7    Applicable caselaw augments this comment by suggesting that a court consider “(1) the number  of debts; (2) the amount of delinquency; (3) the materiality of non-payment; and (4) the nature of  the debtor’s conduct of its financial affairs.”  30    Thus, establishing insolvency based on a debtor’s non-payment of debts requires  evidence as of the time of the alleged fraudulent transfers regarding the number of debts, the  specific debts not being paid, and the amount of the delinquency.  31  V.  ANALYSIS     The Trustee asserts that summary judgment is appropriate because there is no genuine  dispute as to any material fact that the Debtor was generally not paying his debts as they became  due during the Relevant Period. The Trustee asserts two categories of evidence in support of the  motion: (1) the amount of debt incurred pre-2011 and that remained unpaid as of the 2014  petition date; and (2) the Debtor’s deposition testimony.    It is indeed undisputed that as of the petition date in May of 2014, the Debtor owed at  least $328,714.68 in debt that was incurred before 2011. However, there is no evidence as to the  delinquent amount of any specific debt during the Relevant Period. Thus, while this evidence  provides the Court with the number of debts, it does not inform the Court as to the amount,  proportion, and materiality of unpaid bills as of the Relevant Period.    Further, the Debtor’s deposition testimony fails to fill these evidentiary gaps necessary to  establish his insolvency. The Debtor testified that he had a “very tough time” prior to the  formation of ABC Club in December 2010; however, it is undisputed that from January through   30ASARCO LLC v. Americas Mining Corp., 396 B.R. 278 (S.D. Tex. 2008). 31SeeXeta Corp. v. Canton Indus. Corp., 132 F.3d 44 (10th Cir. 1997) (unpublished) (insolvency established when debtor’s answer to interrogatories admitted it “had debts owing in excess of $1 million and that every debt listed was ‘past due and in arrears.’”);Janvey v. Dillon Gage, Inc. of Dallas,856 F.3d 377, 387 (5th Cir. 2017) (recognizing that presumption of insolvency required evidence as to specific, unpaid bills during the relevant period).      Case 16-02089 Doc 75 Filed 01/17/18 Entered 01/17/18 08:45:24 Desc Main  Document Page 7 of 9

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