(a) Every transfer made or suffered and every obligation incurred by a person proceeded against within one year prior to the filing of a successful petition for conservation or liquidation under this article is 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.
(b) A transfer made or an obligation incurred by a person proceeded against under this article, which is fraudulent under this section, may be avoided by the commissioner, 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 that 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 commissioner shall succeed to and may enforce the rights of the purchaser, lienor, or obligee.
(1) 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.
(2) 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 person proceeded against could obtain rights superior to the rights of the transferee.
(3) A transfer that creates an equitable lien shall not be deemed to be perfected if there are available means by which a legal lien could be created.
(4) 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.
(5) The provisions of this subdivision apply whether or not there are or were creditors who might have obtained any liens or persons who might have become bona fide purchasers.
(c) Every person receiving any property from the person proceeded against or any benefit thereof that is a fraudulent transfer under subdivision (a) shall be personally liable therefor and shall be bound to account to the commissioner.
(d) Any transaction of the person proceeded against with a reinsurer shall be subject to avoidance by the commissioner under subdivision (b) if both of the following are applicable:
(1) 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.
(2) Any part of the transaction took place within one year prior to the date of filing of the petition through which the conservation or liquidation was commenced.
The commissioner may avoid the transaction at any time within two years after the effective date of the transaction. If the transaction is so avoided, the parties shall be returned to their respective position as if the transaction had not occurred, and the commissioner may enforce the reinsurance contract as it existed prior to the transfer.
(Added by Stats. 1995, Ch. 580, Sec. 7. Effective January 1, 1996.)
Last modified: October 25, 2018