(1) Except as otherwise provided in this section, to the extent that the receiver obtains an order pursuant to Section 31A-27a-501, or avoids a transfer under Section 31A-27a-502, 31A-27a-503, 31A-27a-504, 31A-27a-506, or 31A-27a-507, the receiver may recover the property transferred, or the value of the property, from:

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Terms Used In Utah Code 31A-27a-508

  • Good faith: means honesty in fact and intention, and in regard to Part 5, Asset Recovery, also requires the absence of:
         (19)(a) information that would lead a reasonable person in the same position to know that the insurer is financially impaired or insolvent; and
         (19)(b) knowledge regarding the imminence or pendency of a delinquency proceeding against the insurer. See Utah Code 31A-27a-102
  • insurer: means a person who:
         (23)(a) is doing, has done, purports to do, or is licensed to do the business of insurance;
         (23)(b) is or has been subject to the authority of, or to rehabilitation, liquidation, reorganization, supervision, or conservation by an insurance commissioner; or
         (23)(c) is included under Section 31A-27a-104. See Utah Code 31A-27a-102
  • Intangible property: Property that has no intrinsic value, but is merely the evidence of value such as stock certificates, bonds, and promissory notes.
  • Order: means an order of the commissioner. See Utah Code 31A-1-301
  • Person: includes :
         (146)(a) an individual;
         (146)(b) a partnership;
         (146)(c) a corporation;
         (146)(d) an incorporated or unincorporated association;
         (146)(e) a joint stock company;
         (146)(f) a trust;
         (146)(g) a limited liability company;
         (146)(h) a reciprocal;
         (146)(i) a syndicate; or
         (146)(j) another similar entity or combination of entities acting in concert. See Utah Code 31A-1-301
  • Property: includes both real and personal property. See Utah Code 68-3-12.5
  • Rate: means :
              (163)(a)(i) the cost of a given unit of insurance; or
              (163)(a)(ii) for property or casualty insurance, that cost of insurance per exposure unit either expressed as:
                   (163)(a)(ii)(A) a single number; or
                   (163)(a)(ii)(B) a pure premium rate, adjusted before the application of individual risk variations based on loss or expense considerations to account for the treatment of:
                        (163)(a)(ii)(B)(I) expenses;
                        (163)(a)(ii)(B)(II) profit; and
                        (163)(a)(ii)(B)(III) individual insurer variation in loss experience. See Utah Code 31A-1-301
  • receiver: means the commissioner or the commissioner's designee, including a rehabilitator, liquidator, or ancillary receiver. See Utah Code 31A-27a-102
  • receivership: means a rehabilitation, liquidation, or ancillary receivership. See Utah Code 31A-27a-102
  • receivership court: refers to the court in which a delinquency proceeding is pending. See Utah Code 31A-27a-102
  • Transfer: includes the sale and every other and different mode of disposing of or parting with property or with an interest in property, whether:
              (46)(a)(i) directly or indirectly;
              (46)(a)(ii) absolutely or conditionally;
              (46)(a)(iii) voluntarily or involuntarily; or
              (46)(a)(iv) by or without judicial proceedings. See Utah Code 31A-27a-102
     (1)(a) the initial transferee of the transfer or the entity for whose benefit the transfer is made; or
     (1)(b) subject to Subsection (2), an immediate or mediate transferee of the initial transferee.
(2) The receiver may not recover under Subsection (1)(b) from:

     (2)(a) a transferee that takes for value, including satisfaction or securing of a present or antecedent debt:

          (2)(a)(i) in good faith; and
          (2)(a)(ii) without knowledge of the voidability of the transfer avoided; or
     (2)(b) an immediate or mediate good faith transferee of the transferee.
(3) A transfer avoided in accordance with this chapter is preserved for the benefit of the receivership estate, but only with respect to property of the insurer.
(4) In addition to the remedies specifically provided in Sections 31A-27a-501, 31A-27a-502, 31A-27a-503, 31A-27a-504, 31A-27a-506, and 31A-27a-507 and Subsection (1), if the receiver is successful in establishing a claim to the property or any part of the property, the receiver may recover judgment for the following:

     (4)(a) rental for the use of tangible property from the later of:

          (4)(a)(i) the day on which the receivership order is entered; or
          (4)(a)(ii) the date of the transfer; and
     (4)(b) in the case of funds or intangible property:

          (4)(b)(i) the greater of:

               (4)(b)(i)(A) the actual interest;
               (4)(b)(i)(B) income earned by the property; or
               (4)(b)(i)(C) interest at the statutory rate for judgments; and
          (4)(b)(ii) from the later of:

               (4)(b)(ii)(A) the day on which the receivership order is entered; or
               (4)(b)(ii)(B) the date of the transfer.
(5) In an action pursuant to this section, the receivership court may allow the receiver to seek recovery of the property involved or its value.
(6) In an action pursuant to Sections 31A-27a-501, 31A-27a-502, 31A-27a-503, 31A-27a-504, 31A-27a-506, 31A-27a-507, and 31A-27a-510:

     (6)(a) the receiver has the burden of proving the avoidability of a transfer; and
     (6)(b) the person against whom recovery or avoidance is sought has the burden of proving the nature and extent of any affirmative defense.
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