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 Post subject: FT - Rooftop Management v. WAMU (5/15/2003) Civil Conspiracy
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Rooftop Management & Consulting v. Washington Mutual Bank,
No. B156360 (Cal.App. Dist.2 05/15/2003)

Synopsis

The unpublished case of Rooftop Management v. Washington Mutual Bank, deals with the ramifications of a fraudulent conveyance. The court in this case holds, that a creditor can’t be truly injured by the fraudulent conveyance, unless that transfer puts beyond their reach, property that would be able to be subject to the payment of the creditor’s debt. This case illustrates the principle that a plaintiff seeking the equitable relief of setting aside a fraudulent transfer of property, must show entitlement to relief and the inadequacy of a remedy at law.


Opinion

Rooftop Management & Consulting v. Washington Mutual Bank,
No. B156360 (Cal.App. Dist.2 05/15/2003)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT DIVISION THREE

B156360

May 15, 2003

ROOFTOP MANAGEMENT & CONSULTING, PLAINTIFF AND APPELLANT,

v.

WASHINGTON MUTUAL BANK, FA ET AL., DEFENDANTS AND RESPONDENTS.

APPEAL

from an judgment and order of the Superior Court of Los Angeles County, Edward A. Ferns, Judge. Affirmed. (Super. Ct. No. BC239745)

Law Offices of David Dantes and David Dantes for Plaintiff and Appellant.
Lori S. Carver for Defendants and Respondents Washington Mutual Bank, FA and Fidelity National Title Insurance Company.

Davis and Davis, M. Stephen Davis and Matthew S. Davis for Defendant and Respondent West Coast Escrow.

The opinion of the court was delivered by: Kitching, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

INTRODUCTION

Plaintiff and appellant, Rooftop Management & Consulting, LLC, appeals the trial court’s judgment dismissing plaintiff’s case against defendants and respondents West Coast Escrow (“Escrow”), Fidelity National Title Insurance Company (“Fidelity”) and Washington Mutual Bank (“Bank”). The trial court sustained defendants’ demurrers to plaintiff’s third amended complaint without leave to amend. Plaintiff claims it properly pled causes of action for fraudulent conveyance, civil conspiracy, intentional and negligent interference with prospective economic advantage, and negligence.

We affirm the judgment. Plaintiff has not alleged, nor indicated on appeal, facts showing that defendants placed the real property beyond plaintiff’s reach. In addition, plaintiff has failed to show that any of the three defendants owed plaintiff a duty of care.

FACTUAL BACKGROUND

Because this appeal comes to us from an order sustaining a demurrer, we accept as true properly pleaded material factual allegations, however improbable they may be, (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 321-322; Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224), as well as facts that may be implied or inferred from those expressly alleged. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) We draw our recitation of the facts from plaintiff’s third amended complaint.

Sometime in 1999, defendant William Gibson (Gibson), who is not a party to this appeal, purchased certain real property in Playa Del Rey, California (the “real property”). Gibson executed a first deed of trust in favor of Budget National Finance Company in the principal amount of $417,000. Budget is not a party in this case.

On January 3, 2000, Gibson obtained a $40,000 loan from Danco, Inc., which is not a party in this case. The $40,000 loan from Danco was secured by a second deed of trust against the real property. Because Gibson defaulted on his loan obligations to Danco, on April 6, 2000, Danco recorded a notice of default and election to sell pursuant to its second deed of trust.

Gibson failed to cure his default on the Danco loan. On July 10, 2000, Danco recorded and published a notice of trustee’s sale. The real property was scheduled to be sold on August 8, 2000. Gibson, however, filed a voluntary chapter 13 bankruptcy petition in United States Bankruptcy Court, which prevented Danco from proceeding with the trustee’s sale.

On August 3, 2000, Danco assigned its rights pursuant to the second deed of trust to plaintiff. On August 8, 2000, plaintiff recorded the assignment from Danco.

Beginning September 28, 2000, plaintiff, through its trustee, Best Alliance Foreclosure and Lien Services, which is not a party in this case, continued the date of the trustee’s sale a number of times, finally scheduling the trustee’s sale for October 19, 2000.

Also on September 28, 2000, plaintiff and Vincent Quigg, who is not a party in this case, opened an escrow. Quigg agreed to purchase the real property from plaintiff for total consideration of $635,000. The plaintiff-Quigg escrow was conditioned upon plaintiff being the successful bidder at its trustee’s sale. In addition, the plaintiff- Quigg escrow was intended to close before the end of 2000 in order for plaintiff to avoid a substantial prepayment penalty on Gibson’s first deed of trust to Budget. Lastly, the plaintiff-Quigg escrow provided for an early release of Quigg’s funds and included a liquidated damages clause in the event that plaintiff was not able to deliver clear title to Quigg.

At some point, Gibson entered into a contract to sell the real property to defendants Dario and Gloria Ruiz, who are not parties to this appeal. On October 3, 2000, Gibson and the Ruizes opened an escrow at defendant Escrow. The Ruizes intended to purchase the property for $550,000 total consideration. To finance the purchase, the Ruizes applied for a $440,000 loan from defendant Bank.

On October 4, 2000, defendant Escrow sent to plaintiff’s trustee, Best Alliance, a demand for a payoff figure, in order to pay plaintiff pursuant to the second deed of trust through the Gibson-Ruiz escrow.

On October 6, 2000, in conjunction with the Gibson-Ruiz escrow, defendant Fidelity delivered a preliminary title report to defendant Escrow. The preliminary title report disclosed to all parties: (1) plaintiff’s legal and equitable interests in the real property; (2) the pending trustee’s sale by Best Alliance; and (3) the date by which defendants needed to close the Gibson-Ruiz escrow before Gibson lost title to the real property and before plaintiff obtained title. On October 9, 2000, defendant Escrow delivered the preliminary title report to Bank.

On October 10, 2000, Best Alliance sent a demand statement to defendant Gibson stating the amount necessary for Gibson to pay off the loan to plaintiff. At the same time, Best Alliance reminded defendants of the applicable foreclosure, the plaintiff-Quigg escrow, and the trustee’s sale deadline.

To prevent Best Alliance from proceeding with the trustee’s sale, on October 18, 2000, defendant Gibson filed an ex parte application for a temporary restraining order, which the trial court denied the same day. Before the hearing on defendant Gibson’s ex parte application, Best Alliance, out of an abundance of caution, continued plaintiff’s trustee’s sale from October 19 to October 23, 2000.

With knowledge of (1) plaintiff’s legal and equitable interests in the real property, (2) the pending trustee’s sale, and (3) plaintiff’s and Best Alliance’s refusals to further continue the trustee’s sale, on October 18, 2000, defendant Bank issued a loan commitment letter to the Ruizes to purchase the property from Gibson.

Plaintiff, through Best Alliance, proceeded with the foreclosure sale on October 23, 2000. Plaintiff was the only bidder at the sale and became the legal owner of the property.
The Gibson-Ruiz escrow closed on October 25, 2000. Bank funded the loan to the Ruizes, and Fidelity provided a policy of title insurance. Escrow did not pay off plaintiff’s demand pursuant to the Gibson-Ruiz escrow.

On October 25, 2000, Escrow recorded a deed of trust securing the Bank’s loan to the Ruizes and Gibson recorded an individual grant deed from Gibson to the Ruizes. A few hours later, Best Alliance recorded a trustee’s deed upon sale following the foreclosure sale of the real property.

Unable to obtain clear title to the real property or repayment of the Gibson loan, on November 3, 2000, plaintiff filed this action against the three respondents in this appeal, as well as Gibson, Gibson’s attorney, and the Ruizes. Then, one week later, Bank advised plaintiff that the funding of the Ruiz loan had been reversed.

By late November, early December 2000, despite extensions, Quigg demanded cancellation of the plaintiff-Quigg escrow. Plaintiff canceled the escrow and paid liquidated damages to Quigg.

On December 14, 2000, Bank recorded a reconveyance of its deed of trust on the real property. On December 19, 2000, plaintiff learned of Bank’s reconveyance and also obtained a lockout of Gibson from the real property as part if its unlawful detainer action. Plaintiff recovered possession of the property from Gibson to find that it had been vandalized and that several valuable items of property, such as fixtures, had been removed.

PROCEDURAL BACKGROUND

The trial court sustained defendants’ demurrers to plaintiff’s original, first and seconded amended complaints with leave to amend.

Among the nine causes of action alleged in plaintiff’s third amended complaint, plaintiff pled the following five causes of action against defendants and respondents Escrow, Fidelity and Bank: (1) fraudulent conveyance; (2) civil conspiracy; (3)intentional interference with prospective economic advantage; (4) negligent interference with prospective economic advantage; and (5) negligence. Plaintiff sought punitive damages, interest, attorney fees and compensatory damages. Plaintiff claimed damages in the amount of at least $140,000 based upon: defendants’ conduct allowing Gibson to vandalize the property; defendants’ impairment of the vendibility of the property; the loss of profits from the plaintiff-Quigg escrow; and the payment of liquidated damages to Quigg.

Defendants separately demurred to plaintiff’s third amended complaint. On November 14, 2001, the trial court sustained the demurrers without leave to amend and dismissed the action against Escrow, Fidelity and Bank. The trial court concluded that neither the facts in plaintiff’s third amended complaint nor any reasonable inferences based upon those facts supported the allegations that defendants intentionally or fraudulently interfered with the plaintiff- Quigg transaction. The trial court explained: “Defendants responded to legitimate requests for assistance in funding a loan to enable Gibson to legitimately avoid foreclosure. There are not facts which establish that at the time their assistance was requested they could have for[e]seen that Plaintiff would fail to record its deed of trust immediately after the foreclosure sale and that Plaintiff would rely on their acument [sic] to protect its interest.”

Plaintiff filed a timely notice of appeal.

CONTENTION

Plaintiff contends the trial court erred by sustaining defendants’ demurrer to plaintiff’s third amended complaint without leave to amend and dismissing the action against defendants.

STANDARD OF REVIEW

“In reviewing a judgment of dismissal following the sustaining of a general demurrer without leave to amend, our task ‘is to determine whether the complaint states, or can be amended to state, a cause of action. . . . [Citation.]’ “ (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 335-336.) “A demurrer is not concerned with the likelihood that the plaintiffs will prevail, nor even whether they have evidence to support their allegations.” (Gervase v. Superior Court, supra, 31 Cal.App.4th at p. 1224.)

As explained by the court in Roman v. County of Los Angeles, supra, 85 Cal.App.4th at pages 321-322, “[r]eversible error exists if facts were alleged showing entitlement to relief under any possible legal theory. [Citation.] [] . . . It is an abuse of discretion to deny leave to amend if there is a reasonable possibility that the pleading can be cured by amendment. [Citation.] Regardless of whether a request therefore was made, unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion. [Citation.] The burden is on the plaintiff to demonstrate how he or she can amend the complaint.”

DISCUSSION

1. Fraudulent Conveyance

To state a cause of action for fraudulent conversion, plaintiff must adequately allege injury. In Mehrtash v. Mehrtash (2001) 93 Cal.App.4th 75, the Court of Appeal explained: “A well-established principle of the law of fraudulent transfers is, ‘A transfer in fraud of creditors may be attacked only by one who is injured thereby. Mere intent to delay or defraud is not sufficient; injury to the creditor must be shown affirmatively. In other words, prejudice to the plaintiff is essential. It cannot be said that a creditor has been injured unless the transfer puts beyond [her] reach property [she] otherwise would be able to subject to the payment of [her] debt.’ [Citations.] [] . . . . Contrary to plaintiff’s contention, this concept remains implied by the current statutory language, which states that a transfer ‘fraudulent as to a creditor’ may be set aside. (Civ. Code, §§ 3439.04, 3439.05[ *fn1 ] . . . .) . . . [T]his is a principle of equity: a plaintiff seeking the equitable relief of setting aside a transfer of property must show entitlement to relief and inadequacy of a remedy at law. [Citation.] This requirement is also implied by another fundamental maxim of jurisprudence, ‘ “[t]he law neither does nor requires idle acts.” ‘ [Citations.]” (Id. at p. 80, italics added, original italics omitted; see also Haskins v. Certified Escrow & Mtge. Co. (1950) 96 Cal.App.2d 688, 691 [”A creditor does not sustain injury unless the transfer puts beyond his reach property which he otherwise would be able to subject to the payment of his debt.”])

Plaintiff alleged that defendants were liable for fraudulent conversion because defendants assisted with Gibson’s transfer of the property to the Ruizes “without timely satisfying Gibson’s obligations to [plaintiff] and in violation of [plaintiff’s] legal and equitable rights in the Property.” Plaintiff, however, has not alleged facts which show that the real property was placed beyond plaintiff’s reach. Plaintiff was a secured creditor, holding a second deed of trust on the real property in the approximate amount of $40,000. At the time the Gibson-Ruiz escrow closed, plaintiff was not paid off pursuant to the second deed of trust. In addition, all defendants had notice of plaintiff’s security interest in the real property. Thus, according to plaintiff’s own explicit factual allegations, the Ruizes did not qualify as bona fide purchasers and Bank did not qualify as a bona fide encumbrancer with respect to plaintiff’s security interests in the property. (5 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 11:49, pp. 129-131.)

In this type of situation, because plaintiff was not paid off and the Ruizes did not qualify as bona fide purchasers for value, plaintiff retained its security interest in the real property regardless of the Gibson-Ruiz escrow. More importantly, if the Gibson-Ruiz escrow had been proper and enforceable, plaintiff’s deed of trust would have been senior to defendant Bank’s deed of trust on the real property. (Civ. Code, §§ 1107, 1214 & 1217; Slaker v. McCormick-Saeltzer Co. (1918) 179 Cal. 387; 5 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 11:49, pp. 129 [”Also, any subsequent title interest or lien created after an earlier interest or lien was created is junior to and subject to the prior interests that are known to the subsequent purchaser or encumbrancer . . . .”])

In other words, according to plaintiff’s own allegations, none of the three defendants involved in this appeal placed the real property beyond plaintiff’s reach because even if the Gibson-Ruiz escrow had closed and been valid and enforceable, plaintiff would have nevertheless retained its security interest in the real property. On appeal, plaintiff has not identified what facts it could allege to demonstrate that the real property was placed beyond its reach. (Roman v. County of Los Angeles, supra, 85 Cal.App.4th at pp. 321-322.) Plaintiff therefore has failed to satisfy its burden to show how its third amended complaint is capable of amendment.

We conclude that plaintiff failed to allege, or show how he can allege, an injury essential to maintain a cause of action for fraudulent conveyance. Therefore, the trial court did not err by sustaining without leave to amend defendants’ demurrers to plaintiff’s cause of action for fraudulent conveyance.

2. Conspiracy

In Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, the Court of Appeal explained: “Civil conspiracy consists of ‘ “. . . (1) the formation and operation of the conspiracy, (2) the wrongful act or acts done pursuant thereto and (3) the damage resulting from such act or acts.” [Citation.]’ ... [] ‘ “To constitute a conspiracy the purpose to be effected by it must be unlawful in its nature or in the means to be employed for its accomplishment, and, where the object in view is lawful and not unlawful means are used, there can be no civil action for conspiracy, even though damage results and even though defendants acted with malicious motives.” ‘ [Citation.] It is the ‘ “. . . acts done and not the conspiracy to do them which should be regarded as the essence of the civil action.” [Citations.]’ . . . . No cause of action for conspiracy can exist unless ‘the pleaded facts show something was done which, without the conspiracy, would give rise to a right of action [citations].’ “ (Id. at pp. 1018-1019, original italics.)

In part I of the Discussion, we concluded that plaintiff had failed to allege, or show on appeal how he can allege, a cause of action for fraudulent conveyance. Based upon that determination, we conclude that plaintiff has failed to allege the required wrongful act to maintain a cause of action for civil conspiracy. In other words, plaintiff has not pled facts which show that a wrongful act was done that, without the conspiracy, would give rise to a right of action. The trial court, therefore, did not err by sustaining without leave to amend defendants’ demurrers to plaintiff’s cause of action for conspiracy.

3. Negligence

“[T]he threshold question in an action for negligence is whether the defendant owed the plaintiff a duty to use care [citation], and the ‘recognition of a duty to manage business affairs so as to prevent purely economic loss to third parties in their financial transactions is the exception, not the rule, in negligence law.’ [Citation.]” (Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 715, cert. den. (2002) ___ U.S. ___ [123 S.Ct. 490].)

In Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co., supra, 27 Cal.4th 705, a case on point, a non-party, Dr. Furnish, refinanced his secured obligation on certain real property. Defendant CTLC provided escrow services and was the escrow holder for the refinance. As part of the refinance, the parties instructed CTLC to pay an earlier note to Talbert Financial. CTLC followed the instructions and paid Talbert even though CLTC had prepared a preliminary title report which showed that Talbert had assigned the note and deed of trust to the plaintiff, Summit. Talbert did not pay Summit pursuant to the assignment.

Plaintiff Summit sued CLTC for negligence contending that CLTC should have paid Summit on the note because CLTC knew Talbert had assigned its rights in the note and corresponding deed of trust to Summit. Under these circumstances, the California Supreme Court held that CLTC owed no duty of care to Summit. (Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co., supra, 27 Cal.4th at p. 708.) The Supreme Court explained: “ ‘An escrow involves the deposit of documents and/or money with a third party to be delivered on the occurrence of some condition.’ [Citations.] An escrow holder is an agent and fiduciary of the parties to the escrow. [Citations.] The agency created by the escrow is limited—limited to the obligation of the escrow holder to carry out the instructions of each of the parties to the escrow. [Citations.] If the escrow holder fails to carry out an instruction it has contracted to perform, the injured party has a cause of action for breach of contract. [Citation.] [] In delimiting the scope of an escrow holder’s fiduciary duties, then, we start from the principle that ‘[a]n escrow holder must comply strictly with the instructions of the parties. [Citations.]’ . . . . On the other hand, an escrow holder ‘has no general duty to police the affairs of its depositors’; rather, an escrow holder’s obligations are ‘limited to faithful compliance with [the depositors’] instructions.’ [Citations.] Absent clear evidence of fraud, an escrow holder’s obligations are limited to compliance with the parties’ instructions.” (Id. at p. 711.)

As in Summit, plaintiff in this case was not a party to the Gibson- Ruiz escrow. As such, none of the defendants were in privity with plaintiff. In addition, Escrow, the escrow holder, was the agent and fiduciary of the parties to the escrow. (Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co., supra, 27 Cal.4th at p. 711.) Therefore, pursuant to the analysis and holding in Summit, coupled with the fact that plaintiff has not alleged that Escrow engaged in any fraud, we conclude plaintiff in its third amended complaint failed to allege any facts to show that Escrow, as the escrow holder, owed plaintiff a duty of care. In addition, on appeal, plaintiff has not indicated what additional facts it could allege to establish a duty of care on the part of Escrow to plaintiff.

Likewise, plaintiff failed to allege facts showing that Fidelity or Bank owed plaintiff a duty of care. For its part, Fidelity issued a truthful preliminary title report to Escrow disclosing plaintiff’s deed of trust. Plaintiff has presented no authority for the proposition that in this type of situation, Fidelity would owe a duty of care to an entity not a party to the escrow transaction.

In addition, Bank did nothing more than issue a commitment letter to the Ruizes and then fund the loan. Again, plaintiff has failed to carry its burden on appeal and show that in this type of situation, a lending bank owes a duty of care to an entity which is not party to the escrow transaction.

Under the analysis set forth in Summit, we conclude plaintiff has failed to allege facts, or identify facts on appeal, which show that any of the three defendants owed plaintiff any sort of duty of care to prevent the Gibson-Ruiz escrow from moving forward and closing. The trial court did not err by sustaining without leave to amend defendants’ demurrers to plaintiff’s cause of action for negligence.

4. Intentional Interference with Prospective Economic Advantage

In Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, the California Supreme Court held that “a plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant’s interference was wrongful ‘by some measure beyond the fact of the interference itself.’ [Citation.]” (Id. at pp. 392-393, fn. omitted.) The Supreme Court, however, did not define what type of wrongful conduct will support a cause of action for intentional interference with prospective economic advantage.

We need not address today what type of wrongful conduct will support a cause of action for intentional interference with prospective economic advantage. As explained above, plaintiff has failed to plead, or show on appeal, facts supporting its cause of action for fraudulent conveyance or that defendants’ alleged interference with his contract with Quigg was wrongful by some measure beyond that fact of the interference itself. Consequently, the trial court did not err by sustaining defendants’ demurrers without leave to amend to plaintiff’s cause of action for intentional interference with prospective economic advantage.

5. Negligent Interference with Prospective Economic Advantage

As explained in National Medical Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, to prove a cause of action for negligent interference with prospective economic advantage, a plaintiff must show the existence of an independently wrongful act. (Id. at pp. 439-440.) In addition, as explained in LiMandri v. Judkins, supra, 52 Cal.App.4th 326, “ ‘[t]he tort of negligent interference with economic relationship arises only when the defendant owes the plaintiff a duty of care.’ [Citation.]” (Id. at p. 348, original italics.)

In part 1 of the Discussion, we concluded that plaintiff did not adequately plead facts, nor show on appeal, that defendants’ alleged interference of his contract with Quigg was wrongful by some measure beyond that fact of the interference itself. In part 3 of the Discussion, we concluded that plaintiff did not plead, nor identify on appeal, facts demonstrating that defendants owed plaintiff a duty of care. Thus, pursuant to National Medical Transportation Network v. Deloitte & Touche, supra, 62 Cal.App.4th 412 and LiMandri v. Judkins, supra, 52 Cal.App.4th 326, plaintiff has failed to adequately pled a cause of action for negligent interference with economic advantage.

The trial court, therefore, did not err by sustaining defendants’ demurrers without leave to amend to plaintiff’s cause of action for negligent interference with prospective economic advantage.

DISPOSITION

The judgment is affirmed. Defendants are to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:
CROSKEY, Acting P.J.
ALDRICH, J.

Opinion Footnotes

*fn1 Fraudulent conveyances are governed by the Uniform Fraudulent Transfer Act (Civ. Code, § 3439 et seq.) Civil Code section 3439.04 provides: “A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows: [] (a) With actual intent to hinder, delay, or defraud any creditor of the debtor. [] (b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: [] (1) 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 [] (2) Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.” Civil Code section 3439.05 provides: “A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.”


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