[§651C-4]  Transfers fraudulent as to
present and future creditors.  (a)  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:



(1)  With actual intent to hinder, delay, or defraud
any creditor of the debtor; or



(2)  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 became due.



(b)  In determining actual intent under
subsection (a)(1), consideration may be given, among other factors, to whether:



(1)  The transfer or obligation was to an insider;



(2)  The debtor had retained possession or control of
the property transferred after the transfer;



(3)  The transfer or obligation was disclosed or
concealed;



(4)  Before the transfer was made or obligation was
incurred, the debtor was sued or threatened with suit;



(5)  The transfer was of substantially all the
debtor's assets;



(6)  The debtor had absconded;



(7)  The debtor had removed or concealed assets;



(8)  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;



(9)  The debtor was insolvent or became insolvent
shortly after the transfer was made or the obligation was incurred;



(10)  The transfer had occurred shortly before or
shortly after a substantial debt was incurred; and



(11)  The debtor had transferred the essential assets
of the business to a lienor who had transferred the assets to an insider of the
debtor. [L 1985, c 216, pt of §1]



 



Case Notes



 



  Fraudulent transfers, discussed.  916 F.2d 528.



  Plaintiffs pled facts with sufficient particularity to
support a cause of action for fraudulent conveyance under subsection (a)(1) and
(a)(2)(B) and §651C-5(a).  529 F. Supp. 2d 1190.



  Although Hawaii's uniform fraudulent transfer act does not
preclude preferential transfers per se, if the preferential transfer was made
with "actual intent to hinder, delay, or defraud any creditor" the
transfer will be deemed fraudulent. 113 H. 174, 150 P.3d 823.