Utah Code 25-6-202. Voidable transfer or obligation — Present or future creditor — Determination of intent — Burden of proof
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(1) A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
Terms Used In Utah Code 25-6-202
- Asset: means property of a debtor, but does not include:(2)(a) property to the extent it is encumbered by a valid lien;(2)(b) property to the extent it is generally exempt under nonbankruptcy law; or(2)(c) an interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant. See Utah Code 25-6-102
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- claim for relief: means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured. See Utah Code 25-6-102
- Creditor: means a person that has a claim. See Utah Code 25-6-102
- Debt: means liability on a claim. See Utah Code 25-6-102
- Debtor: means a person that is liable on a claim. See Utah Code 25-6-102
- 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 :
(8)(a) if the debtor is an individual:(8)(a)(i) a relative of the debtor or of a general partner of the debtor;(8)(a)(ii) a partnership in which the debtor is a general partner;(8)(a)(iii) a general partner in a partnership described in Subsection (8)(a)(ii);(8)(a)(iv) a corporation of which the debtor is a director, officer, or person in control; or(8)(a)(v) a limited liability company of which the debtor is a member or manager;(8)(b) if the debtor is a corporation:(8)(b)(i) a director of the debtor;(8)(b)(ii) an officer of the debtor;(8)(b)(iii) a person in control of the debtor;(8)(b)(iv) a partnership in which the debtor is a general partner;(8)(b)(v) a general partner in a partnership described in Subsection (8)(b)(iv);(8)(b)(vi) a limited liability company of which the debtor is a member or manager; or(8)(b)(vii) a relative of a general partner, director, officer, or person in control of the debtor;(8)(c) if the debtor is a partnership:(8)(c)(i) a general partner in the debtor;(8)(c)(ii) a relative of a general partner in, a general partner of, or a person in control of the debtor;(8)(c)(iii) another partnership in which the debtor is a general partner;(8)(c)(iv) a general partner in a partnership described in Subsection (8)(c)(iii);(8)(c)(v) a limited liability company of which the debtor is a member or manager; or(8)(c)(vi) a person in control of the debtor;(8)(d) if the debtor is a limited liability company:(8)(d)(i) a member or manager of the debtor;(8)(d)(ii) another limited liability company in which the debtor is a member or manager;(8)(d)(iii) a partnership in which the debtor is a general partner;(8)(d)(iv) a general partner in a partnership described in Subsection (8)(d)(iii);(8)(d)(v) a person in control of the debtor; or(8)(d)(vi) a relative of a general partner, member, manager, or person in control of the debtor;(8)(e) an affiliate, or an insider of an affiliate as if the affiliate were the debtor; and(8)(f) a managing agent of the debtor. See Utah Code 25-6-102- 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.
- Property: means anything that may be the subject of ownership. See Utah Code 25-6-102
- Transfer: means every mode, direct or indirect, absolute or conditional, or voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance. See Utah Code 25-6-102
(1)(a) with actual intent to hinder, delay, or defraud any creditor of the debtor; or(1)(b) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:(1)(b)(i) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or(1)(b)(ii) intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they became due.(2) To determine “actual intent” under Subsection (1)(a), consideration may be given, among other factors, to whether:(2)(a) the transfer or obligation was to an insider;(2)(b) the debtor retained possession or control of the property transferred after the transfer;(2)(c) the transfer or obligation was disclosed or concealed;(2)(d) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;(2)(e) the transfer was of substantially all the debtor’s assets;(2)(f) the debtor absconded;(2)(g) the debtor removed or concealed assets;(2)(h) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;(2)(i) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;(2)(j) the transfer occurred shortly before or shortly after a substantial debt was incurred; and(2)(k) the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor.(3) A creditor making a claim for relief under Subsection (1) has the burden of proving the elements of the claim for relief by a preponderance of the evidence.