Husky International Electronics, Inc. v. Ritz (In Re Ritz)

Case: 14-20526 Document: 00513632614 Page: 1 Date Filed: 08/10/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 10, 2016

No. 14-20526

Lyle W. Cayce

Clerk

In the Matter of: DANIEL LEE RITZ, JR., also known as Bo Ritz,

Debtor

------------------------------

HUSKY INTERNATIONAL ELECTRONICS, INCORPORATED,

Appellant

v.

DANIEL LEE RITZ, JR.,

Appellee

Appeal from the United States District Court

for the Southern District of Texas

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.

KING, Circuit Judge:

Daniel Ritz, in financial control of Chrysalis Manufacturing Corp.,

caused funds to be transferred from Chrysalis which effectively rendered

Chrysalis unable to pay a debt owed to Husky International Electronics,

Incorporated. When Ritz filed for Chapter 7 bankruptcy, Husky initiated an

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No. 14-20526

adversary proceeding objecting to Ritz’s discharge under, inter alia, 11 U.S.C.

§ 523(a)(2)(A). The bankruptcy court rejected this challenge, holding that Ritz

owed no debt to Husky under Texas law. The district court affirmed the

judgment of the bankruptcy court, explaining that, while Ritz owed a debt to

Husky under Texas law, Husky could not prevail on its objection under the

Bankruptcy Code because a misrepresentation is required to succeed on an

objection under § 523(a)(2)(A). On appeal, this court did not address the state

law issue but agreed with the district court’s conclusion that Husky could not

succeed on its objection under § 523(a)(2)(A) because that provision requires

that the debtor make a misrepresentation. The Supreme Court reversed,

holding that no misrepresentation was required to object successfully to a

discharge under § 523(a)(2)(A). We are therefore required to consider the issue

that we pretermitted on Husky’s appeal to this court: whether Ritz owes a debt

to Husky under Texas law. We do so because if Ritz is not liable to Husky

under Texas law, then there is no debt to discharge and the question of the

deniability of a discharge under § 523(a)(2)(A) is moot. We VACATE the

district court’s judgment insofar as that court held that Ritz was liable to

Husky under Texas law because the district court relied on fact findings not

actually made by the bankruptcy court. However, we agree with the district

court’s legal conclusion that, under Texas law, depending on subsequent fact

findings, Husky may be able to show that Ritz is liable to it. We REMAND to

the district court (for remand to the bankruptcy court) for additional fact-

finding as to whether Husky may successfully establish Ritz’s liability under

state law.

I. FACTUAL AND PROCEDURAL HISTORY

Because the factual and procedural history of this case has been

recounted multiple times, we discuss only the background necessary to decide

the issues before us today. See generally Husky Int’l Elecs., Inc. v. Ritz, 136 S.

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Ct. 1581, 1585–86 (2016) (discussing the factual and procedural background);

Husky Int’l Elecs., Inc. v. Ritz (In re Ritz), 787 F.3d 312, 315–16 (5th Cir. 2015)

(same). Husky International Electronics, Incorporated, (Husky) manufactures

components for electrical devices. Husky, 136 S. Ct. at 1585. Between 2003

and 2007, Husky sold its products to Chrysalis Manufacturing Corp.

(Chrysalis), and “Chrysalis incurred a debt to Husky of $163,999.38.” Id.

Chrysalis, which was under the financial control of Daniel Ritz at the time, did

not pay its debts as they became due. Id. “All parties agree that between 2006

and 2007, Ritz drained Chrysalis of assets it could have used to pay its debts

to creditors like Husky by transferring large sums of Chrysalis’ funds to other

entities Ritz controlled.” 1 Id. In May 2009, Husky filed a lawsuit against Ritz,

seeking to hold him personally responsible for the debt Chrysalis owed to

Husky pursuant to Texas Business Organizations Code § 21.223(b). Id.

Ritz filed a voluntary Chapter 7 petition for bankruptcy, and Husky

initiated the adversary proceeding underlying Husky’s appeal to this court,

objecting to the discharge of Ritz’s debt under 11 U.S.C. §§ 523(a)(2)(A),

523(a)(4), and 523(a)(6). In re Ritz, 787 F.3d at 315. The bankruptcy court

rejected Husky’s arguments, holding that the denial of a discharge was not

warranted by any of the Bankruptcy Code provisions advanced by Husky.

1 Although the Supreme Court did not list all of Ritz’s transfers, this court previously

listed those transfers as follows:

Specifically, Ritz transferred: (1) $677,622 to ComCon Manufacturing Services,

Inc.; (2) $121,831 to CapNet Securities Corp. (of which Ritz held an 85%

ownership interest); (3) $52,600 to CapNet Risk Management, Inc. (of which

Ritz held a 100% ownership interest); (4) $172,100 to Institutional Capital

Management, Inc., and Institutional Insurance Management, Inc. (of which

Ritz held 40% and 100% ownership interests, respectively); (5) $99,386.90 to

Dynalyst Manufacturing Corp. (of which Ritz held a 25% ownership interest);

(6) $26,500 to Clean Fuel International Corp. (of which Ritz held a 20%

ownership interest); and (7) $11,240 to CapNet Advisors, Inc.

In re Ritz, 787 F.3d at 314.

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With respect to § 523(a)(2)(A), 2 which is the only bankruptcy provision

at issue on remand, the bankruptcy court held that Husky could not prevail

under this provision because Ritz was not liable to Husky pursuant to Texas

Business Organizations Code § 21.223(b). Husky argued that: (1) Ritz’s

transfers of Chrysalis’s funds were fraudulent transfers under the Texas

Uniform Fraudulent Transfer Act (TUFTA), see Tex. Bus. & Com. Code Ann.

§ 24.005; (2) these fraudulent transfers under TUFTA allowed Husky to pierce

the corporate veil and hold Ritz personally liable for Chrysalis’s debt, see Tex.

Bus. Org. Code Ann. § 21.223(b); and (3) 11 U.S.C. § 523(a)(2)(A) bars Ritz from

discharging his debt to Husky. The bankruptcy court rejected step two of this

argument, holding that Tex. Bus. Org. Code Ann. § 21.223(b) permits veil-

piercing only for “actual fraud.” The court explained that “actual fraud” under

§ 21.223(b) requires a misrepresentation and that Ritz never made a

misrepresentation to Husky. In reaching this conclusion, the bankruptcy court

never addressed TUFTA or whether Ritz’s transfers constituted actual fraud

under TUFTA. Based on the absence of a misrepresentation, the bankruptcy

court held that Husky could not pierce the corporate veil of Chrysalis to hold

Ritz responsible for Chrysalis’s debt to Husky. Because Husky could not pierce

the corporate veil, Husky “failed to establish any liability against the debtor”;

therefore, “there [was] no debt to discharge.” Husky also could not prevail

under 11 U.S.C. § 523(a)(2)(A) because, as the court further explained, “the

tests for fraud under section 22.223 of [the Texas Business Organizations

Code] and the requirements of section 523(a)(2)(A) of the [Bankruptcy] Code

are virtually the same.”

On appeal, the district court affirmed the judgment of the bankruptcy

2 Section 523(a)(2)(A) excepts from discharge “any debt . . . for money, property,

services, or an extension, renewal, or refinancing of credit, to the extent obtained by . . . false

pretenses, a false representation, or actual fraud.” 11 U.S.C. § 523(a)(2)(A).

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court but for different reasons than those given by the bankruptcy court.

Specifically, the district court disagreed with the bankruptcy court that Husky

could not pierce the corporate veil under Texas law to hold Ritz responsible for

Chrysalis’s debt. Although the bankruptcy court held that actual fraud under

Texas law required a misrepresentation, the district court disagreed based on

both Texas and Fifth Circuit caselaw that held that a plaintiff was able to

pierce the corporate veil absent any misrepresentation. The district court

explained that a plaintiff may pierce the corporate veil, despite the absence of

a misrepresentation, if a plaintiff can prove that the defendant committed

“actual fraud” under TUFTA. The district court then, noting the factual

findings of the bankruptcy court, explained that the Ritz’s transfers “met the

requirements for fraudulent transfer[s] under [TUFTA].” Because Ritz’s

conduct constituted actual fraud under TUFTA, the district court concluded

that Husky had shown actual fraud so that the corporate veil of Chrysalis could

be pierced, i.e., Ritz could be held responsible for Chrysalis’s debt under Texas

law.

Despite this conclusion, the district court held that “Husky still [could]

not prevail” under § 523(a)(2)(A). The court explained that, “[w]hile the

fraudulent transfer without a misrepresentation may qualify as actual fraud

under § 22.223(b)(1) to pierce the corporate veil, it cannot meet the

requirement under 11 U.S.C. § 523(a)(2)(A) to bar the discharge of the debt.”

“[S]ince there [was] no representation involved in th[e] Adversary Proceeding,

Husky fail[ed] to prevail under § 523(a)(2)(A) to overturn the discharge of

Chrysalis’ debt to Husky.”

Husky timely appealed the district court’s judgment to this court,

arguing that “Ritz committed ‘actual fraud’ under Texas Business

Organizations Code Section 21.223(b) and thus c[ould] be held liable for

Chrysalis’s debt,” and “that the debt is excepted from discharge in bankruptcy

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under . . . the ‘actual fraud’ clause in 11 U.S.C. § 523(a)(2)(A).” In re Ritz, 787

F.3d at 316. This court agreed with the district court that, because Ritz had

made no misrepresentation to Husky, his conduct did not amount to actual

fraud under § 523(a)(2)(A). Id. Because this court concluded that

§ 523(a)(2)(A) did not apply, it did not reach the Texas state law issue. Id.

The Supreme Court granted certiorari and addressed whether a

misrepresentation is required to show “actual fraud” under § 523(a)(2)(A).

Husky, 136 S. Ct. at 1585. The Court reversed the judgment of this court,

holding that “[t]he term ‘actual fraud’ in § 523(a)(2)(A) encompasses forms of

fraud, like fraudulent conveyance schemes, that can be effected without a false

representation.” Id. at 1586. In reaching this conclusion, the Court relied on

historical understandings of “actual fraud” in the bankruptcy context. Id. at

1586–87. The Court explained that, “[b]ecause [it] must give the phrase ‘actual

fraud’ in § 523(a)(2)(A) the meaning it has long held, [the Court] interpret[ed]

‘actual fraud’ to encompass fraudulent conveyance schemes, even when those

schemes do not involve a false representation.” Id. at 1590. While the Court

clarified the meaning of actual fraud in § 523(a)(2)(A), it did not specifically

hold that actual fraud had occurred here or determine whether Husky could

ultimately prevail in its attempt to deny Ritz a discharge of the relevant debt.

Id. Rather, following its holding as to actual fraud, it “remand[ed] the case for

further proceedings consistent with [its] opinion.” Id.

II. STANDARD OF REVIEW

When we review the decision of a district court sitting as an appellate

court, we apply the same standards of review to the bankruptcy court’s decision

as applied by the district court. Jacobsen v. Moser (In re Jacobsen), 609 F.3d

647, 652 (5th Cir. 2010). Thus, we review conclusions of fact for clear error and

conclusions of law de novo. Id.

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III. DENIAL OF A DISCHARGE UNDER § 523(a)(2)(A)

When we initially decided this case, we agreed with the district court

that Husky could not succeed on its challenge under § 523(a)(2)(A) because that

provision required a misrepresentation and no misrepresentation was made

here. In re Ritz, 787 F.3d at 316–21. The Supreme Court reversed this court’s

decision, and we now vacate the district court’s decision with respect to

§ 523(a)(2)(A) for the reasons given by the Supreme Court. 3 The Supreme

Court instructed this court to address specific issues with respect to

§ 523(a)(2)(A) on remand. Accordingly, we now specifically address the issue

pretermitted in our ill-fated opinion: whether Ritz is liable to Husky under

Texas state law. Ritz’s liability to Husky under Texas law is a threshold

question with respect to whether Ritz may be denied a discharge under

§ 523(a)(2)(A) because, if Ritz is not liable under Texas law, then he owes no

debt to Husky. 4 Because, as we explain below, we cannot resolve the state law

issue without further fact finding by the bankruptcy court, we do not address

the denial of a discharge under § 523(a)(2)(A) here and leave this

determination to be made in the first instance by the bankruptcy court, after

3 In our initial decision in this case, we relied, in part, on Fifth Circuit precedent to

conclude that actual fraud under § 523(a)(2)(A) required a misrepesentation. In re Ritz, 787

F.3d at 319; see also, e.g., Gen. Elec. Capital Corp. v. Acosta (In re Acosta), 406 F.3d 367, 372

(5th Cir. 2005) (explaining that “[f]or a debt to be nondischargeable under section

523(a)(2)(A), the creditor must show . . . that the debtor made a representation”); RecoverEdge

L.P. v. Pentecost, 44 F.3d 1284, 1293 (5th Cir. 1995) (noting that “under an ‘actual fraud’

theory, the objecting creditor must prove that . . . ‘the debtor made representations’” (quoting

In re Bercier, 934 F.2d 689, 692 (5th Cir. 1991)). To the extent that In re Acosta, RecoverEdge,

and other prior Fifth Circuit cases required that a debtor make a representation in order for

a debt to be nondischargeable under § 523(a)(2)(A), those cases are effectively overruled by

the Supreme Court’s decision in this case. Husky, 136 S. Ct. at 1586

4 In our previous opinion, we explained that “[b]ecause we conclude—as did the

bankruptcy and district courts—that [§ 523(a)(2)(A) does not] appl[y], we need not reach” the

issue of Ritz’s liability under Texas state law. In re Ritz, 787 F.3d at 316.

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the necessary fact finding, in light of the standard articulated by the Supreme

Court. See Husky, 136 S. Ct. at 1589 n.3.

IV. ACTUAL FRAUD UNDER TEXAS STATE LAW

To succeed in denying Ritz a discharge under § 523(a)(2)(A), Husky must

first show that Ritz is liable for the debt owed by Chrysalis to Husky. To show

that Ritz is liable for the debt, Husky relies on Texas Business Organizations

Code § 21.223(b), which allows a plaintiff to pierce the corporate veil and hold

a shareholder, such as Ritz, liable for the debts of a corporation. The district

court held that Husky could pierce the corporate veil to hold Ritz liable. In our

previous opinion, we did not address whether Ritz could be held liable for

Chrysalis’s debt to Husky under Texas’s veil-piercing statute, but we do so

here. We hold that the district court erred in concluding that Ritz was liable

to Husky under the Texas veil-piercing statute because, in so concluding, it

relied on a fact finding that the bankruptcy court did not actually make.

However, we agree with the district court that Husky’s theory that Ritz is

liable for the debt owed by Chrysalis to Husky under Texas law is legally viable

and therefore remand for further factual findings on this theory.

Because corporations offer their shareholders limited liability, a plaintiff

seeking to impose individual liability on a shareholder must pierce the

corporate veil to do so. Spring St. Partners-IV, L.P. v. Lam, 730 F.3d 427, 443

(5th Cir. 2013). Texas law allows veil-piercing but only in limited

circumstances. See Schimmelpenninck v. Byrne (In re Schimmelpenninck), 183

F.3d 347, 356 (5th Cir. 1999) (“Texas recognizes various legal theories that

facilitate disregarding the corporate form, i.e., piercing the corporate

veil . . . .”). Under Texas law, the shareholder of a corporation generally

may not be held liable to the corporation or its obligees with

respect to . . . any contractual obligation of the corporation or any

matter relating to or arising from the obligation on the basis that

the holder, beneficial owner, subscriber, or affiliate is or was the

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alter ego of the corporation or on the basis of actual or constructive

fraud, a sham to perpetrate a fraud, or other similar theory[.]

Tex. Bus. Orgs. Code Ann. § 21.223(a)(2). However, the shareholder may be

held personally liable for the business’s obligations “if the obligee demonstrates

that the . . . beneficial owner . . . caused the corporation to be used for the

purpose of perpetrating and did perpetrate an actual fraud on the obligee

primarily for the direct personal benefit of the . . . beneficial owner.” Id.

§ 21.223(b) (emphasis added). Thus, if Husky can show that Ritz perpetrated

an actual fraud for his direct personal benefit, Ritz is liable for Chrysalis’s debt

to Husky under Texas law. See SSP Partners v. Gladstrong Invs. (USA) Corp.,

275 S.W.3d 444, 454 (Tex. 2009) (noting that Texas courts “disregard the

corporate fiction . . . when the fiction is used as a means of perpetrating fraud”

(quoting Castleberry v. Branscum, 721 S.W.2d 270, 271–72 (Tex. 1986))).

As to the actual fraud requirement, the bankruptcy court held that

actual fraud under Texas law required a misrepresentation. The district court,

relying on this court’s decision in Spring Street, 730 F.3d at 442, disagreed and

held that other conduct could satisfy the standard of “dishonesty of purpose

and intent to deceive” necessary to show actual fraud. In particular, the

district court held that a fraudulent transfer under TUFTA, if made with the

actual intent to hinder, delay, or defraud, could satisfy the actual fraud

requirement of the Texas veil-piercing statute. We agree with this legal

conclusion. 5

5 In resolving issues of state law, “we are bound to apply the law as interpreted by the

state’s highest court.” Barfield v. Madison Cty., 212 F.3d 269, 271–72 (5th Cir. 2000). But

“[i]f no final disposition is directly on point, we must make an ‘Erie-guess’, predicting how

that court would rule.” Hodges v. Mack Trucks, Inc., 474 F.3d 188, 199 (5th Cir. 2006)

(quoting Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 382 (5th Cir. 1998)).

See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). In making an Erie guess “as to

how the Texas Supreme Court would rule,” this court looks to

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“[I]n the context of piercing the corporate veil, actual fraud is not

equivalent to the tort of fraud. Instead, in that context, actual fraud involves

‘dishonesty of purpose or intent to deceive.’” Latham v. Burgher, 320 S.W.3d

602, 607 (Tex. App.—Dallas 2010, no pet.) (quoting Castleberry, 721 S.W.2d at

273). In Spring Street, we thoroughly reviewed the legislative and legal history

of the actual fraud requirement for veil-piercing under Texas law. 730 F.3d at

443–44. While we do not repeat that review here, we note that, based on our

examination of Texas law, we concluded that “‘[a]ctual fraud’ is defined as

‘involv[ing] dishonesty of purpose or intent to deceive.’” Id. at 442–43 (quoting

Tryco Enters., Inc. v. Robinson, 390 S.W.3d 497, 508 (Tex. App.—Houston [1st

Dist.] 2012, pet. dism’d)).

We also discussed liability under TUFTA at length in Spring Street, see

id. at 436–37, noting that a defendant may be liable under TUFTA if he

“committed an actual, fraudulent transfer,” id. at 436 (citing Tex. Bus. & Com.

Code Ann. § 24.005(a)(1)). And we further noted that “[t]he actual fraud prong”

of TUFTA provides that

[a] transfer made or obligation incurred by a debtor is fraudulent

as to a creditor, whether the creditor's claim arose before or within

a reasonable time after the transfer was made or the obligation

was incurred, if the debtor made the transfer or incurred the

obligation:

(1) with actual intent to hinder, delay, or defraud any

creditor of the debtor[.]

(1) decisions of the [Texas] Supreme Court in analogous cases, (2) the

rationales and analyses underlying [Texas] Supreme Court decisions on

related issues, (3) dicta by the [Texas] Supreme Court, (4) lower state court

decisions, (5) the general rule on the question, (6) the rulings of courts of other

states to which [Texas] courts look when formulating substantive law and

(7) other available sources, such as treatises and legal commentaries.

Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel L.L.C., 620 F.3d 558, 564 (5th Cir. 2010)

(alterations in original) (quoting Hodges, 474 F.3d at 199).

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Id. at 436–37 (quoting Tex. Bus. & Com. Code Ann. § 24.005(a)(1)). Based on

the facts before us in Spring Street, we did not reach the issue of whether a

showing that a defendant made a fraudulent transfer under TUFTA was, by

itself, enough to support piercing the corporate veil. Spring Street, 730 F.3d at

445. We hold today, however, that establishing that a transfer is fraudulent

under the actual fraud prong of TUFTA is sufficient to satisfy the actual fraud

requirement of veil-piercing because a transfer that is made “with the actual

intent to hinder, delay, or defraud any creditor,” Tex. Bus. & Com. Code Ann.

§ 24.005(a)(1), necessarily “involves ‘dishonesty of purpose or intent to

deceive.’” 6 Latham, 320 S.W.3d at 607 (quoting Castleberry, 721 S.W.2d at

273).

Given this holding, if Husky can show that Ritz’s transfers in this case

satisfy the actual fraud prong of TUFTA, then it can also show that Ritz’s

conduct constitutes actual fraud for the purposes of veil-piercing. As direct

evidence of actual fraud is often scarce, TUFTA “supplies a ‘non-exclusive list

of eleven factors, commonly known as badges of fraud, that courts may consider

in determining whether a debtor actually intended to defraud creditors under

TUFTA.’” Spring Street, 730 F.3d at 437 (quoting In re Soza, 542 F.3d 1060,

6 Although no Texas court has previously reached the same holding, looking to the

sources this court considers when making an Erie guess, we are convinced that the Supreme

Court of Texas would arrive at the same conclusion as we do here. On this point, the Texas

Court of Appeals’s decision in Tryco Enterprises is particularly instructive. In Tryco

Enterprises, the appellant, James Robinson, sought to enforce a judgment previously entered

in his favor. 390 S.W.3d at 501. Immediately after this judgment was entered against Tryco

Enterprises, Tryco’s corporate officers transferred assets from Tryco to another entity they

controlled, leaving Tryco without assets to pay the judgment in Robinson’s favor. Id. at 502.

The Texas Court of Appeals held that Tryco’s corporate veil could be pierced because, inter

alia, the corporate officers had transferred Tryco’s assets to another entity to avoid a legal

obligation, i.e., the judgment in Robinson’s favor. Id. at 510; see also McCarthy v. Wani

Venture, A.S., 251 S.W.3d 573, 591 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)

(piercing the corporate veil when the owners of a business transferred assets out of the

business for their own benefit).

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1066 (5th Cir. 2008)). These badges of fraud, which aid “[i]n determining

actual intent,” include whether:

(1) the transfer or obligation was to an insider;

(2) the debtor retained possession or control of the property

transferred after the transfer;

(3) the transfer or obligation was concealed;

(4) before the transfer was made or obligation was incurred, the

debtor had been sued or threatened with suit;

(5) the transfer was of substantially all the debtor's assets;

(6) the debtor absconded;

(7) the debtor removed or concealed assets;

(8) the value of the consideration received by the debtor was

reasonably equivalent to the value of the asset transferred or the

amount of the obligation incurred;

(9) the debtor was insolvent or became insolvent shortly after the

transfer was made or the obligation was incurred;

(10) the transfer occurred shortly before or shortly after a

substantial debt was incurred; and

(11) the debtor transferred the essential assets of the business to

a lienor who transferred the assets to an insider of the debtor.

Tex. Bus. & Com. Code Ann. § 24.005(b).

With respect to these badges of fraud, the district court noted that the

bankruptcy court “found the trustee had proven four badges of fraud by Ritz

and therefore met the requirements for fraudulent transfer under § 24.005.”

Ritz argued when this case was initially appealed, and repeats on remand from

the Supreme Court, that these findings do not exist in the bankruptcy court’s

opinion. Ritz is partially correct. Ritz is incorrect insofar as he suggests that

the bankruptcy court did not make factual findings consistent with TUFTA’s

badges of fraud. For example, the bankruptcy court noted that “[a]s a result of

[the] transfers [effected by Ritz], [Chrysalis] was drained of all its cash and,

therefore, could not pay its creditors.” This is sufficient to conclude that, under

TUFTA, Ritz “removed . . . assets.” Tex. Bus. & Com. Code Ann. § 24.005(b)(7).

However, Ritz is correct that the bankruptcy court never drew the inference

from its factual findings that Ritz’s transfers here were made “with actual

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intent to hinder, delay, or defraud any creditor,” and therefore satisfied the

actual fraud prong of TUFTA. Tex. Bus. & Com. Code Ann. § 24.005.

Because the bankruptcy court—the fact finder in this case—never drew

an inference of actual fraud here, even if its factual findings are consistent with

that inference, the district court erred in holding that Ritz was liable to Husky

under Texas law. Accordingly, we must remand this case to the district court

(and thence to the bankruptcy court) for additional fact finding as to whether

Ritz’s conduct satisfies the actual fraud prong of TUFTA. This is so because,

under Texas law, “[i]ntent is a fact question uniquely within the realm of the

trier of fact.” Flores v. Robinson Roofing & Const. Co., 161 S.W.3d 750, 754

(Tex. App.—Fort Worth 2005, pet. denied) (quoting Coleman Cattle Co. v.

Carpentier, 10 S.W.3d 430, 433 (Tex. App.—Beaumont 2000, no pet.)).

Moreover, “[i]f . . . ‘fraudulent intent is only to be deduced from facts and

circumstances which the law considers as mere badges of fraud and not fraud

per se, these must be submitted to the trier of fact, which draws the inference

as to the fairness or fraudulent character of the transaction.’” Id. (quoting

Coleman Cattle, 10 S.W.3d at 434).

If the bankruptcy court concludes on remand that Ritz’s conduct satisfies

the actual fraud prong of TUFTA and that the actual fraud was for Ritz’s

“direct personal benefit,” Tex. Bus. Orgs. Code Ann. § 21.223(b), then Ritz is

liable for Chrysalis’s debt to Husky under Texas’s veil-piercing statute and the

bankruptcy court must then address whether Ritz should be denied a discharge

under 11 U.S.C. § 523(a)(2)(A), consistent with the Supreme Court’s opinion in

this case. If, however, the bankruptcy court concludes that Ritz’s conduct does

not amount to actual fraud under Texas state law, then there is no debt to

discharge, and the question of deniability under § 523(a)(2)(A) becomes moot.

V. CONCLUSION

For the foregoing reasons, we VACATE the judgment of the district

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court, and we REMAND the case for further proceedings consistent with this

opinion and the opinion of the Supreme Court.

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