§ 44-4826 — Fraudulent transfers and obligations incurred prior to petition

Nebraska § 44-4826

• Jurisdiction: Nebraska
• Ch. 44: Insurance

Text

(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 the Nebraska Insurers Supervision, Rehabilitation, and
Liquidation Act shall be fraudulent as to then existing and future creditors
if made or incurred without fair consideration or with actual intent to hinder,
delay, or defraud either existing or future creditors. Except
as provided in subsection (5) of this section, a transfer made
or an obligation incurred by an insurer ordered to be rehabilitated or liquidated
under the act 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, and 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 subsection (3)
of section 44-4828 .
(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 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) Except as provided in subsection (5) of
this section, 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 therefor and shall be bound to account
to the liquidator.
(5) A receiver
may not avoid any transfer of, or any obligation to transfer, money or any
other property arising under or in connection with any Federal Home Loan Bank
security agreement, or any pledge, security, collateral or guarantee agreement
or any other similar arrangement or credit enhancement relating to such Federal
Home Loan Bank security agreement. However, a transfer may be avoided under
this subsection if it was made with actual intent to hinder, delay, or defraud
either existing or future creditors.

Legislative History

Source: Laws 1989, LB 319, § 26; Laws 1991, LB 236, § 78; Laws 2013, LB337, § 4.