New Hampshire Revised Statutes 402-C:30 – Fraudulent Transfers Prior to Petition
Current as of: 2023 | Check for updates
|
Other versions
I.
Definition and Effect. Every transfer made or suffered and every obligation incurred by an insurer within one year prior to the filing of a successful petition for rehabilitation or liquidation under this chapter is fraudulent as to then existing and future creditors if made or incurred without fair consideration, or with actual intent to hinder, delay or defraud either existing or future creditors. A transfer made or an obligation incurred by an insurer ordered to be rehabilitated or liquidated under this chapter, which is fraudulent under this section, may be avoided by the receiver, except as to a person who in good faith is a purchaser, lienor or obligee for a present fair equivalent value; and except that any purchaser, lienor or obligee, who in good faith has given a consideration less than fair for such transfer, lien or obligation, may retain the property, lien or obligation as security for repayment. The court may, on due notice, order any such transfer or obligation to be preserved for the benefit of the estate, and in that event the receiver shall succeed to and may enforce the rights of the purchaser, lienor or obligee.
II.
Perfection of Transfers.
(a)
Personal Property. A transfer of property other than real property shall be deemed to be made or suffered when it becomes so far perfected that no subsequent lien obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee under N.H. Rev. Stat. § 402-C:32, III.
(b)
Real Property. A transfer of real property shall be deemed to be made or suffered when it becomes so far perfected that no subsequent bona fide purchaser from the insurer could obtain rights superior to the rights of the transferee.
(c)
Equitable Liens. A transfer which creates an equitable lien shall not be deemed to be perfected if there are available means by which a legal lien could be created.
(d)
Transfer Not Perfected Prior to Petition. Any transfer not perfected prior to the filing of a petition for liquidation shall be deemed to be made immediately before the filing of the successful petition.
(e)
Actual Creditors Unnecessary. This paragraph applies whether or not there are or were creditors who might have obtained any liens or persons who might have become bona fide purchasers.
III.
Fraudulent Reinsurance Transactions. Any transaction of the insurer with a reinsurer shall be deemed fraudulent and may be avoided by the receiver under paragraph I if:
(a) The transaction consists of the termination, adjustment or settlement of a reinsurance contract in which the reinsurer is released from any part of its duty to pay the originally specified share of losses that had occurred prior to the time of the transaction, unless the reinsurer gives a present fair equivalent value for the release; and
(b) Any part of the transaction took place within one year prior to the date of filing of the petition through which the receivership was commenced.
IV. Exception. Notwithstanding paragraph I, N.H. Rev. Stat. § 402-C:31, or any other provision of this chapter, no receiver or any other person shall avoid any transfer of, or any obligation to transfer, money or any other property arising under or in connection with any pledge, security, credit, collateral, loan, advances, reimbursement, or guarantee agreement or arrangement or any similar agreement, arrangement or other credit enhancement to which a Federal Home Loan Bank is a party, that is made, suffered, or incurred prior to or after the filing of a successful petition for rehabilitation or liquidation under this chapter, or otherwise would be subject to avoidance under this section or N.H. Rev. Stat. § 402-C:31; provided, however, that such a transfer or obligation may be avoided under this section or N.H. Rev. Stat. § 402-C:31 if such transfer or obligation was made, suffered, or incurred with actual intent to hinder, delay, or defraud the insurer, the receiver, or existing or future creditors.
Definition and Effect. Every transfer made or suffered and every obligation incurred by an insurer within one year prior to the filing of a successful petition for rehabilitation or liquidation under this chapter is fraudulent as to then existing and future creditors if made or incurred without fair consideration, or with actual intent to hinder, delay or defraud either existing or future creditors. A transfer made or an obligation incurred by an insurer ordered to be rehabilitated or liquidated under this chapter, which is fraudulent under this section, may be avoided by the receiver, except as to a person who in good faith is a purchaser, lienor or obligee for a present fair equivalent value; and except that any purchaser, lienor or obligee, who in good faith has given a consideration less than fair for such transfer, lien or obligation, may retain the property, lien or obligation as security for repayment. The court may, on due notice, order any such transfer or obligation to be preserved for the benefit of the estate, and in that event the receiver shall succeed to and may enforce the rights of the purchaser, lienor or obligee.
Terms Used In New Hampshire Revised Statutes 402-C:30
- Contract: A legal written agreement that becomes binding when signed.
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Lien: A claim against real or personal property in satisfaction of a debt.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- person: may extend and be applied to bodies corporate and politic as well as to individuals. See New Hampshire Revised Statutes 21:9
- petition: when used in connection with the equity jurisdiction of the superior court, and referring to a document filed with the court, shall mean complaint, and "petitioner" shall mean plaintiff. See New Hampshire Revised Statutes 21:51
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
II.
Perfection of Transfers.
(a)
Personal Property. A transfer of property other than real property shall be deemed to be made or suffered when it becomes so far perfected that no subsequent lien obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee under N.H. Rev. Stat. § 402-C:32, III.
(b)
Real Property. A transfer of real property shall be deemed to be made or suffered when it becomes so far perfected that no subsequent bona fide purchaser from the insurer could obtain rights superior to the rights of the transferee.
(c)
Equitable Liens. A transfer which creates an equitable lien shall not be deemed to be perfected if there are available means by which a legal lien could be created.
(d)
Transfer Not Perfected Prior to Petition. Any transfer not perfected prior to the filing of a petition for liquidation shall be deemed to be made immediately before the filing of the successful petition.
(e)
Actual Creditors Unnecessary. This paragraph applies whether or not there are or were creditors who might have obtained any liens or persons who might have become bona fide purchasers.
III.
Fraudulent Reinsurance Transactions. Any transaction of the insurer with a reinsurer shall be deemed fraudulent and may be avoided by the receiver under paragraph I if:
(a) The transaction consists of the termination, adjustment or settlement of a reinsurance contract in which the reinsurer is released from any part of its duty to pay the originally specified share of losses that had occurred prior to the time of the transaction, unless the reinsurer gives a present fair equivalent value for the release; and
(b) Any part of the transaction took place within one year prior to the date of filing of the petition through which the receivership was commenced.
[Paragraph IV effective January 1, 2024.]
IV. Exception. Notwithstanding paragraph I, N.H. Rev. Stat. § 402-C:31, or any other provision of this chapter, no receiver or any other person shall avoid any transfer of, or any obligation to transfer, money or any other property arising under or in connection with any pledge, security, credit, collateral, loan, advances, reimbursement, or guarantee agreement or arrangement or any similar agreement, arrangement or other credit enhancement to which a Federal Home Loan Bank is a party, that is made, suffered, or incurred prior to or after the filing of a successful petition for rehabilitation or liquidation under this chapter, or otherwise would be subject to avoidance under this section or N.H. Rev. Stat. § 402-C:31; provided, however, that such a transfer or obligation may be avoided under this section or N.H. Rev. Stat. § 402-C:31 if such transfer or obligation was made, suffered, or incurred with actual intent to hinder, delay, or defraud the insurer, the receiver, or existing or future creditors.