§ 18-2-78 — Conditions for voidability of transfer or obligation; judgment

(a) A transfer or obligation is not voidable under paragraph (1) of subsection (a) of Code Section 18-2-74 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 paragraph (1) of subsection (a) of Code Section 18-2-77 , the following rules apply: (1) Except as otherwise provided in this Code section, the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (c) of this Code 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 division (i) of this subparagraph. (2) Recovery pursuant to paragraph (1) of subsection (a) or subsection (b) of Code Section 18-2-77 of or from the asset transferred or its proceeds, by levy or otherwise, is available only against a person described in paragraph (1) of this subsection. (c) If the judgment under subsection (b) of this Code 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 article, 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 paragraph (2) of subsection (a) of Code Section 18-2-74 or Code Section 18-2-75 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; or (2) Enforcement of a security interest in compliance with Article 9 of the Uniform Commercial Code, other than acceptance of collateral in full or partial satisfaction of the obligation it secures. (f) A transfer is not voidable under subsection (b) of Code Section 18-2-75 : (1) To the extent the insider gave new value to or for the benefit of the debtor after the transfer was made unless the new value was secured by a valid lien; (2) If made in the ordinary course of business or financial affairs of the debtor and the insider; or (3) If made pursuant to a good faith effort to rehabilitate the debtor and the transfer secured the 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 Code section: (1) A party that seeks to invoke subsection (a), (d), (e), or (f) of this Code section has the burden of proving the applicability of that subsection; (2) Except as otherwise provided in paragraphs (3) and (4) of this subsection, the creditor has the burden of proving each applicable element of subsection (b) or (c) of this Code section; (3) The transferee has the burden of proving the applicability to the transferee of subparagraph (b) (1) (B) of this Code section; and (4) A party that seeks adjustment under subsection (c) of this Code section has the burden of proving the adjustment. (h) The standard of proof required to establish matters referred to in this Code section is preponderance of the evidence.

Legislative History

Amended by 2015 Ga. Laws 167,§ 4A-1, eff. 7/1/2015. Added by 2002 Ga. Laws 427, § 3, eff. 7/1/2002.