Vermont Statutes Title 9 Sec. 2292
Terms Used In Vermont Statutes Title 9 Sec. 2292
- Asset: means property of a debtor, but the term does not include:
- Creditor: means a person who has a claim. See
- Debt: means liability on a claim. See
- Debtor: means a person who is liable on a claim. See
- 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.
- following: when used by way of reference to a section of the law shall mean the next preceding or following section. See
- Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
- Insider: includes :
- 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
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- 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: means an individual, partnership, corporation, limited liability company, association, organization, government or governmental subdivision or agency, business trust, estate, trust, or any other legal or commercial entity. See
- 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, and creation of a lien or other encumbrance. See
§ 2292. Defenses, liability, and protection of transferee or obligee
(a) A transfer or obligation is not voidable under subdivision 2288(a)(1) of this title against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee.
(b) To the extent a transfer is avoidable in an action by a creditor under subdivision 2291(a)(1) of this title, the following rules apply:
(1) Except as otherwise provided in this section, the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (c) of this section, or the amount necessary to satisfy the creditor’s claim, whichever is less. The judgment may be entered against:
(A) the first transferee of the asset or the person for whose benefit the transfer was made; or
(B) an immediate or mediate transferee of the first transferee, other than:
(i) a good-faith transferee who took for value; or
(ii) an immediate or mediate good-faith transferee of a person described in subdivision (1)(B)(i) of this subsection (b).
(2) Recovery pursuant to subdivision 2291(a)(1) or subsection 2291(b) of this title of or from the asset transferred or its proceeds, by levy or otherwise, is available only against a person described in subdivision (1)(A) or (1)(B) of this subsection.
(c) If the judgment under subsection (b) of this section is based upon the value of the asset transferred, the judgment must 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.
(d) 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:
(1) a lien on or a right to retain any interest in the asset transferred;
(2) enforcement of any obligation incurred; or
(3) a reduction in the amount of the liability on the judgment.
(e) A transfer is not voidable under subdivision 2288(a)(2) or section 2289 of this title if the transfer results from:
(1) termination of a lease upon default by the debtor when the termination is pursuant to the lease and applicable law;
(2) enforcement of a security interest in compliance with 9A V.S.A. Article 9, other than acceptance of collateral in full or partial satisfaction of the obligation it secures; or
(3) foreclosure of a mortgage in compliance with 12 Vt. Stat. Ann. chapter 172.
(f) A transfer is not voidable under subsection 2289(b) of this title:
(1) 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;
(2) if made in the ordinary course of business or financial affairs of the debtors and the insider; or
(3) 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.
(g) The following rules determine the burden of proving matters referred to in this section:
(1) A party that seeks to invoke subsection (a), (d), (e), or (f) of this section has the burden of proving the applicability of that subsection.
(2) Except as otherwise provided in subdivisions (3) and (4) of this subsection, the creditor has the burden of proving each applicable element of subsection (b) or (c) of this section.
(3) The transferee has the burden of proving the applicability to the transferee of subdivision (b)(1)(B)(i) or (ii) of this section.
(4) A party that seeks adjustment under subsection (c) of this section has the burden of proving the adjustment.
(h) The standard of proof required to establish matters referred to in this section is preponderance of the evidence. (Added 1995, No. 179 (Adj. Sess.), § 14; amended 2005, No. 133 (Adj. Sess.), § 1, eff. May 5, 2006; 2013, No. 194 (Adj. Sess.), § 3, eff. June 17, 2014; 2017, No. 20, § 1.)