§ 33-2-1352 — Fraudulent Transfer After Petition

33-2-1352 . Fraudulent transfer after petition. (1) After a petition for rehabilitation or liquidation has been filed, a transfer of any of the real property of the insurer made to a person acting in good faith is valid against the receiver if made for a present fair equivalent value or, if not made for a present fair equivalent value, then to the extent of the present consideration actually paid, for which amount the transferee must have a lien on the property transferred. The commencement of a proceeding in rehabilitation or liquidation is constructive notice upon the recording of a copy of the petition for or order of rehabilitation or liquidation with the county clerk and recorder in the county where any real property in question is located. The exercise by a court of the United States or any state or jurisdiction to authorize or effect a judicial sale of real property of the insurer within any county in any state may not be impaired by the pendency of a rehabilitation or liquidation proceeding unless the copy is recorded in the county prior to the consummation of the judicial sale.
(2) After a petition for rehabilitation or liquidation has been filed and before either the receiver takes possession of the property of the insurer or an order of rehabilitation or liquidation is granted:
(a) a transfer of any of the property of the insurer, other than real property, made to a person acting in good faith is valid against the receiver if made for a present fair equivalent value or, if not made for a present fair equivalent value, then to the extent of the present consideration actually paid, for which amount the transferee must have a lien on the property transferred;
(b) a person indebted to the insurer or holding property of the insurer may, if acting in good faith, pay the indebtedness or deliver the property or any part of the property to the insurer or upon the person's order, with the same effect as if the petition were not pending;
(c) a person having actual knowledge of the pending rehabilitation or liquidation is considered not acting in good faith;
(d) a person asserting the validity of a transfer under this section has the burden of proof. Except as otherwise provided in this section, a transfer by or on behalf of the insurer after the date of the petition for liquidation by any person other than the liquidator is not valid against the liquidator.
(3) This part does not impair the negotiability of currency or negotiable instruments.

Legislative History

En. Sec. 27, Ch. 383, L. 1979; amd. Sec. 1108, Ch. 56, L. 2009.