South Dakota Codified Laws 55-16-10. Requirements for bringing claim for fraudulent transfer of settlor’s assets
A cause of action or claim for relief with respect to a fraudulent transfer of a settlor’s assets under § 55-16-9 is extinguished unless the action under § 55-16-9 is brought by a creditor of the settlor who meets one of the following requirements:
(1) Is a creditor of the settlor before the settlor’s assets are transferred to the trust, and the action under § 55-16-9 is brought within the later of:
Terms Used In South Dakota Codified Laws 55-16-10
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- 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.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Person: includes natural persons, partnerships, associations, cooperative corporations, limited liability companies, and corporations. See South Dakota Codified Laws 2-14-2
- Personal property: All property that is not real property.
- Personal property: includes money, goods, chattels, things in action, and evidences of debt. See South Dakota Codified Laws 2-14-2
- Property: includes property, real and personal. See South Dakota Codified Laws 2-14-2
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Trustee: A person or institution holding and administering property in trust.
(a) Two years after the transfer is made; or
(b) Six months after the transfer is or reasonably could have been discovered by the creditor if the creditor:
(i) Can demonstrate that the creditor asserted a specific claim against the settlor before the transfer; or
(ii) Files another action, other than an action under § 55-16-9, against the settlor that asserts a claim based on an act or omission of the settlor that occurred before the transfer, and the action described in this sub-subsection is filed within two years after the transfer;
(2) Becomes a creditor subsequent to the transfer into trust, and the action under § 55-16-9 is brought within two years after the transfer is made;
(3) In any action described in § 55-16-9, the burden to prove the matter by clear and convincing evidence is upon the creditor;
(4) A person is deemed to have discovered a transfer at the time a public record of the transfer is made, including the conveyance of an interest in real property that is recorded in the appropriate public filing office where the property is located, the filing of a financing statement pursuant to chapter 57A-9, or the filing of a bill of sale or other transfer instrument regarding personal property; or
(5) The filing of a bill of sale or other transfer instrument which conveys personal property to a trust which is governed by this chapter shall be filed in the applicable public filing office determined as follows:
(a) If the transferor is a natural person and is a resident of this state, the personal property transfer instrument shall be recorded in the county in this state where the transferor maintains the transferor’s principal residence; and
(b) In all other cases, the personal property transfer instrument shall be recorded in the county in this state where the trustee of the trust maintains a principal residence or principal place of business.
This section and §§ 55-16-9, 55-16-11 to 55-16-13, inclusive, are inseparably interwoven with substantive rights that a deprivation of legal rights would result if another jurisdiction‘s laws and regulations to the contrary are applied to a claim or cause of action described therein.
Source: SL 2005, ch 261, § 10; SL 2008, ch 257, § 17; SL 2012, ch 233, § 16; SL 2016, ch 231, § 24; SL 2017, ch 204, § 22.