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304.33-290 Fraudulent transfer prior to petition.
(1)
(2)
(3)
(4)
Definition and effect. Every transfer made or suffered and every obligation
incurred by an insurer within one (1) year prior to the filing of a successful
petition for rehabilitation or liquidation under this subtitle shall be fraudulent as
to then existing and future creditors if made or incurred without fair
consideration, or with actual intent to hinder, delay or defraud either existing or
future creditors. A transfer made or an obligation incurred by an insurer
ordered to be rehabilitated or liquidated under this subtitle, which is fraudulent
under this section, may be avoided by the receiver, except as to a person who
in good faith is a purchaser, lienor, or obligee for a present fair equivalent
value; and except that any purchaser, lienor, or obligee, who in good faith has
given a consideration less than fair for such transfer, lien, or obligation, may
retain the property, lien, or obligation as security for repayment. The court may,
on due notice, order any such transfer or obligation to be preserved for the
benefit of the estate, and in that event the receiver shall succeed to and may
enforce the rights of the purchaser, lienor, or obligee.
Perfection of transfers.
(a) Personal property. A transfer of property other than real property shall be
deemed to be made or suffered when it becomes so far perfected that no
subsequent lien obtainable by legal or equitable proceedings on a simple
contract could become superior to the rights of the transferee under
subsection (3) of KRS 304.33-310.
(b) Real property. A transfer of real property shall be deemed to be made or
suffered when it becomes so far perfected that no subsequent bona fide
purchaser from the insurer could obtain rights superior to the rights of the
transferee.
(c) Equitable liens. A transfer which creates an equitable lien shall not be
deemed to be perfected if there are available means by which a legal lien
could be created.
(d) Transfer not perfected prior to petition. Any transfer not perfected prior to
the filing of a petition for liquidation shall be deemed to be made
immediately before the filing of the successful petition.
(e) Actual creditors unnecessary. This subsection shall apply whether or not
there are or were creditors who might have obtained any liens or persons
who might have become bona fide purchasers.
Fraudulent reinsurance transactions. Any transaction of the insurer with a
reinsurer shall be deemed fraudulent and may be avoided by the receiver
under subsection (1) of this section if:
(a) The transaction consists of the termination, adjustment or settlement of a
reinsurance contract in which the reinsurer is released from any part of its
duty to pay the originally specified share of losses that had occurred prior
to the time of the transaction, unless the reinsurer gives a present fair
equivalent value for the release; and
(b) Any part of the transaction took place within one (1) year prior to the date
of filing of the petition through which the receivership was commenced.
Every person receiving any property from the insurer or any benefit thereof
which is a fraudulent transfer under this section shall be personally liable
therefor and shall be bound to account to the liquidator.
Effective:July 13, 1990
History: Amended 1990 Ky. Acts ch. 422, sec. 20, effective July 13, 1990. -Created 1970 Ky. Acts ch. 301, subtit. 33, sec. 29, effective June 18, 1970.
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