Corporate Transparency Act Compliance
COMPLYING WITH THE CORPORATE TRANSPARENCY ACT CORPORATE TRANSPARENCY ACT UPDATE The Corporate Transparency Act (the “CTA”) first became effective on January 1, 2024. The CTA was enacted in 2021 as part of the National Defense Authorization Act aimed at enhancing transparency and combatting money laundering, terrorism financing, and other illicit activities. The goal of the CTA is to prevent the misuse of anonymous shell companies for illegal purposes. Generally, the CTA required corporations, limited liability companies (LLCs), and other similar structures to file a report listing specific personal information of the beneficial owners of an entity to the Financial Crimes Enforcement Network (“FinCEN”), a bureau of the United States Department of Treasury. If an entity was formed before January 1, 2024, the entity had until January 1, 2025, to report its reportable information, i.e. the beneficial owners. All entities formed after January 1, 2024, had 90 days to report the beneficial owner’s reportable information to FinCEN. Over the past twelve months the CTA has been challenged in courts across the United States. On Tuesday, December 3, 2024, a federal district court in the Eastern District of Texas issued an order granting a nationwide preliminary injunction that stayed all deadlines to comply with CTA reporting requirements. On Monday, December 23, 2024, the United States Court of Appeals for the Fifth Circuit issued an order lifting the injunction and the FinCEN responded by extending the original reporting deadline for entities formed before January 1, 2024, from January 1, 2025, to January 13, 2025. Similar reporting extensions were also announced for entities formed after January 1, 2024. On Thursday, December 26, 2024, a merits panel of the United States Court of Appeals for the Fifth Circuit issued an order holding that the injunction issued on December 3 by the Eastern District of Texas would remain in effect pending the appeal of the decision to the United States Court of Appeals for the Fifth Circuit. The important takeaway from these three court decisions is that there is no current enforceable deadline for reporting beneficial ownership information to FinCEN as required by the CTA. The latest ruling could change if the United States Supreme Court steps in. If or when the injunction is lifted and reporting is again enforced, our website will be updated. For assistance in complying with the CTA please reach out Crenshaw, Dupree, and Milam, LLP to schedule a consultation at (806) 762-5281. Starting on January 1, 2024, most private business entities will be required to report certain information about owners and executives/high level managers to the Financial Crimes Enforcement Network (“FinCEN”), a bureau of the United States Department of Treasury. This article is meant to provide an overview of the Corporate Transparency Act to prepare business entities for compliance in 2024. Background The Corporate Transparency Act (the “CTA”) was enacted in 2021 as part of the National Defense Authorization Act aimed at enhancing transparency and combatting money laundering, terrorism financing, and other illicit activities. The purpose of the CTA is to “better enable critical national security, intelligence, and law enforcement efforts to counter money laundering, the financing of terrorism, and other illicit activity” by creating a national registry of beneficial ownership information for “reporting companies”. Put another way, the goal of the CTA is to prevent the misuse of anonymous shell companies for illegal purposes. Entities Affected The CTA applies to a broad range of entities, including corporations, limited liability companies (LLCs), and other similar structures. However, certain types of entities are exempt, such as publicly traded companies, registered investment companies, non-profits, many general partnerships, and certain regulated entities. Those companies that are required to report to FinCEN are referred to as “Reporting Companies.” Reportable Information for Reporting Companies Each Reporting Company will need to report the following information to FinCEN: Full Legal Name of Company Trade Name of Company Current Business Address State of Formation of Company Unique identifying number for Company, either: Taxpayer Identification Number Employee Identification Number If any of the above information changes, the Company must update FinCEN within 30 days. Companies also are required to submit information to FinCEN about the Company’s “Beneficial Ownership Information” (referred to as BOI). New companies formed after January 1, 2024, that are Reporting Companies under the CTA also must submit the same information for the “Company Applicant” (defined below). Beneficial Owners and Beneficial Ownership Information The CTA requires Reporting Companies to report BOI for the individuals who, directly or indirectly, exercise substantial control over or receive substantial economic benefits from a legal entity. Practically speaking, you are a beneficial owner if you own 25% or more of the entity’s equity interests, or if you have significant managerial control. The following information must be reported to FinCEN for each Beneficial Owner and Company Applicant: Full Legal Name Date of Birth Current Residential Street Address Unique identifying number and issuing jurisdiction form, and image of one of the following non-expired documents: United States Passport State Driver’s License If any of the above information changes, an update must be filed with FinCEN within 30 days. Company Applicant The individual who directly files the formation document for the Reporting Company with the state secretary of state is a Company Applicant. If that person is a third party (like an attorney, paralegal, or employee of the Company acting at the direction of a Beneficial Owner), then the person most directly responsible for the formation of the new entity is also a Company Applicant. At most there are two (2) Company Applicants who must be identified. Reporting Deadlines Reporting Companies in existence before January 1, 2024, have until January 1, 2025, to report their initial information to FinCEN. Starting January 1, 2024, all entities formed after the new year and before January 1, 2025 will have 90 days to report their BOI to FinCEN. Any entities formed after January 1, 2025, will have 30 days to report BOI to FinCEN. Failure to comply with the reporting requirements and deadlines, including the deadlines for updating
Navigating Agriculture Law with CD&M
Navigating Agriculture Law with CD&M Lawyers at CD&M know and understand agriculture. Our lawyers help those in agriculture draft and resolve contracts, resolve litigation matters, and face regulatory compliance issues. Our agriculture client base is as diverse as agriculture itself – from farmers and ranchers to agricultural product processors, implement dealers, food companies, cotton gins, farm cooperatives, and industry trade organizations. Our legal team has extensive experience helping clients with a wide variety of agricultural issues – including state and federal regulatory compliance, property rights, water law, ag business planning, crop insurance disputes, administrative hearings, and litigation. We strive to provide strong, effective, and timely representation for our clients, constantly tracking agricultural law and policy changes that affect agriculture. Agriculture has changed dramatically since 1908 when our firm began providing legal services. Today’s agricultural operators are faced with legal issues that can be quite complex: federal farm program compliance, land use and regulations, property ownership and resource conservation, water use and climate-smart agriculture, commodity supply chains and agricultural finance agreements, and more. But, over one hundred years since our firm’s beginning, CD&M’s approach to helping those in agriculture is simple. We are committed to providing high-quality legal services to the agricultural community. We invite you to contact our office to discuss your agriculture law matter with one of our leading attorneys on algriculture law, Amber Miller. Call her at 806-590-1780, or send her an email today.
What to Expect from Probate In Texas
What to Expect from Probate In Texas? When a loved one dies, there are many things for families and friends to consider with regard to a decedent’s property. Probate is generally necessary to transfer a decedent’s assets to specific people, sometimes referred to as devisees, beneficiaries, or heirs. Who inherits the decedent’s property is determined either by the decedent’s will or by the Texas laws of intestacy if the decedent died without a will. In Texas, who initiates a probate also depends on whether the decedent had a will or not. If a decedent dies with a will, the will typically names an individual to serve as an independent executor or personal representative. This named person has first priority to serve. If the decedent did not have a will, the Texas Estates Code governs who has priority to serve. Typically, these people include the surviving spouse, children or siblings of the decedent. The named independent executor will first file an application for probate with the county court or probate court where the decedent died or where the decedent owned property. If the independent executor is not a resident of Texas, the independent executor must appoint a Texas resident to serve as an agent. After the application is filed, a hearing with a judge will occur. At this hearing, the judge will hear testimony from the independent executor regarding the decedent’s personal background and the independent executor’s qualifications to serve. After the hearing, the judge will issue an Order Admitting the Will to Probate and Issuing Letters Testamentary. Letters Testamentary is the document that authorizes the independent executor to act upon the estate in matters related to the estate. The title of independent executor comes with responsibilities such as ensuring the decedent did not have any secured or unsecured creditors and notifying the decedent’s beneficiaries or heirs of the probate proceedings. One of the most important jobs of the independent executor is to distribute the probate assets of the decedent. To assist with the distribution of assets the independent executor completes an inventory that details the property owned by the decedent at death and the value of each item. These assets often are real property, bank accounts, vehicles, and household effects. The independent executor has a duty to the devisees, beneficiaries, or heirs to ensure that the proper distributions are made to the proper people as provided in the will or according to Texas intestacy laws if the decedent died without a will. The will often includes a distribution plan that provides a roadmap as to how the independent executor is to distribute the assets. Timeline and Cost for Texas Probates: Texas probates generally take anywhere from four months to two years depending on the complexity of the estate, the property in held in the estate and ultimate recipients of the estate property. Similarly, the cost of probate depends on the complexity of the estate. If the probate is contested or contains complex assets a higher cost should be expected. Probate may not always be required to transfer the assets of the decedent. For example, an affidavit of heirship or a small estates affidavit may be an option; however, before proceeding with an alternative to probate, an attorney should be contacted to verify that a transfer outside of probate will be legal. Probate versus Non-Probate Assets: Texas classifies a decedent’s assets into two board categories: non-probate assets and testamentary assets, also known as and hereinafter referred to as probate assets. Non-probate assets pass by specific terms associated with the assets, while probate assets pass by specific terms in the decedent’s will or by Texas intestacy laws. Non-probate assets include assets that designate a beneficiary to receive the asset after the owner has passed, such as life insurance policies, payable on death accounts, or transfer on death accounts. Non-probate assets also include assets titled as joint tenants with rights of survivorship. Non-probate assets are governed by a contract which a decedent executes during their lifetime. The contract governing a non-probate asset prevails over a will and distribution cannot be changed by naming a different devise in a will. Conclusion: Probates and the transfer of property after the death of a loved one can be stressful for the family and friends of a decedent, especially when the estate is complicated, assets in the estate are not titled correctly, or there is family discord. An attorney skilled in these areas and can provide efficient and timely services. If you are in need of an attorney to assist you in the probate of a loved one’s estate, please contact Ashley Pirtle at apirtle@cdmlaw.com or call 806-762-5281.
Navigating Family Law in Texas
Navigating Family Law in Texas: Understanding Your Rights and Responsibilities Family law plays a crucial role in governing the legal relationships and matters within families. In Texas, like in many other states, family law encompasses various aspects such as marriage, divorce, child custody, child support, and adoption. Understanding the nuances of family law is essential for individuals and families navigating through these often complex and emotionally charged situations. In this blog post, we will explore key aspects of family law in Texas, shedding light on the rights and responsibilities of those involved. Marriage and Divorce: Marriage is a significant step in life, and Texas law outlines the requirements and processes for a legal union. In Texas, individuals must be at least 18 years old (or 16 with parental consent) and not currently married to enter into a valid marriage. Additionally, Texas recognizes both traditional marriage and same-sex marriage, providing equal legal protection and benefits to all couples. Unfortunately, marriages don’t always work out, and divorce becomes a necessary step for couples seeking to dissolve their union. Texas is a “no-fault” divorce state, meaning that a spouse can seek a divorce without proving any wrongdoing on the part of the other spouse. However, fault-based grounds, such as cruelty, adultery, or abandonment, can also be used as the basis for divorce. Child Custody and Support: When parents decide to part ways, determining child custody and support becomes crucial for the well-being of the children involved. In Texas, the best interests of the child are given paramount importance in making custody decisions. The court will consider factors such as the child’s wishes (if they are of a certain age), the child’s relationship with each parent, the parents’ ability to provide a stable environment, and any history of abuse or neglect. Child support is typically ordered to ensure that both parents continue to contribute to the financial needs of their children. Texas follows specific guidelines to calculate child support, taking into account factors such as the number of children, the income of both parents, and any additional child-related expenses. Adoption: Adoption is a beautiful way to expand a family, and Texas has laws in place to regulate the adoption process and protect the rights of all parties involved. Texas recognizes various types of adoption, including stepparent adoption, relative adoption, agency adoption, and private or independent adoption. The adoption process in Texas involves a thorough assessment of prospective adoptive parents, including background checks, home studies, and counseling. Once the legal requirements are met, the court will finalize the adoption, granting the adoptive parents all the legal rights and responsibilities of a biological parent. Conclusion: Family law in Texas encompasses a wide range of legal matters that directly impact the lives of individuals and families. Whether it’s marriage, divorce, child custody, child support, or adoption, understanding the rights and responsibilities under Texas law is crucial for those involved. Navigating through family law issues can be emotionally challenging, and seeking legal counsel from experienced family law attorneys is highly recommended. These professionals can provide guidance, protect your interests, and ensure that the legal process unfolds smoothly, allowing you to focus on what matters most: the well-being and happiness of your family. Remember, laws may evolve and vary, so it’s essential to consult the most up-to-date legal resources and seek professional advice tailored to your specific situation when dealing with family law matters in Texas. Contact Us: Contact our office today to learn more about our lawyers, our services and how we can help you. Lubbock Office: 806-590-1780 Hobbs, NM Office: 575-305-7590
Should Your Ranch Be Incorporated?
Should Your Ranch Be Incorporated? One of the questions that comes across my desk from time to time from farm and ranch clients is whether the farm and ranch operation needs to be placed in a formal legal entity, such as a corporation, limited liability company, or limited partnership. Because of the unique nature of farm and ranch businesses, the answer is not the same for every operation. My friend and colleague James Decker, of the SGDA Law Firm in Stamford, Texas, and I put together this fact sheet outlining the advantages and disadvantages of “incorporating” a farm or ranch operation. This fact sheet was also utilized as part of Mr. Decker’s presentation at the 2017 Texas and Southwestern Cattle Raisers’ Annual Convention, and its School for Successful Ranching – thanks to TSCRA for including this topic in their materials this year. Should Your Ranch Be Incorporated Or Not? TSCRA Annual Convention – School for Successful Ranching March 31, 2017 Note: for our purposes, the term “incorporated” includes creation of any formal legal entity such as a corporation (S or C), limited liability company, or limited liability partnership. General partnerships are not incorporated. Advantages Liability Protection – This term can apply to several contexts. The creation of a formal legal entity will typically serve as a shield for your personal assets that are not held by the entity, in the event valid claims are made against the entity. Generally speaking, entity owners are not personally liable for an entity’s debts and obligations Individuals serving in management of an entity are generally not personally liable for the entity’s debts and obligations, so long as they act pursuant to the law and applicable company regulations. Insurance Coverage Practically speaking, an entity’s liability protection extends as far as that entity’s insurance coverage. Each entity should have appropriate coverage (property, commercial liability, other specific lines); inform your agent periodically of any changes to your operation, to ensure planned activities are covered events Taxes In some situations, conveyance of certain assets into an LLC can offer estate tax advantages, by utilizing “discounting” and other rules regarding valuation of assets and assets owned by entities. Expenses that are related to the business are tax deductible. Income from S-corporations, limited liability companies and limited liability partnerships is treated as pass-through income and is only taxed once at the individual level. USDA – “Farm Program” Payments This can be an advantage to incorporating in some situations. Each legal entity is deemed to be a “person” and, provided that entity otherwise meets the eligibility determinations that would apply to a natural person, will be eligible to receive farm program payments, up to one “payment limit” for a person in each respective USDA program with a separate payment limit. Dollars received by an entity are “attributed” to entity owners, such that the natural person owners are allocated a proportionate share of the payments of each entity owned, up to payment limit Disadvantages Property Rights Considerations Once real property is conveyed to an LLC, it comes an asset of the LLC. The prior owner no longer has the right to partition (if it was previously held in co-tenancy) or the right to transfer the property via will or other estate planning instrument. Instead, the owner must transfer an interest in the entity. The entity must have separate bank accounts and recordkeeping from personal assets. Mixing entity assets with personal assets (including using entity assets as personal collateral) may void liability protection. Liability/Insurance Coverage Without a liability shield in place, personal actions can incur liability and personal assets can be at risk. Umbrella policies must be considered and purchased. Taxes Counsel of a CPA should be included in decision-making process to avoid unintended tax problems Certain entities have specific tax requirements that may complicate entity finances. Ex: C-type corporations must pay separate income tax; partnerships and LLCs may not be able to pay a true “salary” to an owner USDA – “Farm Program” Payments This can also be a disadvantage to incorporating in some scenarios. Each formal legal entity, otherwise eligible for program payments, can only receive dollars up to one “payment limit.” Ex: if entity is owned by husband and wife, or a general partnership, and each party is deemed “actively engaged in farming,” then, after attributing entity’s farm program dollars to the two owners, husband and wife together receive one payment limit, instead of each potentially receiving one payment limit (two total payments) If you have any questions pertaining to Agricultural law, you can contact Amber Miller at Crenshaw, Dupree & Milam, LLP. RESPECT. RESPONSE. RESULTS. CRENSHAW, DUPREE & MILAM, L.L.P. P.O. Box 64479 Lubbock, Texas 79464-4479 (806) 762-5281 www.cdmlaw.com Physical Address: Happy State Bank Building 4411 98th Street, Suite 400 Lubbock, Texas 79424 [The information provided in this article is for informational and educational purposes only and is not legal advice, nor is it meant to be a substitute for legal advice. If you have any legal, accounting or financial questions, you should consult with an attorney, accountant or other licensed professional, as applicable, in your jurisdiction. We do not accept unsolicited documents or electronic information of any kind, and please do not send us any confidential material whatsoever unless and until an attorney-client relationship has been formalized in writing.] [MR 7.3C attorney advertising]
Lien Protections for Ag Chemical and Seed Providers
Lien Protections for Ag Chemical and Seed Providers An unfortunate consequence of a lagging agricultural economy is that many agricultural seed and chemical providers are left with outstanding customer accounts. One of the questions that comes across my desk from these suppliers is “What can I do to protect my interests (and get paid)?” Texas Agriculture Code Chapter 128 provides a unique lien for suppliers of agricultural seed and chemicals who comply with certain steps. For many, by the time a past due account has reached a point where the provider is seeking help collecting payment, it is too late to seek any kind of protection that Chapter 128 provides. This post is written to highlight the steps that an agricultural seed or chemical provider must take, beginning before any products are sold, in order to take advantage of its protections. This post is also written to alert all farmers and other customers of agricultural chemical and seed providers of the scope of a Chapter 128 lien and to explain some of the consequences that may result from not remaining current on those financial obligations. Who’s Eligible to Claim a Lien? Generally speaking, a person who provides an agricultural chemical, agricultural seed, or labor associated with the delivery of the chemical or seed may file a notice of claim of lien under Chapter 128 of the Texas Ag Code. The term “agricultural chemical” in Chapter 128 includes the following applied to crops or to land used for growing crops: (i) “Fertilizer material” – defined as a solid or nonsolid substance or compound that contains an essential plant nutrient element in a form available to plants and is used primarily for its essential plant nutrient element content in promoting or stimulating growth of a plant or improving the quality of a crop or for compounding a mixed fertilizer. The term does not include animal manure, plant remains, or a mixture of those substances, for which no specific nutrient analysis claim indicates guaranteed nutrient levels; (ii) “Pesticides” – defined as a substance or mixture of substances intended to prevent, destroy, repel, or mitigate any pest, or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; (iii) “Plant regulators” – defined as a substance or mixture of substances intended through physiological action to accelerate or retard the rate of growth or rate of maturation, or otherwise to alter the behavior of an ornamental or crop plant or the product of an ornamental or crop plant, but does not include a substance to the extent that it is intended as a plant nutrient, trace element, nutritional chemical, plant inoculant, or soil amendment; (iv) Lime; (v) Plant and soil amendments; (vi) Plant food; (vii) Herbicides, or (viii) Chemical compounds. The term “agricultural seed” includes the seed of any grass, forage, cereal, or fiber crop, any other kind of seed commonly recognized in Texas as agricultural or field seed, and any mixture of those seeds. Used here, the term “labor” refers to labor or services performed in the application, delivery, or preparation of an agricultural chemical or agricultural seed. What Steps are Necessary to Be a Lienholder? Before Initial Sale To be in a position to file a lien against a non-paying customer, Texas law requires that the seller of an ag chemical or seed first provide notice to purchasers of ag chemicals/seeds that the seller intends to act under Chapter 128 before the purchase of chemicals/seeds occurs. The notice can be a general notice to all purchasers or to each specific purchaser. The notice must state: “The sale of agricultural chemicals or agricultural seed on credit and the provision of labor related to agricultural chemicals or agricultural seed is subject to Chapter 128, Agriculture Code. Failure to pay the agreed or reasonable charges for the chemicals, seed, or labor may result in the attachment of a lien to the proceeds of the agricultural products produced with the aid of the chemicals, seed, or labor.”
In Brief: Real Estate Broker
IN BRIEF: Real Estate Broker ISSUE Can a real estate broker receive a commission for property sold when the real estate commission agreement does not adequately describe the land being sold? READ THIS!! CASE Burton Creek Development, Ltd. v. Cottrell, Seventh District Court of Appeals (Amarillo), decided December 14, 2016. FACTS Burton Creek (hereafter “landowner”) owned four tracts of land. It placed a sign up saying “shopping center coming soon,” and advised interested persons to call Cottrell (hereafter “broker”), a licensed real estate broker. The broker then began to put the landowner in contact with various potential buyers. In an email, the landowner let the broker know they would pay a 6% commission for any buyer that broker brings to the table that closes on the property in question. The broker finally put the landowner in contact with a representative of Race Trac. The broker was e-mailed in the ongoing negotiations, but they failed. After continued ongoing negotiations without the broker’s involvement, an entity related to Race Trac signed a contract to purchase one of the lots on the property in question. The broker then demanded that he receive his commission of 6%. The landowner did not respond. PROCEDURAL BACKGROUND The broker filed this lawsuit seeking recovery of the real estate commission. The landowner pled the affirmative defense of a violation of the statute of frauds. The trial court granted summary judgment in favor of the broker, and denied the summary judgment of the landowner based upon the statute of frauds. The court entered judgment in favor of the broker for the real estate commission plus attorney’s fees for having to file suit to collect it. The landowner appealed. COURT’S ANALYSIS The statute of frauds in the Texas Real Estate Licensing Act (RELA) states that a person may not maintain an action to recover a commission for the sale or purchase of real estate unless the promise or agreement on which the action is based, or a memorandum, is in writing and signed by the party against whom the action is brought. Texas law has interpreted this provision to require that the written document contain a promise of a definite commission, naming the broker, and identify the property to be conveyed. The party pleading the statute of frauds has the burden of establishing its applicability. Thereafter, the burden shifts to the opposing party (the broker in this case) to establish an exception that would take the agreement out of the statute of frauds. In Texas, partial performance is a well-recognized exception to the statute of frauds. When contracts are partially performed, but don’t meet all the requirements of the statute of frauds, they may still be enforced in equity (fairness) if denial of enforcement would amount to a virtual fraud in the sense that the party acting in reliance on the agreement has suffered a substantial detriment, and for which he has no adequate remedy at law, and that the other party would reap an unearned benefit. Whether a contract comes within the statute of frauds is a question of law for a court to decide, not a question of fact for a jury to decide. When the brokerage commission agreement fails to adequately describe the property that is sold, the doctrine of partial performance may permit enforcement, notwithstanding the statute of frauds, if the broker fully performed; the landowner accepted the broker’s services; the landowner acknowledged its obligation to pay the commission; and all documentary evidence establishes that a commission is due. The question in this case turns on whether the broker provided sufficient affirmative corroboration as to whether there was a brokerage agreement encompassing the property actually sold. Deposition testimony from the case corroborated that the lot sold was part of the larger tract identified in the email chain. The Court stated that the landowner implicitly agreed to pay a commission on a partial tract out of a larger tract based on language in the email chain. The Court stated: “We hold that application of the statute of frauds would work an injustice rather than prevent it because enforcement of the statute would cause [broker], the party acting in reliance on the agreement, to suffer detriment for which he has no adequate remedy, and the landowner would reap an unearned benefit.” For all your real estate law needs, call attorney Jack McCutchin or Art Cavazos. RESPECT. RESPONSE. RESULTS. CRENSHAW, DUPREE & MILAM, L.L.P.P.O. Box 64479Lubbock, Texas 79464-4479Phone (806) 762-5281Physical Address: 4411 98th Street, Happy State Bank Building, Suite 400, Lubbock, Tx. 79424
In Brief: Irrevocable Trust
IN BRIEF: Irrevocable Trust Do statutes of limitation for filing claims against an Estate for unpaid spousal support prevent a creditor (ex-wife) of the decedent from bringing a lawsuit against the trustee of an irrevocable trust on grounds of fraudulent conveyance and tortious interference with a contract? CASE Montgomery v. Montgomery, individually and as trustee of the James F. Montgomery Irrevocable Trust, decided by the Seventh Court of Appeals (Amarillo), December 6, 2016, opinion written by Justice Brian Quinn. DECISION The summary judgment granted by the trial judge in favor of the trustee is REVERSED, and the case is sent back to the trial court to allow the former wife to proceed with her claims against the trustee for fraudulent conveyance and tortious interference with a contract. FACTS Diane Montgomery was married to James Montgomery, but later divorced. At that time, they executed a “marital settlement agreement” wherein James agreed to pay Diane $21,000 a month until she remarried or died. He paid this obligation for several years, but then ceased doing so. James’ son, Andrew (who was at one point a stepson of Diane), obtained a power of attorney from his father, James, at which time he converted a revocable trust containing assets of over five million dollars into an irrevocable trust. James, the father, died the day after this irrevocable trust became operative. Diane filed her initial claim against James’ estate, but it was denied by the administrator. PROCEDURAL BACKGROUND Diane filed suit, not against the estate, but against Andrew, the trustee of the trust, seeking damages of over one million dollars for past due spousal support payments. Two of the causes of action in the suit were fraudulent conveyance and tortious interference with a contract. Andrew (son), the trustee, moved for summary judgment arguing that he was entitled to judgment that Diane get no monetary recovery from her suit. His ground was that Diane’s lawsuit was based on her claim for unpaid spousal support, and that such claim was barred by the statute of limitations, therefore preventing her from pursuing these other causes of action against the trustee of an irrevocable trust. The trial court agreed with the trustee, Andrew, and granted summary judgment in his favor. Diane appealed, asserting that the trial judge made a mistake of law. THE COURT’S (Seventh Court of Appeals) ANALYSIS The trustee argues that Diane’s claims for spousal support had become unenforceable due to her failure to abide by various California statutes. The trustee claims that since Diane never sued the estate, her claims against the trustee of the trust were barred. “Tortious interference with a contract” is a cause of action recognizing that a contract not only confers rights on the parties to the contract, but that it also imposes on all the world a duty to respect that contractual obligation. When a person knowingly induces another to break his contract with a third person, such third person has a right to sue the one causing the breach of contract. If Andrew knowingly impeded the performance of James’ spousal support obligation to Diane by placing the assets of the James F. Montgomery revocable trust into an irrevocable trust before James died, then it is that alleged misconduct which may serve as a basis for Diane’s claim for tortious interference with a contract. Such liability is separate and independent from any liability that James F. Montgomery or his estate incurred to Diane due to breaching the spousal support agreement. Because of this, whether limitations prevented Diane from recovering against James or his estate is irrelevant. Furthermore, the cause of action for “fraudulent conveyance” consists of recovering the property from whom it was transferred. In Texas, a transfer made by a debtor is fraudulent as to a creditor, such as Diane, whether the creditor’s claim arose before or within a reasonable time after the transfer was made, if the debtor made the transfer with actual intent to hinder, delay or defraud the creditor. A creditor is not required to file claims against the decedent’s estate before suing for fraudulent conveyance. This is true when the property pursued (i.e.- assets of a trust) is not part of the decedent’s estate, but where the decedent was divested of title to the property before his death. The Court stated: “…Diane’s claim underlying her suit to avoid fraudulent conveyance need not have been presented to, much less approved or rejected, by the administrator of James’ estate…nor was it barred by the [California] statutes of limitation when it was commenced; …the limitation periods had yet to lapse [at the time suit was filed]. Thus, her situation…could be the [basis] of a fraudulent conveyance action.” RESPECT. RESPONSE. RESULTS. CRENSHAW, DUPREE & MILAM, L.L.P.P.O. Box 64479Lubbock, Texas 79464-4479Phone (806) 762-5281Physical Address: 4411 98th Street, Happy State Bank Building, Suite 400, Lubbock, Tx. 79424