating to transfers of the Three ABRE Properties, Adv. Pro. No. 23-3056.
25 See Trustee App’x 276.
26 Trustee App’x 278.
27 See Trustee Resp. App’x 5-20.
28 The five other Debtors obligated on the META Note were Buffets, LLC, Hometown Buffet, Inc., OCB Purchasing
Co., Ryan’s Restaurant Group, LLC, and Tahoe Joe’s, Inc.
29 See Trustee Resp. App’x 5 (page 1 of the META Note); Trustee Resp. App’x 59-87 (“Security Agreement May __,
2017 between Each of the Grantors Party Hereto and META Advisors, LLC, as Trustee”).
(a schedule of leases listed several dozen), all Accessions and Supporting Obligations, and “all other
interests in real property . . . .”30 The court could not find a recorded copy of the Security
Agreement nor actual recorded mortgages/deeds of trust in the summary judgment evidence for
the Three ABRE Properties (all the lawyers on both sides of this Adversary Proceeding apparently
do not think that is an issue, since none of them mentioned this—although from a legal standpoint

under TUFTA, it is certainly an issue, as will be later discussed).31 In any event, the META Note
included a schedule of principal and interest payments that provided for the payment of eight
quarterly payments of the principal amount of $656,250.00, commencing with the payment of
$728,437.50 on August 1, 2017, and ending with the payment of $665,273.44 on May 1, 2019 (at
which point the note would be paid in full).32 Interestingly (as with the Trustee/Plaintiff herein)
META was a trustee of a creditor trust created under a Chapter 11 plan that was confirmed a
short time before—on April 27, 2017—in connection with the Debtors’ 2016 Bankruptcy Case.33
To be clear, the Three ABRE Properties (including the 29th Street Wisconsin Property) were
apparently pledged as collateral for a promissory note owed to META that was for the original

principal amount of $5,250,000, and Debtors OCB Restaurant and Fire Mountain were among the
seven makers on the META Note, but the newly-created ABRE was not. Also, perhaps relevant, is
that all Debtors in the 2016 Bankruptcy Case (including OCB Restaurant and Fire Mountain) were
substantively consolidated for purposes of the plan ultimately confirmed in that case.34 The

30 See Trustee Resp. App’x 63-64.
31 See ABRE App’x 196-268 (which are unrecorded copies of the purported deeds of trust/mortgages from Fire
Mountain and OCB Restaurant to META). See also ABRE Resp. App’x 334-437. See also TUFTA § 24.002(13)
(“‘Valid lien’ means a lien that is effective against the holder of a judicial lien subsequently obtained by legal or
equitable process or proceedings.”).
32 See META Note, Schedule A – Principal and Interest Payments, Trustee Resp. App’x 20.
33 As earlier noted, the Debtors and various entities with common ownership as the Debtors previously filed for Chapter
11 bankruptcy four times: in 2008, in 2012, and in 2016. Trustee App’x 332.
34 ABRE App’x 300-01.
summary judgment evidence suggests that, at the time of the transfers of the Three ABRE Properties,
the balance due under the Meta Note was $1,312,500.35 The parties do not agree on the value of the
29th Street Wisconsin Property or of META’s other collateral owned by Debtor OCB Restaurant or
the other six Debtor-makers,36 and both parties challenge the other party’s summary judgment
evidence on the valuation issue.37

35 The Trustee points to eight quarterly Post-Confirmation Reports filed by the reorganized debtors in the 2016
Bankruptcy Case (Bankruptcy Case 16-50557), indicating disbursements made during each quarter to the “Unsecured
Creditors Trust” of amounts equal to the quarterly payments due under Schedule A (schedule of principal and interest
payments) of the META Note. See Trustee Resp. App’x 27, 31, 35, 39, 43, 47, 51, and 55 (respectively, of the Post-
Confirmation quarterly reports for the quarters beginning with the 3rd Quarter 2017 and ending with the 2nd Quarter
2019). Trustee Resp. App’x 21-56. According to the schedule of payments, after the disbursement made in the 4th
Quarter 2018 (recall that the Transfers occurred on December 7, 2018 and December 10, 2018), the principal balance
due under the META Note, assuming the payment was timely made on November 1, 2018 according to the schedule of
payments, would have been $1,312,500 at the time of the ABRE Transfers. See also Trustee’s Response, 15-16 (“The
balance of the Meta Debt, at the time of the ABRE Transfers, was not $5.25 million. Rather, it was, at most,
approximately $1.3 million . . . .”; Trustee’s Supplemental Brief, 21 (“[T]he issue for analysis is whether the Property
transfers had value in a fraudulent conveyance context given a $1,312,300 lien.”).
36 The Trustee points, in paragraph 8 of his Response, to “retroactive” appraisal reports that he submitted as part of the
summary judgment evidence that supports valuations, as of the dates of the respective transfers from Debtor OCB
Restaurant of the 29th Street Wisconsin Property at $1,545,000 and from Debtor Fire Mountain of the Highway 28
South Carolina Property at $323,000 and of the Reelfoot Tennessee Property at $1,000,000. The Trustee also points to
evidence of META collateral consisting of Debtor OCB Restaurant’s interest in the non-realty contents of the 29th
Street Wisconsin Property that were sold at auction for gross proceeds of over $208,000 and net proceeds of over
$175,000. In addition, the Trustee points to a 4.719-acre real property located in Rocky Mount, North Carolina that was
owned by Debtor Fire Mountain, 2.5 acres of which were sold during the 2021 Bankruptcy Case for $100,000. See
Trustee’s Response, 7, ¶ 8(e) (citing this court’s Order (I) Approving the Private Sale of Real Property in Nash County,
North Carolina, Free and Clear of All Liens, Claims, Interests, and Encumbrances Pursuant to 11 U.S.C. § 363, and
(II) Granting Related Relief, Bankr. Dkt. No. 585). Finally, the Trustee points to “[a]ll other assets of the six [sic]
Debtors liable on the [META] Note, including Tahoe Joe’s . . . . Although the complete value of these assets has not
been determined, Debtor assets that were sold for $4,212,000 to BBQ Growth, LLC during the 2021 Bankruptcy Case
belonged primarily or exclusively to Tahoe Joe’s” who was a maker on the META Note. Trustee’s Response, 7-8, ¶ 8(f)
(citing this court’s Order (A) Approving the Sale of Substantially All of the Debtors’ Assets Free and Clear of Liens and
Liabilities, (B) Authorizing the Debtors to Assume and Assign Executory Contracts and Unexpired Leases in Connection
with the Sale, and (C) Granting Related Relief , Bankr. Dkt. No. 474).
37 The Trustee claims his evidence of valuation of at least some of the collateral that secured the META Note is
“unrebutted.” ABRE disagrees and offers the valuation testimony of three different real estate agents/brokers who were
involved in the marketing of the Three ABRE Properties, as well as deposition testimony of ABRE’s Rule 30(b)(6)
witness, Harris—all of which it argues establishes a substantially lower valuation, at least as to the Three ABRE
Properties, than the Trustee’s. See ABRE Response, 12; Steven Harbison Dep. Tr. 35:23-36:25, 29:23-30:3, 48:14-49:9,
ABRE Resp. App’x 1065-66, 1059-60, 1078-79; Dean Larsen Dep. Tr. 36:21-37:11, 41:3-10, ABRE Resp. App’x 1085-
87; Darron Meares Dep. Tr. 45:10-21, 50:14-21, 54:1-5, ABRE Resp. App’x 1253, 1256-57. Each of the brokers also
testified about his concerns with, and criticism of, the Trustee’s appraisals based on each brokers’ expertise in each
property’s geographical region. Id.; Harbison Dep. Tr. 15:22-16:2, 29:23-30:3, 32:19-35:22, 48:14-49:9, ABRE Resp.
App’x 1046-47, 1059-60, 1062-65, 1078-79; Larsen Dep. Tr. 16:12-21, 42:19-43:20, ABRE Resp. App’x 1168, 1188-
89; Meares Dep. Tr. 18:4-16, 50:14-21, 54:1-5, 55:20-57:11, ABRE Resp. App’x 1237, 1256-60. The court will address
the evidentiary objections below.
On February 25, 2020 (approximately 15 months after OCB Restaurant purportedly
transferred to ABRE the 29th Street Wisconsin Property), ABRE sold it to an entity called Counter-
Form, LLC for a purchase price of $925,000. Interestingly, the summary judgment evidence shows
that, shortly before the closing on this sale, a title company discovered that the quitclaim deed from
December 2018, purporting to convey this property from Debtor OCB Restaurant to ABRE was

never recorded.38 In any event, on February 28, 2020, ABRE received sale proceeds of
approximately $838,000 from the sale of the 29th Street Wisconsin Property. ABRE did not transfer
this $838,000 of proceeds to the Debtor OCB Restaurant. Instead, ABRE immediately transferred
$838,000 to an entity called TXFMP Management, LLC (“TXFMP”), a non-debtor management
entity affiliated with the Owners.39 TXFMP managed numerous entities for the Owners, not all of
which were Debtors.40 The summary judgment evidence suggests that the META Note had been
paid in full almost a year before this transaction.41
The Highway 28 South Carolina Property was ultimately sold at a tax auction (foreclosure
sale) to a company called Powdersville Holdings LLC for a mere $90,000, more than three years
after the Transfer to ABRE (on February 28, 2022).42 ABRE did not receive any proceeds from the

sale of the Highway 28 South Carolina Property—neither did the Debtor Fire Mountain, for that
matter (all sale proceeds went to Anderson County, South Carolina—a taxing authority that was
owed taxes associated with the property and conducted the tax auction).43

38 Trustee App’x 269-270.
39 ABRE Bank Statement, ABRE Resp. App’x 112-13; TXFMP Bank Statement, ABRE Resp. App’x 115-24.
40 Trustee App’x 16 (ABRE 30(b)(6) Dep. Tr. 43:12-13).
41 See supra note 35 regarding the Post-Confirmation quarterly reports that indicate that the last payment on the META
Note was made during the second quarter of 2019. Trustee Resp. App’x 55.
42 ABRE 30(b)(6) Dep. Tr. 20:4-6, 20:22-21:6, 118:1-119:8, 128:4-10, ABRE App’x 81-82, 106-107, 112.
43 ABRE App’x 106.
On March 26, 2019 (approximately three months after its transfer to ABRE), ABRE sold the
Reelfoot Tennessee Property to a company called Q-Lin Properties, LLC for $520,000. Net proceeds
of $476,188.18 from the sale of the Reelfoot Tennessee Property were transmitted directly to the
lienholder META.44 It appears that shortly thereafter (in the second quarter of 2019), the small
remaining amount on the META Note was paid off in full.45 In any event, ABRE did not receive

any proceeds from the sale of the Reelfoot Tennessee Property—neither did the Debtor Fire
Mountain, for that matter.
IV. SUMMARY JUDGMENT STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides, “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). Rule 56 “mandates the entry of
summary judgment, after an adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial,”46 because “[i]n such a situation, there

can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”47 A
fact is material “if the governing substantive law identifies it as having the potential to affect the
outcome of the suit.”48 A dispute as to a material fact is genuine “if the evidence is such that a

44 Kemp Decl. ¶¶ 11-12 and Attachment 1, Reelfoot Closing Statement, ABRE App’x 752, 755-757.
45 ABRE App’x 798.
46 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (emphasis in original)).
47 Celotex, 477 U.S. at 322-23.
48 Hutton Commc’ns, Inc. v. Commc’n Infrastructure Corp., 461 F.Supp.3d 400, 403 (N.D. Tex. 2020) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
reasonable jury could return a verdict for the nonmoving party.”49 “[A] party cannot defeat summary
judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.”50
Rather, pursuant to Rule 56(c)(1) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:

(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.

Under Rule 56, a movant “need not ‘negate’ the elements of the nonmovant’s case,”51 but rather
meets [his] initial burden of showing there is no genuine issue for trial by “point[ing] out the absence
of evidence supporting the nonmoving party’s case.”52 “If the moving party carries his initial burden,
the burden then falls upon the nonmoving party to demonstrate the existence of genuine issue of
material fact.”53 “[T]he nonmovant must identify specific evidence in the record and articulate the
manner in which that evidence supports that party’s claim.”54 “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for

49 Id. (citing Anderson, 477 U.S. at 248) (other citation omitted)).
50 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (internal quotations omitted); see also
Kennedy v. Allstate Texas Lloyd’s, 2020 WL 8300511, at *1 (N.D. Tex. Dec. 14, 2020) (“Conclusory allegations and
denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate
substitutes for specific facts showing that there is a genuine issue for trial.”) (citing Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
51 Little, 37 F.3d at 1075.
52 Latimer v. Smithkline & French Labs., 919 F.2d 301, 303 (5th Cir.1990) (citing Celotex, 477 U.S. at 325).
53 Latimer, 919 F.2d at 303; see also Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994)
(“To withstand a properly supported motion for summary judgment, the nonmoving party must come forward with
evidence to support the essential elements of its claim on which it bears the burden of proof at trial.”).
54 Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010) (quoting Johnson v. Deep E. Tex. Reg’l Narcotics
Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004) (citation omitted)); see also Little, 37 F.3d at 1075 (“[T]he
nonmovant must go beyond the pleadings and designate specific facts showing there is a genuine issue for trial.”).
summary judgment; the requirement is that there be no genuine issue of material fact.”55 “Where
the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no ‘genuine issue for trial.’”56
When evaluating a motion for summary judgment, the court views the facts “in the light
most favorable to the nonmoving party” but “only if there is a ‘genuine’ dispute as to those facts.”57

“[I]t is not incumbent upon the court to comb the record in search of evidence that creates a genuine
issue as to a material fact.”58 Rather, “[t]he nonmoving party has a duty to designate the evidence
in the record that establishes the existence of genuine issues as to the material facts.”59
Summary judgment is appropriate where critical evidence is so weak or tenuous on an
essential fact that it could not support a judgment in favor of the nonmovant, or where it is so
overwhelming that it mandates judgment in favor of the movant.”60 If the nonmoving party fails to
meet his burden of submitting competent summary judgment evidence that there is a genuine dispute
as to a material fact, “the motion for summary judgment must be granted.”61

55 Scott v. Harris, 550 U.S. 372, 380 (2007).
56 Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986)).
57 Scott v. Harris, 550 U.S. at 380; see also Hacienda Records, L.P. v. Ramos, 718 F. App’x 223, 234 (5th Cir. 2018)
(“The court considers the record as a whole, and draws all justifiable inferences in favor of the non-movant[, b]ut the
non-movant bears ‘the burden of demonstrating by competent summary judgment proof that there is [a genuine dispute]
of material fact warranting trial.’”)(internal citations omitted).
58 Hutton Commc’ns, 461 F.Supp.3d at 403 (citing Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003)).
59 Id. (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548).
60 Armstrong v. City of Dallas, 997 F.2d 62, 66 n.12 (5th Cir.1993) (“We no longer ask whether literally little evidence,
i.e., a scintilla or less, exists but, whether the nonmovant could, on the strength of the record evidence, carry the burden
of persuasion with a reasonable jury.”); see also, Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512 (where the Court
stated that the inquiry under a motion for summary judgment is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”).
61 Little, 37 F.3d at 1076 (emphasis added) (“A plaintiff should not be required to wait indefinitely for a trial when the
defendant has a meritless defense that can be resolved on motion for summary judgment.”).
V. LEGAL ANALYSIS
A. “Standing” Objection
ABRE, in its Response to the Trustee’s Motion for Partial Summary Judgment, raises for the
first time the issue of the Trustee’s alleged lack of standing, under Bankruptcy Code § 544(b) and
TUFTA, to bring fraudulent transfer claims against ABRE—noting that the Trustee’s standing

would have to be derivative of an actual unsecured creditor’s right under TUFTA. ABRE argues
that the Trustee has not even alleged in the Live Complaint, much less pointed to evidence in the
summary judgment record, that an actual unsecured creditor existed as of the Petition Date who
would have had standing under TUFTA to avoid the Transfer of the 29th Street Wisconsin Property.
The standing issue must be addressed first, since it is a threshold issue pertaining to whether the
court even has the fundamental power to hear the suit.62 The Trustee, in his Reply to ABRE’s
Response, does not refute the alleged lack of standing by pointing to specific evidence in the
summary judgment record. Rather, he states that his standing here “is clear” and not lacking.63 The
Trustee claims that “all of the creditors on the claims register for OCB [Restaurant] (Case 21-30726-

sgj11) provide the Trustee standing at least as to the 29th Street Property” and that because the
Debtors’ estates were substantively consolidated, “arguably any creditor of any Debtor (not just
[the] transferring Debtor[ ] . . .) is a triggering creditor providing standing for the claims against
ABRE.”64

62 ABRE’s Response, 21 (“[T]he Trustee’s standing to avoid transfers is derivative of an actual creditor’s right and ‘is
a threshold issue that must be addressed first, because it determines the court’s fundamental power even to hear the
suit.’”) (quoting In re Heritage Org., LLC, No. 04-35574-BJH-11, 2008 WL 5215688, at *3 (Bankr. N.D. Tex. Dec. 12,
2008) (internal citations omitted)).
63 Trustee’s Reply, 7.
64 Id. To the extent substantive consolidation is applied, this court notes that more than 500 proofs of claim were filed
against the Debtors in these consolidated bankruptcy proceedings, totaling more than $700 million in claims. Trustee
App’x 350.
Section 544(b) of the Bankruptcy Code allows a trustee to “avoid any transfer of an interest
of the debtor . . . that is voidable under applicable law by a creditor holding an unsecured
claim.”65 The United States Supreme Court recently highlighted the “notabl[e]” requirement that
“to show that a transfer is ‘voidable under applicable law,’ a bankruptcy trustee must ‘identify the
actual creditor or creditors who could have set aside the transaction in question under applicable

law.’”66 The parties do not disagree with this legal standard; they disagree here on the issue of
whether the Trustee has met his burden of identifying in the summary judgment record an actual
creditor or creditors who could have avoided the Transfer under TUFTA. Nowhere does the Trustee
in the Live Complaint specifically identify a particular unsecured creditor or creditors who could
have avoided the Transfer under the actual or constructive fraud provisions of TUFTA, and he
acknowledges as much in his Reply. Rather, the Trustee states that his standing here is clear and not
lacking because “all of the creditors on the claims register for OCB [Restaurant] (Case 21-30726-
sgj11) provide the Trustee standing[,]” implying that the court may take judicial notice of Debtor
OCB Restaurant’s claims register in its bankruptcy case. The court can, indeed, take judicial notice

of the unsecured creditors listed on the claims register in determining the sufficiency of summary
judgment evidence to support the Trustee’s claims. The claims register for Debtor OCB Restaurant
reflects fourteen proofs of claim filed against it, at least some of which reflect amounts owing for
time periods before the Transfer (e.g., Claim No. 1-1 of the Iowa Department of Revenue for the
years 2009-2015; Claim No. 10-1 of the City of Madison (WI) for a 2016 tax assessment; Claim
No. 13-1 of the Internal Revenue Service (“IRS”) for 2016-2021 time periods). To be clear, the
Trustee has the burden of identifying an actual creditor that would have had standing to avoid the

65 Bankruptcy Code § 544(b)(1).
66 United States v. Miller, 604 U.S. ___ , 145 S.Ct. 839, 847, 2025 WL 906502 *4 (March 26, 2025) (quoting 5 Collier,
Bankruptcy ¶544.06[1], at 544–25).
Transfer under TUFTA. To do so, he must not only show that an unsecured creditor existed as of
the Petition Date, but also that such unsecured creditor is a creditor whose “claim arose before or
within a reasonable time after the transfer was made.”67 The court believes the Trustee has, at a
minimum, created a genuine issue of material fact that would defeat summary judgment in favor of
ABRE based on this issue—by pointing to the claims register for Debtor OCB Restaurant.

Moreover, ABRE has not pointed to any summary judgment evidence to refute the Trustee’s
standing, as supported by the claims register. Accordingly, ABRE is not entitled to summary
judgment on the basis that the Trustee has no standing.
B. Objections to Summary Judgment Evidence
1. Trustee’s Evidentiary Objections
The Trustee, in his Response, argues that the court should strike or disregard some of the
summary judgment evidence proffered by ABRE in its appendix in support of its Motion for
Summary Judgment. Specifically, the Trustee objects to the inclusion in the summary judgment
record of (1) certain portions of the Declaration of Jason Kemp (“Kemp Declaration”)68 as (a) “sham

affidavit” testimony contradicting prior deposition testimony and (b) self-serving statements
unsupported by any documentary evidence; (2) certain portions of ABRE’s expert Jason Rae’s
affidavit and the Rae Report for the reasons stated in a Motion to Exclude filed by the Trustee, which
the court has already denied69; and (3) ABRE’s evidence of valuation of the Three ABRE Properties

67 TUFTA § 24.005(a).
68 ABRE App’x 750-88.
69 ABRE includes as summary judgment evidence certain deposition testimony and an affidavit and report (“Rae
Report”) of its expert, Jason Rae (“Rae”). On October 25, 2024, the Trustee filed a motion to exclude a portion of the
Rae Report and testimony of Jason Rae. See Motion to Exclude Portions of Report and Testimony of Jason Rae
(“Trustee’s Motion to Exclude”). Dkt. No. 72. The Trustee argued that the Rae Report is a rebuttal report (to the
Trustee’s experts’ reports) into which ABRE is attempting to inject impermissible opinions. The Trustee argued that
Rae is not a qualified appraiser and that his “unhelpful” opinions about the valuation of the 29th Street Wisconsin
Property and about real estate transfers in general must be excluded. ABRE filed a response in opposition to the
Trustee’s Motion to Exclude on December 4, 2024, and the court held a hearing on January 29, 2025. Following the
through (a) the deposition testimony of three real estate agents/brokers who were involved with
selling or attempting to sell each of the three real properties that are the subject of the ABRE
fraudulent transfer actions, including the deposition testimony of Dean Larsen relating to the
valuation of the 29th Street Wisconsin Property and (b) the deposition testimony of ABRE’s Rule
30(b)(6) witness, Harris, based on Harris’s experience in the restaurant industry and in commercial

real estate because, the Trustee argues, these witnesses were not disclosed as expert witnesses prior
to the expert disclosure deadline, and, therefore, their opinions are not competent summary
judgment evidence and cannot create issues of fact.
Objection to Kemp Declaration Testimony
The Trustee seeks to strike certain “portions” of the Kemp Declaration as “an unsupported
sham affidavit” and as “unsupported, self-serving declaration testimony.”70 The Trustee mentions
that Kemp stated that proceeds of the sale of the 29th Street Wisconsin Property were transferred to
an entity known as TXFMP (a non-debtor management entity for the Debtors), to be used for the
benefit of the Debtors generally, including for the payment of outstanding invoices and loans owed

by the Debtors. This is alleged to have contradicted Kemp’s earlier deposition testimony (as the
Rule 30(b)(6) witness for TXFMP) that he “did not see” where those proceeds went and that he did
not “know” whether the sale proceeds were transferred to any of the Debtors.71 The Trustee argues
that these “unexplained inconsistencies between the prior testimony not knowing where the funds
went, and the declaration testimony suddenly knowing where the funds went, is grounds for striking
or not considering the statements in the Kemp Declaration.”72

hearing, the court entered an order denying the Trustee’s Motion to Exclude. See Order Denying Trustee’s Motion to
Exclude. Dkt. No. 115 (entered February 7, 2025).
70 Trustee’s Response, 11-13.
71 Trustee’s Response, 12 (citing TXFMP 30(b)(6) Dep. Tr., Vol. I, March 22, 2024, 246:21-247:12, Trustee’s Response
App’x 242).
72 Trustee’s Response, 13.
First, to the extent that the Trustee objects to “portions” of Kemp’s Declaration testimony
without detailing which portions he seeks to have stricken, his objections do not satisfy the
requirements of Federal Rule of Evidence 103(a)(1) and, thus, his requests to strike those portions
of Kemp’s Declaration testimony under the “sham affidavit” rule (or otherwise) will be denied.73
Second, the court finds that the “sham affidavit rule” would not apply here to exclude any

portion of Kemp’s Declaration testimony. The “sham affidavit” rule is an exception to the general
rule in the Fifth Circuit that, “[i]n considering a motion for summary judgment, a district court must
consider all the evidence before it and cannot disregard a party’s affidavit merely because it conflicts
to some degree with an earlier deposition”—an “exception” in that the Fifth Circuit “does not allow
a party to defeat a motion for summary judgment using an affidavit that impeaches, without
explanation, sworn testimony”74 but does allow a court to disregard “statements made in an affidavit
that are ‘so markedly inconsistent’ with a prior statement as to ‘constitute an obvious sham.’”75 The
“sham affidavit” rule is based on “the proposition that a nonmoving party may not manufacture a
dispute of fact merely to defeat a motion for summary judgment.”76 But, the Fifth Circuit has been

careful to point out that “not every discrepancy in an affidavit justifies disregarding it when
evaluating summary judgment evidence.”77 “Instead, the bar for applying the doctrine is a high one,

73 See Tucker v. SAS Inst., Inc., 462 F. Supp. 2d 715, 722 (N.D. Tex. 2006) (“Federal Rule of Evidence 103(a)(1)
requires an objecting party to make specific objections detailing the specific evidence the party wishes to have stricken
and stating the specific grounds upon which each piece of evidence should be stricken. Objections lacking specificity
do not satisfy the requirements of Rule 103.”) (internal citations omitted); see also Coleman v. Bank of Am., N.A., No.
3:16-CV-1439-G, 2017 WL 3334104, at *3–4 (N.D. Tex. Aug. 4, 2017), aff'd, 720 F. App’x 724 (5th Cir. 2018)
(denying motion to strike where party identified paragraphs at issue but was “unclear” regarding “which specific
statements [he] believes should be stricken”).
74 Seigler v. Wal-Mart Stores Texas, L.L.C., 30 F.4th 472, 477 (5th Cir. 2022) (citation omitted).
75 Rodriguez v. City of Corpus Christi, 129 F.4th 890, 897 (5th Cir. 2025) (quoting Winzer v. Kaufman County, 916
F.3d 464, 472 (5th Cir. 2019) (quoting Clark v. Resistoflex Co., 854 F.2d 762, 766 (5th Cir. 1988))).
76 Seigler, 30 F.4th at 477 (quoting Doe ex rel. Doe v. Dallas Indep.. Sch. Dist., 220 F3d 380, 386 (5th Cir. 2000)).
77 Id. (quoting Winzer, 916 F.3d at 472).
typically requiring affidavit testimony that is ‘inherently inconsistent’ with prior testimony.”78
“[T]he sham affidavit doctrine is inappropriate where an ‘affidavit supplements, rather than
contradicts’ an earlier statement”79 and is “not applicable when discrepancies between an affidavit
and other testimony can be reconciled such that the statements are not inherently inconsistent.”80
Here, Kemp’s Declaration testimony regarding the disposition of the sale proceeds of the 29th Street

Wisconsin Property does not contradict, and is not “so markedly inconsistent” with, his earlier
deposition testimony so as to “constitute an obvious sham.” The testimony from Kemp (as TXFMP’s
corporate representative)—nearly five years after the distributions, and with no bank statements or
other documentation provided to him—that he “did not see” and did not “know” where the sale
proceeds of the 29th Street Wisconsin Property were transferred does not indicate that his
declaration is a sham that should be excluded. It is entirely plausible that Kemp, after having had
the opportunity to look at specific records (which were attached to his declaration), was able to
supplement his earlier deposition testimony and testify with details and specifics of the transfers
recorded therein when he had been unable to remember those details during his deposition, which

took place nearly five years after the transfers occurred. It is unsurprising that any deponent would
be unable to remember such specific financial information without reliance on records. Kemp’s
Declaration does not contradict, but supplements, his prior deposition testimony and is not so
inherently inconsistent as to be considered “an obvious sham.” The “sham affidavit” doctrine simply
is not applicable here, and so the court will not strike Kemp’s Declaration testimony.
Third, the Trustee also suggests that Kemp’s Declaration testimony regarding the disposition
of the 29th Street Wisconsin Property sale proceeds should be excluded because it is an unsupported

78 Id. (citations omitted).
79 Rodriguez, 129 F.4th at 897 (quoting Winzer, 916 F.3d at 473 (quoting Clark, 854 F.2d at 766)).
80 Seigler, 30 F.4th at 477 (citing Winzer, 916 F.3d at 472-73)
self-serving statement.81 But, the court cannot disregard or exclude declaration testimony just
because it is self-serving. This is because, while merely conclusory statements will not suffice to
create genuine issues of material fact that would defeat summary judgment, “[a] non-conclusory
affidavit can create genuine issues of material fact that preclude summary judgment, even if the
affidavit is self-serving and uncorroborated.”82 Here, Kemp’s Declaration testimony is not

unsupported or uncorroborated, and it is not merely “conclusory” statements that could or should be
disregarded by the court under established summary judgment standards. To the contrary, Kemp’s
Declaration testimony is supported by documentary evidence attached to the Kemp Declaration,
including specifically, ABRE and TXFMP bank statements that show the transfer of sale proceeds
to TXFMP immediately following the sale and the contemporaneous receipt by TXFMP of those
sale proceeds, as well as the substantially contemporaneous subsequent transfers made by TXFMP
to some of the Debtors and their creditors.83 The court concludes that Kemp’s Declaration testimony
is supported by facts and is not merely conclusory such that the court can and should consider, and
not exclude, the evidence in connection with these cross motions for summary judgment.

Objection to Jason Rae Report and Testimony
As noted above, following a hearing on January 29, 2025, on the Trustee’s Motion to
Exclude the Rae Report and Rae’s testimony, the court entered an order denying the Trustee’s

81 Trustee’s Response, 13.
82 Lester v. Wells Fargo Bank, N.A., 805 F. App’x 288, 291 (5th Cir. 2020) (citing United States v. Stein, 881 F.3d 853,
859 (11th Cir. 2018) (en banc) (“[T]he self-serving and/or uncorroborated nature of an affidavit cannot prevent it from
creating an issue of material fact.”) (emphasis added); see also C.R. Pittman Const. Co. v. Nat'l Fire Ins. Co. of Hartford,
453 F. App'x 439, 443 (5th Cir. 2011) (“[A]n affidavit based on personal knowledge and containing factual assertions
suffices to create a fact issue, even if the affidavit is arguably selfserving.”); Rushing v. Kan. City S. Ry. Co., 185 F.3d
496, 513 (5th Cir. 1999), superseded by statute on other grounds, as noted in Mathis v. Exxon Corp., 302 F.3d 448, 459
n.16 (5th Cir. 2002) (“[M]erely claiming that the evidence is self-serving does not mean we cannot consider it or that it
is insufficient. Much evidence is self-serving and, to an extent, conclusional.”)). The Fifth Circuit notes, in support of
this proposition, that “[t]he Supreme Court has been clear that at summary judgment ‘the [court’s] function is not . . . to
weigh the evidence.” Lester, 805 F. App’x at 291 n.2 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
83 See Kemp Declaration, Exhibits 4 and 5, ABRE App’x 775-777 and 778-788.
request.84 Thus, the court will consider the Rae Report and Rae’s testimony as part of the summary
judgment record.
Objections to Testimony of Real Estate Brokers and Harris Regarding Value
The Trustee objects to ABRE’s attempt to include evidence of valuation of the Three ABRE
Properties through (a) the deposition testimony of three real estate agents/brokers who were

involved with selling or attempting to sell each of the Three ABRE Properties, including the
deposition testimony of Dean Larsen relating to the valuation of the 29th Street Wisconsin Property,
and (b) the deposition testimony of ABRE’s Rule 30(b)(6) witness, Harris, based on Harris’s
experience in the restaurant industry and in commercial real estate.
The Trustee argues, for the first time, in his Reply in support of his own summary judgment
motion, that the deposition testimony of the three brokers and Harris, offered by ABRE as “evidence
of valuation,” should be excluded from the summary judgment record because ABRE did not
disclose any of them as expert witnesses prior to the expert disclosure deadline, and, therefore, their
opinions are not competent summary judgment evidence and cannot create issues of fact. ABRE

disagrees with the Trustee and argues that it timely disclosed all three brokers as experts in its Third
Amended Disclosures.85 The Trustee did not object to expert testimony of the three brokers or Harris
in his earlier mentioned Motion to Exclude, which dealt only with the Rae Report.86 The Trustee
responds that (a) the Third Amended Disclosures were dated a month after the expert disclosure
deadline, (b) ABRE disclosed the brokers as fact witnesses with a statement that “[t]o the extent
[broker’s] evidence may be considered expert testimony or opinions subject to Fed. R. Civ. P.

84 See Order Denying Trustee’s Motion to Exclude (entered February 7, 2025). Dkt. No. 115.
85 See ABRE’s Response, 12 n.20 (citing ABRE’s Third Amended Disclosures, 5, 7-8, ABRE Resp. App’x 1292-95;
Harbison Dep. Tr., 11:13-18:7, ABRE Resp. App’x 1042-48; Larsen Dep. Tr., 9:17-17:21, ABRE Resp. App’x 1161-
69; Meares Dep. Tr., 7:22-19:20, ABRE Resp. App’x 1226-38).
86 See supra note 69.
26(a)(2), ABRE further designates him as such”—which the Trustee argues is not a sufficient expert
witness disclosure—and, finally, (c) none of the brokers produced a Rule 26 report.87 The Trustee
also argues that Harris should not be permitted to offer an opinion as to the value of the Three ABRE
Properties because he testified in his deposition that he based his opinions on his professional
experience and not on his personal knowledge, and only experts are permitted to offer opinion

evidence based on their knowledge and experience; fact witnesses cannot.88 The Trustee argues that
Harris’s opinions should be excluded because they “are not credible anyway.”89
As to this latter point about Harris’s opinions not being “credible,” a court should not assess
the credibility of a witness at the summary judgment stage—this should be left to the fact finder at
trial. Thus, the court will not exclude Harris’s testimony merely because the Trustee says that it is
not credible.90 As to the alleged untimely disclosure by ABRE of the three brokers and Harris as
expert witnesses and the ABRE’s failure to produce a Rule 26 report, the court concludes that the
Trustee was not prejudiced by the timing of the disclosure or by the failure of the brokers and Harris
to provide Rule 26 reports, so the court will overrule any procedural or technical objection to the

deposition testimony of the brokers and/or Harris. These witnesses were disclosed in time for the
Trustee to be able to depose them. In fact, the Trustee did not object to these witnesses providing
expert testimony until he filed his Reply in support of his Motion for Partial Summary Judgment

87 See Trustee’s Reply, 5.
88 See Trustee’s Reply, 6. The Trustee argued that “[t]he property owner value testimony exception cannot apply to
Harris, who did not personally own anything and whose role did not involve dealing with real property[ ]” and that
“property owner opinions are only permitted to the extent they are based on personal, factual knowledge of the
properties; they are excluded if based on specialized knowledge.” Trustee’s Reply, 6 (citing Fass v. Deutsche Bank
Nat’l Tr. Co., 2019 WL 2744207, at *6 (W.D. Tex. Apr. 16, 2019)).
89 Trustee’s Reply, 6.
90 See Seigler, 30 F.4th at 476 (“On summary judgment, all facts and reasonable inferences are construed in favor of
the nonmovant, and the court should not weigh evidence or make credibility findings.”); see also Guzman v. Allstate
Assurance Co., 18 F.4th 157, 161 (5th Cir. 2021) (“How much weight to credit self-interested evidence is a question of
credibility, which judges may not evaluate at the summary judgment stage.”).
and did not include his objections in his separate Motion to Exclude the expert testimony and report
of Jason Rae. The court will overrule the Trustee’s objections to the deposition testimony of the
three brokers and Harris and will not exclude it from the summary judgment record.
2. ABRE’s Evidentiary Objections
In its Response to the Trustee’s Motion for Partial Summary Judgment and in a separate

pleading91 filed on December 4, 2024, ABRE objected to certain of the Trustee’s summary judgment
evidence. In particular, ABRE objected to the inclusion in the summary judgment record of the
following: (1) certain allegedly “mischaracterized” deposition testimony of ABRE’s corporate
representative (ABRE’s Rule 30(b)(6) witness), Harris, as being testimony in his capacity “as an
Owner/Manager/Officer of the Debtor entities”; (2) certain excerpts of the deposition transcript of
Adele Wang (in-house legal counsel for the Debtors and the Owners’ related companies, including
ABRE) and of Robert Amaro (Vice President and Director of Accounting for the Debtors, ABRE,
and other Owners’ related companies) on the grounds that they are “speculative, lacking foundation,
and lacking personal knowledge”; (3) all portions of the deposition transcripts that the Trustee did

not cite to in his briefing on the cross-motions for summary judgment because “[t]he Trustee should
not be permitted to dump hundreds of pages of testimony into the record in case he decides he needs
to rely on it”;92 and (4) certain portions of the report of the Trustee’s expert Lynton Kotzin of J.S.
Held, LLC (“Kotzin Report”) because (a) the Trustee miscites it by claiming it contains information
or evidence that it does not contain, and (b) Kotzin’s opinions regarding insolvency and reasonably

91 See Defendant AB Real Estate, LLC’s Objections to Trustee’s Motion for Partial Summary Judgment Evidence
(“Objections to Summary Judgment Evidence”). Dkt. No. 96.
92 Objections to Summary Judgment Evidence, 3-4 (citing Mackey v. Children's Med. Ctr. of Dallas, No. CIV.A. 3:05-
CV-043-L, 2006 WL 2713788, at *2 (N.D. Tex. Sept. 22, 2006), for the proposition that “Rule 56 does not impose upon
the district court a duty to sift through the record in search of evidence” on summary judgment and for the district court’s
statement that including “three entire deposition transcripts as summary judgment evidence” was improper and unduly
burdened the court.).
equivalent value in connection with the ABRE transfers are unsupported and improper and should
not be considered.93
First, as a procedural matter, ABRE did not seek a hearing on its Objections to Summary
Judgment Evidence, instead asking the court to consider its evidentiary objections in the context of
these cross motions for summary judgment. The Trustee filed a response to ABRE’s objections to

his summary judgment evidence on December 26, 2024.94 The Trustee objected to ABRE’s separate
objections as being a procedurally improper “disguised quasi-Daubert” motion that was not filed
before the dispositive motions deadline, which was October 25, 2024, but acknowledged that ABRE
had initially included its objections to the Kotzin Report in its Motion for Summary Judgment, so
they may not, technically, be untimely (although improper for other reasons).95
ABRE’s request of the court to consider the reliability and admissibility of the Trustee’s
expert’s report and testimony in the context of its consideration of the cross-motions for summary
judgment and not through a separate Daubert motion is not procedurally improper; in fact, the court
not only may, but must, consider the admissibility and reliability of any expert report or testimony

when assessing whether that evidence may be included in the summary judgment record upon which
the movant may rely for purposes of meeting his burden under Rule 5696 of showing that there are
no genuine issues of material fact such that the movant is entitled to a judgment as a matter of law.97

93 Objections to Summary Judgment Evidence, 4 (citing Fed. R. Evid. 702).
94 See Response to ABRE’s “Objections” to Evidence (“Response to Evidentiary Objections”). Dkt. No. 102.
95 Response to Evidentiary Objections, 2-3 n.3.
96 As noted below, Rule 56(c)(1) requires “[a] party asserting that a fact cannot be or is genuinely disputed” to support
that assertion by citing to the summary judgment record or showing “that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact[;]”
and subsection (c)(2) allows a party to “object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.” (emphasis added).
97 See, e.g., Linsley v. C.R. Bard, Inc., No. CIV.A.98-2007, 2000 WL 343358, at *3 (E.D. La. Mar. 30, 2000) (“[I]f a
party offers expert opinion evidence at a hearing on a motion for summary judgment, the court must determine if such
evidence would be admissible at a trial on the merits.”); Bernhardt By & Through Bernhardt v. Richardson-Merrell,
Inc., 723 F. Supp. 1188, 1191 (N.D. Miss. 1988), aff'd, 892 F.2d 440 (5th Cir. 1990) (“In addressing the motion for
Turning to the substance of ABRE’s evidentiary objections, first as to ABRE’s objection
that the Trustee mischaracterized the capacity in which Harris was testifying, in connection with
including Harris’s deposition excerpts in the summary judgment record, the court is well aware that
Harris was not testifying “on behalf of” any of the Debtors, when he was testifying during the ABRE
Rule 30(b)(6) deposition, regardless of how the Trustee characterizes the testimony, so the court

will not exclude the excerpts from the ABRE Rule 30(b)(6) transcript from the summary judgment
evidence on the basis that the Trustee has “mischaracterized” it.
Additionally, the court does not believe that the deposition excerpts of Adele Wang and
Robert Amaro were demonstrably “speculative, lacking foundation, [or] lacking personal
knowledge” as argued by ABRE. Having reviewed the excerpts that ABRE seeks to have excluded
and the parties’ arguments regarding the same, the court concludes that such evidence is properly
included in the summary judgment record.
Next, the Trustee argues that, contrary to ABRE’s accusations, his inclusion of complete
deposition transcripts in his appendices was proper and that ABRE’s citation to the Mackey98 case

out of the district court for the Northern District of Texas where the court complained of having to
“sift through the record in search of” summary judgment evidence where the pages of the appendix
were not numbered is inapposite; here, the Trustee numbered every page of his appendices and every
citation in his briefing to deposition transcripts contained a pin cite to the specific pages of the
appendix being cited. The court does not believe that consideration of the cross motions for
summary judgment required the court to “sift through the evidence” or imposed a burden on the

summary judgment, the court must consider the reliability and foundation of the experts’ opinions.”); see also Munoz
v. Orr, 200 F.3d 291, 300-01 (5th Cir. 2000) (on summary judgment, “the trial court has broad discretion to rule on the
admissibility of the expert’s evidence” and “may inquire into the reliability and foundation of any expert's opinion[,]”
and if the “expert’s opinion is clearly unreliable, the district court may disregard that opinion in deciding whether a
party has created a genuine issue of material fact.”) (citations omitted).
98 See supra note 91.
court because the evidence the Trustee wished the court to consider was only those pages of the
deposition transcripts to which the Trustee cited.
Finally, as to ABRE’s objection to the Trustee’s expert’s Kotzin Report, and Trustee’s
descriptions of it, this court disagrees that Kotzin’s opinions regarding insolvency and reasonably
equivalent value in connection with the transfers of the Three ABRE Properties are unsupported and

improper and should not be considered. Kotzin appears to have impressive credentials, and he
explained his methodologies for determining insolvency—even in the face of sometimes-spotty
records—and also seemed to use reliable information in concluding that the Debtors did not receive
reasonably equivalent value for the transfers of the Three ABRE Properties. Obviously, his positions
can be challenged on cross-examination at trial, but there is no basis to exclude his report or
testimony.
Accordingly, the court will not exclude any of the evidence for purposes of determining
whether either party is entitled to a summary judgment here.
C. Substantive Objections to Motions for Summary Judgment

The Trustee argues that he has presented summary judgment evidence to support every
element of his fraudulent transfer claims, actual and constructive, and that ABRE has not pointed to
any evidence in the record that would create a genuine dispute of material fact with respect to those
claims. Meanwhile, ABRE argues that the Trustee’s fraudulent transfer claims fail as a matter of
law because:
(a) the 29th Street Wisconsin Property—which was encumbered by a lien to secure the
aforementioned META Note at the time of the Transfer—is not an “asset” of Debtor
OCB Restaurant, as defined in § 24.002(2)(a) of TUFTA, the transfer of which can be
avoided;

(b) even if the 29th Street Wisconsin Property was an “asset” as contemplated by
§ 24.002(2)(A) of TUFTA, the court should find from the undisputed evidence that
reasonably equivalent value was, indeed, exchanged for it, as a matter of law, through
an oral promise by ABRE to one day pay to Debtor OCB Restaurant any future sale
proceeds realized from an ultimate sale;

(c) the Trustee has allegedly put forth no genuine evidence of insolvency at the time of the
Transfer; and

(d) as to his actual fraudulent transfer claim, the Trustee has allegedly put forth no direct
evidence of actual intent to defraud or of a sufficient number of badges of fraud from
which to infer intent.

ABRE also argues that the Trustee’s conspiracy-to-commit fraudulent transfer claim should fail as
a matter of law, as it is redundant of the fraudulent transfer claims, and, moreover, the Trustee has
not pointed to summary judgment evidence that might support each element of a cause of action for
conspiracy.
To be clear, the Trustee argues that he is entitled to judgment as a matter of law, on his
fraudulent transfer claims, based on the undisputed facts. ABRE argues that it is entitled to judgment
as a matter of law on the actual and constructive fraudulent transfer claims as well as the conspiracy-
to-commit fraudulent transfers.
1. Fraudulent Transfer Claims Under § 544(b) and TUFTA
As noted above, Bankruptcy Code § 544(b) allows the Trustee to “avoid any transfer of an
interest of the debtor . . . that is voidable under applicable law by a creditor holding an unsecured
claim.”99 And, the parties are now in agreement that the “applicable law” here is TUFTA. Under
TUFTA, a qualifying creditor can avoid a fraudulent transfer under TUFTA’s actual fraud
provisions, § 24.005(a)(1), for transfers of assets made with actual intent to hinder, delay, or defraud
any creditor of the debtor. Alternatively, a qualifying creditor can avoid a fraudulent transfer under
TUFTA’s constructive fraud provisions, under either § 24.005(a)(2) or § 24.006 (for transfers of
assets made by a debtor without receiving a reasonably equivalent value in exchange while the

99 Bankruptcy Code § 544(b)(1).
debtor was engaged or was about to engage in a business or a transaction for which the remaining
assets of the debtor were unreasonably small; or intended to incur, or believed or reasonably should
have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they became
due; or the debtor was or became insolvent as a result of the transfer).
One needs to carefully consult the defined terms in TUFTA throughout § 24.002. A

“transfer,” pursuant to § 24.002(12) means “every mode, direct or indirect, absolute or conditional,
voluntary or involuntary, of disposing or parting with an asset or an interest in an asset . . . .”
(Emphasis added.) And TUFTA defines an “asset,” at § 24.002(2), as “property of the Debtor,”100
but the statute excludes from the definition of asset “property to the extent it is encumbered by a
valid lien.”101 Meanwhile, “valid lien” is defined at § 24.002(13) as meaning “a lien that is effective
against the holder of a judicial lien subsequently obtained by legal or equitable process or
proceedings.” (Emphasis added.)
As noted above, the Trustee seeks a summary judgment as to both of his constructive and
actual fraudulent transfer claims, and ABRE seeks a summary judgment as to both of the Trustee’s

claims as well. Because the Trustee, as plaintiff, would bear the burden of proof at trial with respect
to his fraudulent transfer claims under TUFTA, the Trustee has the burden at the summary judgment
stage of making a showing sufficient to establish the existence of the elements essential to his claims
and that there are no genuine issues of material fact that would defeat summary judgment. As the
defendant moving for summary judgment, ABRE does not need to negate the elements of the
Trustee’s claims, but can meet its initial burden by pointing out the absence of summary judgment
evidence supporting the Trustee’s claims. The burden then falls upon the nonmoving party to show,

100 TUFTA § 24.002(2).
101 TUFTA § 24.002(2)(A) (emphasis added); see also In re 1701 Com., LLC, 511 B.R. 812, 826 (Bankr. N.D. Tex.
2014) (“Texas law defines an ‘asset’ as ‘property of a debtor,’ but expressly excludes ‘property to the extent it is
encumbered by a valid lien.’”).
by pointing to specific evidence in the record, the existence of a genuine issue of material fact that
would defeat summary judgment.
With Regard to Both the Actual and Constructive Fraudulent Transfer Claims, Are There Genuine
Issues of Disputed Fact with Regard to Whether the 29th Street Wisconsin Property Transfer was
an “Asset” Pursuant to § 24.002(2) of TUFTA? Yes.

As alluded to above, a threshold requirement of a fraudulent transfer claim—both actual and
constructive—is that the Debtor transferred an “asset” or an “interest in an asset.”102 TUFTA defines
an asset as “property of the Debtor,”103 but, as noted above, the statute excludes from the definition
of “asset” “property to the extent it is encumbered by a valid lien.”104 (Emphasis added.) This
means that “a transfer of property that is fully encumbered by valid liens may not, as a matter of
law, constitute a fraudulent transfer under the TUFTA.”105 And valid liens must be effective against
a subsequent judicial lien.106
Thus, here, the Trustee bears the burden of proving that the 29th Street Wisconsin Property
was, indeed, an “asset” at the time of the transfer as a foundational issue.107 Herein lies the rub. The
parties seem to acknowledge that the 29th Street Wisconsin Property was part of a package of

102 TUFTA § 24.002(12) (emphasis added); In re 1701 Com., 511 B.R. at 826 (“Under Texas law, a fraudulent transfer
begins with a debtor either transferring an asset or incurring an obligation.”); Ingalls v. SMTC Corp. (In re SMTC Mfg.),
421 B.R. 251, 279 (Bankr. W.D. Tex. 2009) (“The Court’s analysis of the broad issue of whether the Debtor in this case
transferred any asset begins with the undisputed legal proposition that TUFTA does not apply to ‘an alleged fraudulent
transfer of property to the extent that such property is encumbered by a security interest.’”) (quoting Mullins v.
TestAmerica, Inc., 564 F.3d 386, 414 (5th Cir. 2009)) (additional citations omitted).
103 TUFTA § 24.002(2).
104 TUFTA § 24.002(2)(A); see also In re 1701 Com., 511 B.R. at 826 (“Texas law defines an ‘asset’ as ‘property of a
debtor,’ but expressly excludes ‘property to the extent it is encumbered by a valid lien.’”).
105 Id.; see also In re Drinks Unique, Inc., No. 10-40196-BTR, 2010 WL 3491184, at *11 (Bankr. E.D. Tex. Aug. 27,
2010) (“The property alleged to have been fraudulently transferred was encumbered by a valid lien, and, therefore, is
not an asset that may be fraudulently transferred [under TUFTA].”).
106 See TUFTA § 24.002(13) (definition for “valid lien”).
107 SMTC, 421 B.R. at 278-79 (“Proof that assets were transferred and an assessment of their value are essential to
sustaining a fraudulent conveyance action [under TUFTA][, and] the Trustee bears the burden of proving all elements
of his TUFTA claims by a preponderance of the evidence.”) (citations omitted).
collateral provided by seven different Debtors (including Debtor OCB Restaurant and Debtor Fire
Mountain) that secured the META Note and that META—pursuant to a separate Security
Agreement put into the summary judgment record—essentially had a blanket lien on all of those
seven Debtors’ assets, including those of the Debtor OCB Restaurant (the transferor of the 29th
Street Wisconsin Property). However, as indicated early on, nowhere in the summary judgment

record is there a recorded copy of the META Security Agreement or copies of recorded deeds of
trust/mortgages for any of the Three ABRE Properties. Only a recorded/perfected lien is a valid
lien effective against the holder of a subsequent judicial lien, for purposes of TUFTA § 24.002(13)
and (2)(A). Thus, for this reason alone, there is a disputed material fact issue as to whether the 29th
Street Wisconsin Property was an “asset” for purposes of TUFTA. Was there a recorded valid lien
on the 29th Street Wisconsin Property? The court has no way of knowing at this point. It is hard to
conceive that sophisticated parties and lawyers would have dropped the ball on recording
liens/deeds, but it sometimes happens. In fact, the court has seen evidence in this record of it
happening at least once.108

But there’s more reason to find a disputed fact issue on this point. Let’s assume that there
were, in fact, recorded deeds (i.e., “valid liens” that would be “effective against the holder of a
judicial lien subsequently obtained”) in favor of META, as to the 29th Street Wisconsin Property
(and as to all of the Three ABRE Properties, for that matter). This is not the end of the analysis.
One must inquire as to what extent those META liens encumbered the transferred property, pursuant
to TUFTA § 24.002(2)(A). The Trustee has pointed to summary judgment evidence that the balance
due under the META Note at the time of the Transfer was $1,312,500 (and the court has not seen

108 This court noted earlier herein that the summary judgment evidence shows that, shortly before the closing on the
February 25, 2020 sale of the 29th Street Wisconsin Property (for a handsome price of $925,000), a title company
discovered that the quitclaim deed from December 2018, purporting to convey this property from Debtor OCB
Restaurant to ABRE, was never recorded. That fact was quickly rectified in January 2020, so that ABRE could be the
owner/seller in that transaction.
summary judgment evidence that really contradicts this). But the parties do not agree on the value
of the 29th Street Wisconsin Property or of META’s other collateral owned by Debtor OCB
Restaurant or the other six makers on the META Note, and both parties challenge the other party’s
summary judgment evidence on the valuation issue. As noted earlier, the Trustee points to
“retroactive” appraisal reports that suggest valuations, as of the dates of the respective transfers of

the Three ABRE Properties, of (a) $1,545,000 on the 29th Street Wisconsin Property (b) $323,000
on the Highway 28 South Carolina Property; and (c) $1,000,000 on the Reelfoot Tennessee Property.
In addition, the Trustee points to evidence that certain non-realty contents of the 29th Street
Wisconsin Property (also META’s collateral) were sold at an auction for gross proceeds of over
$208,000 and net proceeds of over $175,000. The Trustee also points to a 4.719-acre real property
located in Rocky Mount, North Carolina that was owned by Debtor Fire Mountain, 2.5 acres of
which were sold during the 2021 Bankruptcy Case for $100,000 . Finally, the Trustee points to “[a]ll
other assets of the six [sic] Debtors liable on the [META] Note, including Tahoe Joe’s . . . . Although
the complete value of these assets has not been determined, Debtor assets that were sold for

$4,212,000 to BBQ Growth, LLC during the 2021 Bankruptcy Case belonged primarily or
exclusively to Tahoe Joe’s” who was a maker on the META Note.
ABRE has put in evidence of a valuation of $925,000 for the 29th Street Wisconsin Property
at the time of the Transfer, which is a not an insubstantial amount below the outstanding
indebtedness owed to META at that time ($1,312,500), which suggest that the 29th Street Wisconsin
Property would have been fully encumbered at the time of the Transfer and, therefore, not an “asset”
under TUFTA, if the court looks to the value of the property transferred and compares that to the
outstanding indebtedness subject to a valid lien. But, the Trustee’s has pointed to evidence of a
valuation of the 29th Street Wisconsin Property of $1,545,000 at the time of the Transfer, which
exceeds the indebtedness owed at the time to META of $1,312,500. If such were the facts, should
the court, as a matter of law, consider the 29th Street Wisconsin Property to have been “fully
encumbered” under Texas law, such that the 29th Street Wisconsin Property should not be deemed
to have been an “asset” under TUFTA? Or, must the 29th Street Wisconsin Property be deemed
under Texas law to have been only partially encumbered (when considering the value of the 29th
Street Wisconsin Property or of all of the Debtor OCB Restaurant’s property that was subject to a

META lien—or maybe even when considering all of the value of all of the property of all seven
Debtors whose property was subject to a META lien)? Again, this goes to the question of whether
the 29th Street Wisconsin Property would legally constitute an “asset”—since TUFTA excludes
from the definition of “asset” a transferor’s property only “to the extent it is encumbered by a valid
lien.” The Trustee argues the court must consider the value of all of META’s collateral, and ABRE
argues that one zeros in on the fact that, standing alone, if the value of the 29th Street Wisconsin
Property was, as ABRE suggests, less than the amount of the META indebtedness at the time of the
Transfer, it would be considered fully encumbered and not an “asset” that could be voidable under
TUFTA.

The bankruptcy court in the SMTC case faced a similar situation, except that the debtor-
transferor in SMTC had been a guarantor (not an actual maker) under a secured loan facility under
which numerous of the debtor’s non-debtor affiliates were primarily liable on the debt, and all of
the guarantor debtor’s assets were subject to a blanket lien in favor of the secured creditor. The
defendant (i.e., alleged fraudulent transferee) in that case argued that none of the transfers to it had
involved “assets” subject to “transfer” under TUFTA § 24.002(2)(A) because all of the debtor’s
assets were covered by a valid lien. Moreover, the defendants “assert[ed] that whether the Debtor
was liable for the entire balance on the [secured loan] or for only a portion of it, at the time of each
conveyance by the Debtor the amount of its liability, and the corresponding extent of the lien,
exceeded the value of the particular item or items of property that the Debtor conveyed.” The
bankruptcy court recognized that “[u]nder this argument [of the defendants] each of those items of
property was not an ‘asset’ that could have been ‘transferred’ under TUFTA.”109 The defendants
also argued that the Fifth Circuit’s opinion in Mullins mandated such a result.110 The defendants
argued, alternatively, that “even if the value of all of the Debtor’s property that was subject to the
lien was considered, because the Debtor was liable for the entire balance of the [secured loan], the

value of the lien which secures the [secured loan] exceeded the combined value of all the Debtor-
transferor's property, and so at all times the Debtor's property was fully encumbered” and, therefore,
“none of the conveyances by the Debtor was a ‘transfer’ that involved an ‘asset’ of the Debtor.”111
The bankruptcy court noted that there were two legal questions presented to it “in connection
with its decision on whether an ‘asset’ could have been the subject of a ‘transfer[,]’” and they were:
(1) how to decide whether property conveyed is fully encumbered in the context of
a blanket lien covering all assets of a debtor—i.e., whether the Debtor should be
considered to have conveyed some of its encumbered property, or some of its equity
with each conveyance; and (2) whether, for purposes of a TUFTA analysis, the
Debtor [which was a guarantor] should be considered to have been liable for the
entire [secured loan] balance.112

The trustee in the SMTC case had meanwhile argued that, under Mullins, “if the facts show that the
value of all the Debtor’s property was greater than the amount of debt secured by the lien, the
property transferred should be considered to represent part of that equity rather than part of the
encumbered collateral, so that each conveyance involved property that was not fully encumbered—
i.e., each conveyance involved an ‘asset’ that was ‘transferred.’”113
The bankruptcy court ultimately agreed with the trustee:

109 SMTC, 421 B.R. at 280.
110 See id. (citing Mullins v. TestAmerica, Inc., 564 F.3d 386 (5th Cir. 2009)).
111 Id. at 280-81.
112 Id. at 281 (noting that the first question hinged on the court’s interpretation of the holding in Mullins) (emphasis
added).
113 Id. at 282.
In this case, truly all of the Debtor’s property is undisputedly subject to the lien.
Thus, the Court agrees with the Trustee that if the total value of all property exceeded
the amount of the debt that it secured at the time of a conveyance, each item of
property that was conveyed should be considered part of the Debtor’s equity, and not
fully encumbered. Therefore, as to any such “assets,” the Debtor “transferred” them
within the meaning of TUFTA.114

This court notes that the SMTC case involved a blanket lien on all of a transferor debtor’s
assets (with its affiliates who were co-obligors on a secured note not being in bankruptcy). Here,
even more compelling, there is a blanket lien on all of the assets of all of the makers under the
META Note—but all seven of those makers (including transferor/Debtor OCB Restaurant) are
in bankruptcy and all seven were substantively consolidated under the plan from the 2016
Bankruptcy Case through which META obtained the META Note and all associated liens.
This court concludes, at a minimum, that, as a matter of law, if the total value of all of the
Debtor OCB Restaurant’s assets that served as META collateral, at the time of the Transfer,
exceeded the amount of the indebtedness owed under the Meta Note at the time of the Transfer
(which seems to have been $1,312,500), then, to the extent of the value of that overall equity, the
29th Street Wisconsin Property should be considered an “asset” that was “transferred” under
TUFTA. The mere fact that the 29th Street Wisconsin Property may have been subject to a “valid
lien” does not exclude the entire property from the definition of “asset” under TUFTA. Moreover,
given the substantive consolidation of the makers on the META Note pursuant to the terms of the
confirmed plan in the 2016 Bankruptcy, the court concludes that it is appropriate here to compute
the encumbrance-equity ratio (at the time of the Transfer) by looking at the total value of the entire

114 Id. at 283. As to the second of the “legal questions” the court was presented with—the trustee had argued that “the
Debtor’s liability [as guarantor] for the [secured loan] Loan was contingent or should be discounted to an amount
reflecting the likelihood it would have to pay on its full guaranty on the [secured loan] [and] [t]herefore . . . there was
equity in the Lenders’ collateral, their lien did not fully encumber the Debtor’s property, and its ‘assets’ were thus
‘transferred’ (both as defined in TUFTA)”—the court found that “it is proper and necessary to consider the probability
that the Debtor would have to pay [its obligation under its guarantee]” where the entire group of the Debtor’s affiliates
were liable under the secured loan. Id. at 283, 287-88.
collateral package provided by the seven Debtors that were makers on the META Note, as opposed
to simply focusing on: (a) the value of the 29th Street Wisconsin Property; or (b) the value of all of
Debtor OCB Restaurant’s property at the time of the Transfer.
The bottom line is that there is disputed summary judgment evidence on the value, at the
time of the Transfer, of: (a) the 29th Street Wisconsin Property; (b) all of the Debtor OCB

Restaurant’s property; and (c) all of the property of all of the seven makers on the META Note (all
of which provided a lien on all of their assets to META, and all of whom were substantively
consolidated under the plan in the 2016 Bankruptcy). The Trustee has met his initial burden as
movant of pointing to facts in the summary judgment evidence that support his argument that the
29th Street Wisconsin Property was an “asset” pursuant to TUFTA § 24.002(2)(A), and ABRE has
put forth evidence that might contradict that (given ABRE’s very different ideas about value). Thus,
neither party is entitled to summary judgment on the fraudulent transfer claims. To be clear, no one
has presented unrefuted evidence as to what was due under the META Note at the time of the
Transfer (the Trustee has presented his best guess), and no one has presented evidence of the overall

value of META’s collateral.
With Regard to the Constructive Fraudulent Transfer Claims, Are There Genuine Issues of Disputed
Fact with Regard to Whether “Reasonably Equivalent Value” Was Given in Exchange for the
Transfer? Yes.

As noted above, the elements of the Trustee’s constructive fraudulent transfer claim are set
forth in TUFTA § 24.005(a)(2), which states that a transfer by a debtor can be avoided if the debtor
made the transfer
(2) without receiving a reasonably equivalent value in exchange for the transfer or
obligation, and the debtor:

(A) 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
(B) intended to incur, or believed or reasonably should have believed that the
debtor would incur, debts beyond the debtor's ability to pay as they became due.
Section 24.006 of TUFTA also permits avoidance of a transfer for less than reasonably equivalent
value if the debtor was insolvent or was rendered insolvent because of the transfer.
The burden of proving a lack of reasonably equivalent value falls on the Trustee – the party
seeking to avoid the Transfer as a constructively fraudulent conveyance.115 The Trustee also bears
the burden of proof on the issue of insolvency of the debtor/transferor (for both constructive fraud
and actual fraud, as a badge of fraud) at the time of the transfer, as he does with respect to all
elements of his claims under TUFTA.116 Here, the Trustee argues that he has pointed to evidence in
the summary judgment record that Debtor OCB Restaurant did not receive reasonably equivalent
value in exchange for the 29th Street Wisconsin Property Transfer by pointing to the quitclaim deed,

itself, as indicating that ABRE did not pay to Debtor OCB Restaurant or any other Debtor cash
consideration for the 29th Street Wisconsin Property and to the Kotzin Report for the proposition
that “ABRE did not pay OCB or any other Debtor a cent for the 29th Street Property in 2018.”117
But, the Trustee’s assumption that no “value” was given in exchange for the transfer focuses only
on monetary consideration and ignores evidence in the summary judgment record, including in the
quitclaim deed itself, which was silent as to the consideration paid by ABRE, that other
consideration could have been and was provided to Debtor OCB Restaurant by ABRE in exchange
for the 29th Street Wisconsin Property Transfer. And, ABRE points to evidence in the record that

115 Yaquinto v. CBS Radio, Inc. (In re Texas E&P Operating, Inc.), 2022 WL 2719472, *13 (Bankr. N.D. Tex., July 13,
2022) (citing In re McConnell, 934 F.2d 662, 665 n.1 (5th Cir. 1991) and Altus Brands II, LLC v. Alexander, 435 S.W.3d
432, 441 (Tex. App.—Dallas 2014, no pet.).
116 See Shelley v. Walnut Place Nursing Home, No. 05-94-01047-CV, 1995 WL 73094, *5 (Tex. App.—Dallas Feb. 23,
1995, no pet.) (not designated for publication) (“A creditor attacking a conveyance has the burden to establish the
debtor's insolvency at the time of the conveyance.”); see also SMTC, 421 B.R. at 279 (“[T]he Trustee bears the burden
of proving all elements of his TUFTA claims by a preponderance of the evidence.”).
117 Trustee’s Motion for Partial Summary Judgment, 9 (citing Trustee’s App’x 764 (29th Street Quitclaim Deed) and
339 (Kotzin Report, 19)).
ABRE provided value in the form of a verbal promise to repatriate the sale proceeds back to or for
the benefit of the Debtors; that the Trustee testified that he had no basis to dispute the existence of
the verbal promise;118 and that Kotzin testified that he did not consider the promise in his assessment
of consideration or benefits provided by ABRE to Debtor OCB Restaurant; rather, his “analysis
focused more on tangible proceeds that are cash proceeds that were received[,]” and he “did not

analyze any potential indirect benefits that may or may not have been received from the transfer.”119
ABRE argues that the Trustee ignores “undisputed” evidence in the record that “the Debtors
and ABRE agreed that all proceeds from the eventual sale of the 29th Street Wisconsin Property
(and the other two of the Three ABRE Properties) would be returned to the Debtors or used for the
benefit of the Debtors.”120 The Trustee argues that he has disputed this evidence, primarily by
objecting to the inclusion in the summary judgment record of the Kemp Declaration as being a
“sham affidavit”121 and as inadmissible parole evidence that contradicts the quitclaim deed. In
addition, the Trustee argues that any alleged promise would be unenforceable under the statute of
frauds. Other than these “evidentiary” objections to ABRE’s evidence of an alleged verbal promise

given in consideration for the transfers of the Three ABRE Properties, including the 29th Street
Wisconsin Property Transfer, the Trustee does not argue that a promise cannot constitute value
under TUFTA as a matter of law.122 ABRE, on the other hand, does argue that a promise can
constitute reasonably equivalent value under TUFTA, even if the promise is unperformed (as in the
situation of the Highway 28 South Carolina Property Transfer—as it was subsequently sold in a tax

118 David Gonzales Dep. Tr. 121:14-122:7, ABRE App’x 61-2.
119 Lynton Kotzin Dep. Tr. 275:2-6, ABRE App’x 746.
120 See ABRE’s Response, 12 (citing Harris’s testimony in the ABRE Rule 30(b)(6), Dep. Tr. 35:14-19, 39:8-12, ABRE
Resp. App’x 25-26; Kemp Decl. ¶ 6, ABRE Resp. App’x 86 (“At the time of transfer, ABRE agreed that any proceeds
from the eventual sale of the ABRE Properties would be returned to the Debtors or would be used for their benefit.”)).
121 For the court’s discussion of the Trustee’s “sham affidavit” argument and the court’s overruling of this objection to
ABRE’s summary judgment evidence, see supra pp. 21-22.
122 See generally Trustee’s Supplemental Brief.
foreclosure sale, leaving ABRE with no sale proceeds with which to perform its alleged promise to
repatriate sale proceeds to Debtor Fire Mountain).
The court will address, first, the legal issue, because if the alleged promise cannot constitute
value under TUFTA as a matter of law, then the Trustee will ultimately prevail—at least as to the
reasonably equivalent value issue—because ABRE’s evidence becomes irrelevant and incapable of

creating a genuine issue of material fact.123 ABRE has cited numerous cases within the Fifth Circuit
as well as from other circuits that hold, as a matter of law, that promises of future conduct or
speculative future benefits can provide reasonably equivalent value in the fraudulent transfer
context, including even if the future promised benefit is never fulfilled.124 In Janvey v. Golf Channel,
the Texas Supreme Court answered the following question that had been certified to it by the federal
Fifth Circuit:125

123 See Hutton Commc’ns, Inc. v. Commc’n Infrastructure Corp., 461 F.Supp.3d 400, 403 (N.D. Tex. 2020) (citing
Anderson, 477 U.S. at 248). The parties provided additional briefing on this issue in their supplemental briefs filed
March 10, 2025.
124 See ABRE Supplemental Brief, 8 (citing Matter of Louisiana Pellets, Inc., 838 F. App’x 45, 50–51 (5th Cir. 2020)
(finding value in “promise to perform work” and affirming bankruptcy court’s ruling of no constructive fraudulent
transfer); Janvey v. Golf Channel, Inc., 792 F.3d 539, 546 (5th Cir. 2015) (recognizing that even “speculative or potential
gains” that “at least had the potential to benefit the debtor's creditors” can be reasonably equivalent value); In re Treasure
Valley Opportunities, Inc., 166 B.R. 701, 704–05 (Bankr. D. Idaho 1994) (finding promise was reasonably equivalent
value despite fact that promise was not fulfilled, because “[h]ad the promise been performed, the creditors of the debtor
would certainly have benefitted.”); In re Mirant Corp., No. 03-046590 DML, 2010 WL 8708772, at *31 (Bankr. N.D.
Tex. Apr. 22, 2010) (“Moreover, the opportunity to receive an economic benefit in the future can constitute value under
the Bankruptcy Code.”); In re White, No. AP 16-2089, 2024 WL 698232, at *7 (B.A.P. 10th Cir. Feb. 21, 2024) (finding
reasonably equivalent value where transferor received “benefits including the opportunity to run a business that could
have resulted in long term prosperity”); see also Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 574 (Tex. 2016) (where
TUFTA excludes one type of promise from its definition of value, “it follows that other types of enforceable promises
made or performed in the ordinary course of the promisor's business would constitute value under TUFTA”); see also
Bowman v. El Paso CGP Co., L.L.C., 431 S.W.3d 781, 786 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(reversing trial court’s grant of summary judgment on fraudulent transfer claim under TUFTA and stating that “an
unperformed promise may provide value.”).
125 Janvey v. Golf Channel, 487 S.W.2d at 564. The court notes that, in the case at bar, we are not analyzing “reasonably
equivalent value” as part of a transferee’s good-faith defense under TUFTA 24.009(a), but a lack of “reasonably
equivalent value” as an element of the plaintiff’s claim under TUFTA § 24.005(a)(2) and a potential “badge of fraud”
under TUFTA § 24.004(a)(1) and (b). But, the definitions of “value” and “reasonably equivalent value” as used in all
three provisions are the same, so the Texas Supreme Court’s interpretation in Janvey v. Golf Channel of “value” and
“reasonably equivalent value” under TUFTA § 24.009(a) would apply equally to those terms as used in TUFTA
§§ 24.005 or 24.006.
Considering the definition of “value” in section 24.004(a) of [TUFTA], the
definition of “reasonably equivalent value” in section 24.004(d) of [TUFTA], and
the comment in [UFTA] stating that “value” is measured “from a creditor's
viewpoint,” what showing of “value” under TUFTA is sufficient for a transferee to
prove the elements of the [good-faith] affirmative defense under section 24.009(a)
of [TUFTA]?

In its analysis, the Texas Supreme Court stated that “TUFTA’s general definition of ‘value’ is . . .
illuminating in what it expressly excludes from the definition: ‘[V]alue does not include an
unperformed promise made otherwise than in the ordinary course of the promisor’s business to
furnish support to the debtor or another person.’”126 It then reasoned that “[f]rom the exclusion of
unperformed promises not made in the ordinary course of business, it follows that other types of
enforceable promises made or performed in the ordinary course of the promisor’s business would
constitute value under TUFTA.”127 The court noted that
While the definitions of “value” and “reasonably equivalent value” are expansive
and nonexclusive, there is nevertheless an implicit requirement that the transfer
confer some direct or indirect economic benefit to the debtor, as opposed to benefits
conferred solely on a third-party, transfers that are purely gratuitous, and transactions
that merely hold subjective value to the debtor or transferee.128

The Trustee does not challenge that this is the state of the law in Texas. Rather, the Trustee argues
that (1) he has met his initial summary judgment burden by pointing to evidence that establishes a
prima facie case of lack of reasonably equivalent value based on the absence of language in the
quitclaim deed regarding any consideration and evidence of the value of the 29th Street Wisconsin
Property at the time of the transfer, and (2) the burden then shifts to ABRE to point to the existence
of a genuine dispute of a material fact that would preclude summary judgment, which ABRE cannot

126 Id. at 574.
127 Id. (noting further that “the exclusion suggests that the nature of the transaction as being in the ordinary course of
business or involving a promise performed bears more than a passing relevance to the ‘value’ inquiry.”) (emphasis
added).
128 Id.
meet.129 The Trustee argues that, as an evidentiary matter, ABRE simply cannot point to evidence
in the summary judgment record to support its claim that the alleged promise of ABRE to repatriate
sale proceeds actually existed.
ABRE disagrees with the Trustee’s assessment of the evidence as to both the existence of
the promise and the value of the 29th Street Wisconsin Property as of the time of the transfers. As

to the existence of the promise, the Trustee argues that ABRE is prohibited under the statute of fraud
and the parole evidence rule from pointing to evidence outside of the quitclaim deed as evidence of
consideration given to the transferor in exchange for the transfer, arguing that “a Debtor[’s] right to
the sales proceeds that is not reflected in the deeds or any contemporaneous document cannot be
credited.”130 ABRE denies that its promise is unenforceable or voidable for any reason, but argues
that even if it were, “[t]he mere fact that a contract is void, unenforceable, or illegal does not require
a finding that there was no reasonably equivalent value given . . . .”131 In addition, ABRE points out
that the Trustee has not demonstrated that there are no genuine issues of material fact regarding the
enforceability of ABRE’s promise, including whether an exception to the statute of frauds, such as

partial or full performance, might apply here. ABRE’s argues that “[t]he Trustee’s argument that
ABRE’s promise to return the proceeds of the sale of the properties cannot be value because it
violates the parol evidence rule by attempting to vary the terms of the deeds is also without merit,

129 Trustee’s Supplemental Brief, 9 (quoting United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001), citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)) (“If the movant makes out a prima facie case, the burden shifts to
the nonmovant to demonstrate the existence of a genuine dispute of material fact precluding summary judgment.”).
130 Trustee’s Motion for Partial Summary Judgment, 23-24.
131 ABRE Supplemental Brief, 9 (quoting In re Kendall, 440 B.R. 526, 532 (B.A.P. 8th Cir. 2010) and citing In re
Tsirambidis, No. 14-14938, 2015 WL 7307325, at * 4–5 (Bankr. N.D. Ohio Nov. 19, 2015)).
even if it applied[,]” because “courts routinely find that parol evidence is admissible to show the
existence of consideration beyond that reflected in a deed.”132
The court agrees that the Trustee has not shown that either the Texas statute of frauds or the
parol evidence rule would preclude ABRE from presenting evidence of its promise to return the
proceeds of the sale. ABRE has met its burden of demonstrating the existence of a genuine issue of

material fact regarding the existence of its promise and the value it provided to Debtor OCB
Restaurant for purposes of determining whether the transfer lacked an exchange of reasonably
equivalent value under TUFTA.
The Trustee also claims to have met his summary judgment burden with respect to the value
of the 29th Street Wisconsin Property at the time of the transfer (as it relates to the reasonably
equivalent value issue) by presenting an “uncontroverted” appraised value of the 29th Street
Wisconsin Property of “$1,545,000” on the date of the transfer,133 suggesting that there is no other
evidence in the summary judgment record regarding value. The Trustee is wrong. While it is true
that ABRE did not submit formal appraisal reports, it is not true that ABRE has offered no evidence

of valuation. First, ABRE has submitted depositions of the real estate brokers who were involved
with selling or attempting to sell each of the Three ABRE Properties, each of whom testified as to
his expert opinion of the value of each property and as to his concerns with the Trustee’s appraisals,

132 ABRE Supplemental Brief, 17 (citing Buccaneer’s Cove, Inc. v. Mainland Bank, 831 S.W.2d 582, 584 (Tex.App.—
Corpus Christi 1992, no writ) (“The true consideration for a deed may be shown by parol evidence to be different from
that expressed in the deed.”); Hitz v. Nat'l Metro. Bank, 111 U.S. 722, 727, 4 S. Ct. 613, 615, 28 L. Ed. 577 (1884) (“We
do not concur in the view of the learned court below, that because the sum of one dollar is mentioned in this trust deed
as the consideration, the true consideration cannot be shown by parol evidence. It is always understood that the one
dollar in such connection is merely nominal, and is never actually paid.”); Lopez v. Rivas, No. 01-14-00592-CV, 2015
WL 1967594, at *3 (Tex. App.—Houston [1st Dist.] Apr. 30, 2015, no pet.) (“Here, we conclude that Mayra and Linda's
testimony concerning the oral promise was admissible to show the actual consideration given for the deed because it
did not contradict or vary the deed’s terms. The deed states that, in addition to $10, “other good and valuable
consideration” was given for the deed. Deeds ordinarily embody such recitals of nominal consideration and “other good
and valuable consideration.”)).
133 Trustee’s Motion for Partial Summary Judgment, 21.
based on his expertise in the property’s geographical region. As to the value of the 29th Street
Wisconsin Property and criticisms of the Trustee’s appraisal, ABRE submitted the deposition
testimony of Dean Larsen and to ABRE’s 30(b)(6) witness, Harris, relating to the valuation of the
29th Street Wisconsin Property. ABRE points to evidence in the record that “the Trustee’s own
appraiser identified and testified to information that may have negatively impacted his valuation of

the 29th Street Property.”134 ABRE also identifies evidence in the record regarding the sale price of
the 29th Street Wisconsin Property to an unrelated buyer in an arms’ length transaction as additional
evidence that creates a genuine issue of material fact on the issue of the value of the 29th Street
Wisconsin Property.135
The court concludes the parties have each pointed to evidence in the record that demonstrates
the existence of a genuine issue of material fact on the issue of value. Thus, neither party is entitled
to a summary judgment on the Trustee’s constructive fraudulent transfer claims due to this disputed
issue.
With Regard to the Constructive Fraudulent Transfer Claims, Are There Genuine Issues of Disputed
Fact with Regard to Insolvency? Yes.

The Trustee asserts that he has also met his summary judgment burden as to the issue of
Debtor OCB Restaurant’s insolvency at the time of the 29th Street Wisconsin Property Transfer and
that ABRE has not pointed to any controverting evidence so as to create a genuine issue of material
fact to defeat the Trustee’s summary judgment. ABRE argues that it, as the defendant, is entitled to
summary judgment because the Trustee has not presented any evidence on this essential element of
the Trustee’s claim for constructive fraudulent transfer of the 29th Street Wisconsin Property. The
Trustee points to one, and only one, piece of evidence in support of the insolvency issue: a single

134 ABRE’s Response, 12; Paulus Dep. Tr. 155:16-156:3, ABRE Resp. App’x 1032-33; see also Larsen Dep. Tr. 32:5-
33:14, Ex. 5, ABRE Resp. App’x 1181-82, 1198-99.
135 See ABRE’s Response, 13.
page (page 38) of the Kotzin Report.136 ABRE argues that page 38 of the Kotzin Report does not
include any opinion that Debtor OCB Restaurant was insolvent on the date of the 29th Street
Wisconsin Property Transfer and that Kotzin does not analyze any financial information for Debtor
OCB Restaurant at or around the December 7, 2018 transfer date. ABRE contends that, at most, the
Kotzin Report speaks about Debtor OCB Restaurant’s financial condition in June 2016, at the latest,

which was prior to the Debtor’s 2017 exit from the 2016 Bankruptcy.137 Moreover, Kotzin
acknowledges in his report that he was not provided with, and, therefore, presumably did not review,
“any financial statements for [Debtor OCB Restaurant] after 2016”—more than two years prior to
the date of the 29th Street Wisconsin Property Transfer.138 ABRE argues that because the Kotzin
Report provides no conclusion regarding Debtor OCB Restaurant’s insolvency as of December
2018, the Trustee has provided no evidence on the issue of insolvency, and, therefore, ABRE is
entitled to summary judgment on the Trustee’s constructive fraudulent transfer claim. But, the
Kotzin Report is not the only evidence in the summary judgment record that goes to the insolvency
issue. The Trustee points to the deposition testimony of Robert Amaro (Vice President and Director

of Accounting for the Debtors, including Debtor OCB Restaurant, ABRE, and other Owners’ related
companies), when he was asked to describe the financial condition of the Debtors and whether there
was ever a time after the Owners’ acquisition of the Debtors in August 2015 that they were solvent
on a consolidated basis. Amaro’s testimony was that, other than a short period during the 2016

136 See Trustee’s Motion for Partial Summary Judgment, 20 (citing Kotzin Report, 38, Trustee App’x 358) (“OCB
[Restaurant] was insolvent before, at the time of, and after the transfer of the 29th Street [Wisconsin] Property.”).
137 Kotzin Report, 38, Trustee App’x 358 (citing to Exhibit 2 (balance sheet summary for certain of the Debtors,
including Debtor OCB Restaurant, as of “Various Dates” in 2016), Trustee App’x 412; Exhibit 9 (income statement
summary for certain of the Debtors, including Debtor OCB Restaurant, as of “Various Periods” in 2016), Trustee App’x
420; and Exhibit 39 (“OCB Restaurant Company, LLC – Historical Balance Sheets”), Trustee App’x 471).
138 Kotzin Report, 38, Trustee App’x 358. The Trustee blames the lack of financial data for Debtor OCB Restaurant on
“the Defendants in these related adversaries generally—either through spoliation or commingling . . . .” Trustee’s
Response, 31.
Bankruptcy Case,139 the Debtors’ cash flows were “very negative on an ongoing basis” and that by
October following the late August 2015 acquisition “there was no cash to pay rent.”140 Amaro
testified that
it was obvious from day one they did a transaction. They gave no capital – there
was no capital infusion to keep the business going. I mean, it was basically dry . . .
from day one. And so we didn’t get to see that until we – we had closed on the
transaction and because Mr. Kemp did not allow us to see that. I mean, it’s pretty
obvious if you do your due diligence and you have 20 percent declining sales in a
company. How are you going to turn that around? And Mr. Kemp and Mr. Jones –
magically convinced Jones and Harris to buy the business even though it had 20
percent declining sales.141

The Trustee also argues that there is evidence in the summary judgment record that “OCB
[Restaurant] lost millions of dollars after Buffets, LLC and its subsidiaries emerged from [the 2016
Bankruptcy], and there is no evidence that its finances improved when its real estate was transferred
to ABRE—that only deepened the insolvency.”142
The court agrees with the Trustee that there is enough evidence in the summary judgment
record that is at least somewhat probative as to whether Debtor OCB Restaurant was insolvent at
the time of the Transfer, so as to establish the existence of a genuine issue of material fact on the
insolvency issue. This issue will need to be tried. Thus, the Trustee is not entitled to a summary
judgment on his constructive fraud claim under TUFTA §§ 24.005(a)(2) or 24.006 and neither is
ABRE entitled to summary judgment based on its argument that the Trustee has failed to meet his
burden of pointing to evidence in the record of Debtor OCB Restaurant’s insolvency at the time of
the Transfer.

139 Amaro Dep. Tr. 59:5-9, Trustee App’x 176 (“When we were in bankruptcy, there was a period where possibly there
was some positive cash flow periods, but, you know, it was very short-term and – and not – not sustainable.”).
140 Amaro Dep. Tr. 56:10-14, Trustee App’x 175.
141 Amaro Dep. Tr. 56:19 – 57:6, Trustee App’x 175-76.
142 See Trustee’s Response, 33-34 (citing to Kotzin Report, 36-39, and Exs. 16, 17, 39, 48, Trustee’s App’x 356-59,
429, 430, 471, 480).
These are further reasons to deny both parties motions for summary judgment, so the court
will deny both motions for summary judgment as to the Trustee’s constructive fraudulent transfer
claim.
Are There Genuine Issues of Disputed Fact with Regard to Intent to Defraud in Connection with the
Trustee’s Actual Fraudulent Transfer Claims? Yes.

The Trustee’s actual fraudulent transfer claim is governed by TUFTA § 24.005(a)(1), which
states that a transfer made by a debtor can be avoided if the debtor made the transfer “with actual
intent to hinder, delay, or defraud any creditor of the debtor.” The Trustee has the burden of proof
that the Transfer was made “with the actual intent to hinder, delay, or defraud” creditors.143 Whether
a transfer was made with actual fraudulent intent is a fact question.144 Given that direct evidence of
actual intent is rarely available, courts typically rely on circumstantial evidence, known as badges
of fraud, to infer intent.145 TUFTA provides a non-exclusive list of badges of fraud that may be
considered in determining actual intent on the part of a debtor.146 The badges of fraud listed in the
statute are:
1. the transfer or obligation was to an insider;
2. the retained possession or control of the property transferred after the transfer;
3. the transfer or obligation was 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 of the debtor’s assets;

143 See Osherow v. Nelson Hensley & Consol. Fund Mgmt. (In re Pace), 456 B.R. 253, 267 (Bankr. S.D. Tex. 2011)
(“Under section 24.005, ‘[t]he Trustee bears the burden of proof to show, by a preponderance of evidence, that the
transfers in question were made by the Debtor with the actual intent to hinder, delay or defraud any creditor of the
Debtor.’”) (quoting Ingalls v. SMTC Corp. (In re SMTC Mfg.), 421 B.R. 251, 299 (Bankr. W.D. Tex. 2009).
144 Walker v. Anderson, 232 S.W.3d 899, 914 (Tex. App. 2007).
145 See In re Soza, 542 F.3d 1060, 1067 (5th Cir. 2008).
146 See TUFTA § 24.005(b) (stating “consideration may be given, among other factors, to” the listed badges of fraud)
(emphasis added).
6. the debtor absconded;
7. the debtor removed or concealed assets;
8. the value of consideration received by the debtor was [less than] 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. the debtor transferred the essential assets of the business to a lienor who transferred
the assets to an insider of the debtor.
Because the list is non-exhaustive, a court may consider other suspicious facts suggesting that a
transfer was made with actual fraudulent intent.147 There is no clear authority on how many badges
of fraud must be present to sufficiently establish actual intent under either TUFTA or the Bankruptcy
Code.148 As a matter of law, a finding of fraudulent intent cannot properly be inferred from the
existence of just one “badge of fraud.”149 “While a badge of fraud standing alone may amount to
little more than a suspicious circumstance, insufficient in itself to constitute a fraud per se, several
of them when considered together may afford a basis from which its existence is properly
inferable,”150 but “[n]ot all, or even a majority, of the ‘badges of fraud’ must exist to find actual
fraud.”151 Courts in Texas have struggled somewhat regarding just how many badges of fraud must

147 In re 1701 Commerce, LLC, 511 B.R. 812, 836 (Bankr. N.D. Tex. 2014).
148 Tow v. Speer, Civ. Action No. H-11-3700, 2015 WL 1058080, *11 (S.D. Tex. 2015).
149 Ingalls v. SMTC Corp. (In re SMTC Mfg.), 421 B.R

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11062417. Public record. Not legal advice.