§58‑30‑140. Fraudulent transfers prior to petition.
(a) Every transfer madeor suffered and every obligation incurred by an insurer within one year priorto the filing of a successful petition for rehabilitation or liquidation underthis Article is fraudulent as to then existing and future creditors if made orincurred without fair consideration or if made or incurred with actual intentto hinder, delay, or defraud either existing or future creditors. A transfermade or an obligation incurred by an insurer ordered to be rehabilitated orliquidated under this Article, that is fraudulent under this section, may beavoided by the receiver, except as to a person who in good faith is apurchaser, lienor, or obligee, for a present fair equivalent value; and exceptthat any purchaser, lienor, or obligee, who in good faith has given aconsideration less than fair for such transfer, lien, or obligation, may retainthe property, lien, or obligation as security for repayment. The Court may, ondue notice, order any such transfer or obligation to be preserved for thebenefit of the estate, and in that event, the receiver shall succeed to and mayenforce the rights of the purchaser, lienor, or obligee.
(b) A transfer ofproperty other than real property is made or suffered when it becomes so farperfected that no subsequent lien obtainable by legal or equitable proceedingson a simple contract could become superior to the rights of the transfereeunder G.S. 58‑30‑150(c). A transfer of real property is made orsuffered when it becomes so far perfected that no subsequent bona fidepurchaser from the insurer could obtain rights superior to the rights of thetransferee. A transfer that creates an equitable lien is not perfected ifthere are available means by which a legal lien could be created. Any transferthat is not perfected prior to the filing of a petition for liquidation shallbe deemed to be made immediately before the filing of the successful petition. The provisions of this subsection apply whether or not there are or werecreditors who might have obtained any liens or persons who might have becomebona fide purchasers.
(c) Any transaction ofthe insurer with a reinsurer is fraudulent and may be avoided by the receiverunder subsection (a) of this section if:
(1) The transactionconsists of the termination, adjustment, or settlement of a reinsurancecontract in which the reinsurer is released from any part of its duty to paythe originally specified share of losses that had occurred prior to the time ofthe transaction, unless the reinsurer gives a present fair equivalent value forthe release; and
(2) Any part of thetransaction took place within one year prior to the date of filing of thepetition through which the receivership was commenced.
(d) Every person receivingany property from the insurer or any benefit thereof as the result of afraudulent transfer under subsection (a) of this section is personally liabletherefor and is bound to account to the liquidator. (1989, c. 452, s. 1; 1991, c.681, s. 46.)
§58‑30‑140. Fraudulent transfers prior to petition.
(a) Every transfer madeor suffered and every obligation incurred by an insurer within one year priorto the filing of a successful petition for rehabilitation or liquidation underthis Article is fraudulent as to then existing and future creditors if made orincurred without fair consideration or if made or incurred with actual intentto hinder, delay, or defraud either existing or future creditors. A transfermade or an obligation incurred by an insurer ordered to be rehabilitated orliquidated under this Article, that is fraudulent under this section, may beavoided by the receiver, except as to a person who in good faith is apurchaser, lienor, or obligee, for a present fair equivalent value; and exceptthat any purchaser, lienor, or obligee, who in good faith has given aconsideration less than fair for such transfer, lien, or obligation, may retainthe property, lien, or obligation as security for repayment. The Court may, ondue notice, order any such transfer or obligation to be preserved for thebenefit of the estate, and in that event, the receiver shall succeed to and mayenforce the rights of the purchaser, lienor, or obligee.
(b) A transfer ofproperty other than real property is made or suffered when it becomes so farperfected that no subsequent lien obtainable by legal or equitable proceedingson a simple contract could become superior to the rights of the transfereeunder G.S. 58‑30‑150(c). A transfer of real property is made orsuffered when it becomes so far perfected that no subsequent bona fidepurchaser from the insurer could obtain rights superior to the rights of thetransferee. A transfer that creates an equitable lien is not perfected ifthere are available means by which a legal lien could be created. Any transferthat is not perfected prior to the filing of a petition for liquidation shallbe deemed to be made immediately before the filing of the successful petition. The provisions of this subsection apply whether or not there are or werecreditors who might have obtained any liens or persons who might have becomebona fide purchasers.
(c) Any transaction ofthe insurer with a reinsurer is fraudulent and may be avoided by the receiverunder subsection (a) of this section if:
(1) The transactionconsists of the termination, adjustment, or settlement of a reinsurancecontract in which the reinsurer is released from any part of its duty to paythe originally specified share of losses that had occurred prior to the time ofthe transaction, unless the reinsurer gives a present fair equivalent value forthe release; and
(2) Any part of thetransaction took place within one year prior to the date of filing of thepetition through which the receivership was commenced.
(d) Every person receivingany property from the insurer or any benefit thereof as the result of afraudulent transfer under subsection (a) of this section is personally liabletherefor and is bound to account to the liquidator. (1989, c. 452, s. 1; 1991, c.681, s. 46.)
§58‑30‑140. Fraudulent transfers prior to petition.
(a) Every transfer madeor suffered and every obligation incurred by an insurer within one year priorto the filing of a successful petition for rehabilitation or liquidation underthis Article is fraudulent as to then existing and future creditors if made orincurred without fair consideration or if made or incurred with actual intentto hinder, delay, or defraud either existing or future creditors. A transfermade or an obligation incurred by an insurer ordered to be rehabilitated orliquidated under this Article, that is fraudulent under this section, may beavoided by the receiver, except as to a person who in good faith is apurchaser, lienor, or obligee, for a present fair equivalent value; and exceptthat any purchaser, lienor, or obligee, who in good faith has given aconsideration less than fair for such transfer, lien, or obligation, may retainthe property, lien, or obligation as security for repayment. The Court may, ondue notice, order any such transfer or obligation to be preserved for thebenefit of the estate, and in that event, the receiver shall succeed to and mayenforce the rights of the purchaser, lienor, or obligee.
(b) A transfer ofproperty other than real property is made or suffered when it becomes so farperfected that no subsequent lien obtainable by legal or equitable proceedingson a simple contract could become superior to the rights of the transfereeunder G.S. 58‑30‑150(c). A transfer of real property is made orsuffered when it becomes so far perfected that no subsequent bona fidepurchaser from the insurer could obtain rights superior to the rights of thetransferee. A transfer that creates an equitable lien is not perfected ifthere are available means by which a legal lien could be created. Any transferthat is not perfected prior to the filing of a petition for liquidation shallbe deemed to be made immediately before the filing of the successful petition. The provisions of this subsection apply whether or not there are or werecreditors who might have obtained any liens or persons who might have becomebona fide purchasers.
(c) Any transaction ofthe insurer with a reinsurer is fraudulent and may be avoided by the receiverunder subsection (a) of this section if:
(1) The transactionconsists of the termination, adjustment, or settlement of a reinsurancecontract in which the reinsurer is released from any part of its duty to paythe originally specified share of losses that had occurred prior to the time ofthe transaction, unless the reinsurer gives a present fair equivalent value forthe release; and
(2) Any part of thetransaction took place within one year prior to the date of filing of thepetition through which the receivership was commenced.
(d) Every person receivingany property from the insurer or any benefit thereof as the result of afraudulent transfer under subsection (a) of this section is personally liabletherefor and is bound to account to the liquidator. (1989, c. 452, s. 1; 1991, c.681, s. 46.)
