§ 27-14.3-30 - Fraudulent transfers prior to petition.
SECTION 27-14.3-30
§ 27-14.3-30 Fraudulent transfers prior topetition. – (a) Every transfer made or suffered and every obligation incurred by an insurerwithin one year prior to the filing of a successful petition for rehabilitationor liquidation under this chapter is fraudulent as to then existing and futurecreditors if made or incurred without fair consideration, or with actual intentto hinder, delay, or defraud either existing or future creditors. A transfermade or an obligation incurred by an insurer ordered to be rehabilitated orliquidated under this chapter, which is fraudulent under this section, may beavoided by the receiver, except as to a person who in good faith is apurchaser, lienor, or obligee for a present fair equivalent value, and exceptthat any purchaser, lienor, or obligee, who in good faith has given aconsideration less than fair for the transfer, lien, or obligation, may retainthe property, lien, or obligation as security for repayment. The court may, ondue notice, order any transfer or obligation to be preserved for the benefit ofthe estate, and in that event, the receiver shall succeed to and may enforcethe rights of the purchaser, lienor, or obligee.
(b) A transfer of property other than real property shall bedeemed made or suffered when it becomes so far perfected that no subsequentlien obtainable by legal or equitable proceedings on a simple contract couldbecome superior to the rights of the transferee under § 27-14.3-32(c);
(2) A transfer of real property shall be deemed made orsuffered when it becomes so far perfected that no subsequent bona fidepurchaser from the insurer could obtain rights superior to the rights of thetransferee;
(3) A transfer that creates an equitable lien shall not bedeemed perfected if there are available means by which a legal lien could becreated;
(4) Any transfer not perfected prior to the filing of apetition for liquidation shall be deemed made immediately before the filing ofthe successful petition;
(5) The provisions of this subsection apply whether or notthere are or were creditors who might have obtained any liens or persons whomight have become bona fide purchasers.
(c) Any transaction of the insurer with a reinsurer shall bedeemed fraudulent and may be avoided by the receiver under subsection (a) ofthis section if:
(1) The transaction consists of the termination, adjustment,or settlement of a reinsurance contract in which the reinsurer is released fromany part of its duty to pay the originally specified share of losses that hadoccurred prior to the time of the transactions, unless the reinsurer gives apresent fair equivalent value for the release; and
(2) Any part of the transaction took place within one yearprior to the date of filing of the petition through which the receivership wascommenced.
(d) Every person receiving any property from the insurer orany benefit of this which is a fraudulent transfer under subsection (a) of thissection shall be personally liable for it and shall be bound to account to theliquidator.