§ 36-802 — Definitions

Nebraska § 36-802

• Jurisdiction: Nebraska
• Ch. 36: Fraud and Voidable Transactions

Text

As used in the Uniform Voidable Transactions Act:
(1) Affiliate means:
(i) a person that directly or indirectly owns, controls, or holds with power to vote, twenty percent or more of the outstanding voting securities of the debtor, other than a person that holds the securities:
(A) as a fiduciary or agent without sole discretionary power to vote the securities; or
(B) solely to secure a debt, if the person has not in fact exercised the power to vote;
(ii) a corporation twenty percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the debtor or a person that directly or indirectly owns, controls, or holds, with power to vote, twenty percent or more of the outstanding voting securities of the debtor, other than a person that holds the securities:
(A) as a fiduciary or agent without sole discretionary power to vote the securities; or
(B) solely to secure a debt, if the person has not in fact exercised the power to vote;
(iii) a person whose business is operated by the debtor under a lease or other agreement, or a person substantially all of whose assets are controlled by the debtor; or
(iv) a person that operates the debtor's business under a lease or other agreement or controls substantially all of the debtor's assets.
(2) Asset means property of a debtor, but the term does not include:
(i) property to the extent it is encumbered by a valid lien;
(ii) property to the extent it is generally exempt under nonbankruptcy law; or
(iii) an interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.
(3) Claim, except as used in claim for relief, means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.
(4) Creditor means a person that has a claim.
(5) Debt means liability on a claim.
(6) Debtor means a person that is liable on a claim.
(7) Electronic means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(8) Insider includes:
(i) 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 subdivision (8)(i)(B) of this section; or
(D) a corporation of which the debtor is a director, officer, or person in control;
(ii) 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 subdivision (8)(ii)(D) of this section; or
(F) a relative of a general partner, director, officer, or person in control of the debtor;
(iii) if the debtor is a partnership:
(A) a general partner in the debtor;
(B) a relative of a general partner in, a general partner of, or 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 subdivision (8)(iii)(C) of this section; or
(E) a person in control of the debtor;
(iv) an affiliate, or an insider of an affiliate as if the affiliate were the debtor; and
(v) a managing agent of the debtor.
(9) Lien means a charge against or an interest in property to secure payment of a debt or performance of an obligation, and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common-law lien, or a statutory lien.
(10) Organization means a person other than an individual.
(11) Person means an individual, estate, partnership, association, trust, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal or commercial entity.
(12) Property means anything that may be the subject of ownership.
(13) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(14) Relative means an individual related by consanguinity within the third degree as determined by the common law, a spouse, or an individual related to a spouse within the third degree as so determined, and includes an individual in an adoptive relationship within the third degree.
(15) Sign means, with present intent to authenticate or adopt a record:
(i) to execute or adopt a tangible symbol; or
(ii) to attach to or logically associate with the record an electronic symbol, sound, or process.
(16) Transfer means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, license, and creation of a lien or other encumbrance.
(17) Valid lien means a lien that is effective against the holder of a judicial lien subsequently obtained by legal or equitable process or proceedings.

Legislative History

Source: Laws 2019, LB70, § 2. Annotations: 1. Prior law (Uniform Fraudulent Transfer Act, sections 36-701 to 36-712) A blanket security agreement does not convey an asset under the Uniform Fraudulent Transfer Act if everything subject to ownership that is described as collateral therein is fully encumbered by other creditors with superior claims at the time of the alleged transfer. Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019). A security agreement by the debtor in favor of an alleged transferee is not the "asset" itself. Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019). Creditors are not entitled to avoid as fraudulent a conveyance of property to which the debtor had no title at all or no such title as they could have subjected to payment of their claims. Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019). Liens and encumbrances do not exist independently of the interests they attach to, and the reference in subsection (12) of this section to liens or other encumbrances does not modify the express requirement that there be an "asset" before there can be a "transfer." Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019). Where the focus of a fraudulent transfer action is a security agreement by the debtor in favor of the alleged transferee, the question is what identifiable and legitimate claim of entitlement the debtor had, in which the debtor transferred an interest via the security agreement. Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019). Whether there is a subject of ownership constituting property that can be an asset depends on a legitimate and identifiable claim of entitlement. Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019). Pursuant to subsection (3) of section 36-702, a spouse's right to an equitable distribution of the marital estate is not a "right to payment" under the Uniform Fraudulent Transfer Act. Reed v. Reed, 275 Neb. 418, 747 N.W.2d 18 (2008). Under subdivision (7)(i)(A) of section 36-702, an ex-wife does not count as an "insider." Parker v. Parker, 268 Neb. 187, 681 N.W.2d 735 (2004). When original conveyances of property held in joint tenancy take place long before plaintiff's claim arises, the operation of common-law joint tenancy does not qualify as a transfer as defined in subsection (12) of this section. Mahlin v. Goc, 249 Neb. 951, 547 N.W.2d 129 (1996).