ORS Chapter 95

OREGON STATUTES AND CODES

Chapter 95 — FraudulentTransfers and Conveyances

2009 EDITION

FRAUDULENTTRANSFERS AND CONVEYANCES

PROPERTYRIGHTS AND TRANSACTIONS

95.200 Definitionsfor ORS 95.200 to 95.310

95.210 Insolvencydescribed

95.220 Valuedescribed

95.230 Transfersfraudulent as to present and future creditors

95.240 Transfersfraudulent as to present creditors

95.250 Whentransfer is made or obligation is incurred

95.260 Creditor’sremedies

95.270 Transferee’sdefenses, liability and protections

95.280 Extinguishmentof claim for relief

95.290 Generalprinciples of law and equity as supplement to ORS 95.200 to 95.310

95.300 Uniformityof application and construction

95.310 Shorttitle

95.010 [Repealed by1985 c.664 §16]

95.020 [Repealed by1985 c.664 §16]

95.030 [Repealed by1985 c.664 §16]

95.040 [Repealed by1985 c.664 §16]

95.050 [Repealed by1985 c.664 §16]

95.060 [Repealed by1985 c.664 §16]

95.070 [Repealed by1985 c.664 §16]

95.080 [Repealed by1985 c.664 §16]

95.090 [Repealed by1985 c.664 §16]

95.100 [Repealed by1985 c.664 §16]

95.200Definitions for ORS 95.200 to 95.310. As used in ORS 95.200 to 95.310:

(1)“Affiliate” means any of the following:

(a)A person who directly or indirectly owns, controls or holds with power to vote20 or more percent of the outstanding voting securities of the debtor, otherthan a person who holds the securities:

(A)As a fiduciary or agent without sole discretionary power to vote thesecurities; or

(B)Solely to secure a debt, if the person has not in fact exercised the power tovote.

(b)A corporation, 20 or more percent of whose outstanding voting securities aredirectly or indirectly owned, controlled or held with power to vote by thedebtor or by a person who directly or indirectly owns, controls or holds withpower to vote 20 or more percent of the outstanding voting securities of thedebtor, other than a person who holds the securities:

(A)As a fiduciary or agent without sole discretionary power to vote thesecurities; or

(B)Solely to secure a debt, if the person has not in fact exercised the power tovote.

(c)A person whose business is operated by the debtor under a lease or otheragreement, or a person substantially all of whose assets are controlled by thedebtor.

(d)A person who operates the debtor’s business under a lease or other agreement orcontrols substantially all of the debtor’s assets.

(2)“Asset” means property of a debtor but does not include:

(a)Property to the extent that it is encumbered by a valid lien;

(b)Property to the extent that it is generally exempt under nonbankruptcy law; or

(c)An interest in property held in tenancy by the entirety to the extent that itis not subject to process by a creditor holding a claim against only onetenant.

(3)“Claim” means a right to payment, whether or not the right is reduced tojudgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,disputed, undisputed, legal, equitable, secured or unsecured.

(4)“Creditor” means a person who has a claim against a debtor.

(5)“Debt” means liability on a claim.

(6)“Debtor” means a person against whom a creditor has a claim.

(7)An “insider” includes:

(a)If the debtor is an individual:

(A)A relative of the debtor or of a general partner of the debtor;

(B)A partnership in which the debtor is a general partner;

(C)A general partner in a partnership described in subparagraph (B) of thisparagraph; or

(D)A corporation of which the debtor is a director, officer or person in control.

(b)If the debtor is a corporation:

(A)A director of the debtor;

(B)An officer of the debtor;

(C)A person in control of the debtor;

(D)A partnership in which the debtor is a general partner;

(E)A general partner in a partnership described in subparagraph (D) of thisparagraph; or

(F)A relative of a general partner, director, officer or person in control of thedebtor.

(c)If the debtor is a partnership:

(A)A general partner in the debtor;

(B)A relative of a general partner in a debtor, of a general partner of a debtor, orof a person in control of the debtor;

(C)Another partnership in which the debtor is a general partner;

(D)A general partner in a partnership described in subparagraph (C) of thisparagraph; or

(E)A person in control of the debtor.

(d)An affiliate or an insider of an affiliate as if the affiliate were the debtor;and

(e)A managing agent of the debtor.

(8)“Lien” means a charge against or an interest in property to secure payment of adebt or performance of an obligation, including a security interest created byagreement, a judicial lien obtained by legal or equitable process orproceedings, a common-law lien or a statutory lien.

(9)“Person” means an individual, partnership, corporation, association,organization, government or governmental subdivision or agency, business trustor any other legal or commercial entity.

(10)“Property” means anything that may be the subject of ownership.

(11)“Relative” means an individual related within the third degree as determined bythe common law, a spouse, or an individual related to a spouse within the thirddegree as so determined, and includes an individual in an adoptive relationshipwithin the third degree.

(12)“Transfer” means every mode, direct or indirect, absolute or conditional,voluntary or involuntary, of disposing of or parting with an asset or aninterest in an asset, and includes a payment of money, a release, a lease andthe creation of a lien or encumbrance.

(13)“Valid lien” means a lien that is effective against the holder of a judiciallien subsequently obtained by legal or equitable process or proceedings. [1985c.664 §1; 2009 c.294 §13]

95.210Insolvency described.(1) A debtor is insolvent if, at a fair valuation, the sum of the debtor’sdebts is greater than all of the debtor’s assets.

(2)A debtor who is generally not paying debts of the debtor as they become due ispresumed to be insolvent.

(3)A partnership is insolvent under subsection (1) of this section if, at a fairvaluation, the sum of the partnership’s debts is greater than the aggregate ofall of the partnership’s assets and the sum of the excess of the value of eachgeneral partner’s nonpartnership assets over the partner’s nonpartnershipdebts.

(4)Assets under this section do not include property that has been transferred,concealed or removed with intent to hinder, delay, or defraud creditors or thathas been transferred in a manner making the transfer voidable under ORS 95.200to 95.310.

(5)Debts under this section do not include an obligation to the extent theobligation is secured by a valid lien on property of the debtor not included asan asset. [1985 c.664 §2]

95.220Value described.(1) Value is given for a transfer or an obligation if in exchange for thetransfer or obligation property is transferred or an antecedent debt is securedor satisfied, but value does not include an unperformed promise made otherwisethan in the ordinary course of the promisor’s business to furnish support tothe debtor or another person.

(2)For the purposes of ORS 95.230 (1)(b) and 95.240, a person gives a reasonablyequivalent value if the person acquires an interest in the debtor in an assetpursuant to a regularly conducted, noncollusive foreclosure sale or executionof a power of sale for the acquisition or disposition of the interest of thedebtor upon default under a mortgage, deed of trust or security agreement.

(3)A transfer is made for present value if the exchange between the debtor and thetransferee is intended by them to be contemporaneous and is in fact substantiallycontemporaneous. [1985 c.664 §3]

95.230Transfers fraudulent as to present and future creditors. (1) A transfermade or obligation incurred by a debtor is fraudulent as to a creditor, whetherthe creditor’s claim arose before or after the transfer was made or theobligation was incurred, if the debtor made the transfer or incurred theobligation:

(a)With actual intent to hinder, delay, or defraud any creditor of the debtor; or

(b)Without receiving a reasonably equivalent value in exchange for the transfer orobligation, and the debtor:

(A)Was engaged or was about to engage in a business or a transaction for which theremaining assets of the debtor were unreasonably small in relation to thebusiness or transaction; or

(B)Intended to incur, or believed or reasonably should have believed that thedebtor would incur, debts beyond the debtor’s ability to pay as they becomedue.

(2)In determining actual intent under subsection (1)(a) of this section,consideration may be given, among other factors, to whether:

(a)The transfer or obligation was to an insider;

(b)The debtor had retained possession or control of the property transferred afterthe transfer;

(c)The transfer or obligation was disclosed or concealed;

(d)Before the transfer was made or obligation was incurred, the debtor was sued orthreatened with suit;

(e)The transfer was of substantially all the debtor’s assets;

(f)The debtor had absconded;

(g)The debtor had removed or concealed assets;

(h)The value of the consideration received by the debtor was reasonably equivalentto the value of the asset transferred or the amount of the obligation incurred;

(i)The debtor was insolvent or became insolvent shortly after the transfer wasmade or the obligation was incurred;

(j)The transfer had occurred shortly before or shortly after a substantial debtwas incurred; and

(k)The debtor had transferred the essential assets of the business to a lienor whohad transferred the assets to an insider of the debtor. [1985 c.664 §4]

95.240Transfers fraudulent as to present creditors. (1) A transfer made orobligation incurred by a debtor is fraudulent as to a creditor whose claimarose before the transfer was made or the obligation was incurred if the debtormade the transfer or incurred the obligation without receiving a reasonablyequivalent value in exchange for the transfer or obligation and the debtor wasinsolvent at that time or the debtor becomes insolvent as a result of thetransfer or obligation.

(2)A transfer made by a debtor is fraudulent as to a creditor whose claim arosebefore the transfer was made if the transfer was made to an insider for otherthan a present, reasonably equivalent value, the debtor was insolvent at thattime and the insider had reasonable cause to believe that the debtor wasinsolvent. [1985 c.664 §5]

95.250When transfer is made or obligation is incurred. For thepurposes of ORS 95.200 to 95.310:

(1)A transfer is made:

(a)With respect to an asset that is real property other than a fixture, but includingthe interest of a seller or purchaser under a contract for the sale of theasset, when the transfer is so far perfected that a good-faith purchaser of theasset from the debtor against whom applicable law permits the transfer to beperfected cannot acquire an interest in the asset that is superior to theinterest of the transferee; and

(b)With respect to an asset that is not real property or that is a fixture, whenthe transfer is so far perfected that a creditor on a simple contract cannotacquire a judicial lien otherwise than under ORS 95.200 to 95.310 that issuperior to the interest of the transferee.

(2)If applicable law permits the transfer to be perfected as provided insubsection (1) of this section and the transfer is not so perfected before thecommencement of an action for relief under ORS 95.200 to 95.310, the transferis made immediately before the commencement of the action.

(3)If applicable law does not permit the transfer to be perfected as provided insubsection (1) of this section, the transfer is made when it becomes effectivebetween the debtor and the transferee.

(4)A transfer is not made until the debtor has acquired rights in the assettransferred.

(5)An obligation is incurred:

(a)If oral, when it becomes effective between the parties.

(b)If evidenced by a writing, when the writing executed by the obligor isdelivered to or for the benefit of the obligee. [1985 c.664 §6]

95.260Creditor’s remedies.(1) In any action for relief against a transfer or obligation under ORS 95.200to 95.310, a creditor, subject to the limitations provided in ORS 95.270, mayobtain:

(a)Avoidance of the transfer or obligation to the extent necessary to satisfy thecreditor’s claim.

(b)An attachment or other provisional remedy against the asset transferred orother property of the transferee in accordance with the procedure prescribed byany applicable provision of any other statute or the Oregon Rules of CivilProcedure.

(c)Subject to applicable principles of equity and in accordance with applicablerules of civil procedure:

(A)An injunction against further disposition by the debtor or a transferee, orboth, of the asset transferred or of other property;

(B)Appointment of a receiver to take charge of the asset transferred or of otherproperty of the transferee; or

(C)Any other relief the circumstances may require.

(2)If a creditor has obtained a judgment on a claim against the debtor and if thecourt so orders, the creditor may levy execution on the asset transferred orits proceeds. [1985 c.664 §7]

95.270Transferee’s defenses, liability and protections. (1) A transferor obligation is not voidable under ORS 95.230 (1)(a) as against a person whotook in good faith and for a reasonably equivalent value or any subsequenttransferee or obligee.

(2)Except as otherwise provided in this section, to the extent a transfer isvoidable in an action by a creditor under ORS 95.260 (1)(a), the creditor mayrecover judgment for the value of the asset transferred, as adjusted undersubsection (3) of this section, or the amount necessary to satisfy the creditor’sclaim, whichever is less. The judgment may be entered against:

(a)The first transferee of the asset or the person for whose benefit the transferwas made; or

(b)Any subsequent transferee.

(3)If the judgment under subsection (2) of this section is based upon the value ofthe asset transferred, the judgment must be for an amount equal to the value ofthe asset at the time of the transfer, subject to adjustment as the equitiesmay require.

(4)A creditor may not recover under subsection (2)(b) of this section from agood-faith transferee or obligee who took for value or from any subsequenttransferee or obligee.

(5)Notwithstanding voidability of a transfer or an obligation under ORS 95.200 to95.310, a good-faith transferee or obligee is entitled, to the extent of thevalue given the debtor for the transfer or obligation, to:

(a)A lien on or a right to retain any interest in the asset transferred;

(b)Enforcement of any obligation incurred; or

(c)A reduction in the amount of the liability on the judgment.

(6)A transfer is not voidable under ORS 95.240 (2):

(a)To the extent the insider gave new value to or for the benefit of the debtorafter the transfer was made unless the new value was secured by an otherwiseunavoidable lien;

(b)If made in the ordinary course of business or financial affairs of the debtorand the insider; or

(c)If made pursuant to a good-faith effort to rehabilitate the debtor and thetransfer secured present value given for that purpose as well as an antecedentdebt of the debtor.

(7)A transfer is not voidable under ORS 95.230 (1)(b) or 95.240 if the transferresults from:

(a)Termination of a lease upon default by the debtor when the termination is pursuantto the terms of the lease and applicable law; or

(b)Enforcement of a security interest in compliance with ORS chapter 79. [1985c.664 §8; 2001 c.445 §167]

95.280Extinguishment of claim for relief. A claim for relief with respect to afraudulent transfer or obligation under ORS 95.200 to 95.310 is extinguishedunless action is brought:

(1)Under ORS 95.230 (1)(a) within four years after the transfer was made or theobligation was incurred or, if later, within one year after the transfer or obligationwas or could reasonably have been discovered by the claimant;

(2)Under ORS 95.230 (1)(b) or 95.240 (1), within four years after the transfer wasmade or the obligation was incurred; or

(3)Under ORS 95.240 (2), within one year after the transfer was made or theobligation was incurred. [1985 c.664 §9]

95.290General principles of law and equity as supplement to ORS 95.200 to 95.310. Unlessdisplaced by the provisions of ORS 95.200 to 95.310, the principles of law andequity, including the law merchant and the law relating to principal and agent,estoppel, laches, fraud, misrepresentation, duress, coercion, mistake,insolvency or other validating or invalidating cause, supplement itsprovisions. [1985 c.664 §10]

95.300Uniformity of application and construction. ORS 95.200 to 95.310 shall beapplied and construed to effectuate its general purpose to make uniform the lawwith respect to the subject of ORS 95.200 to 95.310 among states enacting it. [1985c.664 §11]

95.310Short title.ORS 95.200 to 95.310 may be cited as the Uniform Fraudulent Transfer Act. [1985c.664 §12]

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