IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
KIWI CONSTRUCTION, LLC ) CASE NO. ST-2013-CV-00011
)
Plaintiff )
)
vs )
)
PAUL PONO, LANNY ROBERTS and )
BIG BEAR CONSTRUCTION, INC )
)
Defendants. _)
BIG BEAR CONSTRUCTION, INC., PAUL ) CASE NO. ST-2013-CV-00670
PONO and LANNY ROBERTS )
)
Plaintiffs, }
)
vs ) JURY TRIAL DEMANDED
)
PHILIP HOLFORD )
)
Defendant )
Cite as: 2026 VI Super 16U
MEMORANDUM OPINION
ql THIS MATTER is before the Court on
1. Defendant’s Petition By Big Bear Construction, Inc. Pursuant To 28 V.I.C. §171 Et. Seq.,
(“Petition”) filed January 26, 2018, in case number ST-2013-CV-00011
2. Plaintiff Kiwi Construction, LLC’s Opposition To Petition By Big Bear Construction, Inc
Pursuant To 28 V.ILC. §171 Et. Seq., (“Opposition”) filed February 20, 2018
3. Big Bear Construction, Inc.’s Reply To Kiwi Construction, LLC’s Opposition To The
Petition Pursuant To 28 V.I.C. §171 Et. Seq., (“Reply”) filed March 2, 2018
4. Kiwi Construction, LLC And Philip Holford’s Supplemental Opposition To Big Bear
Construction, Inc.’s Petition Pursuant To 28 V.I.C. §171 Et. Seq., (“Supplemental
Petition’) filed April 23, 2025
5. Big Bear Construction, Inc.’s Response To Kiwi Construction, LLC & Philip Holford’s
Supplemental Opposition To Big Bear’s Petition Pursuant To 28 V.ILC. §171 Et. Seq.,
(“Response”) filed July 21, 2025; and
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. y. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 2 of 22
6. Big Bear Construction, Inc.’s Urgent Request For Ruling On Big Bear’s Petition Pursuant
To 28 V.ILC. §171 Et. Seq., (“Request For Ruling”) filed January 16, 2026
q2 For the reasons set forth below, the Court will grant Defendant’s Petition in part and deny
it in part
I FACTUAL AND PROCEDURAL HISTORY
q3 On January 8, 2013, Plaintiff Kiwi Construction, Inc. (“Kiwi’) filed a multi-count
complaint against Defendants Paul Pono, Lanny Roberts, and Big Bear Construction, Inc. (“Big
Bear”). Kiwi hired Big Bear as a subcontractor to perform certain construction work on real
property located at Parcel No 5A, Estate Peter Bay, St John, Virgin Islands.' The work involved
constructing a residence for Mr. Thomas Secunda (“Secunda”), who owned the property
(“Secunda Project”).? Kiwi’s Complaint arose from allegations that Defendants breached the
contract.> Defendants moved to dismiss the Complaint, and by Order filed April 17, 2013, the
Court denied Defendants’ motion as to all claims asserted by Kiwi against Defendants Paul Pono
and Lanny Roberts.* The Court stayed all claims Kiwi asserted against Big Bear while certain
claims were submitted to arbitration pursuant to an agreement.> On September 24, 2015, the
Arbitrator awarded Big Bear $126,397.37 in damages (‘Arbitration Award”).° On January 15,
2016, this Court recognized the Arbitrator’s Award as having the same force and effect as a
judgment of the Superior Court (“Judgment”).’ To date, Big Bear has obtained $28,008.57 from
Kiwi towards satisfaction of the Judgment, including $6,908.57 from Kiwi’s Merchant’s
Commercial Bank account, $8,600.00 from the Marshal’s sale of a JCB Loader, and $12,500.00
from the Marshal’s sale of a Jeep Wrangler.’ Thus, the balance to be collected from the
$126,397.37 Judgment is $98,388.80, not including interest? Big Bear now seeks an order
declaring that Kiwi’s sole owner and managing member, Philip Holford (‘Holford’), violated the
Virgin Islands Uniform Fraudulent Transfer Act (““VIUFTA”) by making transfers from Kiwi to
himself to avoid payment of the Judgment
II ARGUMENT
q4 Big Bear argues that by transferring Kiwi’s assets to himself, converting the assets through
personal purchases, and comingling Kiwi’s funds with his personal assets, Holford intentionally
' Big Bear Construction, Ine. v. Kiwi Construction, LLC, American Arbitration Association case number 32-20
1300-0066 at 2
> Id. at 1-2
3 Compl. 46, Ex.1 at 1
4 Order (April 17, 2013)
Sid.
6 Big Bear Construction, Inc. v. Kiwi Construction, LLC, American Arbitration Association case number 32-20
1300-0066
7 Order (January 15, 2016)
® Def.’s Pet. at 1 n.1; Order (June 18, 2025)
° Def.'s Pet. at 1 n.1
Kiwi Construction, LLC v. Pono et al 2026 VI Super [6U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 3 of 22
hindered Kiwi’s ability to satisfy the Judgment. Holford'® replies that Big Bear failed to specify
which transfers it seeks to void. Holford also argues that he and the company maintain separate
bank accounts and any payments Kiwi made on his behalf are shareholder distributions. Further,
Holford asserts that he believed the pending arbitration would result in Kiwi being Big Bear’s
creditor, not its debtor
WI LEGAL STANDARD
q5 The VIUFTA identifies two categories of voidable transfers: 1) those that are fraudulent as
to present and future creditors'! and 2) those which are fraudulent only as to present creditors. !
The VIUFTA also creates distinct causes of action for transfers based on cither actual or
constructive fraud. Prevailing on a theory of actual fraud under § 174(a)(1) requires proof that the
debtor made the transfer “with actual intent to hinder, delay, or defraud any
creditor."'> Recognizing that actual intent is difficult to prove through direct evidence because
individuals will rarely admit they intended to hinder, delay, or defraud a creditor,'* Virgin Islands
courts consider various "badges of fraud" or "indicia of fraud" to establish a presumption of
fraudulent intent.'> Badges of fraud are “circumstances so frequently attending fraudulent transfers
that the inference of fraud arises from them.”'® A “[s]trong presumption of intent to defraud” is
found where several badges are present.'’ Once a presumption is established “The debtor must
then ‘clearly rebut{ ]’ that inference.”'®
q6 Proving constructive fraud under § 174(a)(2) and § 175, by contrast, does not require proof
of actual intent. Instead, constructive fraud is established when a debtor does not receive fair value
for the transfer or when the transfer leaves the debtor unable to pay creditors.'?
q7 Under § 177(a)(1), creditors can seek avoidance of the transfer to the extent necessary to
satisfy their claim.2° When a creditor seeks avoidance under § 177(a)(1), § 178(b) specifies that
the creditor may recover a judgment for the value of the asset transferred or the amount necessary
to satisfy the creditor's claim, whichever is less.”!
q8 The pertinent provisions of the VIUFTA follow
'© Kiwi and Holford advance their defense jointly. The Court will refer to these arguments as attributable to Holford
28 VIC. § 174(a)
228 VLC. § 175
328 VIC. § 174(a)(1)
. fee mption Holdings, Inc. v. Government of the Virgin Islands, 2016 WL 3950047, at *4 (V.1. 2016)
16 Id
'7 MSKP Oak Grove, LLC v. Venuto, 839 F. App'x 708, 712 (3d Cir. 2020)
1% ld
1998 VLC. § 174(a)(2); § 175
° 28 VLC. § 177(a)(1)
128 V.LC. § 178
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
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q9 Section 174(a) of Title 28 addresses transfers fraudulent as to present and future creditors
(a) 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
(1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or
(2) without receiving a reasonably equivalent value in exchange for the transfer or
obligation, and the debtor
(A) was cngaged or was about to engage in a business or a transaction for which
the remaining assets of the debtor were unreasonably smal! in relation to the
business or transaction; or
(B) intended to incur, or believed or reasonably should have belicved that he would
incur, debts beyond his ability to pay as they became due
(b) In determining actual intent under subsection (a)(1), consideration may be
given, among other factors, to whether
(1) the transfer or obligation was to an insider
(2) the debtor retained possession or control of the property transferred after the
transfer;
(3) the transfer or obligation was disclosed or concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been
sued or threatened with suit;
(5) the transfer was of substantially all the debtor's assets;
(6) the debtor absconded
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the debtor was reasonably equivalent
to the value of the asset transferred or the amount of the obligation incurred;
(9) the debtor was insolvent or became insolvent shortly after the transfer was made
or the obligation was incurred
(10) the transfer occurred shortly before or shortly after a substantial debt was
incurred; and
(11) the debtor transferred the essential assets of the business to a lien or who
transferred the assets to an insider of the debtor.””
q10 Section 175 of Title 28 addresses transfers fraudulent as to present creditors
(a) 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
228 VLC. § 174
Kiwi Construction, LLC y. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 5 of 22
debtor was insolvent at that time or the debtor became insolvent as a result of the
transfer or obligation
(b) A transfer made by a debtor is fraudulent as to a creditor whose claim arose
before the transfer was made if the transfer was made to an insider for an antecedent
debt, the debtor was insolvent at that time, and the insider had reasonable cause to
believe that the debtor was insolvent.??
G11 Among other remedies, 28 V.LC. § 177(a)(1) provides that a creditor may obtain
as a relief for a fraudulent transfer avoidance of the transfer or obligation to the extent
necessary to satisfy the creditor's claim.”4
qi2 Section 178(b) of Title 28 addresses defenses, liability, and protection of
transferees
(b) Except as otherwise provided in this section, to the extent a transfer is voidable
in an action by a creditor under section 177(a)(1), the creditor may recover
judgment for the valuc of the asset transferred, as adjusted under subsection (c), or
the amount necessary to satisfy the creditor's claim, whichever is less. The
judgment may be entered against
(1) the first transferee of the asset or the person for whose benefit the transfer was
made.?°
IV ANALYSIS
q13 Big Bear’s Petition alleges Holford, as Kiwi’s sole owner, made fraudulent transfers
preventing Big Bear from satisfying its Judgment. Big Bear’s Petition is based on Title 28 V.LLC
§ 174(a)(1). When determining whether Holford possessed actual intent to defraud Big Bear, this
Court looks to see if any “badges of fraud” codified in 28 V.I.C. § 174(b)(1)-(L 1) were present in
the transfer.’° In this matter, the Court finds multiple badges of fraud exist surrounding transfers
by Kiwi to Holford, or for the benefit of Holford, from 2013 to 2015
A. Transfers in 2013
1. July 8, 2013 $45,000.00 wire transfer
414 Big Bear filed its Demand For Arbitration on February 1, 2013. Kiwi’s 2013 Profit and
Loss Report provides that Kiwi made shareholder distributions to Holford totaling $106,403.96
* 28 VIC. § 175
24 28 VLC. § 177(a)(1)
> 28 VLC. § 178(b)(1)
26 28 V.LC. § 174(b)(1)-(11); Redemption Holdings, Inc., 2016 WL 3950047, at *4-5
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
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for the year.” The distributions include a July 8, 2013, $45,000.00 wire transfer from Kiwi to
Steen Enterprises on Holford’s behalf. According to the Report, Kiwi issued Holford a $60,000.00
check numbered 1102 on December 31, 2013.78 Big Bear alleges that because the transactions
were made to benefit Holford, an insider, and because the transfers occurred after an arbitration
demand was filed, Holford made the transfers with actual intent to hinder, delay, or defraud Big
Bear.’ Big Bear also argues the transfers diminished the assets for which it could recover and
therefore the transfers were fraudulent.*° Holford argues in his Opposition that the $45,000.00 wire
transfer has already been reviewed and explained by this Court as a shareholder distribution for
purchase of Holford’s persona! equipment.*! Holford adds that “to the extent that Kiwi made
payments on behalf of Holford, those payments are delineated as distributions attributable to
him.”
415 Holford is correct that the $45,000.00 wire transfer has been twice addressed by this Court
In its September 7, 2016 and October 13, 2017 Orders, the Court determined that the $45,000.00
transfer “is adequately explained” as a shareholder distribution for purchase of Holford’s personal
equipment, a 2008 Kubota KC161 388. Yet, because the Court's prior rulings focused on the
threshold question of asset ownership for attachment purposes, and not the merits of the transfer
itself, the Orders do not preclude a fraudulent transfer analysis. Moreover, Big Bear’s Petition
requests that this Court said aside said transfer and allow Big Bear to attach to Holford’s personal
assets. Accordingly, the Court examines the transfer under the badges of fraud analysis
a. Badge (b)(1): Transfers to an Insider.
q16 First, an LLC distribution to its sole manager-member constitutes an insider transfer.** The
VIUFTA defines "insider" to include multiple categories of relationships. Where the debtor is a
corporation, an insider may be a director, an officer, or “person in control" of that corporation,*>
Though the VIUFTA doesn’t specifically enumerate who qualifies as an “insider” of an LLC, the
VIUFTA does provide that an insider can include ‘a managing agent of the debtor,” as is the case
here where Holford acts as Kiwi’s sole manager-member and owner. Thus, the $45,000.00 transfer
from Kiwi to Steen Enterprises on Holford’s behalf satisfies the first badge of fraud listed under §
174 (b)(1)
27 Pls.” Suppl. Opp’n at |
28 ld.
2° Def.’s.Resp. to Suppl. Opp’n at 3-4
4 Id.
3! Pls.’ Suppl. Opp’n at 4
2 Id
33 See September 7, 2016, and October 13, 2017, Orders
Redemption Holdings, Inc., 2016 WL 3950047, at *4 (“First, the Court finds that Jaber's transfer of the Property to
RHI was an insider transfer because Jaber was the sole shareholder and President of RHI at the time of the
assignment and redemption.)
> 28 V.LC. § 171(7)(B)(i-iti)
Kiwi Construction, LLC y. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-C V-00670
Memorandum Opinion
Page 7 of 22
b. Badge (b)(2): Debtor Retention or Control of Property
417 Because the transfer was wired to a third party for a purchase, Kiwi did not retain control
over the funds, failing to satisfy badge (b)(2)
c. Badge (b)(3): The Transfer was Disclosed or Concealed
q18 As to factor (b)(3), Big Bear offers no argument explaining how or where it alleges that the
shareholder distribution was concealed. Given that the transfer was previously litigated for
attachment purposes and described and disclosed by Kiwi’s Profit and Loss Detail under
underscores the disclosed and open nature of the transfer.
d. Badge (b)(4): The Debtor was Sued or Threatened with Suit before the
Transfer was Made
419 Because the transfer occurred after Big Bear’s Demand for Arbitration, badge b(4), asking
whether the transfer occurred after threat of suit, is satisfied.*°
e. Badge (b)(5): The Transfer Consisted of Substantially all of the Debtor’s
Assets
q20 Based on the analysis to follow concerning the company’s asset valuation in 2013, the
Court is not satisfied that the transfer consisted of substantially all of Kiwi’s assets, failing to
satisfy badge (b)(5)
f. Badge (b)(6): The Debtor Absconded
q21 Neither Kiwi nor Holford absconded, failing to satisfy badge (b)(6)
g. Badge (b){(7): The Debtor Removed or Concealed Assets
q22 The removal of $45,000.00 from Kiwi’s account satisfies badge(b)(7), questioning whether
assets were removed or concealed. As the Third Circuit has explained, when funds move "from
corporate to individual accounts, out of the reach of creditors," the removal element is satisfied.*’
Despite Holford arguing “to the extent that Kiwi made payments on behalf of Holford, those
payments are delineated as distributions attributable to him,”** “nothing in the statute or case law”
draws a distinction between shareholder distributions and removals.°?
© See Big Bear’s Demand For Arbitration, filed on February 1, 2013. Suit was filed on August 8, 2013
7 MSKP Oak Grove, LLC, 839 F. App'x 708, 713 (3d Cir. 2020)
8 Pls.” Suppl. Opp'n at 4
MSKP Ouk Grove, LLC, 839 F. App’x at 713
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 8 of 22
h. Badge (b)(8): The Value of Consideration Received by the Debtor was
Reasonably Equivalent to the Asset Transferred
423 Because shareholder distributions do not generally provide "reasonably equivalent value"
to an LLC, badge (b)(8) is implicated.*” The transfer provided Holford with equipment worth
$45,000.00 without Holford giving Kiwi anything in return
i. Badge (b)(9): The Debtor was Insolvent or Became Insolvent Shortly after the
Transfer was Made
q24 Badge (b)(9) considers whether a debtor was insolvent at the time or shortly after a transfer
was made or an obligation was incurred. A “debt’*! is defined as a “liability on a claim,” and thus
a “debtor? is a person liable on a claim. A “claim” arises where there is “a right to payment,
whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent
matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.”? A “creditor”
is simply “a person who has a claim.’"* Thus, the moment an arbitration demand is filed, a creditor
has a “claim,” creating a “debt” and a debtor
q25 The Court finds that the pending arbitration claim counted as a “debt” for Kiwi even before
the Arbitrator’s Award was issued because § !71’s definition of a claim encompasses disputed and
unliquidated rights to payment. A debtor is insolvent if “the sum of the debtor's debts is greater
than all of the debtor's assets, at a fair valuation.’** Thus, an insolvency analysis under (b)(9)
requires the Court to determine whether Kiwi’s assets before and after the transfer were sufficient
to cover its liabilities-including the disputed claims arising from the arbitration. This analysis
requires a reconstruction of Kiwi’s financial position at the time of the transfer using its internal
Profit and Loss report and Tax Returns, in the absence of bank statements provided to the Court
for 2013. The Third Circuit’s recent decision in /n re Allonhill, LLC is instructive here.*°
426 =o In Jn re Allonhill, the court held that calculating one’s debt to asset ratio under an
insolvency analysis requires an examination of if that “debt? — in this case, Big Bear’s pending
arbitration claims — was “contingent” or “disputed.’*’ The Al/onhill court explained
The difference is that a contingent liability require[s] a triggering event to occur
before the debtor corporation has a legal duty to pay the creditor, whereas a
40 fd. at 713 (explaining that an entity did not receive reasonably equivalent value because shareholders took money
without giving the entity anything in return)
41.28 VIC. § 171(5)
228 VLC. § 171(6)
43.28 VLC. § 171(3)
428 VLC. § 171(4)
48-28 VLC. § 172
4% In ve Allonhill, LLC, 2019 WL 1868610 (Bkrtcy. D. Del., 2019)
7 Id. at *48
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
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disputed claim involves disagreement about the amount of the claim. However.
events spawning the claim have already occurred... Ongoing and contested lawsuits
and judgments are examples of common disputed claims.”
{27 Big Bear’s arbitration claims were “disputed” at the time of the transfer because all the
facts giving rise to the underlying liability had already occurred. The once “disputed” claims are
now “fixed” post-arbitration and Judgment entered by this Court
q28 = =The Allonhill court also held that “Where a claim is disputed ... it can be valued at the
amount at of its ultimate[] determination,” but where, as is the case here, “{t}he litigation,
including any appeal from an initial judgment, is fully resolved before the valuation is completed
valuation should be based on the amount of the final resolution.”
q29 Antar, involving claims of alleged fraudulent transfers by a defendant, is also instructive
here.*! There, the defendant engaged in securities fraud years before he was found guilty.** In the
years before he was found liable, the defendant made a series of transfers the SEC later sought to
avoid as constructively fraudulent.>* The court ultimately held the defendant was insolvent at the
time of the transfers based upon the amount of the judgment that was later entered against him for
securities fraud, after the transfers were made.*4
430 Here, Big Bear claimed damages totaling $1,106,911.02 during arbitration,** and the
Arbitrator ultimately awarded Big Bear $126,397.37.°° The Court’s Judgment enforcing the Award
served as the ultimate resolution of the amount Kiwi owed Big Bear based upon conduct occurring
prior to the transfer. Therefore, under the valuation formula provided for in Allonhill and Antar,
Kiwi “possessed” the $126,397.37 arbitration debt at the time of the alleged fraudulent transfer. *
431 Kiwi's 2013 Profit and Loss Report shows a net income of $114,548.03 before taxes,** and
Kiwi’s 2013 Tax Return shows a net income of $143,410.00 before taxes.°? The discrepancy
between these figures is ordinally explained though different accounting methods for internal use
48 Id: sce also In re Imagine Fulfillment Servs., LLC, 489 B.R. 136, 150 (Bankr. C.D. Cal. 2013) (“Thus, because
the events giving rise to the Judgment occurred pre-petition and prior to cach of the transfers at issue, the Judgment
is not a contingent debt and was not contingent as of any of the relevant transfers.”}
4 In re Allonhill, LLC, 2019 WL 1868610, at *49
0d.
S'S EC. v. Antar, 120 F.Supp.2d 431 (D.N.J., 2000)
3 Jd. at 434, 443
3 Id. at 435
%4 Id. at 443 (“Because the SEC's claim was based on Sam M.'s securities fraud in the 1980s, Sam M. possessed this
debt at the time of all the 199! and 1997 transfers.”’)
>» See Arbitration Award at 16
5¢ fd. at 25
7 Id
58 Pls,” Suppl. Opp'n Ex, A-1 at 7
*? Pls.’ Suppl. Opp’n Ex. A-4 at |
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
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and tax purposes. On line 15 of its Schedule L, Kiwi reported company assets totaled $139,841.00
in 2013.® The Court adopts the tax filings as an accurate reflection of Kiwi’s financial position in
2013. The tax records are final sworn statements and official documentation of financial activity,
in comparison to the unaudited profit and loss reports. Using the $126,397.37 Judgment as the
correct value of Big Bear’s claims and Kiwi’ debts and then subtracting this figure from either
Kiwi’s net income or Schedule L assets demonstrates that Kiwi was not insolvent before or
immediately after the transfer was made or the obligation from the debt claim occurred in 2013
Thus, because Kiwi’s debts did not exceed its assets at fair valuation, the $45,000.00 transfer fails
to satisfy badge (b)(9)
j. Badge (b)(10): the transfer occurred shortly before or after a substantial debt
was incurred
q32 In accordance with the analysis above, badge (b)(10) is satisfied as the transfer occurred in
July 2013, shortly after a substantial debt was incurred from Big Bear’s January 2013 Arbitration
Demand
k. Badge (b)(11): the Debtor transferred essential assets to a lienor who
transferred the assets to an insider of the debtor
433 Badge (b)(11) is not satisfied as Kiwi did not transfer essential assets of the business to an
insider lienor.*!
434 The Court finds five badges of fraud present concerning the $45,000.00 transfer, namely
factors (b)(1), (4), (7), (8), and (10). “When looking for badges of fraud, courts ask not whether
some of the eleven are absent, but whether some are present.”® Because “Even one badge of fraud
can suffice to ‘cast suspicion on the transferor's intent,’” a “strong presumption of intent to
defraud” is found where several badges are present.*? When badges of fraud are shown, "the
burden shifts to the party seeking to uphold the transfer."*4 Because Kiwi has not put forth a
6 Pls.‘ Suppl. Opp’n Ex. A-4 at 5
®! § 174 (b)(11) appears to include a scrivener’s error reading “lien or” instead of “lienor.” Analogous statutes based
upon the Uniform Fraudulent Transfer Act make clear badge (b)(1!) implicates scenarios where debtor transfer assets
to a lienor who then transfer the assets to an insider of the debtor. (“Due to a paucity of local case law discussing the
VIUFCA, and because the purpose of the VIUFCA was ‘to make uniform the law of those jurisdictions which enact
it,” we look to other jurisdictions’ case law for guidance on when a conveyance is fraudulent.” Redemption Holdings.
Ine., 2016 WL 3950047, at *4 (quoting 28 V.I.C. § 212) (current version at 28 V.LC. § 181); see also Ottlev v. Estate
of Bell, 61 V.1. 480, 494 n.16 (V.L. 2014) (explaining that “(w]hen statutes from other jurisdictions are substantially
similar to a Virgin Islands statute, this Court may look for guidance at how that jurisdiction's courts have interpreted
the similar statute” (citation omitted)); /n re Innovative Comme’n Corp., 2011 Bankr. 2011 WL 3439291 (Bankr. D.VI
2011) (unpublished) {holding that “in the absence of interpretation by the courts of the Virgin Islands, we look to other
case law interpreting and applying UFCA”)
® MSKP Oak Grove, LL., 839 F. App'x at 712
6 Id. (citing Gilchinsky v. Nat'l Westminster Bank N.J., 159 NJ. 463, 732 A.2d 482, 489 (1999))
Saintil v. Armand, 1996 WL 288400, at *1 (Terr. V.L)
Kiwi Construction, LC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 11 of 22
legitimate reason for the transfer absent its categorization of a sharcholder distribution, the Court
finds that the $45,000.00 July 2013 transfer was fraudulent
2. December 2013 $60,000.00 Check
435 The Court next turns to the $60,000.00 December 2013 check that Kiwi issued to Holford
as a shareholder distribution
a. Badges (b)(L), (4), (7), (8), and (10) are satisfied
436 For the reasons explained in the Court’s discussion of the July 2013 wire transfer, badges
(b)(1), (4), (7). (8), and (10) are satisfied
b. Badge (b)(2) is not satisfied
437 Kiwi did not retain control over the funds that were removed from its account, failing to
satisfy badge (b)(2)
c. The Transfer was disclosed under badge (b)(3)
438 The transfer was described and disclosed by Kiwi’s Profit and Loss Detail under badge
(b)(3)
d. Badges (b)(5), (6), (9), and (11) are not satisfied
q39 Badges (b)(5), (6), (9), and (11) are not satisfied for the reasons explained in the Court’s
discussion of the July 2013 wire transfer
440 Though Holford does not address this distribution directly in his Supplemental Opposition
he does generally offer that “Each year, at the close of the year, Kiwi Construction typically makes
a one-time payment to its member Phil Holford either as a distribution or a repayment of loan
As stated above, case law and the VIUFTA make no distinction between shareholder distributions
and removals when considering whether a transfer was fraudulent. As such, the Court finds that
the $60,000.00 December 2013 check to Holford was a fraudulent transfer
B. Shareholder Distributions in 2014
1. December 2014 $40,000.00 Check
441 Exhibit A of Big Bear’s Petition shows that on October 5, 2015, a $40,000.00 check Kiwi
issued to Holford in the amount of $40,000.00 cleared.®* The Arbitration Award in favor of Big
65 Def.’s Pet. Ex. A
Kiwi Construction, LC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-000I1
Big Bear Construction, Inc. et al. v. Holford
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Memorandum Opinion
Page 12 of 22
Bear was issued on September 24, 2015, shortly before the transfer™ Big Bear argues this transfer
was fraudulent because: (1) Holford held on to the check until after the Arbitrator denied Kiwi’s
claims and issued an award in Big Bear’s favor; (2) the transfer constituted the remainder of Kiwi's
liquid assets, thereby making Kiwi insolvent; (3) the transfer was distributed to Kiwi’s sole owner
an insider; and (4) Kiwi received no consideration from Holford for the transfer.”
442 The December 2014 check is documented in Kiwi’s 2014 Profit and Loss Report as both a
shareholder distribution and a repayment of a loan.“* Holford states that the $40,000.00 payment
was made in the ordinary course of business as it was consistent with similar payments of prior
years incurred at the end of the calendar year to reduce the business’s tax burden.® Holford also
contends that Kiwi was not insolvent at the time the check was deposited in October 2015 because
Kiwi had an assignment of Secunda’s claims against Big Bear and thus Kiwi expected Big Bear
would be its debtor, and not a creditor.”° Big Bear counters that absent proof that Kiwi owed a loan
repayment to Holford, the transfer is instead a shareholder distribution which diminished Kiwi’s
assets that Big Bear could attach .”' Big Bear further asserts that shareholders are not automatically
entitled to distributions, which are distributed or withheld based on a business’s financial health,’”*
Big Bear adds that Secunda’s assignment of claims to Kiwi does not create an asset that Kiwi had
an interest in.”? Multiple badges exist surrounding the $40,000.00 check transfer
a. Badge (b)(1): Transfers to an Insider
443 = The transfer of $40,000.00 via check was to an insider, i.e. Holford, under (b)(1)
b. Badge (b)(2): Debtor Retention or Control of Property
944 = It is clear from reviewing Kiwi’s financial statements that Kiwi did not retain control of
the $40,000.00 after the transfer, despite Big Bear’s arguments to the contrary. Because the
company ts distinct from its manager, Holford’s control of the $40,000.00 cannot be conflated
with Kiwi’s control over the funds, thus failing to satisfy badge (b)(2)
c. Badge (b)(3): The Transfer was Disclosed or Concealed
q45 Badge (b)(3), considering whether the transfer was disclosed or concealed, requires a closer
look into the purpose of the transfer. While the memo section of Kiwi’s 2014 Profit and Loss
°¢ Big Bear Construction, Inc. v. Kiwi Construction, LLC, American Arbitration Association case number 32-20
1300-0066
67 fd
68 Pls.’ Suppl. Opp’n Ex. A-2 at 1-2
* Pls.’ Suppl. Opp’n at 7-9
70 Id
7! Def.’s. Resp. to Suppt. Opp’n at 2-3, 5, 14
? Id. at 16
Bid
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 13 of 22
Report describes the transfer as a “repayment of loan to company,” the detail section of the Report
as well Kiwi’s 2014 Tax Return records the transfer as a shareholder distribution.” Courts
consistently distinguish between loan repayments and distributions
446 The District Court of the Virgin Islands, Division of Bankruptcy, addressed a scenario
similar to the present matter in /n re Prosser There, a transfer was inaccurately described in
internal records but was nonetheless recorded in audited financial statements.’° The court found
that even though the transfer appeared in audited financial statements, the inaccurate description
of the transfer constituted concealment.’’ This demonstrates that mischaracterization in financial
records can satisfy the concealment badge even when the transfer is technically recorded. In
Knutsen-Rowell, Inc. v. Commissioner, a tax court held that where purported loans were not
evidenced by notes or writings, were unsecured, required no interest, had no repayment schedules,
and the parties did not accurately track the loan amounts, the funds were actually considered
distributions.”*
9/47 Here, Kiwi’s Profit and Loss Report creates an internal inconsistency that undermines the
characterization of the transfer. Because a loan repayment and a shareholder distribution are
distinct transactions with different legal consequences, documenting the transfer as a "shareholder
distribution" in the main entry and "loan repayment" in the memo field creates ambiguity about
the true nature of the transaction. Whilc distributions do not require repayment and thereby reduce
a company’s assets without providing equivalent value, a loan repayment satisfies an antecedent
debt and suggests a company previously reccived equivalent value.”
448 Kiwi’s internal reporting discrepancy, combined with the fact that Holford has not
presented evidence addressing when or under what circumstances he provided Kiwi with a loan
constitute indicia of concealment weighing in favor of finding fraudulent intent under badge (b)(3)
d. Badge (b)(4): The Debtor was Sued or Threatened with Suit before the
Transfer was Made
449 Badge (b)(4) asks if “the debtor had been sued or threatened with suit” before the transfer
was made. Here, the parties were in active litigation proceedings prior to the check’s issue date in
December 2014, and the parties received an arbitration decision prior to the check’s deposit date
in October 2015, satisfying badge (b)(4)
™ Pls.’ Suppl. Opp’n Ex. A-2 at 1-2
” In re Prosser, 2009 WL 10705137, at *10 (Bkrtcy. D. Virgin Islands, 2009)
76 Id, at 9-10
id
® Knutsen-Rowell, Inc. v. C.LR., T.C. Memo. 2011-65. 2011 WL 990160, at *13-14
9 In re AppliedTheory Corp., 323 B.R. 838, 842 (Bankr. $.D.N.Y.)
Kiwi Construction, L C v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 14 of 22
e. Badge (b)(5): The Transfer Consisted of Substantially all of the Debtor’s
Assets
q50 Badge (b)(5) considers whether debtors transferred substantially all of their assets. As of
October 1, 2015, Kiwi’s account had a balance of $42,217.39.*° After the check cleared on October
5, 2015, the account was left with $1,706.39.8' Thereafter, the account had a negative balance
beginning October 9, 2015.** Thus, badge (b)(5) is satisfied because Kiwi’s bank records for its
account ending in 1160 demonstrate the $40,000.00 transfer liquidated the remaining funds in the
account
f. Badge (b)(6): The Debtor Absconded
q51 Neither Holford nor Kiwi absconded, failing to satisfy badge (b)(6)
g. Badge (b)(7): The Debtor Removed or Concealed Assets
452 Badge (b)(7), removal of assets, is satisfied by the transfer of $40,000.00
h. Badge (b)(8): the value of consideration received by the Debtor was reasonably
equivalent to the asset transferred
753 As discussed above, because the $40,000.00 transfer from Kiwi to Holford was a
shareholder distribution rather than a loan repayment, Kiwi transferred an asset but received
nothing in return. The absence of reasonably equivalent value for the transfer satisfies badge (b)(8)
i. Badge (b)(9): the Debtor was insolvent or became insolvent shortly after the
transfer was made
454 For the reasons provided under analysis of badge (b)(5), badge (b)(9), considering Kiwi’s
insolvency, is also satisfied. Holford argues Kiwi was not insolvent because he expected Kiwi to
be Big Bear’s creditor when writing the check in 2014 and he had an assignment of Secunda’s
claims in 2015. This argument fails for several reasons. First, Holford’s argument suggests he
counted his pending arbitration claims against Big Bear as “assets” for purposes of calculating
insolvency. While § 171’s definition of a “claim’** encompasses disputed and unliquidated rights
to payment, this differs from the statute’s definition of an “asset,” defined as “property of a
debtor.”*4 Thus, Kiwi’s counterclaims against Big Bear did not amount to assets for which it could
offset its potential liabilities
89 Def.’s Pet. Ex.A
31d
2 Id
85 28 VLC. § 17103)
8428 VLC. § 171(2)
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 15 of 22
455 Further underscoring the impropricty of counting pending claims as “assets,” in 2016 this
Court previously held that “Kiwt Construction is not a valid assignee of Secunda and, therefore,
Kiwi Construction lacks standing to bring a claim to recover damages he may be owed as third
party beneficiary.”
456 Moreover, using the previously described method for calculating insolvency demonstrates
that subtracting the $126,397.37 Judgment against Kiwi from either Kiwi’s net income reported in
its 2015*° Profit and Loss Report or its 2015 Tax Return would still yield a negative balance for
the company.*” As such, Kiwi was insolvent before and immediately after the transfer was made
Because Kiwi’s debts exceeded its asscts at fair valuation, the $40,000.00 transfer satisfies badge
(b)(9)
j. Badge (b)(10): the transfer occurred shortly before or after a substantial debt
was incurred
457 As noted in the Court’s discussion of badge (b)(4), badge (b)(10) is also satisfied because
the transfer occurred following the Arbitrator’s decision in favor of Big Bear
k. Badge (b)({11): the Debtor transferred essential assets to a lienor who
transferred the assets to an insider of the debtor
q58 Badge (b)(11) is not satisfied for the reasons provided under analysis of previous transfers
i. An Additional Finding of Fraud: the $40,000.00 check is out of sequence with
others written in 2014
459 The Court also finds the report of Forensic Accountant Catherine J. Connolly, to be
informative.** On page nine of her report, Connolly notes that the check number for the $40,000.00
transfer, 1422, is out of sequence with other checks written at the end of 2014.* A review of the
parties’ filings demonstrates that checks issued in 2014 are numbered through the 1200s while
checks with numbers from 1300 through 1400s appear in 2015. The Court finds these
circumstances combined with the check being deposited in 2015 suggest that Holford either held
on to the check until after the Arbitrator’s decision, or the check’s disbursement was initiated in
2015 and backdated to 2014. Both options are indicia of fraudulent intent
85 Order (October 30, 2016)
8° See the Court’s discussion below explaining that the check was deposited and likely issued in 2015, requiring the
Court to consider the transfer in relation to Kiwi's financial position in 2015 rather than 2014
*’ The Court notes that Kiwi’s Schedule L, which would have provided information on the company’s total assets in
2015, is left blank on Kiwi’s 2015 Tax Return; Pls.’ Suppl. Opp’n Ex. A-3 at IL; Ex. A-6 at |
§§ Reportof Catherine J. Connolly (July 18, 2025)
8 Id, at 4, 9-11; see also Def.’s Pet. Ex. A (indicating with an asterisk where there is a skip in check numbers)
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 16 of 22
460 Consequently, the Court finds that Big Bear has sufficiently proven the existence of nine
separate badges of fraud, namely factors (b)(1), (3), (4), (5), (7), (8), (9), and (10), including the
timing surrounding the check’s issue and deposit dates. Holford has not provided an adequate
explanation for why Kiwi’s account yielded a negative balance immediately following the transfer
He also has not explained why the $40,000.00 check was out of sequence with others written in
2014, nor why he waited nine months after the check was issued to deposit it. Accordingly, the
Court concludes that these nine badges, in combination, establish the presumption that the
$40,000.00 October 2015 transfer was fraudulent and that Holford and Kiwi failed to clearly rebut
the inference
2. Additional 2014 shareholder distributions
461 The parties’ arguments concerning the remainder of Kiwi’s 2014 shareholder distributions
are substantively identical to those previously advanced for the 2013 transfers. Kiwi’s 2014 Profit
and Loss Report” reflects that Holford received $62,726 in shareholder distributions for the year
while Kiwi’s tax forms reflect that Holford received $74,708.00.°' Both figures include the
$40,000.00 December 2014 check referenced above
962 Having addressed Big Bear’s initial claim regarding the $40,000.00 transfer, the following
discussion addresses the balance of Kiwi’s 2014 sharcholder distributions. Subtracting Holford’s
previously addressed $40,000.00 shareholder distribution from the $74,708.00 reported on his tax
forms demonstrates Holford received an additional $34,708.00 in shareholder distributions in
2014. The Court now turns to addressing Kiwi’s remaining shareholder distributions under the
badges of fraud analysis
a. Badges (b)(1), (4), (7), and (8) are satisfied
463 Collectively, the sharcholder distributions in 2014 satisfy badges (b)(1), (4), (7), (8), (9)
and (10) as the transfers: (1) were to an insider, (4) were made after suit, (7) removed assets, and
(8) were not made for reasonably equivalent value
b. Badge (b)(9) is satisfied
964 Regarding badge (b)(9), Kiwi’s 2014 Profit and Loss Report shows a net income of
$68,545.12 before taxes.* Kiwi’s 2014 Tax Return shows a net income of $74,708.00 before
taxes.”> On its Schedule L, Kiwi reported that its assets for 2014 totaled $183,103.00 and its
liabilities for 2014 totaled $183,103.00" Thus, badge (b)(9), regarding insolvency, is satisfied
* Pls.” Supp!, Opp’n Ex. A-2 at 2
*! Pls.” Supp!. Opp’n Ex. A-5 at 4
® Pls.’ Suppl. Opp’n Ex. A-2 at 11
% Pls.° Supp!. Opp'n Ex. A-5 at 5
* Pls.° Suppl. Opp’n Ex. A-5 at 4
Kiwi Construction, LLC vy. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 17 of 22
because subtracting the $126,397.37 Judgment from cither Kiwi’s net income or assets
demonstrates the company was insolvent when the transfers were made
c. Badge (b)(10) is satisfied
465 Badge (b)(10) is satisfied as the remaining transfers occurring between the dates of January
13, 2014, and November 26, 2014, happened shortly after Kiwi’s $126,397.37 debt arose by virtue
of Big Bear’s January 2013 Arbitration Demand
d. Badge (b)(2) is Not Satisfied
466 Kiwi did not retain control over the transfers, failing to satisfy badge (b)(2)
e. Badge (b)(3): the transfer was disclosed
467 The transfer was described and disclosed by Kiwi’s Profit and Loss Detail under badge
(b)(3)
f. Badges (b)(5), (6), and (11) are not satisfied
468 The transfers did not consist of substantially all of Kiwi’s assets, nor did Kiwi or Holford
abscond, failing to satisfy badges (b)(5) and (b)(6), respectively. Badge (b)(11) is not satisfied as
Kiwi did not transfer essential assets of the business to an insider lienor
469 The Court finds six badges of fraud present as to the remainder of Kiwi’s 2014 shareholder
distributions, namely factors (b)(1), (4), (7), (8), (9), and (10). Holford does not address these
transfers in his Opposition or Supplemental Opposition. Accordingly, the Court concludes that
these six badges, in combination, establish that the transfers totaling $34,708.00 were fraudulent
C. Payments to Holford in 2015
470 The parties’ arguments concerning Kiwi’s 2015 shareholder distributions are substantively
identical to those previously advanced for the 2013 and 2014 transfers. Kiwi’s 2015 Profit and
Loss Report and its Tax Return reflect that Holford received approximately $27,929.00 in
shareholder distributions for the tax year.”° The company’s Tax Return also reflect that it operated
at a net loss for the year.”® Kiwi’s Schedule L, which would have provided information on the
company’s total assets in 2015, is left blank on Kiwi’s 2015 Tax Return
% Pls.’ Suppl. Opp’n Ex. A-3 at 2; Pls.” Suppl. Opp’n Ex. A-6 at |
© Pls.’ Suppl. Opp'n Ex. A-6 at |
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 18 of 22
a. Badges (b)(1), (4), (7), (8), (9), and (10) are satisfied
471+ ~=For the reasons articulated in the analysis of Kiwi’s 2014 shareholder distributions, the
Court finds seven badges of fraud present as to Kiwi’s 2015 shareholder distributions, namely
factors (b)(1), (4), (7), (8), (9), and (10)
b. An Additional Finding of Fraud: the transfers are unrelated to legitimate business
expenses
472 Evidence that the transactions appear primarily devoted to Holford’s personal expenses, or
use unrelated to legitimate business purposes, strongly supports an additional finding of fraudulent
intent to drain the company’s assets.°”
c. Badge (b)(2) is not satisfied
473 Kiwi did not retain control over the transfers, failing to satisfy badge (b)(2)
d. Badge (b)(3): the transfer was disclosed
474 The transfers were described and disclosed by Kiwi’s Profit and Loss Detail under badge
(b)(3)
e. Badges (b)(5), (6), and (11) are not satisfied
475 The transfers did not consist of substantially all of Kiwi’s asscts, nor did Kiwi or Holford
abscond, failing to satisfy badges (b)(5) and (b)(6). Badge (b)(11) is not satisfied as Kiwi did not
transfer essential assets of the business to an insider licnor
476 Holford does not address these transfers in his Opposition or Supplemental Opposition
Accordingly, the Court concludes that these seven badges, in combination, establish that the
transfers were fraudulent which Kiwi and Holford failed to clearly rebut
D. Additional expenses from 2013-2015 personally attributed to Holford
1. Boating, Fuel, Meals, and Entertainment Costs
q77 The Court declines to conduct an exhaustive, granular inquiry into every additional
transaction of Kiwi’s between 2013 and 2015 that Big Bear asserts are fraudulent transfers. Big
Bear argues generally that lack of receipts or supporting documentation for these transactions
suggests they were for the benefit of Holford rather than Kiwi. These general assertions fail to
meet the burden of proof required to establish fraudulent intent under the badges of fraud
9? See Pls.’ Suppl. Opp’n Ex. A-3at 1
Kiwi Construction, LLC v. Peno et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 19 of 22
enumerated in 28 V.I.C. § 174. For most of the transactions, a lack of documentation constitutes
at best, inefficient record-keeping rather than intentional fraud. Instead, the Court will scrutinize
the specific transactions and few instances that demonstrate the classic “badges” and hallmarks of
suspicious activity
478 Accordingly, the Court finds that Big Bear's claims in Sections E(1) and E(2) of its
Supplemental Response, concerning boating, fuel, meal, and entertainment costs do not adequately
demonstrate indicia of fraud. For example, in section (E)(1) of its Supplemental Response, Big
Bear states “Since Mr. Holford has already testified that he has a boat and a boat trailer, marina
fucl and expenses would be for Mr. Holford’s boat, and not expense for Kiwi Construction.”
Regarding Kiwi’s meal and entertainment costs, “Big Bear asserts they arc simply Mr. Holford
feeding or drinking for himself” because “there are no receipts or records indicating any corporate
entertainment of clients or business meetings which would constitute an actual business
expense.” Stated plainly, the record is devoid of evidence to conclusively distinguish these
transactions from legitimate business expenditures and it remains plausible that they are costs
attributable to Kiwi
2. Travel expenses
479 Kiwi's 2014 Profit and Loss Report reflects that on October 24, 2014, Kiwi issued a
$8,913.50 check for what the memo reads as “NZ tickets.”!°® Big Bear alleges that this travel
expense was a personal expense for Holford incorrectly categorized as a business expense on his
internal report. As evidence, Big Bear cites to answers given by Holford at his November 10, 2016,
deposition.'®! There, Holford states that he vacationed in New Zealand at the end of 2014.!
a. Badges (b)(1), (3), (4), (7), (8), (9), and (10) are satisfied
q80 = Any infcrence that Holford’s trip to New Zealand could have had a legitimate business
purpose is rebutted by Holford’s own admission at his deposition. Rather than a business “travel
expense,” the transfer is tantamount to another shareholder distribution for the year. Thus, the
$8,913.50 October 2014 check satisfies badges (b)(1), (3), (4), (7), (8), (9), and (10) as the transfer
(1) was to an insider, (3) was concealed by its inaccurate description, (4) was made after suit, (7)
removed assets, (8) was not made for reasonably equivalent value, and (9) was made at a time
when Kiwi was balance sheet insolvent, per the Court’s earlier discussion of the company’s
financial position in 2014. Badge (b)(10) is satisfied as the transfer occurred after Kiwi’s
$126,397.37 “debt” was incurred from Big Bear’s January 2013 Arbitration Demand
8 Def.’s. Resp. to Suppl. Opp’n at 7
°° Def.'s. Resp. to Suppl. Opp’n at 8
'® Pis.* Suppl. Opp'n Ex. A-2 at 2
0! Def.'s. Resp. to Suppl. Opp’n at 9
'©2 Pls.’ Suppl. Opp'n Ex. B at 11-12
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 20 of 22
b. Badges (b)(2), (5), (6), and (11) are not satisfied
481 Kiwi did not retain control over the transfers, failing to satisfy badge (b)(2). The transfers
did not consist of substantially all of Kiwi's assets, nor did Kiwi or Holford abscond, failing to
satisfy badges (b)(5) and (b)(6), respectively. Badge (b)(1 1) is not satisfied as Kiwi did not transfer
essential assets of the business to an insider lienor
482 The Court finds seven badges of fraud present as to the $8,913.50 October 2014 transfer,
namely factors (b)(1), (3), (4), (7), (8), (9), and (10). Holford does not address these transfers in
his Opposition or Supplemental Opposition. Accordingly, the Court concludes that these seven
badges, in combination, show that the transfer was fraudulent
3. Expenses for Holford’s home totaling $25,804.27
q83 = Kiwi’s 2015 Profit and Loss Report reflects that on multiple dates throughout 2015, Kiwi
issued varying amounts of funds to merchants, business entities, and repair shops for work
secmingly done on his personal residence. As evidence, Big Bear cites to the descriptions of the
transferred funds in Kiwi’s Profit and Loss Report, including expenses unusual for the company
such as “security,” at 1C Fish Bay, Holford’s personal residence.'” Big Bear also points to answers
given by Holford at his November 10, 2016, deposition where Holford states he did not pay Kiwi
laborers doing work on his home through his personal account.'™
484 The Court finds the transfers listed under the categories of security, building supplies,
casual labor, and contract labor and directed to Holford’s personal address at 1C Fish Bay are
tantamount to shareholder distributions for the year. The expenses in these categories total
$25,804.27. Any inference to the contrary that Holford paid for the personal improvements at his
home through his own accounts and not Kiwi’s is rebutted by Holford’s own admissions in his
deposition. Holford offers no explanation in his Opposition or Supplemental Opposition for why
Kiwi incurred expenses for 1C Fish Bay, or how work at the property could relate to a legitimate
business purpose for Kiwi. Further, there is no evidence that Holford made any effort to reimburse
Kiwi or have appropriate charges made to his personal account
a. Badges (b)(1), (3), (4), (7), (8), (9), and (10) are satisfied
485 Accordingly, the transfers totaling $25,804.27 satisfy badges (b)(1), (3), (4), (7), (8), (9)
and (10) because they: (1) were to an insider, (3) were concealed by their inaccurate description
on Kiwi’s Profit and Loss Report, (4) were made after suit, (7) removed assets, (8) were not made
for reasonably equivalent value, and (9) were made at a time when Kiwi was balance sheet
13 Def.’s. Resp. to Suppl. Opp’n at 9-11
104 Def.’s. Resp. to Suppl. Opp’n at 10; Pls." Suppl. Opp’n Ex. B at 5-8
Kiwi Construction, LLC v. Pono et al 2026 V1 Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 21 of 22
insolvent. Badge (b)(10) is satisfied as the transfer occurred after Kiwi’s $126,397.37 “debt” was
incurred by virtue of Big Bear’s January 2013 Arbitration Demand
b. Badges (b)(2), (5), (6), and (11) are not satisfied
486 Kiwi did not retain control over the transfers, failing to satisfy badge (b)(2). The transfers
did not consist of substantially all of Kiwi’s assets, nor did Kiwi or Holford abscond, failing to
satisfy badges (b)(5) and (b)(6). Badge (b)(11) is not satisfied as Kiwi did not transfer essential
assets of the business to an insider lienor
487 The Court finds seven badges of fraud present as to the 2015 transfers totaling $25,804.27
namely factors (b)(1), (3), (4), (7), (8), (9), and (10). Holford does not address these transfers in
his Opposition or Supplemental Opposition. Accordingly, the Court concludes that these seven
badges, in combination, establish that the transfer was fraudulent
Vv CONCLUSION
488 The Court finds Big Bear provided evidence that Kiwi made numerous fraudulent transfers
before and after the arbitration proceedings began. The burden then shifted to Kiwi to provide
evidence upholding the legitimacy of the transfers, which it failed to do. The Court thus finds that
Kiwi and Holford made the transfers with actual! intent to hinder, delay, or defraud Big Bear
489 The VIUFTA provides that a creditor may obtain as a relief for a fraudulent transfer by
avoidance of that transfer to the extent necessary to satisfy the creditor's claim.'°° When a creditor
seeks avoidance under this subsection the creditor may recover a judgment from the transferee for
the value of the asset transferred or the amount necessary to satisfy the creditor's claim, whichever
is less!
‘Transfer
ate Amount
Wire transfer from Kiwi to Steen | 6/8/2013 $ 45,000.00
Enterprises
Check number 1102 paid to Holford 12/13/2013 $ 60,000.00
Check written in 2015 and backdated to | 10/5/2015 $ 40,000.00
2014
Additional 2014 shareholder distributions. | Various dates throughout 2014. | $ 34,708.00
Shareholder distributions for 2015 Various dates throughout 2015. | $ 27,929.00
Expenses for Holford’s home Various dates throughout 2015. | $ 25,804.27
Holford’s ticket expense for a personal | 10/24/2014 $ 8,913.00
vacation in New Zealand
Toth| $242,354.77
105 28 VLC. § 177(a\(1)
106 28 VLC. § 178(b)(1)
Kiwi Construction, LLC v. Pono et al 2026 VI Super 16U
Case No. ST-2013-CV-00011
Big Bear Construction, Inc. et al. v. Holford
Case No. ST-2013-CV-00670
Memorandum Opinion
Page 22 of 22
490 Here, it is evident that the remainder of the Judgment to be satisfied, $98,388.80, is less
than the value of the various fraudulent transfers. Therefore, pursuant to § 178(b)(1), the Court
will enter judgment against Philip Holford and in favor of Big Bear Construction, Inc. in the
amount of $98,388.80
491 Judgment consistent with this Memorandum Opinion follows
DATED: April 27, 2026 Qe M . proud
DENISE M. FRANCOIS
Judge of the Superior Court of the Virgin Islands
ATTEST.
TAMARA CHARLES
Clerk of the Court
ATOYA ACHO
Court Clerk Supervisor” ) / 7 202%