Usa Oregon

USA Statutes : oregon
Title : TITLE 09 MORTGAGES AND LIENS
Chapter : Chapter 95 Fraudulent Transfers and Conveyances


(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 debtor’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] (1) A debtor is insolvent if, at a
fair valuation, the sum of the debtor’s debts is greater than all of the
debtor’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 partnership’s debts is greater
than the aggregate of all of the partnership’s assets and the sum of the
excess of the value of each general partner’s nonpartnership assets over
the partner’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] (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 promisor’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] (1)
A transfer made or obligation incurred by a debtor is fraudulent as to a
creditor, whether the creditor’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 debtor’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 debtor’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] (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] 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] (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 creditor’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] (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 creditor’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] 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]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]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]ORS 95.200 to 95.310 may be cited as the
Uniform Fraudulent Transfer Act. [1985 c.664 §12]

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USA Statutes : oregon