Fraudulent Transfers and Conveyances

ORS 95.230
Transfers fraudulent as to present and future creditors


(1)

A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:

(a)

With actual intent to hinder, delay, or defraud any creditor of the debtor; or

(b)

Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:

(A)

Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or

(B)

Intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they become due.

(2)

In determining actual intent under subsection (1)(a) of this section, consideration may be given, among other factors, to whether:

(a)

The transfer or obligation was to an insider;

(b)

The debtor had retained possession or control of the property transferred after the transfer;

(c)

The transfer or obligation was disclosed or concealed;

(d)

Before the transfer was made or obligation was incurred, the debtor was sued or threatened with suit;

(e)

The transfer was of substantially all the debtor’s assets;

(f)

The debtor had absconded;

(g)

The debtor had removed or concealed assets;

(h)

The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;

(i)

The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;

(j)

The transfer had occurred shortly before or shortly after a substantial debt was incurred; and

(k)

The debtor had transferred the essential assets of the business to a lienor who had transferred the assets to an insider of the debtor. [1985 c.664 §4]

Notes of Decisions

Court did not err in holding that transfer from ex-wife to ex-husband and from ex-husband back to ex-wife was not made with actual intent to hinder, delay or defraud ex-husband's creditors where evidence showed intent was to procure lower mortgage interest rate. Harris v. Crist, 96 Or App 263, 772 P2d 446 (1989)

Corporation's foregiveness of debts owed it by partnership whose principals were same as corporation's constituted fraudulent transfer. Allen v. Meinig, 109 Or App 341, 819 P2d 744 (1991), Sup Ct review denied

Presence of several listed factors does not shift burden of proof to defendant. Morris v. Nance, 132 Or App 216, 888 P2d 571 (1994), Sup Ct review denied

Equitable distribution of marital property in noncollusive dissolution proceeding is given for "reasonably equivalent value." In re Bledsoe, 350 B.R. 513 (Bkrtcy. D. Or. 2006)

§§ 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)


Source

Last accessed
Jun. 26, 2021