Self Heating and Cooling, Inc., Transferee - Page 16

                                       - 16 -                                         
          The enumerated factors are not exhaustive or exclusive,11 and               
          there is no magic number needed to determine the required                   
          intent.12  Tiab Communications Corp. v. Keymarket of NEPA, Inc.,            
          263 F. Supp. 2d 925, 935 (M.D. Pa. 2003).  Even conduct                     
          subsequent to the transfer may demonstrate the intent that                  
          existed at the time of the transfer.  Iscovitz v. Filderman, 6              
          A.2d 270, 272 (Pa. 1939).                                                   
               Many of the enumerated indicia are present in this case:               
          (1) Self Oil was already insolvent or made insolvent by virtue of           
          the transfer; (2) the transfer was to a corporation owned by                
          family members who were former employees of the transferor and              

               11We note that the statute specifically provides:                      
          “consideration may be given, among other factors”.  See 12 Pa.              
          Cons. Stat. Ann. sec. 5104(b) (West 1999) (emphasis added).                 
               12The committee comment to 12 Pa. Cons. Stat. Ann. sec. 5104           
          states in pertinent part:                                                   
               (5) Subsection (b) below is a nonexclusive catalogue of                
               factors appropriate for consideration by the court in                  
               determining whether the debtor had an actual intent to                 
               hinder, delay or defraud one or more creditors.  Proof                 
               of the existence of any one or more of the factors                     
               enumerated in subsection (b) may be relevant evidence                  
               as to the debtor’s actual intent but does not create a                 
               presumption that the debtor has made a fraudulent                      
               transfer or incurred a fraudulent obligation. * * * The                
               fact that a transfer has been made to a relative or to                 
               an affiliated corporation has not been regarded as a                   
               badge of fraud sufficient to warrant avoidance when                    
               unaccompanied by any other evidence of fraud.  The                     
               courts have uniformly recognized, however, that a                      
               transfer to a closely related person warrants close                    
               scrutiny of the other circumstances, including the                     
               nature and extent of the consideration exchanged. * * *                

Page:  Previous  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  Next

Last modified: May 25, 2011