Missouri Laws 375.1192 – Fraudulent and voidable transfers — requirements — effects
1. 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 sections 375.1150 to 375.1246 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 act*, 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 market value. 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.
2. (1) A transfer of property other than real property shall be deemed to be made or suffered when it becomes perfected to the extent that no subsequent lien obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee under subsection 3 of section 375.1195;
Terms Used In Missouri Laws 375.1192
- 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
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Insurer: all insurance companies, reciprocals, or interinsurance exchanges transacting the business of insurance in this state. See Missouri Laws 375.001
- 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 politic and corporate, and to partnerships and other unincorporated associations. See Missouri Laws 1.020
- Property: includes real and personal property. See Missouri Laws 1.020
- 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.
(2) A transfer of real property shall be deemed to be made or suffered when it becomes perfected to the extent that no subsequent bona fide purchaser from the insurer could obtain rights superior to the rights of the transferee;
(3) 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;
(4) The provisions of this subsection apply whether or not there are or were creditors who might have obtained any liens or persons who might have become bona fide purchasers.
3. Any transaction of the insurer with a reinsurer shall be deemed fraudulent and may be avoided by the receiver under subsection 1 of this section if:
(1) 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 transactions, unless the reinsurer gives a present fair equivalent value for the release; or
(2) 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.
4. Every person receiving any property from the insurer or any benefit thereof which is a fraudulent transfer under subsection 1 of this section shall be personally liable therefore and shall be bound to account to the liquidator.