375.1192. Fraudulent and voidable transfers--requirements--effects. - Missouri Statutes

Fraudulent and voidable transfers--requirements--effects.

375.1192. 1. Every transfer made or suffered and everyobligation incurred by an insurer within one year prior to thefiling of a successful petition for rehabilitation or liquidationunder sections 375.1150 to 375.1246 is fraudulent as to thenexisting and future creditors if made or incurred without fairconsideration, or with actual intent to hinder, delay or defraudeither existing or future creditors. A transfer made or anobligation incurred by an insurer ordered to be rehabilitated orliquidated under this act*, which is fraudulent under thissection, may be avoided by the receiver, except as to a personwho in good faith is a purchaser, lienor, or obligee for apresent fair market value. The court may, on due notice, orderany such transfer or obligation to be preserved for the benefitof the estate, and in that event, the receiver shall succeed toand may enforce the rights of the purchaser, lienor, or obligee.

2. (1) A transfer of property other than real propertyshall be deemed to be made or suffered when it becomes perfectedto the extent that no subsequent lien obtainable by legal orequitable proceedings on a simple contract could become superiorto the rights of the transferee under subsection 3 of section375.1195;

(2) A transfer of real property shall be deemed to be madeor suffered when it becomes perfected to the extent that nosubsequent bona fide purchaser from the insurer could obtainrights superior to the rights of the transferee;

(3) A transfer which creates an equitable lien shall not bedeemed to be perfected if there are available means by which alegal lien could be created;

(4) The provisions of this subsection apply whether or notthere are or were creditors who might have obtained any liens orpersons who might have become bona fide purchasers.

3. Any transaction of the insurer with a reinsurer shall bedeemed fraudulent and may be avoided by the receiver undersubsection 1 of this section if:

(1) The transaction consists of the termination, adjustmentor settlement of a reinsurance contract in which the reinsurer isreleased from any part of its duty to pay the originallyspecified share of losses that had occurred prior to the time ofthe transactions, unless the reinsurer gives a present fairequivalent value for the release; or

(2) Any part of the transaction took place within one yearprior to the date of filing of the petition through which thereceivership was commenced.

4. Every person receiving any property from the insurer orany benefit thereof which is a fraudulent transfer undersubsection 1 of this section shall be personally liable thereforeand shall be bound to account to the liquidator.

(L. 1991 H.B. 385, et al. § 75)

*"This act" (H.B. 385, et al., 1991) contains numerous sections. Consult Disposition of Sections table for definitive listing.