Chapter 14 - Fraudulent Conveyances
CHAPTER 14 - FRAUDULENT CONVEYANCES
ARTICLE 1 - UNIFORM FRAUDULENT CONVEYANCE ACT
34-14-101. Repealed By Laws 2006, Chapter 55, 2.
34-14-102. Repealed By Laws 2006, Chapter 55, 2.
34-14-103. Repealed By Laws 2006, Chapter 55, 2.
34-14-104. Repealed By Laws 2006, Chapter 55, 2.
34-14-105. Repealed By Laws 2006, Chapter 55, 2.
34-14-106. Repealed By Laws 2006, Chapter 55, 2.
34-14-107. Repealed By Laws 2006, Chapter 55, 2.
34-14-108. Repealed By Laws 2006, Chapter 55, 2.
34-14-109. Repealed By Laws 2006, Chapter 55, 2.
34-14-110. Repealed By Laws 2006, Chapter 55, 2.
34-14-111. Repealed By Laws 2006, Chapter 55, 2.
34-14-112. Repealed By Laws 2006, Chapter 55, 2.
34-14-113. Repealed By Laws 2006, Chapter 55, 2.
ARTICLE 2 - UNIFORM FRAUDULENT TRANSFER ACT
34-14-201. Short title.
This act may be cited as the "UniformFraudulent Transfer Act."
34-14-202. Definitions.
(a) As used in this act:
(i) "Affiliate" means:
(A) A person who directly or indirectly owns, controls, orholds with power to vote, twenty percent (20%) or more of the outstandingvoting securities of the debtor, other than a person who holds the securities:
(I) As a fiduciary or agent without sole discretionary power tovote the securities; or
(II) Solely to secure a debt, if the person has not exercisedthe power to vote.
(B) A corporation twenty percent (20%) or more of whose outstandingvoting securities are directly or indirectly owned, controlled, or held withpower to vote, by the debtor or a person who directly or indirectly owns,controls, or holds with the power to vote, twenty percent (20%) or more of theoutstanding voting securities of the debtor, other than a person who holds thesecurities:
(I) As a fiduciary or agent without sole power to vote thesecurities; or
(II) Solely to secure a debt, if the person has not in factexercised the power to vote.
(C) A person whose business is operated by the debtor under alease or other agreement, or a person substantially all of whose assets arecontrolled by the debtor; or
(D) A person who operates the debtor's business under a leaseor other agreement or controls substantially all of the debtor's assets.
(ii) "Asset" means property of a debtor, but the termdoes not include:
(A) Property to the extent it is encumbered by a valid lien;
(B) Property to the extent it is generally exempt undernonbankruptcy law; or
(C) An interest in property held in tenancy by the entiretiesto the extent it is not subject to process by a creditor holding a claimagainst only one (1) tenant.
(iii) "Claim" means a right to payment, whether or notthe right is reduced to judgment, liquidated, unliquidated, fixed, contingent,matured, unmatured, disputed, undisputed, legal, equitable, secured orunsecured;
(iv) "Creditor" means a person who has a claim;
(v) "Debt" means liability on a claim;
(vi) "Debtor" means a person who is liable on a claim;
(vii) "Insider" includes:
(A) If the debtor is an individual:
(I) A relative of the debtor or of a general partner of thedebtor;
(II) A partnership in which the debtor is a general partner;
(III) A general partner in a partnership described in subdivision(A)(II) of this paragraph;
(IV) A corporation of which the debtor is a director, officer orperson in control;
(V) An incorporated business organization, other than apartnership, in which the debtor is a member, partner, manager or otherparticipant, when the debtor's participation includes the right to conduct thebusiness of the organization or the debtor controls the organization; or
(VI) An individual, as described in subdivision (A)(I) of thisparagraph, who participates in an unincorporated business organization, otherthan a partnership, and who has the right to conduct the business of theorganization or who controls the organization.
(B) If the debtor is a corporation:
(I) A director of the debtor;
(II) An officer of the debtor;
(III) A person in control of the debtor;
(IV) A partnership in which the debtor is a general partner;
(V) A general partner in a partnership described in subdivision(A)(IV) of this paragraph; or
(VI) A relative of a general partner, director, officer orperson in control of the debtor.
(C) If the debtor is a partnership:
(I) A general partner in the debtor;
(II) A relative of a general partner in or a general partner of,or a person in control of the debtor;
(III) Another partnership in which the debtor is a generalpartner;
(IV) A general partner in a partnership described in subdivision(C)(III) of this paragraph; or
(V) A person in control of the debtor.
(D) An affiliate, or an insider of an affiliate as if theaffiliate were the debtor;
(E) A managing agent of the debtor; and
(F) If the debtor is an unincorporated business organizationother than a partnership:
(I) A member, partner, manager or participant who has the rightto conduct business of the organization;
(II) A person who controls the organization; or
(III) A relative of a person described in subdivision (F)(I) and(F)(II).
(viii) "Lien" means a charge against or an interest inproperty to secure payment of a debt or performance of an obligation, andincludes a security interest created by agreement, a judicial lien obtained bylegal or equitable process or proceedings, a common-law lien or a statutorylien;
(ix) "Person" means an individual, partnership,corporation, association, organization, government or governmental subdivisionor agency, business trust, estate, trust, or any other legal or commercialentity;
(x) "Property" means anything that may be the subjectof ownership;
(xi) "Relative" means an individual related by consanguinitywithin the third degree as determined by the common law, a spouse, or anindividual related to a spouse within the third degree as so determined, andincludes an individual in an adoptive relationship within the third degree;
(xii) "Transfer" means every mode, direct or indirect,absolute or conditional, voluntary or involuntary, of disposing of or partingwith an asset or an interest in an asset, and includes payment of money,release, lease and creation of a lien or other encumbrance;
(xiii) "Valid lien" means a lien that is effectiveagainst the holder of a judicial lien subsequently obtained by legal orequitable process or proceedings.
34-14-203. Insolvency.
(a) A debtor is insolvent if the sum of the debtor's debt isgreater than all of the debtor's assets, at a fair valuation.
(b) A debtor who is generally not paying his debts as theybecome due is presumed to be insolvent.
(c) A partnership is insolvent under subsection (a) of thissection if the sum of the partnership's debts is greater than the aggregate ofall of the partnership's assets, at a fair valuation, and the sum of the excessof the value of each general partner's nonpartnership assets over the partner'snonpartnership debts.
(d) Assets under this section do not include property that hasbeen transferred, concealed, or removed with intent to hinder, delay or defraudcreditors or that has been transferred in a manner making the transfer voidableunder this act.
(e) Debts under this section do not include an obligation tothe extent it is secured by a valid lien on property of the debtor not includedas an asset.
34-14-204. Value.
(a) Value is given for a transfer or an obligation if, inexchange for the transfer or obligation, property is transferred or anantecedent debt is secured or satisfied, but value does not include anunperformed promise made otherwise than in the ordinary course of thepromisor's business to furnish support to the debtor or another person.
(b) For the purposes of W.S. 34-14-205(a)(ii) and 34-14-206, aperson gives a reasonably equivalent value if the person acquires an interestof the debtor in an asset pursuant to a regularly conducted, noncollusiveforeclosure sale or execution of a power of sale for the acquisition ordisposition of the interest of the debtor upon default under a mortgage, deedof trust or security agreement.
(c) A transfer is made for present value if the exchangebetween the debtor and the transferee is intended by them to be contemporaneousand is in fact substantially contemporaneous.
34-14-205. Transfers fraudulent as to present and future creditors.
(a) A transfer made or obligation incurred by a debtor isfraudulent as to a creditor, whether the creditor's claim arose before or afterthe transfer was made or the obligation was incurred, if the debtor made thetransfer or incurred the obligation:
(i) With actual intent to hinder, delay or defraud any creditorof the debtor; or
(ii) Without receiving a reasonably equivalent value in exchangefor the transfer or obligation, and the debtor:
(A) Was engaged or was about to engage in a business or atransaction for which the remaining assets of the debtor were unreasonablysmall in relation to the business or transaction; or
(B) Intended to incur, or believed or reasonably should havebelieved that he would incur, debts beyond his ability to pay as they becamedue.
(b) In determining actual intent under paragraph (a)(i) of thissection, consideration may be given, among other factors, to whether:
(i) The transfer or obligation was to an insider;
(ii) The debtor retained possession or control of the propertytransferred after the transfer;
(iii) The transfer or obligation was disclosed or concealed;
(iv) Before the transfer was made or obligation was incurred,the debtor had been sued or threatened with suit;
(v) The transfer was of substantially all the debtor's assets;
(vi) The debtor absconded;
(vii) The debtor removed or concealed assets;
(viii) The value of the consideration received by the debtor wasreasonably equivalent to the value of the asset transferred or the amount ofthe obligation incurred;
(ix) The debtor was insolvent or became insolvent shortly afterthe transfer was made or the obligation was incurred;
(x) The transfer occurred shortly before or shortly after asubstantial debt was incurred; and
(xi) The debtor transferred the essential assets of the businessto a lienor who transferred the assets to an insider of the debtor.
34-14-206. Transfers fraudulent as to present creditors.
(a) A transfer made or obligation incurred by a debtor isfraudulent as to a creditor whose claim arose before the transfer was made orthe obligation was incurred if the debtor made the transfer or incurred theobligation without receiving a reasonably equivalent value in exchange for thetransfer or obligation and the debtor was insolvent at that time or the debtorbecame insolvent as a result of the transfer or obligation.
(b) A transfer made by a debtor is fraudulent as to a creditorwhose claim arose before the transfer was made if the transfer was made to aninsider for an antecedent debt, the debtor was insolvent at that time, and theinsider had reasonable cause to believe that the debtor was insolvent.
34-14-207. When transfer is made or obligation is incurred.
(a) For purposes of this act:
(i) A transfer is made:
(A) With respect to an asset that is real property other than afixture, but including the interest of a seller or purchaser under a contractfor the sale of the asset, when the transfer is so far perfected that agood-faith purchaser of the asset from the debtor against whom applicable lawpermits the transfer to be perfected cannot acquire an interest in the assetthat is superior to the interest of the transferee; and
(B) With respect to an asset that is not real property or thatis a fixture, when the transfer is so far perfected that a creditor on a simplecontract cannot acquire a judicial lien otherwise than under this act that issuperior to the interest of the transferee.
(b) If applicable law permits the transfer to be perfected asprovided in subsection (a) of this section and the transfer is not so perfectedbefore the commencement of an action for relief under this act, the transfer isdeemed made immediately before the commencement of the action.
(c) If applicable law does not permit the transfer to beperfected as provided in subsection (a) of this section, the transfer is madewhen it becomes effective between the debtor and the transferee.
(d) A transfer is not made until the debtor has acquired rightsin the asset transferred.
(e) An obligation is incurred:
(i) If oral, when it becomes effective between the parties; or
(ii) If evidenced by a writing, when the writing executed by theobligor is delivered to or for the benefit of the obligee.
34-14-208. Remedies of creditors.
(a) In an action for relief against a transfer or obligationunder this act, a creditor, subject to the limitations in W.S. 34-14-209, mayobtain:
(i) Avoidance of the transfer or obligation to the extentnecessary to satisfy the creditor's claim;
(ii) An attachment or other provisional remedy against the assettransferred or other property of the transferee in accordance with theprocedure prescribed by law;
(iii) Subject to applicable principles of equity and inaccordance with applicable rules of civil procedure:
(A) An injunction against further disposition by the debtor ora transferee, or both, of the asset transferred or of other property;
(B) Appointment of a receiver to take charge of the assettransferred or of the other property of the transferee; or
(C) Any other relief the circumstances may require.
(b) If a creditor has obtained a judgment on a claim againstthe debtor, the creditor, if the court so orders, may levy execution on theasset transferred or its proceeds.
34-14-209. Defenses, liability and protection of transferee.
(a) A transfer or obligation is not voidable under W.S.34-14-205(a)(i) against a person who took in good faith and for a reasonablyequivalent value or against any subsequent transferee or obligee.
(b) Except as otherwise provided in this section, to the extenta transfer is voidable in an action by a creditor under W.S. 34-14-208(a)(i),the creditor may recover judgment for the value of the asset transferred, asadjusted under subsection (c) of this section, or the amount necessary tosatisfy the creditor's claim, whichever is less. The judgment may be enteredagainst:
(i) The first transferee of the asset or the person for whosebenefit the transfer was made; or
(ii) Any subsequent transferee other than a good-faithtransferee or obligee who took for value or from any subsequent transferee orobligee.
(c) If the judgment under subsection (b) of this section isbased upon the value of the asset transferred, the judgment must be for anamount equal to the value of the asset at the time of the transfer, subject toadjustment as the equities may require.
(d) Notwithstanding voidability of a transfer or an obligationunder this act, a good-faith transferee or obligee is entitled, to the extentof the value given the debtor for the transfer or obligation, to:
(i) A lien on or a right to retain any interest in the assettransferred;
(ii) Enforcement of any obligation incurred; or
(iii) A reduction in the amount of the liability on the judgment.
(e) A transfer is not voidable under W.S. 34-14-205(a)(ii) or34-14-206 if the transfer results from:
(i) Termination of a lease upon default by the debtor when thetermination is pursuant to the lease and applicable law; or
(ii) Enforcement of a security interest in compliance witharticle 9 of the Uniform Commercial Code.
(f) A transfer is not voidable under W.S. 34-14-206(b):
(i) To the extent the insider gave a new value to or for thebenefit of the debtor after the transfer was made unless the new value wassecured by a valid lien;
(ii) If made in the ordinary course of business or financialaffairs of the debtor and the insider; or
(iii) If made pursuant to a good-faith effort to rehabilitate thedebtor and the transfer secured present value given for that purpose as well asan antecedent debt of the debtor.
34-14-210. Extinguishment of claim for relief.
(a) A claim for relief with respect to a fraudulent transfer orobligation under this act is extinguished unless action is brought:
(i) Under W.S. 34-14-205(a)(i), within four (4) years after thetransfer was made or the obligation was incurred or, if later, within one (1)year after the transfer or obligation was or could reasonably have beendiscovered by the claimant;
(ii) Under W.S. 31-14-205(a)(ii) or 34-14-206(a), within four(4) years after the transfer was made or the obligation was incurred; or
(iii) Under W.S. 34-14-206(b), within one (1) year after thetransfer was made or the obligation was incurred.
34-14-211. Supplementary provisions.
Unless displaced by the provisions of thisact, the principles of law and equity, including the law merchant and the lawrelating to principal and agent, estoppel, laches, fraud, misrepresentation,duress, coercion, mistake, insolvency, or other validating or invalidatingcause, supplement its provisions.
34-14-212. Uniformity of application and construction.
This act shall be applied and construed toeffectuate its general purpose to make uniform the law with respect to thesubject of this act among states enacting it.