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FERN J. LEOPOLD v. DONALD H. TUTTLE (06/15/88)

submitted: June 15, 1988.

FERN J. LEOPOLD, APPELLANT,
v.
DONALD H. TUTTLE, APPELLEE



Appeal from the Judgment entered November 2, 1987 in the Court of Common Pleas of Bradford County, Civil Division, at No. 87 JG 001408, 86-562, 87 JG 001409.

COUNSEL

Wieslaw T. Niemoczynski, Stroudsburg, for appellant.

Franklin R. Innes, Townada, for appellee.

Cirillo, President Judge, and Wieand and Del Sole, JJ.

Author: Del Sole

[ 378 Pa. Super. Page 469]

This is an appeal from a trial court order denying the Appellant's request that a deed creating a tenancy by the entireties in the Appellee and his wife be set aside as fraudulent and the real estate be declared subject to execution by the Appellant judgment creditor. We affirm.

The relevant facts are as follows: The Appellant, an assignee of the original creditor, obtained three judgments against the Appellee in the State of New York. These judgments were filed in Bradford County. Appellant attempted to satisfy the judgments by executing against real property owned by the Appellee and his wife as tenants by the entireties. The Appellee opposed this execution through a sheriff's interpleader, arguing that property owned as a tenancy by the entireties was not subject to execution by a creditor of only one spouse. The Sheriff petitioned the trial court for a judicial determination of the interpleader.

In her objection to the third party claim and her answer to the petition, the Appellant averred that the Appellee conveyed the real estate in question with the intent to hinder, delay, and defraud creditors, that the conveyance was fraudulent under the Uniform Fraudulent Conveyance Act, and that the real estate is still subject to execution. The petition for a stay of execution filed by the Appellee did not address these allegations, but merely stated that the title of the real estate was held by him and his wife as tenants by the entireties. The Appellee did not offer proof that the conveyance was not fraudulent, but his petition

[ 378 Pa. Super. Page 470]

    included the 1980 deed for the conveyance in question. The trial court conducted a hearing. Neither party produced any evidence. Therefore, the trial court's decision was based on the pleadings. The court determined that the real estate in question was unavailable to satisfy the Appellee's individual debts. Thereafter, the Appellant filed this timely appeal.

The Appellant sets forth two issues on appeal:

(1) Where uncontroverted pleaded facts show a conveyance of real estate between husband and wife for nominal consideration, does a rebuttable presumption of fraudulent conveyance arise upon challenge of the conveyance by creditors?

(2) Where judgment debtor and his wife fail to meet or rebut the presumption of fraud or otherwise respond to it in their own pleadings, was the judgment creditor entitled to ...


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