(1)Every transfer made or
suffered and every obligation incurred by an insurer within one year prior to the
filing of a successful petition for rehabilitation or liquidation under this part 5 is
fraudulent as to then existing and future creditors if made or incurred without fair
consideration or if made with actual intent to hinder, delay, or defraud either
existing or future creditors. A transfer made or an obligation incurred by an insurer
ordered to be rehabilitated or liquidated under this part 5, which is fraudulent under
this section, may be avoided by the receiver, except as to a person who in good faith
is a purchaser, lienor, or obligee for a present fair equivalent value; except that any
purchaser, lienor, or obligee, who in good faith has given a consideration less tha
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(1) Every transfer made or
suffered and every obligation incurred by an insurer within one year prior to the
filing of a successful petition for rehabilitation or liquidation under this part 5 is
fraudulent as to then existing and future creditors if made or incurred without fair
consideration or if made with actual intent to hinder, delay, or defraud either
existing or future creditors. A transfer made or an obligation incurred by an insurer
ordered to be rehabilitated or liquidated under this part 5, which is fraudulent under
this section, may be avoided by the receiver, except as to a person who in good faith
is a purchaser, lienor, or obligee for a present fair equivalent value; except that any
purchaser, lienor, or obligee, who in good faith has given a consideration less than
fair for such transfer, lien, or obligation, may retain the property, lien, or obligation
as security for repayment. The court may, on due notice, order any such transfer or
obligation to be preserved for the benefit of the estate, and in that event, the
receiver shall succeed to and may enforce the rights of the purchaser, lienor, or
obligee.
(2) (a) A transfer of property other than real property shall be deemed to be
made or suffered when it becomes so far perfected that no subsequent lien
obtainable by legal or equitable proceedings on a simple contract could become
superior to the rights of the transferee under section 10-3-527 (3).
(b) A transfer of real property shall be deemed to be made or suffered when
it becomes so far perfected that no subsequent bona fide purchaser from the
insurer could obtain rights superior to the rights of the transferee.
(c) A transfer which creates an equitable lien shall not be deemed to be
perfected if there are available means by which a legal lien could be created.
(d) Any transfer not perfected prior to the filing of a petition for liquidation
shall be deemed to be made immediately before the filing of the successful
petition.
(e) The provisions of this subsection (2) shall apply whether or not there are
or were creditors who might have obtained any liens or persons who might have
become bona fide purchasers.
(3) Any transaction of the insurer with a reinsurer shall be deemed
fraudulent and may be avoided by the receiver under subsection (1) of this section
if:
(a) The transaction consists of the termination, adjustment, or settlement of
a reinsurance contract in which the reinsurer is released from any part of its duty to
pay the originally specified share of losses that had occurred prior to the time of
the transactions, unless the reinsurer gives a present fair equivalent value for the
release; and
(b) Any part of the transaction took place within one year prior to the date of
filing of the petition through which the receivership was commenced.
(4) Every person receiving any property from the insurer or any benefit
thereof which is a fraudulent transfer under subsection (1) of this section shall be
personally liable therefore and shall be bound to account to the liquidator.
(5) Notwithstanding subsection (1) of this section and any other provision of
this title, a receiver shall not avoid any transfer of, or any obligation to transfer,
money or any other property arising under or in connection with a federal home loan
bank security agreement or any pledge agreement, security agreement, collateral
agreement, guarantee agreement, or other similar arrangement or credit
enhancement relating to a security agreement to which a federal home loan bank is
a party; except that a transfer may be avoided under this section if it was made with
actual intent to hinder, delay, or defraud either existing or future creditors.