2007 Oregon Code - Chapter 95 :: Chapter 95 - Fraudulent Transfers and Conveyances
Chapter 95 — Fraudulent
Transfers and Conveyances
2007 EDITION
FRAUDULENT TRANSFERS AND CONVEYANCES
PROPERTY RIGHTS AND TRANSACTIONS
95.200Â Â Â Â Â Â Definitions
for ORS 95.200 to 95.310
95.210Â Â Â Â Â Â Insolvency
described
95.220Â Â Â Â Â Â Value
described
95.230Â Â Â Â Â Â Transfers
fraudulent as to present and future creditors
95.240Â Â Â Â Â Â Transfers
fraudulent as to present creditors
95.250Â Â Â Â Â Â When
transfer is made or obligation is incurred
95.260Â Â Â Â Â Â CreditorÂ’s
remedies
95.270Â Â Â Â Â Â TransfereeÂ’s
defenses, liability and protections
95.280Â Â Â Â Â Â Extinguishment
of claim for relief
95.290Â Â Â Â Â Â General
principles of law and equity as supplement to ORS 95.200 to 95.310
95.300Â Â Â Â Â Â Uniformity
of application and construction
95.310Â Â Â Â Â Â Short
title
     95.010 [Repealed by 1985 c.664 §16]
     95.020 [Repealed by 1985 c.664 §16]
     95.030 [Repealed by 1985 c.664 §16]
     95.040 [Repealed by 1985 c.664 §16]
     95.050 [Repealed by 1985 c.664 §16]
     95.060 [Repealed by 1985 c.664 §16]
     95.070 [Repealed by 1985 c.664 §16]
     95.080 [Repealed by 1985 c.664 §16]
     95.090 [Repealed by 1985 c.664 §16]
     95.100 [Repealed by 1985 c.664 §16]
     95.200
Definitions for ORS 95.200 to 95.310. As used in ORS 95.200 to 95.310:
     (1) “Affiliate” means any of the
following:
     (a) A person who directly or indirectly
owns, controls or holds with power to vote 20 or more percent of the
outstanding voting securities of the debtor, other than a person who holds the
securities:
     (A) As a fiduciary or agent without sole
discretionary power to vote the securities; or
     (B) Solely to secure a debt, if the person
has not in fact exercised the power to vote.
     (b) A corporation, 20 or more percent of
whose outstanding voting securities are directly or indirectly owned,
controlled or held with power to vote by the debtor or by a person who directly
or indirectly owns, controls or holds with power to vote 20 or more percent of
the outstanding voting securities of the debtor, other than a person who holds
the securities:
     (A) As a fiduciary or agent without sole
discretionary power to vote the securities; or
     (B) Solely to secure a debt, if the person
has not in fact exercised the power to vote.
     (c) A person whose business is operated by
the debtor under a lease or other agreement, or a person substantially all of
whose assets are controlled by the debtor.
     (d) A person who operates the debtor’s
business under a lease or other agreement or controls substantially all of the
debtorÂ’s assets.
     (2) “Asset” means property of a debtor but
does not include:
     (a) Property to the extent that it is
encumbered by a valid lien;
     (b) Property to the extent that it is
generally exempt under nonbankruptcy law; or
     (c) An interest in property held in
tenancy by the entirety to the extent that it is not subject to process by a
creditor holding a claim against only one tenant.
     (3) “Claim” means a right to payment,
whether or not the right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured.
     (4) “Creditor” means a person who has a
claim against a debtor.
     (5) “Debt” means liability on a claim.
     (6) “Debtor” means a person against whom a
creditor has a claim.
     (7) An “insider” includes:
     (a) If the debtor is an individual:
     (A) A relative of the debtor or of a
general partner of the debtor;
     (B) A partnership in which the debtor is a
general partner;
     (C) A general partner in a partnership
described in subparagraph (B) of this paragraph; or
     (D) A corporation of which the debtor is a
director, officer or person in control.
     (b) If the debtor is a corporation:
     (A) A director of the debtor;
     (B) An officer of the debtor;
     (C) A person in control of the debtor;
     (D) A partnership in which the debtor is a
general partner;
     (E) A general partner in a partnership
described in subparagraph (D) of this paragraph; or
     (F) A relative of a general partner,
director, officer or person in control of the debtor.
     (c) If the debtor is a partnership:
     (A) A general partner in the debtor;
     (B) A relative of a general partner in a
debtor, of a general partner of a debtor, or of a person in control of the
debtor;
     (C) Another partnership in which the
debtor is a general partner;
     (D) A general partner in a partnership
described in subparagraph (C) of this paragraph; or
     (E) A person in control of the debtor.
     (d) An affiliate or an insider of an
affiliate as if the affiliate were the debtor; and
     (e) A managing agent of the debtor.
     (8) “Lien” means a charge against or an
interest in property to secure payment of a debt or performance of an
obligation, including a security interest created by agreement, a judicial lien
obtained by legal or equitable process or proceedings, a common-law lien or a
statutory lien.
     (9) “Person” means an individual,
partnership, corporation, association, organization, government or governmental
subdivision or agency, business trust, estate, trust or any other legal or
commercial entity.
     (10) “Property” means anything that may be
the subject of ownership.
     (11) “Relative” means an individual
related within the third degree as determined by the common law, a spouse, or
an individual related to a spouse within the third degree as so determined, and
includes an individual in an adoptive relationship within the third degree.
     (12) “Transfer” means every mode, direct
or indirect, absolute or conditional, voluntary or involuntary, of disposing of
or parting with an asset or an interest in an asset, and includes a payment of
money, a release, a lease and the creation of a lien or encumbrance.
     (13) “Valid lien” means a lien that is
effective against the holder of a judicial lien subsequently obtained by legal
or equitable process or proceedings. [1985 c.664 §1]
     95.210
Insolvency described. (1) A
debtor is insolvent if, at a fair valuation, the sum of the debtorÂ’s debts is
greater than all of the debtorÂ’s assets.
     (2) A debtor who is generally not paying
debts of the debtor as they become due is presumed to be insolvent.
     (3) A partnership is insolvent under
subsection (1) of this section if, at a fair valuation, the sum of the
partnershipÂ’s debts is greater than the aggregate of all of the partnershipÂ’s
assets and the sum of the excess of the value of each general partnerÂ’s
nonpartnership assets over the partnerÂ’s nonpartnership debts.
     (4) Assets under this section do not
include property that has been transferred, concealed or removed with intent to
hinder, delay, or defraud creditors or that has been transferred in a manner
making the transfer voidable under ORS 95.200 to 95.310.
     (5) Debts under this section do not
include an obligation to the extent the obligation is secured by a valid lien
on property of the debtor not included as an asset. [1985 c.664 §2]
     95.220
Value described. (1) Value
is given for a transfer or an obligation if in exchange for the transfer or
obligation property is transferred or an antecedent debt is secured or
satisfied, but value does not include an unperformed promise made otherwise
than in the ordinary course of the promisorÂ’s business to furnish support to
the debtor or another person.
     (2) For the purposes of ORS 95.230 (1)(b)
and 95.240, a person gives a reasonably equivalent value if the person acquires
an interest in the debtor in an asset pursuant to a regularly conducted,
noncollusive foreclosure sale or execution of a power of sale for the
acquisition or disposition of the interest of the debtor upon default under a
mortgage, deed of trust or security agreement.
     (3) A transfer is made for present value
if the exchange between the debtor and the transferee is intended by them to be
contemporaneous and is in fact substantially contemporaneous. [1985 c.664 §3]
     95.230
Transfers fraudulent as to present and future creditors. (1) A transfer made or obligation incurred
by a debtor is fraudulent as to a creditor, whether the creditorÂ’s claim arose
before or after the transfer was made or the obligation was incurred, if the
debtor made the transfer or incurred the obligation:
     (a) With actual intent to hinder, delay,
or defraud any creditor of the debtor; or
     (b) Without receiving a reasonably
equivalent value in exchange for the transfer or obligation, and the debtor:
     (A) Was engaged or was about to engage in
a business or a transaction for which the remaining assets of the debtor were
unreasonably small in relation to the business or transaction; or
     (B) Intended to incur, or believed or
reasonably should have believed that the debtor would incur, debts beyond the
debtorÂ’s ability to pay as they become due.
     (2) In determining actual intent under
subsection (1)(a) of this section, consideration may be given, among other
factors, to whether:
     (a) The transfer or obligation was to an
insider;
     (b) The debtor had retained possession or
control of the property transferred after the transfer;
     (c) The transfer or obligation was
disclosed or concealed;
     (d) Before the transfer was made or
obligation was incurred, the debtor was sued or threatened with suit;
     (e) The transfer was of substantially all
the debtorÂ’s assets;
     (f) The debtor had absconded;
     (g) The debtor had removed or concealed
assets;
     (h) The value of the consideration received
by the debtor was reasonably equivalent to the value of the asset transferred
or the amount of the obligation incurred;
     (i) The debtor was insolvent or became
insolvent shortly after the transfer was made or the obligation was incurred;
     (j) The transfer had occurred shortly
before or shortly after a substantial debt was incurred; and
     (k) The debtor had transferred the
essential assets of the business to a lienor who had transferred the assets to
an insider of the debtor. [1985 c.664 §4]
     95.240
Transfers fraudulent as to present creditors. (1) A transfer made or obligation incurred by a debtor is fraudulent
as to a creditor whose claim arose before the transfer was made or the
obligation was incurred if the debtor made the transfer or incurred the
obligation without receiving a reasonably equivalent value in exchange for the
transfer or obligation and the debtor was insolvent at that time or the debtor
becomes insolvent as a result of the transfer or obligation.
     (2) A transfer made by a debtor is fraudulent
as to a creditor whose claim arose before the transfer was made if the transfer
was made to an insider for other than a present, reasonably equivalent value,
the debtor was insolvent at that time and the insider had reasonable cause to
believe that the debtor was insolvent. [1985 c.664 §5]
     95.250
When transfer is made or obligation is incurred. For the purposes of ORS 95.200 to 95.310:
     (1) A transfer is made:
     (a) With respect to an asset that is real
property other than a fixture, but including the interest of a seller or
purchaser under a contract for the sale of the asset, when the transfer is so
far perfected that a good-faith purchaser of the asset from the debtor against
whom applicable law permits the transfer to be perfected cannot acquire an
interest in the asset that is superior to the interest of the transferee; and
     (b) With respect to an asset that is not
real property or that is a fixture, when the transfer is so far perfected that
a creditor on a simple contract cannot acquire a judicial lien otherwise than
under ORS 95.200 to 95.310 that is superior to the interest of the transferee.
     (2) If applicable law permits the transfer
to be perfected as provided in subsection (1) of this section and the transfer
is not so perfected before the commencement of an action for relief under ORS
95.200 to 95.310, the transfer is made immediately before the commencement of
the action.
     (3) If applicable law does not permit the
transfer to be perfected as provided in subsection (1) of this section, the
transfer is made when it becomes effective between the debtor and the
transferee.
     (4) A transfer is not made until the
debtor has acquired rights in the asset transferred.
     (5) An obligation is incurred:
     (a) If oral, when it becomes effective
between the parties.
     (b) If evidenced by a writing, when the
writing executed by the obligor is delivered to or for the benefit of the
obligee. [1985 c.664 §6]
     95.260
CreditorÂ’s remedies. (1) In
any action for relief against a transfer or obligation under ORS 95.200 to
95.310, a creditor, subject to the limitations provided in ORS 95.270, may
obtain:
     (a) Avoidance of the transfer or
obligation to the extent necessary to satisfy the creditorÂ’s claim.
     (b) An attachment or other provisional
remedy against the asset transferred or other property of the transferee in
accordance with the procedure prescribed by any applicable provision of any
other statute or the Oregon Rules of Civil Procedure.
     (c) Subject to applicable principles of
equity and in accordance with applicable rules of civil procedure:
     (A) An injunction against further
disposition by the debtor or a transferee, or both, of the asset transferred or
of other property;
     (B) Appointment of a receiver to take
charge of the asset transferred or of other property of the transferee; or
     (C) Any other relief the circumstances may
require.
     (2) If a creditor has obtained a judgment
on a claim against the debtor and if the court so orders, the creditor may levy
execution on the asset transferred or its proceeds. [1985 c.664 §7]
     95.270
TransfereeÂ’s defenses, liability and protections. (1) A transfer or obligation is not voidable
under ORS 95.230 (1)(a) as against a person who took in good faith and for a
reasonably equivalent value or any subsequent transferee or obligee.
     (2) Except as otherwise provided in this
section, to the extent a transfer is voidable in an action by a creditor under
ORS 95.260 (1)(a), the creditor may recover judgment for the value of the asset
transferred, as adjusted under subsection (3) of this section, or the amount
necessary to satisfy the creditorÂ’s claim, whichever is less. The judgment may
be entered against:
     (a) The first transferee of the asset or
the person for whose benefit the transfer was made; or
     (b) Any subsequent transferee.
     (3) If the judgment under subsection (2)
of this section is based upon the value of the asset transferred, the judgment
must be for an amount equal to the value of the asset at the time of the
transfer, subject to adjustment as the equities may require.
     (4) A creditor may not recover under
subsection (2)(b) of this section from a good-faith transferee or obligee who
took for value or from any subsequent transferee or obligee.
     (5) Notwithstanding voidability of a
transfer or an obligation under ORS 95.200 to 95.310, a good-faith transferee
or obligee is entitled, to the extent of the value given the debtor for the
transfer or obligation, to:
     (a) A lien on or a right to retain any
interest in the asset transferred;
     (b) Enforcement of any obligation incurred;
or
     (c) A reduction in the amount of the
liability on the judgment.
     (6) A transfer is not voidable under ORS
95.240 (2):
     (a) To the extent the insider gave new
value to or for the benefit of the debtor after the transfer was made unless
the new value was secured by an otherwise unavoidable lien;
     (b) If made in the ordinary course of
business or financial affairs of the debtor and the insider; or
     (c) If made pursuant to a good-faith
effort to rehabilitate the debtor and the transfer secured present value given
for that purpose as well as an antecedent debt of the debtor.
     (7) A transfer is not voidable under ORS
95.230 (1)(b) or 95.240 if the transfer results from:
     (a) Termination of a lease upon default by
the debtor when the termination is pursuant to the terms of the lease and
applicable law; or
     (b) Enforcement of a security interest in
compliance with ORS chapter 79. [1985 c.664 §8; 2001 c.445 §167]
     95.280
Extinguishment of claim for relief. A claim for relief with respect to a fraudulent transfer or obligation
under ORS 95.200 to 95.310 is extinguished unless action is brought:
     (1) Under ORS 95.230 (1)(a) within four
years after the transfer was made or the obligation was incurred or, if later,
within one year after the transfer or obligation was or could reasonably have
been discovered by the claimant;
     (2) Under ORS 95.230 (1)(b) or 95.240 (1),
within four years after the transfer was made or the obligation was incurred;
or
     (3) Under ORS 95.240 (2), within one year
after the transfer was made or the obligation was incurred. [1985 c.664 §9]
     95.290
General principles of law and equity as supplement to ORS 95.200 to 95.310. Unless displaced by the provisions of ORS
95.200 to 95.310, the principles of law and equity, including the law merchant
and the law relating to principal and agent, estoppel, laches, fraud,
misrepresentation, duress, coercion, mistake, insolvency or other validating or
invalidating cause, supplement its provisions. [1985 c.664 §10]
     95.300
Uniformity of application and construction. ORS 95.200 to 95.310 shall be applied and construed to effectuate its
general purpose to make uniform the law with respect to the subject of ORS
95.200 to 95.310 among states enacting it. [1985 c.664 §11]
     95.310
Short title. ORS 95.200 to
95.310 may be cited as the Uniform Fraudulent Transfer Act. [1985 c.664 §12]
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