Current through the 2022 Legislative Session.
Section 3439.04 - Transfer made or obligation incurred fraudulent as to creditor; determining actual intent(a) A transfer made or obligation incurred by a debtor is voidable 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 as follows: (1) With actual intent to hinder, delay, or defraud any creditor of the debtor.(2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor either: (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.(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 paragraph (1) of subdivision (a), consideration may be given, among other factors, to any or all of the following: (1) Whether the transfer or obligation was to an insider.(2) Whether the debtor retained possession or control of the property transferred after the transfer.(3) Whether the transfer or obligation was disclosed or concealed.(4) Whether before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit.(5) Whether the transfer was of substantially all the debtor's assets.(6) Whether the debtor absconded.(7) Whether the debtor removed or concealed assets.(8) Whether 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) Whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred.(10) Whether the transfer occurred shortly before or shortly after a substantial debt was incurred.(11) Whether the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor.(c) A creditor making a claim for relief under subdivision (a) has the burden of proving the elements of the claim for relief by a preponderance of the evidence.Amended by Stats 2015 ch 44 (SB 161),s 6, eff. 1/1/2016.Amended by Stats 2004 ch 50 (SB 1408),s 1, eff. 1/1/2005