Asset Protection Planning with Trusts                                        by                                 Natalie M....
a.     prior to creating the APT, the settlor must sign a            solvency affidavit;     b.     at least some of the t...
d.    at the time of transfer, the settlor is in default by 30 or                 more days of making a payment due under ...
c.    Delaware law must govern the trust’s validity,           construction, and administration.     Additionally, the Del...
c.    The settlor may vest the distribution discretion in an           advisor (or a group of advisors) who will direct th...
omission or the act or omission of someone for whom                  the settlor is vicariously liable.                  A...
settlor is one of a class of beneficiaries and retained a                 right to receive a specific portion of the incom...
other management powers; and           f. the ability to have trust property used to obtain a              loan secured by...
3.    The APT may only be funded with Oklahoma assets, which           include a security issued by an Oklahoma-based comp...
e.      At the time of the transfer, or any time thereafter, the                    person receives public assistance and ...
person domiciled in Missouri on the date the trust                              become irrevocable if, on the last day of ...
Creating an offshore trust creates significant obstacles for a creditor tryingto recover assets. The following roadblocks ...
b.    The following provisions are optional but may also be included in      the trust agreement:              i. Letter o...
possible to relocate the assets at a later time. If the                           structure initially involves retaining t...
she files a court action against the settlor within the later of 4 years        after the transfer of assets to the trust ...
b. In Delaware, a creditor must prove his claim by clear and               convincing evidence.    7.      Nonrecognition ...
3     RSMo § 456.5-505.4     Nev. Rev. Stat. §§ 166.010–166.170.5     Okla. Stat. tit. 31, §§ 10–18.6     R.I. Gen. Laws §...
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Asset Protection Trusts Final

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Presentation at IICLE\'s Asset Protection Seminar October 8, 2010

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Asset Protection Trusts Final

  1. 1. Asset Protection Planning with Trusts by Natalie M. Perry Asset Protection Trusts are used to protect assets in today’s increasinglylitigious environment. Types of Asset Protection Trust (“APT”)1. Onshore Trust2. Offshore TrustSelf Settled Trusts When a settlor creates a spendthrift trust for third party beneficiaries, thesettlor can generally protect the trust assets from the creditors of the trustbeneficiaries. However, the settlor cannot obtain the protection from creditors forhimself, even if the trust has a spendthrift clause.Domestic Asset Protection Trusts Domestic APT Jurisdictions A. A domestic APT is a self-settled trust created under state law in which the settlor retains limited rights but which cannot be reached by the creditors of the settlor. The number of states that have enacted APT statutes has grown significant since 1997 when the Alaska statute was enacted. B. In 2010, the following U.S. jurisdictions have APT statutes: Alaska1 Delaware2 Missouri3 Nevada4 Oklahoma5 Rhode Island6 South Dakota7 Tennessee8 Utah9 Wyoming10 C. Alaska. The Alaska Trust Act took effect on April 2, 1997 (the “Alaska Act”). 1. Requirements. To create a valid trust under the Alaska Act, the following conditions must be met:
  2. 2. a. prior to creating the APT, the settlor must sign a solvency affidavit; b. at least some of the trust assets must be deposited in Alaska; c. at least part of the trust administration must take place in Alaska; d. the settlor must use an Alaska resident or an Alaska- headquartered bank or trust company as trustee or co-trustee; and e. the duties of the trustee shall include (on an exclusive or non-exclusive basis): (i) maintaining books and records of the trust in Alaska and (ii) preparing or arranging for preparation of the trust tax return.2. Trust Agreement. The written trust agreement creating the Alaska trust must be: (i) irrevocable, (ii) must expressly state Alaska law governs validity, construction and administration of trust, (iii) must contain a spendthrift clause, and (iv) must appoint an Alaska trustee.3. Exceptions. A creditor is able to access the trust’s assets in order to satisfy his creditor’s claim if: a. the creditor can prove the transfer was made with an intent to defraud that creditor (claim must be filed within appropriate limitations period as discussed below); b. the settlor may revoke or terminate all or part of the trust without the consent of a person who has a significant adverse beneficial interest in the trust (other than (i) a power to veto trust distributions; (ii) a testamentary non-general power of appointment; or (iii) a right to receive a distribution from the trust in the discretion of a person, including the trustee, other than the settlor); c. the trust mandates the distribution of all or part of the trust’s income or principal, or both, to the settlor; or 2
  3. 3. d. at the time of transfer, the settlor is in default by 30 or more days of making a payment due under a child support judgment or order. The Alaska Act does not contain an exception for claims by existing or former spouses or for tort claims that existed when an APT was created. 4. Creditor Claims. A creditor must provide the transfer to the APT was fraudulent by a preponderance of the evidence. The limitations period depends on whether the creditor’s claim existed at the time of the transfer to the APT. a. Existing Creditor. A creditor whose claim existed prior to the creation of the APT can attach trust assets only if he or she files a court action against the settlor within the later of 4 years after the transfer of assets to the trust or one year after the transfer was or could have been reasonable discovered by the creditor. b. Future Creditor. For a creditor whose claim arose after the creation of the APT, the claim will be extinguished unless the creditor brings an action within 4 years after the transfer is made.D. Delaware Delaware was the second state to enact legislation allowing domestic APTs. The Delaware Qualified Dispositions in Trust Act (the “QDTA”) became effective on July 1, 1997. 1. Requirements. In order to create a Delaware APT, the following provisions must be included in the trust agreement: a. the trust must be an irrevocable trust that contains a spendthrift clause; b. the trust must appoint a “qualified trustee” which means at least one Delaware trustee (other than the settlor) which can be an individual residing in Delaware or a corporation that is authorized to conduct trust business in Delaware and is regulated by the Delaware Bank Commissioner or a federal agency; and 3
  4. 4. c. Delaware law must govern the trust’s validity, construction, and administration. Additionally, the Delaware trustee must maintain or arrange for custody in Delaware of some of the trust property, maintain records for the trust, prepare or arrange for the preparation of fiduciary income tax returns, or otherwise “materially participate” in the administration of the trust.2. Powers of Settlor. The QDTA permits the settlor to retain the power to: a. veto distributions from the trust; b. consent to or direct investment changes; and c. replace trustees or advisers with persons who are not related or subordinate to the trustor within the meaning of I.R.C. §672.3. Interests of Settlor. The QDTA expressly authorized the settlor to have: a. the ability to receive income or principal pursuant to broad discretion or a standard as determined by Delaware trustees, non Delaware trustees and/or advisers; b. the right to receive current income distributions; c. retain a non-general power of appointment.3. Other Advisors. The QDTA allows the settlor to appoint additional fiduciaries to critical roles that are vested in individuals or entities other than the Delaware-based trustee. a. The settlor may act as advisor to the APT with exclusive investment authority, or may name another individual to act as such investment advisor. b. The settlor may retain the right to remove a trustee or advisor and to appoint a new trustee or advisor, provided that the appointees are not related or subordinate to the settlor within the meaning of Code Section 672(c). 4
  5. 5. c. The settlor may vest the distribution discretion in an advisor (or a group of advisors) who will direct the trustee regarding distributions.4. Planning pointer. Under the QDTA, the settlor should not have any powers other than the interests and powers described above. Note that adding a non-Delaware co- trustee or advisor may increase the APT’s vulnerability to process in jurisdictions where the courts might not apply Delaware law. This could result in the APT’s invalidation.5. Creditor Claims. a. Existing. For creditors existing at the time of the transfer to the APT, the period runs until the later of four years from the time of the transfer or one year from the time the creditor could reasonably have discovered the existence of the APT. The creditor must prove by clear and convincing evidence that the settlor’s transfer was fraudulent within the meaning of the QDTA. b. Future. Generally, a creditor holding a future claim has a four-year period during which it can assert its claim of a fraudulent transfer. The creditor must prove that the trust was created with actual intent to defraud (not hinder or delay) that creditor.6. Exceptions. The QDTA also created two classes of creditors whose claims will not be extinguished at the expiration of the limitations period and who do not have to prove that the settlor’s transfer was fraudulent. a. A spouse or child with a claim for unpaid alimony, child support or a share of marital property can satisfy his or her claim out of trust assets irrespective of the time or the circumstances under which the transfer to the trust occurred. However, only a person married to the settlor on or before the transfer to the trust qualifies as a “spouse.” b. A person with a claim for death, personal injury or property damage that occurs on or before the date of the transfer to the APT may satisfy his claim out of trust assets if the claim arose out of the settlor’s act or 5
  6. 6. omission or the act or omission of someone for whom the settlor is vicariously liable. Also note that a person with a claim for death, personal injury or property damage that predates a transfer to a Delaware APT may satisfy his claim out of trust assets if the claim arose out of the settlor’s act or omission or the act or omission of someone for whom the settlor is vicariously liable.E. Missouri. 1. In 1986, Missouri amended its spendthrift statute to become the first state to permit settlors of trusts to obtain spendthrift protection if the transfer to the trust was not fraudulent. The statute currently provides that the settlor’s creditors may satisfy claims from the trust assets to the extent of the settlor’s beneficial interest, if at the time the trust was established or amended: a. the settlor was the sole beneficiary of the trust; b. the settlor retained the power to revoke or amend the trust; or c. the settlor was one of a class of beneficiaries and retained a right to receive a specific portion of the trust’s income or principal. 2. However, decisions by federal courts in Missouri called the effectiveness of the statute into question.11 3. On July 9, 2004, the Missouri legislature reaffirmed its recognition of APT’s by clarifying that with respect to an irrevocable trust with a spendthrift provision, the spendthrift provision will prevent a settlors creditors from satisfying claims from the trust assets. Two exceptions, similar to the prior law, were provided: a. Spendthrift protection is not provided if the transfer of assets to the trust is fraudulent. b. Spendthrift protection is not provided if the settlor is the sole beneficiary of the income or principal of the trust, retained the power to amend the trust or if the 6
  7. 7. settlor is one of a class of beneficiaries and retained a right to receive a specific portion of the income or principal of the trust. 4. Thus, under Missouri law, if there is more than one beneficiary of the trust, the settlor is a discretionary beneficiary of the income or principal, and the trust contains a spendthrift provision, spendthrift protection will be given to the settlor of a trust. 5. The Missouri law is less restrictive than the laws of other APT jurisdictions because, for example, a Missouri trustee is not required.F. Nevada. 1. On October 1, 1999, the Nevada legislature enacted the Spendthrift Trust Act of Nevada (the “Nevada Act”). The trust agreement that creates the Nevada spendthrift trust must satisfy the following conditions: a. the trust must be irrevocable; b. all or part of the corpus of the trust must be located in Nevada; c. the settlor must be domiciled in Nevada; and d. an individual resident of Nevada or a trust company or bank that maintains an office in Nevada must be appointed as trustee. 2 Retained powers. When creating a Nevada APT, the settlor may retain the following powers: a. the power to veto trust distributions: b. a testamentary limited power of appointment; c. the ability to receive a distribution from the trust in the discretion of an individual other than the settlor; d. the power to remove or replace a trustee; e. the power to direct the investments of the trust and 7
  8. 8. other management powers; and f. the ability to have trust property used to obtain a loan secured by a mortgage on such property; 3 Creditor Claims. A creditor may be able to reach the assets of a Nevada APT if he can prove that the transfer to the trust was fraudulent pursuant to Nevada law or was otherwise wrongful as to the creditor. e. Existing. An existing creditor must bring an action within two years after the trust’s creation or, if later, within six month after the creditor discovers (or reasonably should have discovered) the trust. f. Future. A creditor whose claim arose after the APT was created must bring an action within two years of the creation of the trust. The Nevada Act does not contain a specific exception for claims by spouses, minor children or for tort claims.G. Oklahoma.2. The Oklahoma legislature passed the Family Wealth Preservation Trust Act on June 9, 2004. Under this Act, it is possible for a revocable trust to receive creditor protection. To achieve creditor protection, the trust must be established under Oklahoma law. It must have an Oklahoma based bank or trust company as trustee or co-trustee. The trust must provide that the income from the trust assets is subject to income tax in Oklahoma. The only permissible beneficiaries of the trust are: a. The spouse of the settlor; b. Lineal ancestors and descendants of the grantor or the grantor’s spouse (including descendants adopted under 18); c. Issue of deceased natural children or grandchildren; and d. A charitable organization. 8
  9. 9. 3. The APT may only be funded with Oklahoma assets, which include a security issued by an Oklahoma-based company, a bond or other obligation issued by the State of Oklahoma or other municipalities, an account in an Oklahoma based bank, and real property located in the state of Oklahoma. If a portion of the trust assets are non-Oklahoma assets, the trustee must be given a reasonable period in which to replace the assets with Oklahoma assets. 4. An Oklahoma APT may be funded with up to $1 million. In addition, the Act will protect any incremental growth derived from income retained by the trustee above $1 million.H. Utah. The Utah APT law became effective on December 31, 2003. 1. Requirements. To create an APT under Utah law, the settlor must use as trustee (i) a Utah depository institution or its wholly owned subsidiary, or an out-of-state depository institution authorized to engage in business as a depository institution in Utah, (ii) a corporation, including a credit union service organization, owned entirely by one or more federally insured depository institutions, (iii) a direct or indirect subsidiary of a depository institution holding company that also has a direct or indirect subsidiary authorized to engage in business as a depository institution in Utah, or (iv) any other corporation continuously engaged in the trust business in Utah since before July 1, 1981. 2. Limitations. A creditor is able to reach the trust assets to the extent necessary to pay his or her claim under the following conditions: a. The transfer was to defraud a creditor. b. The trust is revocable without the consent of a person with a substantial adverse interest in the trust. c. At the time of the transfer, the settlor or beneficiaries were in default by 30 or more days in making a payment due under child support judgment or order. d. The transfer renders the settlor or beneficiary insolvent under the transfer. 9
  10. 10. e. At the time of the transfer, or any time thereafter, the person receives public assistance and recovery is allowed the medical benefits recovery act. f. The settlor is or becomes subject to a state claim or tax.Taxation of APT’sI. Federal Income Tax. 1. Generally, both domestic and offshore trusts will be structured as grantor trusts during the settlor’s lifetime. 2. Under Code Section 677, an APT should be treated as a grantor trust, if either the settlor or the settlor’s spouse is a discretionary beneficiary of income. Code Section 677(a) states that a settlor is treated as the owner for income tax purposes of any portion of a trust that can be distributed to the settlor or the settlor’s spouse, regardless of whether it is actually distributed. 3. If the grantor does not want to be taxed on the income earned by the APT, the trust can be structured so that income distributions require the consent of a beneficiary with an adverse interest in trust income, such as a remainder beneficiary.Domestic Trusts - State Income Tax. 1. If the APT is taxed as a grantor trust for federal income tax purposes, it will be taxed as a grantor for state income tax purposes. If the APT is not grantor for income tax purposes but is an independent tax paying entity, then the selection of a state in which to establish an APT may depend, in part, on how that state taxes trust income. The trust income tax rules for the following APT states are summarized below. a. Alaska. No income tax. b. Delaware. No income tax (assuming no Delaware beneficiaries). c. Missouri. Tax on the trust income if the trust was created, or consists of property contributed, by a 10
  11. 11. person domiciled in Missouri on the date the trust become irrevocable if, on the last day of the taxable year, at least one income beneficiary of the trust is a resident of Missouri. d. Nevada. No income tax. e. Rhode Island. No tax on income allocated to non- resident beneficiaries. Tax on income allocated to resident beneficiaries of a trust created by a resident but only (i) while the settlor continues as a resident or (ii) after death if the settlor was then a resident. f. Utah. Tax on income of (i) a trust, or portion of a trust, consisting of property transferred by will of a decedent who was domiciled in Utah at death, and (ii) a trust that is administered in Utah. A trust is administered in Utah if (I) the place where the fiduciary transacts a major portion of its administration of the rust is in Utah, or (II) the usual place of business of the fiduciary is in Utah. Estate and Gift Tax. Asset protection trusts are often structured so that transfers to the trust will be incomplete gifts for income tax purposes. In part this is because if the transfer to the APT were a taxable gift, the amount that could be sheltered in the APT would be limited to the $1 million exemption from gift tax. As long as the gift to the APT is incomplete, then the value of the APT will be includible in the settlor’s taxable estate upon his death.OFFSHORE TRUSTS An offshore trust is a trust of which at least one trustee is a individual orcorporation who resides outside of the United States, and which is construed,interpreted, administered and otherwise subject to the laws of a foreign country.The most significant benefit to creating an offshore trust is its inherent creditorprotection which arises largely from its location in foreign jurisdiction. Anothersignificant benefit to creating an offshore trust is the ability to create a spendthrifttrust while remaining a beneficiary. Offshore trusts are frequently structured as“self settled trusts” which allows the settlor to also be a beneficiary. 11
  12. 12. Creating an offshore trust creates significant obstacles for a creditor tryingto recover assets. The following roadblocks to recovery will deter a creditorseeking to recover from an offshore trust. a. By requiring a creditor to proceed in a foreign jurisdiction, the creditor will face geographical, financial, legal and procedural hurdles. b. The cost of pursuing a claim against a foreign trust can be high since most foreign jurisdictions prohibit contingent fee litigation and may require a large deposit to initiate a proceeding. c. Additionally, offshore jurisdictions generally don’t recognize foreign judgments which means a creditor claims will have to be litigated from the start in the foreign jurisdiction. Because it is jurisdictionally severed from the United States, an offshoretrust is less likely than a domestic trust to be targeted as a source for satisfying afuture judgment or claim. The difficulty in accessing the trust, both physically andlegally, will likely influence a future creditor’s decision as to whether to pursue anaction or settle in ways more favorable to the debtor. This planning is effectivebecause the foreign jurisdictions have laws that prevent recognition of judgmentsrendered by U.S. courts. Structure of Trust Agreement a. The provisions of an offshore trust generally include the following: i. The trust will be governed by the laws of the selected foreign jurisdiction. ii. The trust will be irrevocable. iii. The trust beneficiaries will include the settlor and the settlor’s family members. iv. A trustee doing business in the foreign jurisdiction will be named. v. The foreign trustee usually will have complete discretion over the distribution of income and principal. 12
  13. 13. b. The following provisions are optional but may also be included in the trust agreement: i. Letter of wishes. The settlor may provide the trustee with written instructions regarding investments of the trust assets and distributions to family members. Any such letter may provide guidance to the trustee but will not be binding. ii. Flight Clause. The trust may include a provision allowing the trustee or trust protector to relocate the trust to another jurisdiction if appropriate. iii. Anti Duress clause. An "anti-duress" provision obligates the foreign trustee to ignore directions from any person who is acting under court compulsion.Funding an Offshore APTThere are two options for moving assets into an offshore trust. 1. Removing the Assets from the U.S. The first option is to relocate the assets to the selected foreign jurisdiction while designating a foreign trustee who has no nexus to the U.S. The assets will be removed from domestic judicial systems. By taking these steps, a creditor seeking to satisfy a U.S. judgment will be forced hire local counsel and travel to the selected jurisdiction in an effort to enforce the claim. 2. Transfer Interests in a U.S. Entity to Offshore Trustee. The second alternative is to have the settlor implement a foreign trust in conjunction with a U.S. entity such as a family limited liability company or a family limited partnership. The entity will hold the designated assets. The settlor will then convey all or a portion of his interest in the entity to the foreign trustee. The disadvantage to this technique is that since the assets will remain in the U.S., they are theoretically susceptible to the jurisdiction of the U.S courts. However, the law of the offshore jurisdiction will be applicable and the offshore trustee will have the statutory authority of the designated jurisdiction. a. When a client chooses to import the law of the offshore jurisdiction instead of moving the assets, it may still be 13
  14. 14. possible to relocate the assets at a later time. If the structure initially involves retaining the assets in the U.S., but an issue arises, the assets can then be moved offshore and the entity can be liquidated. This method is risky since the assets could be frozen by a domestic court order before they can be moved and the creditor would likely assert that the relocation of the assets is a fraudulent transfer.Selecting a Foreign Jurisdiction When selecting a jurisdiction for an offshore APT, an individual shouldlook for a jurisdiction with an extensive statute on asset protection trusts. Thefollowing is a list of provisions that will be beneficial: 1. a short statute of limitations for creditors seeking to reach trust assets based on a fraudulent conveyance theory; 2. high burden of proof for claimants; 3. lengthy perpetuities period; 4. allows broad powers to be retained by trustee and trust protector; 5. local court retains jurisdiction over local trusts; 6. allows settlor to retain a beneficial interest in and degree of control over the APT without exposing the trusts to creditors; and 7. substantial barriers to the freezing of trust assets.Comparison of Domestic and Foreign APT 1. Statute of limitations. The statue of limitations is generally shorter with an offshore APT. a. The Bahamas, Nevis, and Cook Islands have two year statutes of limitations. Belize has no statute of limitation on fraudulent claims. Rosen and Rothschild, 810-2nd T.M., Asset Protection Planning. b. Compare to Alaska – A creditor whose claim existed prior to the creation of the APT may be able to reach trust assets only if he or 14
  15. 15. she files a court action against the settlor within the later of 4 years after the transfer of assets to the trust or one year after the transfer was or could have been reasonable discovered by the creditor.2. Risk for Settlor. Just as assets in a foreign APT may be difficult to reach by creditors, the assets could be difficult to reach for the settlor and the trust beneficiaries in the event of a political change or misconduct or insolvency of the offshore trustee.3. Tax treatment. A foreign APT is more likely than a domestic APT to be treated as a foreign trust for U.S. income tax purposes. Foreign trusts are subject to special U.S. reporting rules. There are substantial penalties for noncompliance with these reporting rules. This can create additional costs for the settlor in connection with the additional reporting.4. Cost. It is generally less expensive to create and administer a domestic APT.5. Access to local representation. a. Conflict of Interest. Attorneys in foreign jurisdictions often represent the banks or trust companies who act as the offshore trustee. This representation would preclude them from representing a creditor seeking to recover from an APT of which their client is the trustee. b. Contingent fee agreements. i. In U.S. jurisdictions, creditors are often able to enter into contingent fee arrangements. This type of fee agreement reduces the creditor’s risk if the creditor were to fail to prevail. ii. In foreign jurisdiction, such arrangements are often prohibited by statute as against public policy. Asset Protection Planning.6. Burden of Proof. The burden of proof is generally stronger in a foreign jurisdiction. a. Offshore – the burden of proof in many offshore jurisdictions, including the Cook Islands, is proof beyond a reasonable doubt. Asset Protection Planning 15
  16. 16. b. In Delaware, a creditor must prove his claim by clear and convincing evidence. 7. Nonrecognition of U.S. Judgments. With a domestic APT, substantial concern exists that the provisions of the U.S. Constitution, specifically the Full Faith and Credit Clause, the Contracts Clause and possibly the Supremacy Clause, would allow a creditor to recover from a domestic APT if a judgment is secured by the creditor in another domestic jurisdiction (other than where the domestic APT was settled). These constitutional issues do not arise in offshore jurisdictions. a. The U.S. Constitution provides that “[F]ull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”12 However, domestic APT courts may disregard judgments entered against APT trustees by courts of other states if the judgment did not satisfy the requirements of due process including failure to join a trustee to an action regarding a domestic APT or any defect in service on or jurisdiction over a trustee. 13 b. The Supremacy Clause of the U.S. Constitution provides for the supremacy of federal law over state law when there is a conflict between the two laws.14 This provision could cause assets in a domestic APT to become subject to federal bankruptcy provisions. c. The Contracts Clause prohibits the enactment of any state law which impairs the obligation of contracts and prohibits legislation which precludes the enforcement of judgments against property which remains for the beneficial use of the settlor. 15 Asset Protection Trusts are a great way to protect assets for the rightclient situation. However, there are many factors to consider when decidingwhether to use a domestic or offshore APT. It is important to gain an in depthunderstanding of the options prior to creating an APT.1 Alaska Stat. § 34.40.110.2 Del. Code Ann. tit. 12, §§ 3536(c), 3570–3576. 16
  17. 17. 3 RSMo § 456.5-505.4 Nev. Rev. Stat. §§ 166.010–166.170.5 Okla. Stat. tit. 31, §§ 10–18.6 R.I. Gen. Laws §§ 18-9.2-1–18-9.2-7.7 S.D. Codified Laws §§ 55-1-36, 55-16-1–55-16-17, 55-3-47.8 Tenn. Code Ann. §§ 35-16-101–35-16-112.9 Utah Code Ann. § 25-6-14.10 Wyo Stat. Ann. §§ 4-10-103, 4-10-506(b), 4-10-510–4-10-523.11 Markmueller v. Case (In re Markmueller), 51 F.3d 775, 776 n.3 (8th Cir. 1995); In re Enfield, 133 B.R. 515, 519 (Bankr. W.D. Mo. 1991).12 U.S. Const. Art. IV, 113 Hanson v. Denckla, 357 U.S. 235, 255–56 (1958). See also Nastro v. D’Onofrio, 822 A.2d 286, 292–94 (Conn. 2003).14 U.S. Const. Art. VI, 215 U.S. Const. Art. I, 10 17

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