Bill Text: NY S07687 | 2015-2016 | General Assembly | Amended
Bill Title: Enacts the uniform voidable transactions act and repeals provisions relating to fraudulent conveyances.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2016-06-01 - PRINT NUMBER 7687A [S07687 Detail]
Download: New_York-2015-S07687-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7687--A IN SENATE May 12, 2016 ___________ Introduced by Sen. FARLEY -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the debtor and creditor law, the civil practice law and rules, the estates, powers and trusts law, and the workers' compen- sation law, in relation to enacting the uniform voidable transactions act; and to repeal provisions of the debtor and creditor law relating to fraudulent conveyances The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "Uniform Voidable Transactions Act." 3 § 2. Article 10 of the debtor and creditor law is REPEALED and a new 4 article 10 is added to read as follows: 5 ARTICLE 10 6 UNIFORM VOIDABLE TRANSACTIONS ACT 7 Section 270. Definitions. 8 271. Insolvency. 9 272. Value. 10 273. Transfer or obligation voidable as to present or future 11 creditor. 12 274. Transfer or obligation voidable as to present creditor. 13 275. When transfer is made or obligation is incurred. 14 276. Remedies of creditor. 15 277. Defenses, liability, and protection of transferee or 16 obligee. 17 278. Extinguishment of claim for relief. 18 279. Governing law. 19 280. Supplementary provisions. 20 281. Uniformity of application and construction. 21 281-a. Relation to electronic signatures in global and national 22 commerce act. 23 § 270. Definitions. As used in this article: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD15425-02-6S. 7687--A 2 1 (a) "Affiliate" means: 2 (1) a person that directly or indirectly owns, controls, or holds with 3 power to vote, twenty percent or more of the outstanding voting securi- 4 ties of the debtor, other than a person that holds the securities: 5 (i) as a fiduciary or agent without sole discretionary power to vote 6 the securities; or 7 (ii) solely to secure a debt, if the person has not in fact exercised 8 the power to vote; 9 (2) a corporation twenty percent or more of whose outstanding voting 10 securities are directly or indirectly owned, controlled, or held with 11 power to vote, by the debtor or a person that directly or indirectly 12 owns, controls, or holds, with power to vote, twenty percent or more of 13 the outstanding voting securities of the debtor, other than a person 14 that holds the securities: 15 (i) as a fiduciary or agent without sole discretionary power to vote 16 the securities; or 17 (ii) solely to secure a debt, if the person has not in fact exercised 18 the power to vote; 19 (3) a person whose business is operated by the debtor under a lease or 20 other agreement, or a person substantially all of whose assets are 21 controlled by the debtor; or 22 (4) a person that operates the debtor's business under a lease or 23 other agreement or controls substantially all of the debtor's assets. 24 (b) "Asset" means property of a debtor, but the term does not include: 25 (1) property to the extent it is encumbered by a valid lien; 26 (2) property to the extent it is generally exempt under non-bankruptcy 27 law; or 28 (3) an interest in property held in tenancy by the entirety to the 29 extent it is not subject to process by a creditor holding a claim 30 against only one tenant. 31 (c) "Claim", except as used in "claim for relief", means a right to 32 payment, whether or not the right is reduced to judgment, liquidated, 33 unliquidated, fixed, contingent, matured, unmatured, disputed, undis- 34 puted, legal, equitable, secured, or unsecured. 35 (d) "Creditor" means a person that has a claim. 36 (e) "Debt" means liability on a claim. 37 (f) "Debtor" means a person that is liable on a claim. 38 (g) "Electronic" means relating to technology having electrical, 39 digital, magnetic, wireless, optical, electromagnetic, or similar capa- 40 bilities. 41 (h) "Insider" includes: 42 (1) if the debtor is an individual: 43 (i) a relative of the debtor or of a general partner of the debtor; 44 (ii) a partnership in which the debtor is a general partner; 45 (iii) a general partner in a partnership described in subparagraph 46 (ii) of this paragraph; or 47 (iv) a corporation of which the debtor is a director, officer, or 48 person in control; 49 (2) if the debtor is a corporation: 50 (i) a director of the debtor; 51 (ii) an officer of the debtor; 52 (iii) a person in control of the debtor; 53 (iv) a partnership in which the debtor is a general partner; 54 (v) a general partner in a partnership described in subparagraph (iv) 55 of this paragraph; orS. 7687--A 3 1 (vi) a relative of a general partner, director, officer, or person in 2 control of the debtor; 3 (3) if the debtor is a partnership: 4 (i) a general partner in the debtor; 5 (ii) a relative of a general partner in, a general partner of, or a 6 person in control of the debtor; 7 (iii) another partnership in which the debtor is a general partner; 8 (iv) a general partner in a partnership described in subparagraph 9 (iii) of this paragraph; or 10 (v) a person in control of the debtor; 11 (4) an affiliate, or an insider of an affiliate as if the affiliate 12 were the debtor; and 13 (5) a managing agent of the debtor. 14 (i) "Lien" means a charge against or an interest in property to secure 15 payment of a debt or performance of an obligation, and includes a secu- 16 rity interest created by agreement, a judicial lien obtained by legal or 17 equitable process or proceedings, a common-law lien, or a statutory 18 lien. 19 (j) "Organization" means a person other than an individual. 20 (k) "Person" means an individual, estate, partnership, association, 21 trust, business or nonprofit entity, public corporation, government or 22 governmental subdivision, agency, or instrumentality, or other legal or 23 commercial entity. 24 (l) "Property" means anything that may be the subject of ownership. 25 (m) "Record" means information that is inscribed on a tangible medium 26 or that is stored in an electronic or other medium and is retrievable in 27 perceivable form. 28 (n) "Relative" means an individual related by consanguinity within the 29 third degree as determined by the common law, a spouse, or an individual 30 related to a spouse within the third degree as so determined, and 31 includes an individual in an adoptive relationship within the third 32 degree. 33 (o) "Sign" means, with present intent to authenticate or adopt a 34 record: 35 (i) to execute or adopt a tangible symbol; or 36 (ii) to attach to or logically associate with the record an electronic 37 symbol, sound, or process. 38 (p) "Transfer" means every mode, direct or indirect, absolute or 39 conditional, voluntary or involuntary, of disposing of or parting with 40 an asset or an interest in an asset, and includes payment of money, 41 release, lease, license, and creation of a lien or other encumbrance. 42 (q) "Valid lien" means a lien that is effective against the holder of 43 a judicial lien subsequently obtained by legal or equitable process or 44 proceedings. 45 § 271. Insolvency. (a) A debtor is insolvent if, at a fair valuation, 46 the sum of the debtor's debts is greater than the sum of the debtor's 47 assets. 48 (b) A debtor that is generally not paying the debtor's debts as they 49 become due other than as a result of a bona fide dispute is presumed to 50 be insolvent. The presumption imposes on the party against which the 51 presumption is directed the burden of proving that the nonexistence of 52 insolvency is more probable than its existence. 53 (c) Assets under this section do not include property that has been 54 transferred, concealed, or removed with intent to hinder, delay, or 55 defraud creditors or that has been transferred in a manner making the 56 transfer voidable under this article.S. 7687--A 4 1 (d) Debts under this section do not include an obligation to the 2 extent it is secured by a valid lien on property of the debtor not 3 included as an asset. 4 § 272. Value. (a) Value is given for a transfer or an obligation if, 5 in exchange for the transfer or obligation, property is transferred or 6 an antecedent debt is secured or satisfied, but value does not include 7 an unperformed promise made otherwise than in the ordinary course of the 8 promisor's business to furnish support to the debtor or another person. 9 (b) For the purposes of paragraph two of subdivision (a) of section 10 two hundred seventy-three and section two hundred seventy-four of this 11 article, a person gives a reasonably equivalent value if the person 12 acquires an interest of the debtor in an asset pursuant to a regularly 13 conducted, noncollusive foreclosure sale or execution of a power of sale 14 for the acquisition or disposition of the interest of the debtor upon 15 default under a mortgage, deed of trust, or security agreement. 16 (c) A transfer is made for present value if the exchange between the 17 debtor and the transferee is intended by them to be contemporaneous and 18 is in fact substantially contemporaneous. 19 § 273. Transfer or obligation voidable as to present or future credi- 20 tor. (a) A transfer made or obligation incurred by a debtor is voidable 21 as to a creditor, whether the creditor's claim arose before or after the 22 transfer was made or the obligation was incurred, if the debtor made the 23 transfer or incurred the obligation: 24 (1) with actual intent to hinder, delay, or defraud any creditor of 25 the debtor; or 26 (2) without receiving a reasonably equivalent value in exchange for 27 the transfer or obligation, and the debtor: 28 (i) was engaged or was about to engage in a business or a transaction 29 for which the remaining assets of the debtor were unreasonably small in 30 relation to the business or transaction; or 31 (ii) intended to incur, or believed or reasonably should have believed 32 that the debtor would incur, debts beyond the debtor's ability to pay as 33 they became due. 34 (b) In determining actual intent under paragraph one of subdivision 35 (a) of this section, consideration may be given, among other factors, to 36 whether: 37 (1) the transfer or obligation was to an insider; 38 (2) the debtor retained possession or control of the property trans- 39 ferred after the transfer; 40 (3) the transfer or obligation was disclosed or concealed; 41 (4) before the transfer was made or obligation was incurred, the 42 debtor had been sued or threatened with suit; 43 (5) the transfer was of substantially all the debtor's assets; 44 (6) the debtor absconded; 45 (7) the debtor removed or concealed assets; 46 (8) the value of the consideration received by the debtor was reason- 47 ably equivalent to the value of the asset transferred or the amount of 48 the obligation incurred; 49 (9) the debtor was insolvent or became insolvent shortly after the 50 transfer was made or the obligation was incurred; 51 (10) the transfer occurred shortly before or shortly after a substan- 52 tial debt was incurred; and 53 (11) the debtor transferred the essential assets of the business to a 54 lienor that transferred the assets to an insider of the debtor.S. 7687--A 5 1 (c) A creditor making a claim for relief under subdivision (a) of this 2 section has the burden of proving the elements of the claim for relief 3 by a preponderance of the evidence. 4 § 274. Transfer or obligation voidable as to present creditor. (a) A 5 transfer made or obligation incurred by a debtor is voidable as to a 6 creditor whose claim arose before the transfer was made or the obli- 7 gation was incurred if the debtor made the transfer or incurred the 8 obligation without receiving a reasonably equivalent value in exchange 9 for the transfer or obligation and the debtor was insolvent at that time 10 or the debtor became insolvent as a result of the transfer or obli- 11 gation. 12 (b) A transfer made by a debtor is voidable as to a creditor whose 13 claim arose before the transfer was made if the transfer was made to an 14 insider for an antecedent debt, the debtor was insolvent at that time, 15 and the insider had reasonable cause to believe that the debtor was 16 insolvent. 17 (c) Subject to subdivision (b) of section two hundred seventy-one of 18 this article, a creditor making a claim for relief under subdivision (a) 19 or (b) of this section has the burden of proving the elements of the 20 claim for relief by a preponderance of the evidence. 21 § 275. When transfer is made or obligation is incurred. For the 22 purposes of this article: 23 (a) a transfer is made: 24 (1) with respect to an asset that is real property other than a 25 fixture, but including the interest of a seller or purchaser under a 26 contract for the sale of the asset, when the transfer is so far 27 perfected that a good-faith purchaser of the asset from the debtor 28 against which applicable law permits the transfer to be perfected cannot 29 acquire an interest in the asset that is superior to the interest of the 30 transferee; and 31 (2) with respect to an asset that is not real property or that is a 32 fixture, when the transfer is so far perfected that a creditor on a 33 simple contract cannot acquire a judicial lien otherwise than under this 34 article that is superior to the interest of the transferee; 35 (b) if applicable law permits the transfer to be perfected as provided 36 in subdivision (a) of this section and the transfer is not so perfected 37 before the commencement of an action for relief under this article, the 38 transfer is deemed made immediately before the commencement of the 39 action; 40 (c) if applicable law does not permit the transfer to be perfected as 41 provided in subdivision (a) of this section, the transfer is made when 42 it becomes effective between the debtor and the transferee; 43 (d) a transfer is not made until the debtor has acquired rights in the 44 asset transferred; and 45 (e) an obligation is incurred: 46 (1) if oral, when it becomes effective between the parties; or 47 (2) if evidenced by a record, when the record signed by the obligor is 48 delivered to or for the benefit of the obligee. 49 § 276. Remedies of creditor. (a) In an action for relief against a 50 transfer or obligation under this article, a creditor, subject to the 51 limitations in section two hundred seventy-seven of this article, may 52 obtain: 53 (1) avoidance of the transfer or obligation to the extent necessary to 54 satisfy the creditor's claim;S. 7687--A 6 1 (2) an attachment or other provisional remedy against the asset trans- 2 ferred or other property of the transferee if available under applicable 3 law; and 4 (3) subject to applicable principles of equity and in accordance with 5 applicable rules of civil procedure: 6 (i) an injunction against further disposition by the debtor or a 7 transferee, or both, of the asset transferred or of other property; 8 (ii) appointment of a receiver to take charge of the asset transferred 9 or of other property of the transferee; or 10 (iii) any other relief the circumstances may require. 11 (b) If a creditor has obtained a judgment on a claim against the 12 debtor, the creditor, if the court so orders, may levy execution on the 13 asset transferred or its proceeds. 14 § 277. Defenses, liability, and protection of transferee or obligee. 15 (a) A transfer or obligation is not voidable under paragraph one of 16 subdivision (a) of section two hundred seventy-three of this article 17 against a person that took in good faith and for a reasonably equivalent 18 value given the debtor or against any subsequent transferee or obligee. 19 (b) To the extent a transfer is avoidable in an action by a creditor 20 under paragraph one of subdivision (a) of section two hundred seventy- 21 six of this article the following rules apply: 22 (1) Except as otherwise provided in this section, the creditor may 23 recover judgment for the value of the asset transferred, as adjusted 24 under subdivision (c) of this section, or the amount necessary to satis- 25 fy the creditor's claim, whichever is less. The judgment may be entered 26 against: 27 (i) the first transferee of the asset or the person for whose benefit 28 the transfer was made; or 29 (ii) an immediate or mediate transferee of the first transferee, other 30 than: 31 (A) a good-faith transferee that took for value; or 32 (B) an immediate or mediate good-faith transferee of a person 33 described in clause (A) of this subparagraph. 34 (2) Recovery pursuant to paragraph one of subdivision (a) or subdivi- 35 sion (b) of section two hundred seventy-six of this article of or from 36 the asset transferred or its proceeds, by levy or otherwise, is avail- 37 able only against a person described in subparagraph (i) or (ii) of 38 paragraph one of this subdivision. 39 (c) If the judgment under subdivision (b) of this section is based 40 upon the value of the asset transferred, the judgment must be for an 41 amount equal to the value of the asset at the time of the transfer, 42 subject to adjustment as the equities may require. 43 (d) Notwithstanding voidability of a transfer or an obligation under 44 this article, a good-faith transferee or obligee is entitled, to the 45 extent of the value given the debtor for the transfer or obligation, to: 46 (1) a lien on or a right to retain an interest in the asset trans- 47 ferred; 48 (2) enforcement of an obligation incurred; or 49 (3) a reduction in the amount of the liability on the judgment. 50 (e) A transfer is not voidable under paragraph two of subdivision (a) 51 of section two hundred seventy-three or section two hundred seventy-four 52 of this article if the transfer results from: 53 (1) termination of a lease upon default by the debtor when the termi- 54 nation is pursuant to the lease and applicable law; orS. 7687--A 7 1 (2) enforcement of a security interest in compliance with article nine 2 of the Uniform Commercial Code, other than acceptance of collateral in 3 full or partial satisfaction of the obligation it secures. 4 (f) A transfer is not voidable under subdivision (b) of section two 5 hundred seventy-four of this article: 6 (1) to the extent the insider gave new value to or for the benefit of 7 the debtor after the transfer was made, except to the extent the new 8 value was secured by a valid lien; 9 (2) if made in the ordinary course of business or financial affairs of 10 the debtor and the insider; or 11 (3) if made pursuant to a good-faith effort to rehabilitate the debtor 12 and the transfer secured present value given for that purpose as well as 13 an antecedent debt of the debtor. 14 (g) The following rules determine the burden of proving matters 15 referred to in this section: 16 (1) A party that seeks to invoke subdivision (a), (d), (e) or (f) of 17 this section has the burden of proving the applicability of that subdi- 18 vision. 19 (2) Except as otherwise provided in paragraphs three and four of this 20 subdivision, the creditor has the burden of proving each applicable 21 element of subdivision (b) or (c) of this section. 22 (3) The transferee has the burden of proving the applicability to the 23 transferee of clause (A) or (B) of subparagraph (ii) of paragraph one of 24 subdivision (b) of this section. 25 (4) A party that seeks adjustment under subdivision (c) of this 26 section has the burden of proving the adjustment. 27 (h) The standard of proof required to establish matters referred to in 28 this section is preponderance of the evidence. 29 § 278. Extinguishment of claim for relief. A claim for relief with 30 respect to a transfer or obligation under this article is extinguished 31 unless action is brought: 32 (a) under paragraph one of subdivision (a) of section two hundred 33 seventy-three of this article, not later than four years after the 34 transfer was made or the obligation was incurred or, if later, not later 35 than one year after the transfer or obligation was or could reasonably 36 have been discovered by the claimant; 37 (b) under paragraph two of subdivision (a) of section two hundred 38 seventy-three or subdivision (a) of section two hundred seventy-four of 39 this article, not later than four years after the transfer was made or 40 the obligation was incurred; or 41 (c) under subdivision (b) of section two hundred seventy-four of this 42 article, not later than one year after the transfer was made. 43 § 279. Governing law. (a) In this section, the following rules deter- 44 mine a debtor's location: 45 (1) A debtor who is an individual is located at the individual's prin- 46 cipal residence. 47 (2) A debtor that is an organization and has only one place of busi- 48 ness is located at its place of business. 49 (3) A debtor that is an organization and has more than one place of 50 business is located at its chief executive office. 51 (b) A claim for relief in the nature of a claim for relief under this 52 article is governed by the local law of the jurisdiction in which the 53 debtor is located when the transfer is made or the obligation is 54 incurred. 55 § 280. Supplementary provisions. Unless displaced by the provisions of 56 this article, the principles of law and equity, including the lawS. 7687--A 8 1 merchant and the law relating to principal and agent, estoppel, laches, 2 fraud, misrepresentation, duress, coercion, mistake, insolvency, or 3 other validating or invalidating cause, supplement its provisions. 4 § 281. Uniformity of application and construction. This article shall 5 be applied and construed to effectuate its general purpose to make 6 uniform the law with respect to the subject of this article among states 7 enacting it. 8 § 281-a. Relation to electronic signatures in global and national 9 commerce act. This article modifies, limits, or supersedes the Electron- 10 ic Signatures in Global and National Commerce Act, 15 U.S.C. Section 11 7001 et seq., but does not modify, limit, or supersede Section 101(c) of 12 that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of 13 any of the notices described in Section 103(b) of that act, 15 U.S.C. 14 Section 7003(b). 15 § 3. Paragraph 5 of subdivision (c) of section 5205 of the civil prac- 16 tice law and rules, as amended by chapter 93 of the laws of 1995, is 17 amended to read as follows: 18 5. Additions to an asset described in paragraph two of this subdivi- 19 sion shall not be exempt from application to the satisfaction of a money 20 judgment if (i) made after the date that is ninety days before the 21 interposition of the claim on which such judgment was entered, or (ii) 22 deemed to be [fraudulent conveyances] voidable transactions under arti- 23 cle ten of the debtor and creditor law. 24 § 4. Subdivision (g) of section 5519 of the civil practice law and 25 rules, as added by chapter 184 of the laws of 1988, is amended to read 26 as follows: 27 (g) Appeals in medical, dental or podiatric malpractice judgments. In 28 an action for medical, dental or podiatric malpractice, if an appeal is 29 taken from a judgment in excess of one million dollars and an undertak- 30 ing in the amount of one million dollars or the limit of insurance 31 coverage available to the appellant for the occurrence, whichever is 32 greater, is given together with a joint undertaking by the appellant and 33 any insurer of the appellant's professional liability that, during the 34 period of such stay, the appellant will make no [fraudulent conveyance35without fair consideration] voidable transaction as described in 36 [section two hundred seventy-three-a] article ten of the debtor and 37 creditor law, the court to which such an appeal is taken shall stay all 38 proceedings to enforce the judgment pending such appeal if it finds that 39 there is a reasonable probability that the judgment may be reversed or 40 determined excessive. In making a determination under this subdivision, 41 the court shall not consider the availability of a stay pursuant to 42 subdivision (a) or (b) of this section. Liability under such joint 43 undertaking shall be limited to [fraudulent conveyances] voidable trans- 44 actions made by the appellant subsequent to the execution of such under- 45 taking and during the period of such stay, but nothing herein shall 46 limit the liability of the appellant for [fraudulent conveyances] voida- 47 ble transactions pursuant to article ten of the debtor and creditor law 48 or any other law. An insurer that pays money to a beneficiary of such a 49 joint undertaking shall thereupon be subrogated, to the extent of the 50 amount to be paid, to the rights and interests of such beneficiary, as a 51 judgment creditor, against the appellant on whose behalf the joint 52 undertaking was executed. 53 § 5. Subparagraph 4 of paragraph (b) of section 7-3.1 of the estates, 54 powers and trusts law, as amended by chapter 206 of the laws of 1998, is 55 amended to read as follows:S. 7687--A 9 1 (4) Additions to an asset described in subparagraph one of this para- 2 graph shall not be exempt from application to the satisfaction of a 3 money judgment if (i) made after the date that is ninety days before the 4 interposition of the claim on which such judgment was entered, or (ii) 5 deemed to be [fraudulent conveyances] voidable transactions under arti- 6 cle ten of the debtor and creditor law. 7 § 6. Paragraph 3 of subdivision 3-a of section 50 of the workers' 8 compensation law, as amended by chapter 139 of the laws of 2008, is 9 amended to read as follows: 10 (3) A member's participation in a group self-insurer shall not relieve 11 it of its liability for compensation prescribed by this chapter except 12 by the payment thereof by the group self-insurer or by itself. Each 13 member shall be responsible, jointly and severally, for all liabilities 14 of the group self-insurer provided for by this chapter occurring during 15 its respective period of membership, and such liability shall attach to 16 any recipient of a conveyance of assets made in violation of subdivision 17 (a) of section two hundred [seventy-three] seventy-four of the debtor 18 and creditor law. As between the employee and the group self-insurer, 19 notice to or knowledge of the occurrence of the injury on the part of 20 the member shall be deemed notice or knowledge, as the case may be, on 21 the part of the group self-insurer; jurisdiction of the member shall, 22 for the purpose of this chapter, be jurisdiction of the group self-in- 23 surer and such group self-insurer shall in all things be bound by and 24 subject to the orders, findings, decisions or awards rendered against 25 the participating member for the payment of compensation under the 26 provisions of this chapter. The insolvency or bankruptcy of a partic- 27 ipating member shall not relieve the group self-insurer from the payment 28 of compensation for injuries or death sustained by an employee during 29 the time the member was a participant in such group self-insurer. Notice 30 of termination of a participating member shall not be effective until at 31 least ten days after notice of such termination, on a prescribed form, 32 has been either filed in the office of the chair or sent by certified or 33 registered letter, return receipt requested, and also served in like 34 manner upon the member. In the event such termination is due to a 35 member's failure to pay required contributions, such member's termi- 36 nation shall not be rescinded more than three times. 37 § 7. This act shall take effect one hundred twenty days after it shall 38 have become law, and shall apply to a transfer made or obligation 39 incurred on or after such effective date, but shall not apply to a 40 transfer made or obligation incurred before such effective date, nor 41 shall it apply to a right of action that has accrued before such effec- 42 tive date. For the foregoing purposes, a transfer is made and an obli- 43 gation is incurred at the time provided in section 275 of the debtor and 44 creditor law as added by section two of this act.
