Kentucky Statutes 378A.080 – Defenses, liability, and protection of transferee or obligee
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(1) A transfer or obligation is not voidable under KRS § 378A.040(1)(a) against a person that took in good faith and for a reasonably equivalent value given the debtor or against any subsequent transferee or obligee.
(2) To the extent a transfer is avoidable in an action by a creditor under KRS
378A.070(1)(a), the following rules apply:
(a) Except as otherwise provided in this section, the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (3) of this section, or the amount necessary to satisfy the creditor’s claim, whichever is less. The judgment may be entered against:
1. The first transferee of the asset or the person for whose benefit the transfer was made; or
2. An immediate or mediate transferee of the first transferee, other than:
a. A good-faith transferee that took for value; or
b. An immediate or mediate good-faith transferee of a person described in subdivision a. of this subparagraph; and
(b) Recovery pursuant to KRS § 378A.070(1)(a) or (b) of or from the asset transferred or its proceeds, by levy or otherwise, is available only against a person described in subsection (2)(a)1. or 2. of this section.
(3) If the judgment under subsection (2) of this section is based upon the value of the asset transferred, the judgment shall be for an amount equal to the value of the asset at the time of the transfer, subject to adjustment as the equities may require.
(4) Notwithstanding voidability of a transfer or an obligation under this chapter, a good-faith transferee or obligee is entitled, to the extent of the value given the debtor for the transfer or obligation, to:
(a) A lien on or a right to retain an interest in the asset transferred; (b) Enforcement of an obligation incurred; or
(c) A reduction in the amount of the liability on the judgment.
(5) A transfer is not voidable under KRS § 378A.040(1)(b) or 378A.050 if the transfer results from:
(a) Termination of a lease upon default by the debtor when the termination is pursuant to the lease and applicable law; or
(b) Enforcement of a security interest in compliance with Subtitle 9 of KRS Chapter 355, other than acceptance of collateral in full or partial satisfaction of the obligation it secures.
(6) A transfer is not voidable under KRS § 378A.050(2):
(a) To the extent the insider gave new value to or for the benefit of the debtor after the transfer was made, except to the extent the new value was secured by a valid lien;
(b) If made in the ordinary course of business or financial affairs of the debtor and the insider; or
(c) If made pursuant to a good-faith effort to rehabilitate the debtor and the transfer secured present value given for that purpose as well as an antecedent debt of the debtor.
(7) The following rules determine the burden of proving matters referred to in this section:
(a) A party that seeks to invoke subsection (1), (4), (5), or (6) of this section has the burden of proving the applicability of the subsection invoked;
(b) Except as otherwise provided in paragraphs (c) and (d) of this subsection, the creditor has the burden of proving each applicable element of subsections (2) or (3) of this section;
(c) The transferee has the burden of proving the applicability to the transferee of subsection (2)(a)2.a. or b. of this section; and
(d) A party that seeks adjustment under subsection (3) of this section has the burden of proving the adjustment.
(8) The standard of proof required to establish matters referred to in this section is preponderance of the evidence.
Effective: January 1, 2016
History: Created 2015 Ky. Acts ch. 37, sec. 8, effective January 1, 2016.
(2) To the extent a transfer is avoidable in an action by a creditor under KRS
Terms Used In Kentucky Statutes 378A.080
- Action: includes all proceedings in any court of this state. See Kentucky Statutes 446.010
- Asset: means property of a debtor, but the term does not include: (a) Property to the extent it is encumbered by a valid lien. See Kentucky Statutes 378A.010
- Creditor: means a person that has a claim. See Kentucky Statutes 378A.010
- Debt: means liability on a claim. See Kentucky Statutes 378A.010
- Debtor: means a person that is liable on a claim. See Kentucky Statutes 378A.010
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Insider: includes :
(a) If the debtor is an individual:
1. See Kentucky Statutes 378A.010 - Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Lien: A claim against real or personal property in satisfaction of a debt.
- Lien: means a charge against or an interest in property to secure payment of a debt or performance of an obligation, and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common-law lien, or a statutory lien. See Kentucky Statutes 378A.010
- 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.
- Transfer: means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, license, and creation of a lien or other encumbrance. See Kentucky Statutes 378A.010
378A.070(1)(a), the following rules apply:
(a) Except as otherwise provided in this section, the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (3) of this section, or the amount necessary to satisfy the creditor’s claim, whichever is less. The judgment may be entered against:
1. The first transferee of the asset or the person for whose benefit the transfer was made; or
2. An immediate or mediate transferee of the first transferee, other than:
a. A good-faith transferee that took for value; or
b. An immediate or mediate good-faith transferee of a person described in subdivision a. of this subparagraph; and
(b) Recovery pursuant to KRS § 378A.070(1)(a) or (b) of or from the asset transferred or its proceeds, by levy or otherwise, is available only against a person described in subsection (2)(a)1. or 2. of this section.
(3) If the judgment under subsection (2) of this section is based upon the value of the asset transferred, the judgment shall be for an amount equal to the value of the asset at the time of the transfer, subject to adjustment as the equities may require.
(4) Notwithstanding voidability of a transfer or an obligation under this chapter, a good-faith transferee or obligee is entitled, to the extent of the value given the debtor for the transfer or obligation, to:
(a) A lien on or a right to retain an interest in the asset transferred; (b) Enforcement of an obligation incurred; or
(c) A reduction in the amount of the liability on the judgment.
(5) A transfer is not voidable under KRS § 378A.040(1)(b) or 378A.050 if the transfer results from:
(a) Termination of a lease upon default by the debtor when the termination is pursuant to the lease and applicable law; or
(b) Enforcement of a security interest in compliance with Subtitle 9 of KRS Chapter 355, other than acceptance of collateral in full or partial satisfaction of the obligation it secures.
(6) A transfer is not voidable under KRS § 378A.050(2):
(a) To the extent the insider gave new value to or for the benefit of the debtor after the transfer was made, except to the extent the new value was secured by a valid lien;
(b) If made in the ordinary course of business or financial affairs of the debtor and the insider; or
(c) If made pursuant to a good-faith effort to rehabilitate the debtor and the transfer secured present value given for that purpose as well as an antecedent debt of the debtor.
(7) The following rules determine the burden of proving matters referred to in this section:
(a) A party that seeks to invoke subsection (1), (4), (5), or (6) of this section has the burden of proving the applicability of the subsection invoked;
(b) Except as otherwise provided in paragraphs (c) and (d) of this subsection, the creditor has the burden of proving each applicable element of subsections (2) or (3) of this section;
(c) The transferee has the burden of proving the applicability to the transferee of subsection (2)(a)2.a. or b. of this section; and
(d) A party that seeks adjustment under subsection (3) of this section has the burden of proving the adjustment.
(8) The standard of proof required to establish matters referred to in this section is preponderance of the evidence.
Effective: January 1, 2016
History: Created 2015 Ky. Acts ch. 37, sec. 8, effective January 1, 2016.