Cruickshank-Wallace v. County Banking and Trust Co.

Opinion by EYLER, DEBORAH S., J. In the Circuit Court for Cecil County, County Banking and Trust Company (“the Bank”), the appellee, sued Bonnie ³⁰³ Cruickshank Wallace (“Bonnie”), the appellant, for actual and constructive fraudulent conveyances under the Maryland Uniform Fraudulent Conveyance Act (“MUFCA”), Md.Code (1975, 2000 Repl.Vol.), sections 15-201 through 15-214 of the Commercial Law Article (“CL”). In a prior suit (“the Debt Action”), the Bank had obtained a judgment against Great Christian Books, Inc. (“GCB”), and William Wallace (“William”), Bonnie’s husband, as guarantor of a debt of GCB. It is undisputed that the judgment in the Debt Action rendered William insolvent. In the case at bar, the Bank alleged that, in 1999, after he was insolvent, William fraudulently conveyed his 1998 federal and state income tax refunds to Bonnie, thus keeping them out of the Bank’s reach.

Bonnie and the Bank each moved for summary judgment. The court denied Bonnie’s motion and granted the Bank’s motion. 1 Bonnie noted an appeal, posing two questions, which we have rephrased slightly: I. Did the circuit court err in denying her motion for summary judgment on the fraudulent conveyance claim for the amount of the 1998 federal and state income tax refunds?

II

Did the circuit court err in granting summary judgment to the Bank on its fraudulent conveyance claim for the amount of the 1998 federal and state income tax refunds? For the reasons set forth below, we answer “no” to both questions and shall affirm the judgment of the circuit court. ³⁰⁴ FACTS AND PROCEEDINGS At all times pertinent to this case, William and Bonnie were husband and wife and were living together in an intact marriage with their two sons, born in 1990 and 1993. William has an adult child from a prior marriage who visits the Wallaces occasionally, but does not live with them. The Wallaces were married in 1987.

On November 27, 1987, they executed a property agreement. 2 They amended that agreement on December 4, 1991, while residing in the State of Washington, which is a community property state, by means of a document entitled “Separate Property Status Agreement.” 3 It appeai-s from the name of the December 4, 1991 agreement that it and the prior agreement were entered into for the purpose of characterizing some of the Wallaces’ property — that otherwise would be community property under the laws of the State of Washington — as their own separate property. On June 8, 1994, William purchased 75% of the stock of GCB from Walter C. Hibbard and Phillip Hibbard. A week later, the Wallaces executed a “Community Property Agreement,” 4 modifying their December 4, 1991 Separate Property Status Agreement. The modification language states: [Bonnie] and [William] agree as follows.... [Bonnie] and [William] shall own as community property the assets pertaining to the June 8, 1994 Agreement Stock Ownership Of Great Christian Books, Inc. entered into between Walter C. Hibbard, Phillip Hibbard, and [William] including, without limitation: 203 shares of Great Christian Books, Inc. ³⁰⁵ (“GCB”) stock transferred from Walter C. Hibbard; and 547 shares of authorized GCB stock to be immediately-issued; and all future issued and transferred GCB Stock and any stock of any present and future affiliate of GCB to either [Bonnie] or [William] or any entity owned in part or whole by either or both of the parties hereto.

Sometime in late 1994 or early 1995, the Wallaces moved from Washington to Pennsylvania, which is not a community property state. In May of 1995, the Bank extended a one-year revolving line of credit and a $234,000 secured loan to GCB. William gave a personal guaranty of payment for GCB on both obligations. On June 1, 1995, the Wallaces executed a document entitled “Transfer Agreement,” 5 which modified their June 15, 1994 Community Property Agreement.

The Transfer Agreement states: [Bonnie] and [William] agree as follows.... [William] transferred his interest in the stock of Great Christian Books, Inc. (“GCB”) to the community property of [Bonnie] and [William], as provided in the June 15, 1994 Community Property Agreement, and [William] hereby transfers all his rights and property (“benefits”) from his late father’s estate, and from GCB to and to be derived by ]William] including without limitation, deposits in GCB’s employee deposit plan, loan repayment obligations, pension and retirement plans, wages, reimbursements, refunds, options, commissions, bonuses, deferred compensation, automobile and equipment leases, and from legal claims that [William] may have concerning GCB, to [Bonnie] and [William] to be held in common during the term of their marriage with the survivor owning these benefits in entirety. (Emphasis added.) At the end of 1996, the GCB credit line was paid off, and then was renewed for $750,000. It was again renewed in early 1998. The loans were current until October of 1998. ³⁰⁶ That month, GCB missed a payment.

The Bank accelerated the loan balance and, in the Circuit Court for Cecil County, filed a confessed judgment action against William, as guarantor. On November 25, 1998, a confessed judgment was entered in favor of the Bank and against William. 6 In 1998, GCB was paying William a salary, from which federal and state income taxes were withheld. Immediately after the judgment was entered against him in the Debt Action, William stopped taking a salary from GCB and started collecting $1,000 a month in unemployment benefits. Somewhere in this time frame, not clearly disclosed by the record, the Wallaces moved to Elkton, Maryland.

In early 1999, William and Bonnie filed joint federal and state income tax returns for the 1998 tax year. The returns, prepared by an accountant, showed they were entitled to a $19,984 tax refund from the Internal Revenue Service (“IRS”) and a $2,821 tax refund from the State Comptroller’s Office. The refund amounts equaled the amounts of federal and state income tax withheld from William’s 1998 salary from GCB. Bonnie did not earn any income in 1998.

She did have a loss carry-forward, however, from her subchapter S corporation, Cruickshank Holsteiners, Inc., a horse boarding and breeding business. In April and May of 1999, the Wallaces received income tax refund checks from the IRS and the Maryland Comptroller’s Office. The checks were payable to both of them. William endorsed the checks and gave them to Bonnie, who deposited them in her Merrill Lynch CMA account (“CMA account”).

Bonnie’s CMA account statements show that the amount of the state refund check, $2,821, was added to her account balance on April 19, 1999, and the amount of the federal refund, $19,984, was added to her account balance on May 3, 1999. Statements for the CMA account show in detail how the ³⁰⁷ funds were spent. 7 Bonnie spent the entire $22,805 in income tax refunds by June 30,1999. The Bank learned of these and other transfers through discovery in aid of enforcement, including a deposition of William taken on May 21, 1999, and a deposition of Bonnie taken on March 31, 2000. On February 24, 2000, in the Circuit Court for Cecil County, the Bank filed the instant suit against Bonnie. 8 The Bank alleged that William’s transfer to Bonnie of the refund from his 1998 federal income tax return was a fraudulent conveyance.

Specifically, it alleged that the transfer was an actual fraudulent conveyance, because it was made with the actual intent to defraud William’s creditors, see CL § 15-207; and that the transfer was a constructive fraudulent conveyance, because, even if made without an actual intent to defraud, it was made when William was insolvent and was not for fair consideration. See CL § 15-204. The Bank asked the court to set aside the conveyance or, in the event that Bonnie had made a subsequent transfer of the money, enter a judgment against her in the amount of the transfer. Bonnie did not file a timely answer.

Ultimately, on September 11, 2001, the court entered a default judgment against her lor $19,984, the amount of the 1998 federal income tax refund. 9 Bonnie pursued an appeal to this Court. In a reported opinion, filed on September 26, 2002, we vacated the default judgment. See Holly Hall Publ’ns, Inc. v. County Banking and Trust Co., 147 Md.App. 251 , 807 A.2d 1201 (2002). 10 ³⁰⁸ Upon remand to the circuit court, the parties engaged in discovery, the Bank amended its complaint to add actual and constructive fraudulent conveyance of the 1998 Maryland state income tax refund, and each filed a plethora of motions and cross-motions. After still more discovery was undertaken, the operative motions left pending were those by each party for summary judgment.

Bonnie’s theory on summary judgment was that, on the undisputed facts, the income tax refunds were from their inception tenancy by the entirety property not reachable' by William’s creditors. For that reason, there was no conveyance of the property from William to her, let alone a fraudulent conveyance. She put forth four reasons as to why the refunds were tenancy by the entirety property. First, the Transfer Agreement made all benefits to William generated by GCB, including wages and future income tax refunds, tenancy by the entirety property.

Second, the refunds were tenancy by the entirety property because they were paid by checks issued to William and Bonnie as joint payees. Third, the Wallaces’ filing status of “married filing jointly” made the refunds tenancy by the entirety property. Finally, the tax refunds were tenancy by the entirety property because they resulted at least in part from an operating loss carry-forward on Bonnie’s subchapter S corporation. The Bank responded that the income tax refunds were William’s individual property, not tenancy by the entirety property.

It argued that the Transfer Agreement could not, without further action, convert future income tax refunds into tenancy by the entirety property; that, under controlling caselaw, when withholding can be ascribed to an individual’s ³⁰⁹ income, an income tax withholding refund is the individual property of that income earner, regardless of joint filing status or that the joint filers both are payees on the refund check; and that Bonnie’s loss carry-forward did not make the refunds tenancy by the entirety property. The Bank sought summary judgment on its claim for constructive fraudulent conveyance only. It argued that, on the undisputed material facts, the income tax refunds were transferred by William to Bonnie when William was insolvent and not for fair consideration. Bonnie responded that, even if the refunds were not tenancy by the entirety property, and were solely William’s property, he received fair consideration for the transfer of the refunds to her, because she used the refund money for “family necessaries,” that is, necessary support for William and their two children.

The Bank replied by stating that Bonnie could not show fair consideration by demonstrating that she spent the funds on “family necessaries,” because the doctrine of necessaries has been abolished in Maryland and, in any event, Bonnie did not make a showing on the summary judgment record that she spent the funds on “family necessaries.” Additionally, because Bonnie knew about William’s “unfavorable financial situation,” even if the transfers were supported by adequate consideration, she could not show that she acted in good faith, which is an element of fair consideration. The court held a hearing on all open motions on April 16, 2004. It took the matter under advisement and, on May 24, 2004, issued a memorandum opinion and order, entered the same day. It denied Bonnie’s motion for summary judgment and granted summary judgment in favor of the Bank for $22,805.

The court concluded that the income tax refunds were not tenancy by the entirety property; that it was undisputed that William transferred the refunds to Bonnie when he was insolvent; that there was no evidence on the summary judgment record that could support a finding that the transfers were for ³¹⁰ fair consideration; and, to the contrary, the evidence on the summary judgment record showed that William received “no consideration” for the transfers. Accordingly, the court found that the transfer of the tax refunds constituted a constructive fraudulent conveyance as a matter of law. Bonnie noted a timely appeal. We shall include additional facts as necessary to our discussion of the issues.

STANDARD OF REVIEW We review a circuit court’s decision to grant summary judgment de novo, as it is a purely legal decision. O’Connor v. Baltimore County, 382 Md. 102, 110 , 854 A.2d 1191 (2004); Hines v. French, 157 Md.App. 536, 549-50 , 852 A.2d 1047 (2004). We determine whether the circuit court properly concluded that there was no dispute of material fact, and, if so, whether the circuit court’s decision that the moving party was entitled to summary judgment was legally correct. Md. Rule 2 — 501(f); Walk v. Hartford Cas.

Ins. Co., 382 Md. 1, 14 , 852 A.2d 98 (2004); Smith v. City of Baltimore, 156 Md.App. 377, 382-83 , 846 A.2d 1121 (2004). A material fact is a fact that would alter the outcome of a case depending upon how the fact-finder resolves the dispute. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Bagwell v. Peninsula Reg’l Med.

Ctr., 106 Md.App. 470, 489 , 665 A.2d 297 (1995). The nonmoving party must demonstrate a dispute of material fact by proffering facts that would be admissible into evidence. O’Connor, supra, 382 Md. at 111, 854 A.2d 1191 ; Beyer v. Morgan State Univ., 139 Md.App. 609, 634 , 779 A.2d 388 (2001), aff'd, 369 Md. 335 , 800 A.2d 707 (2002). Moreover, “[b]ald, unsupported statements or conclusions of law” do not generate a genuine dispute of material fact, and thus cannot defeat a motion for summary judgment.

Hoffman Chevrolet, Inc. v. Wash. County Nat’l Sav. Bank, 297 Md. 691, 712 , 467 A.2d 758 (1983). Finally, “ ‘even in cases involving intent and motive, if the prerequisites for summary judgment are met — there being no ³¹¹ dispute of material fact — summary judgment may be granted.’ ” Rile, Aid Corp. v. Hagley, 374 Md. 665, 685 , 824 A.2d 107 (2003) (quoting Gross v. Sussex, Inc., 332 Md. 247, 257 , 630 A.2d 1156 (1993)).

DISCUSSION I. Bonnie contends the circuit court should have granted summary judgment in her favor on all of the Bank’s fraudulent conveyance claims because the income tax refunds were tenants by the entirety property that belonged to the marital unit, not to William individually, and could not be attached by William’s creditors. Therefore, it was not a fraudulent conveyance against William’s creditors for the two of them to transfer their entireties property to her. She supports her contention with the same four arguments she made below. The Bank responds as it did below.

While some states have either abolished or significantly altered the common-law estate of tenancy by the entirety, Maryland retains the estate in its traditional form. 11 Beall v. Beall, 291 Md. 224, 234 , 434 A.2d 1015 (1981); Columbian Carbon Co. v. Kight, 207 Md. 203, 208 , 114 A.2d 28 (1955). The common-law incidents of estates by the entireties are that the tenants can only be and must be husband and wife; that each spouse is seized of the entire property (which can be real or personal); that each spouse is entitled to the income derived from the property and cannot encumber or dispose of it without the other spouse’s consent; and, upon the death of one spouse, the other takes the whole. Arbesman v. Winer, ³¹² 298 Md. 282, 288-90 , 468 A.2d 633 (1983); State v. Friedman, 283 Md. 701, 705-06 , 393 A.2d 1356 (1978). Because entireties property is owned by the husband and wife as the marital unit, it is not subject to the claims of individual creditors of either spouse.

Schlossberg v. Barney, 380 F.3d 174, 178 (4th Cir.2004) (applying Maryland law); In re Bellr-Breslin, 283 B.R. 834, 836 (Bankr.D.Md.2002); State v. One 1984 Toyota Truck, 311 Md. 171, 187 , 533 A.2d 659 (1987); Arbesman, supra, 298 Md. at 289 , 468 A.2d 633 . 12 For this reason, a creditor of one spouse may not attack as a fraudulent conveyance the transfer of entireties property by the spouses. Van Royen v. Lacey, 266 Md. 649, 651 , 296 A.2d 426 (1972). In this case, for example, if the tax refunds were entireties property, the Wallaces could transfer the property to anyone (including Bonnie) without contravening the rights of the Bank, because the Bank never had a right to attach the property to begin with. “A tenancy by the entireties is essentially a joint tenancy, modified by the common law theory that the husband and wife are one person.” Schilbach v. Schilbach, 171 Md. 405, 407 , 189 A. 432 (1937); see also Schlossberg, supra, 380 F.3d at 178 . Thus, just as the creation of a joint tenancy requires the four essential common law unities of interest, title, time, and possession, so does the creation of a tenancy by the entirety.

Bruce v. Dyer, 309 Md. 421, 427 , 524 A.2d 777 (1987); Alexander v. Boyer, 253 Md. 511, 519 , 253 A.2d 359 (1969) (citing Eder v. Rothamel, 202 Md. 189 , 95 A.2d 860 (1953)). The husband and wife must “enjoy identical interests; enjoy identical, undivided possession; and ... the tenancy [must] commence at the same time via the same interest.” Bruce, supra, 309 Md. at 427 , 524 A.2d 777 . The unities “must exist concurrently; if any one is missing, the estate cannot be one of joint tenancy,” including a tenancy by the ³¹³ entirety. Helinski v. Harford Mem’l Hosp., Inc., 376 Md. 606, 615 , 831 A.2d 40 (2003).

Given these requirements to create a tenancy by the entirety in Maryland, all four of Bonnie’s arguments that the tax refunds were tenancy by the entirety property, as opposed to individual property of William, must fail. A. The Transfer Agreement In the 1995 Transfer Agreement, William states he has transferred all his “rights and property” from GCB “to and to be derived from him,” including “wages” and “refunds,” to himself and Bonnie “to be held in common during their marriage,” with the survivor owning the benefits “in entirety.” Bonnie maintains that this 1995 agreement had the effect of making all of William’s future wages from GCB (and all tax refunds deriving from such wages) tenancy by the entirety property before William actually came into possession of the wages or refunds. In other words, having declared in 1995 that his future wages and refunds from GCB would belong to him and Bonnie as entireties property, the wages and refunds automatically became entireties property as soon as they came into existence. In oral argument before this Court, when asked whether the effect of the Transfer Agreement executed in 1995 would be to make all of William’s future GCB wages tenancy by the entirety property before he ever received it, so as not to be subject to wage garnishment by his creditors, Bonnie’s counsel responded in the affirmative.

As we have explained, the creation of a tenancy by the entirety requires the co-existence of unities of interest, title, time, and possession. None of these unities existed in 1995, when the Transfer Agreement was signed, with respect to the 1998 income tax refunds now at issue. William did not obtain a property interest in the refunds until 1999, when he received the refund checks, or when it was clear that he was going to receive them. Cf.

CL § 9-203 (providing that, in the context of perfecting a security interest, attachment, and thus perfection, cannot occur as to particular collateral until the collateral itself comes into existence and the debtor has rights in it); In ³¹⁴ re Krumpe, 60 B.R. 575, 578 (Bankr.D.Md.1986) (holding that, for bankruptcy purposes, a debtor does not acquire an interest in his wages until he earns them and, therefore, a garnishment lien divests a debtor of ownership of his wages on the day the wages are earned) citing In re Cox, 10 B.R. 268, 271-72 (Bankr.D.Md.(1981)). Moreover, William did not have possession of any of his wages from GCB until they were paid and did not have possession of the 1998 income tax refunds generated by those wages until 1999, four years after the Transfer Agreement was signed. He also did not have title in the refunds until they were received; and, as is evident, the timing of the Transfer Agreement and the income tax refunds were not coterminous. To be sure, a husband and wife may together come into possession of property from a third party that will be deemed tenancy by the entirety property upon receipt, so long as the four unities have been met and it is the intention of the transferor that the property be so held.

See, e.g., Young v. Cockman, 182 Md. 246, 251 , 34 A.2d 428 (1943) (holding that a conveyance to husband and wife ordinarily creates a tenancy by the entirety, although an intention clearly stated in the instrument that they shall take as joint tenants or as tenants in common will be effective); M. Lit, Inc. v. Berger, 225 Md. 241, 248 , 170 A.2d 303 (1961) (holding that a conveyance to husband and wife gives rise to presumption that property is held as tenants by the entireties, unless the contrary is designated). Likewise, a spouse who holds property individually may transfer it to the marital unit, provided the transferring spouse has the present intent to create such a tenancy. See Diamond v. Diamond, 298 Md. 24, 31 , 467 A.2d 510 (1983); Jones v. Jones, 259 Md. 336, 340 , 270 A.2d 126 (1970) (discussed infra). Intent alone does not make property entireties property, however; the four unities of interest, title, time, and possession also must exist.

Here, none of the unities required to make William’s GCB wages and tax refunds entireties property existed in 1995, ³¹⁵ when the Transfer Agreement was executed. So, regardless of any intentions the Wallaces may have had in 1995 to declare that future GCB wages or refunds that William might come to possess would be entireties property, their intentions then were not sufficient to convert his future wages and refunds from GCB into entireties property immediately upon their coming into existence years later. Either there had to be evidence that the IRS and the Comptroller each intended, upon issuing the refund checks to William and Bonnie, that they should hold them as a marital unit (which, as we shall explain in the next subsection, there was not), or there had to be evidence that, upon receipt of the refund checks, William intended to transfer those monies to the marital unit. There was no evidence that William did anything, however, that would evidence a present intention to transfer his individual tax refunds to the marital unit.

For example, there was no evidence that William deposited the refund checks in a marital bank account or used the refund checks to purchase entireties property. The only evidence was that he transferred the tax refunds to Bonnie, alone. 13 Accordingly, because the unities required to create entire-ties property in the tax refunds did not exist, the tax refunds were not entireties property. We note, too, that any other conclusion would wreak havoc with the laws of garnishment; there is no legally viable basis for Bonnie’s assertion in this case that spouses can years in advance declare their future wages entireties property, and thereby insulate the wages, before they even are paid, from garnishment by creditors of one spouse. B. The Jointly Issued Tax Refund Checks In McClelland v. Massinga, 786 F.2d 1205, 1209 (4th Cir. 1986), the United States Court of Appeals for the Fourth ³¹⁶ Circuit, applying Maryland law, held that the Comptroller’s issuance of a state income tax refund check in the names of a husband and a wife did not create a tenancy by the entirety in the refund monies.

In that case, a number of fathers whose state income tax refunds were intercepted to be applied to delinquent child support obligations sued state authorities, alleging due process violations. In addition, two current wives of two of the fathers sued, alleging that the income tax refunds were entireties property that could not be attached. Both of the wives did not earn any income in the tax year in question; the refunds all were of overwithholding on their husband’s salaries. In holding that the refunds were not entireties property (and therefore the wives lacked standing to join in the due process challenge), the Fourth Circuit relied on two Maryland Court of Appeals cases.

In Jones, supra, 259 Md. 386 , 270 A.2d 126 , a husband and wife retained a lawyer to represent them in connection with an automobile accident in which the wife was injured. The wife’s claim was for damages for personal injuries and the husband’s claim was for reimbursement for medical expenses he paid for his wife. Eventually, the case was settled, but not before the pair separated. A single settlement check was issued, payable to the wife, the husband, and their lawyer.

The wife filed a declaratory judgment action, asking the court to determine ownership of the funds. The husband maintained that the funds were entireties property, and therefore could not be apportioned. The Court of Appeals held that to create entire-ties property there must be evidence of a discernible intent to transfer property previously held by an individual to the marital unit. For example, when a spouse purchases real estate and directs that it be titled as tenants by the entireties, “he has manifested a positive intent to create the estate.” Id. at 340 , 270 A.2d 126 .

Likewise, when one spouse creates a bank account and directs that it be titled as tenants by the entireties, or purchases chattel and so directs, an intent to create the estate can be determined. Id.; see Haid v. Haid, 167 Md. 493 , 175 A. 338 (1934) (intent to create entireties ³¹⁷ property may be presumed when one spouse insists that property be titled in name of husband and wife); Baker v. Baker, 123 Md. 32 , 90 A. 776 (1914) (intent to create tenancy by the entirety property may be presumed when spouse creates joint bank account with other spouse). The Jones Court concluded that, when a husband and wife have separate but related claims arising out of a single accident, “[t]he act of obtaining an attorney to represent them both falls far short of being evidence of [an intent to transfer the settlement proceeds to the marital unit].” 259 Md. at 341, 270 A.2d 126 . In Diamond, supra, 298 Md. 24 , 467 A.2d 510 , an insurance company issued a check payable to a husband, his wife, and their lawyer, in settlement of the husband’s claim for personal injuries and their joint claim for loss of consortium.

The issue in the case was whether the settlement money, or any part of it, was entireties property that could not be attached by a judgment creditor of the husband. The Court, citing Jones, explained that “to create a tenancy by the entireties there must be evidence of an intent to transfer property previously held by an individual to the marital unit,” id. at 3.1, 467 A.2d 510 , and concluded that there was nothing in the factual situation at hand to indicate an intention by the transferor insurance company or the husband and wife to create entire-ties property. The Court commented that, in both cases, “there was no apportionment of the claims; yet there also was no indication of an intent to create a tenancy by the entireties in the check.” Id. at 32 , 467 A.2d 510 . Accordingly, the husband’s share of the settlement funds was attachable.

See also Newborn v. Newborn, 133 Md.App. 64 , 94 n. 13, 754 A.2d 476 (2000) (noting that “[h]ere, there was no evidence that the insurance company issuing the settlement check did so with the intent to merge the claims of each party and transfer all the funds to the parties as a marital unit. Thus, a tenancy by the entireties will not be assumed.”). The Fourth Circuit in McClelland, supra, 786 F.2d 1205 , concluded that there was no evidence that the State, as payor ³¹⁸ of the tax refunds to the husbands for their overwithheld income tax payments, intended to create a tenancy by the entireties estate in the refund monies. To the contrary, the State issued the refund check to the husband and wife “simply to assure that each party received such of the refund as he or she by his or her contribution, was entitled to receive on the basis of his share in the overpayment.” Id.

Under the holding in McClelland , the Wallaces did not receive the state income tax refund check as tenants by the entireties. Likewise, entireties property was not created in the federal income tax refund when the IRS issued a check to the Wallaces jointly. Cf. Rosen v. United States, 397 F.Supp. 342, 343 (E.D.Pa.1975) (stating that “[s]pouses filing a joint return have separate interests in any overpayment, the interest of each depending on his or her income”).

C. The “Married Filing Jointly” Tax Status So too William and Bonnie did not create a tenancy by the entirety in either the federal or state tax refund checks by virtue of their “married filing jointly” tax status. In discussing Maryland state income tax returns, the Court in McClelland, supra, noted that the mere filing of a joint tax return by a husband and wife does not render the property taxed, or the tax paid, joint property or property held as tenants by the entirety. Furthermore, the Rosen court stated that “the filing of a joint [federal income tax] return does not have the effect of converting the income of one spouse into the income of another,” and that “a joint income tax return does not create new property interests for a husband or wife in each other’s income tax overpayment.” 397 F.Supp. at 344 . See also U.S. v. Elam, 112 F.3d 1036, 1038 (9th Cir.1997) (stating that “[a] joint return does not itself create equal property interests for each party in a refund”); In re Alden, 73 B.R. 215, 216 (Bankr.N.D.Fla.1986) (holding that “ ‘the mere fact that the tax return was a joint tax return by the debtor with his non-debtor spouse did not create a tenancy by the entireties ownership interest in the tax refund’ ”) (quoting In the Matter of Crum, 6 B.R. 138 (Bankr.M.D.Fla.1980)). ³¹⁹ I).

Loss Carry-Forward Finally, Bonnie argues that a tenancy by the entireties was created in the tax refunds because William’s withholding from his salary at GCB was an overpayment only because Bonnie claimed a loss carry-forward from her subchapter S corporation. Even assuming this fact to be true, it would not have the effect of making the tax refunds entireties property. At most, it could mean that some portion of the refunds was attributable to Bonnie, and not to William, and therefore would not be subject to attachment by William’s creditors. McClelland, supra, 786 F.2d at 1210 (“ ‘[A]n overpayment is apportionable to a spouse to the extent that he or she contributed to the overpaid tax.’ ”) (quoting Gens v. United States, 222 Ct.Cl. 407 , 615 F.2d 1335, 1342 (1980)); Rev. Rul. 74-611, 1974- 2 C.B. 399 (“[A] joint income tax return does not create new property interests for the husband or the wife in each other’s income tax overpayment.”).

Bonnie did not make an apportionment argument below, and she did not present any evidence on the summary judgment record that could have supported an apportionment finding. Her sole argument was and is that the use of her loss carry-foi’ward converted the tax refunds into entireties property. For the reasons we have explained, that argument lacks merit.

II

Bonnie contends the circuit court erred in granting summary judgment to the Bank because there was a genuine dispute of material fact as to whether William received fair consideration for the income tax refund transfers. Specifically, she argues that the affidavits and discovery responses she submitted in opposition to the Bank’s motion showed that she spent all or at least some of the tax refunds on “family support” or to satisfy “antecedent debts.” Accordingly, whether there was fair consideration for the transfers was a disputed question of fact that should not have been decided on summary judgment. ³²⁰ The Bank responds that the evidence did not generate a genuine dispute of material fact on the issue of fair consideration because the common law doctrine of necessaries (and its statutory counterpart) was abolished by the Court of Appeals in Condore v. Prince George’s County, 289 Md. 516 , 425 A.2d 1011 (1981); therefore, a spouse’s purchase of family necessaries is no longer fair consideration, and thus the transfers were constructive fraudulent conveyances. In the alternative, the conveyances were nevertheless constructively fraudulent because they were not made for fair value (i.e., Bonnie did not spend all of the money on family necessaries) or were not made in good faith (i.e., Bonnie received the money with the intent to defraud William’s creditors). As noted above, CL section 15-204 governs constructive fraudulent conveyances.

It provides that “[e]very conveyance made and every obligation incurred by a person who is or will be rendered insolvent by it is fraudulent as to creditors without regard to his actual intent, if the conveyance is made or the obligation is incurred without a fair consideration.” Id. Under the MUFCA, “fair consideration” is given for property or an obligation if: (1) In exchange for the property or obligation, as a fair equivalent for it and in good faith, property is conveyed or an antecedent debt is satisfied; or (2) The property or obligation is received in good faith to secure a present advance or antecedent debt in an amount not disproportionately small as compared to the value of the property or obligation obtained. CL § 15-203. Thus, in the absence of proof of actual intent by an insolvent debtor to hinder, delay, or defraud future creditors by conveying property, he will be presumed to act with that intent, unless “ ‘for a fairly equivalent consideration, whether presently arising or being in satisfaction of an antecedent debt, [he] transferís] in good faith all or part of his property to one of his creditors.’ ” Nat’l Mortgage Warehouse, LLC v. Trikeriotis, 201 F.Supp.2d 499, 502 (D.Md.2002) (quoting Long v. ³²¹ Dixon, 201 Md. 321, 323 , 93 A.2d 758 (1953)); see also Kennard v. Elkton Banking & Trust Co., 176 Md. 499, 504 , 6 A.2d 258 (1939).

The intent of the transferee “is determinative only if the transfers made to [him] were fair consideration in satisfaction of a bona fide debt.” Nat’l Mortgage Warehouse, supra, 201 F.Supp.2d at 503 . A. Pertinent Evidence in the Summary Judgment Record About Fair Consideration On May 21, 1999, the Bank took William’s deposition in aid of enforcement in the Debt Action. He testified that he was receiving $1,000 per month in unemployment compensation, which he placed in his bank account in his own name at the First National Bank of North East. No other funds were deposited into that account.

William further testified that Bonnie receives money as income but he has no knowledge of where from. He claimed that he did not know, and had never known, what investments Bonnie has. Her investments and bank accounts are' in her own name. “She has her own independent assets and her own income. I’ve never examined it.

It’s none of my business.” He added that Bonnie “pays the rent and other things. Always has.” Bonnie’s deposition in aid of enforcement in the Debt Action was taken on March 31, 2000. She testified that she does not know where her husband banks. For their entire 13 years of marriage, they “always kept [their] finances completely separate[,]” meaning that she has her “own personal money, [her] own investments” that William has “never been involved in, had no knowledge of, made decisions on,” and that the same holds true for him.

She testified that “zero” monies from William were deposited in her CMA account over the past year, except for the tax refunds. The tax refunds were deposited in her CMA account because she “was paying all the bills and ... needed funds to pay the bills with, and that’s the active account that [she] had.” Bonnie owns stocks and bonds that are kept in accounts in her own name. In the case at bar, Bonnie filed supplemental interrogatory answers on October 23, 2003, setting forth how the income tax ³²² refunds were spent in May and June of 1999: $6,000 was paid to William’s lawyer; approximately $1,500 was taken in cash from ATMs; $2,250 was paid to the New London Presbyterian Church for “organization fees”; $1,500 was paid to the Wallaces’ landlady for rent; slightly more than $1,100 was paid to the private school attended by one of the Wallaces’ sons, some of which was for a “pledge”; $1,000 in checks were made out to William; $800 was paid to a CPA for preparing personal tax returns; about $600 was paid for food. The Wallaces’ cleaning lady was paid $700; about $500 was spent on “home maintenance” (to stores such as Home Depot) and $250 was spent on lawn care; a little over $400 was placed in Bonnie’s stock trading account.

About the same amount was paid for food, gas, and lodging and a camera for a trip to Virginia. More than $100 was spent on Bonnie’s trip to visit her brother; about $300 was paid to a community college for William’s adult son, and to that son directly; about $460 was paid for gas and electric and telephone; a little over $200 was spent on toys, activities, and books for the children; $210 was spent on clothing; $163.69 was spent on automobile maintenance; sitters for the children were paid $47. The remaining expenses were for miscellaneous items, some for the children. In her answers to interrogatories, Bonnie explained that she made payments to William because he is [her] dependent husband ... [she] gave him approximately $500 a month [from the income tax refunds], which was used for family support.

The cash was given to William ... for the following family support: 1) gas