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304.33-290 Fraudulent transfer prior to petition.
(1)
(2)
(3)
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
(4)
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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