Fraudulent Transfers and Conveyances

ORS 95.200
Definitions for ORS 95.200 to 95.310

As used in ORS 95.200 (Definitions for ORS 95.200 to 95.310) to 95.310 (Short title):

(1)

“Affiliate” means any of the following:

(a)

A person who directly or indirectly owns, controls or holds with power to vote 20 or more percent of the outstanding voting securities of the debtor, other than a person who 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.

(b)

A corporation, 20 or more percent of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by the debtor or by a person who directly or indirectly owns, controls or holds with power to vote 20 or more percent of the outstanding voting securities of the debtor, other than a person who 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.

(c)

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.

(d)

A person who 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 does not include:

(a)

Property to the extent that it is encumbered by a valid lien;

(b)

Property to the extent that it is generally exempt under nonbankruptcy law; or

(c)

An interest in property held in tenancy by the entirety to the extent that it is not subject to process by a creditor holding a claim against only one tenant.

(3)

“Claim” 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 who has a claim against a debtor.

(5)

“Debt” means liability on a claim.

(6)

“Debtor” means a person against whom a creditor has a claim.

(7)

An “insider” includes:

(a)

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 subparagraph (B) of this paragraph; or

(D)

A corporation of which the debtor is a director, officer or person in control.

(b)

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 subparagraph (D) of this paragraph; or

(F)

A relative of a general partner, director, officer or person in control of the debtor.

(c)

If the debtor is a partnership:

(A)

A general partner in the debtor;

(B)

A relative of a general partner in a debtor, of a general partner of a debtor, or of 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 subparagraph (C) of this paragraph; or

(E)

A person in control of the debtor.

(d)

An affiliate or an insider of an affiliate as if the affiliate were the debtor; and

(e)

A managing agent of the debtor.

(8)

“Lien” means a charge against or an interest in property to secure payment of a debt or performance of an obligation, including 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.

(9)

“Person” means an individual, partnership, corporation, association, organization, government or governmental subdivision or agency, business trust or any other legal or commercial entity.

(10)

“Property” means anything that may be the subject of ownership.

(11)

“Relative” means an individual related 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.

(12)

“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 a payment of money, a release, a lease and the creation of a lien or encumbrance.

(13)

“Valid lien” means a lien that is effective against the holder of a judicial lien subsequently obtained by legal or equitable process or proceedings. [1985 c.664 §1; 2009 c.294 §13]

Notes of Decisions

Disposing of property that is subject to security interest is not transfer of assets. Kellstrom Bros. Painting v. Carriage Works, Inc., 117 Or App 276, 844 P2d 221 (1992), Sup Ct review denied

"Transfer" includes dissolution judgment. Greeninger v. Cromwell, 140 Or App 241, 915 P2d 479 (1996), Sup Ct review denied

Exemption from definition of "asset" applicable to property because encumbered by valid lien extends only to property equity value that equals or is included in amount of lien. Oregon Account Systems, Inc. v. Greer, 165 Or App 738, 996 P2d 1025 (2000)

Property held as tenancy by entirety is "asset" subject to process by creditor to extent of debtor spouse's one-half share of property rents and profits. Oregon Account Systems, Inc. v. Greer, 165 Or App 738, 996 P2d 1025 (2000)

§§ 95.200 to 95.310

Notes of Decisions

Where plaintiff brought products liability action against corporation and holding company entirely owned by former shareholders of corporation for asbestos related injury, corporate restructuring resulting in formation of holding company was designed for improper purpose of escaping asbestos related liabilities and holding company was successor in liability and responsible for corporations' strict liability torts. Schmoll v. Acands, Inc., 703 F Supp 868 (D. Or. 1988)

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Last accessed
Jun. 26, 2021

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