![]() We’ve helped other creditors like you collect judgment, and we can help YOU recover your damages. ![]() If you are creditor seeking to avoid the fraudulent transfer of a debtor, please call Patterson Bray today at 90. Such debtor’s debts as they become due.” Thus, a debtor need not intend to fraudulently transfer an asset to avoid a creditor, if the debtor would otherwise be insolvent but for the transfer. The Act addresses insolvency and states that a debtor is insolvent if either “the sum of the debtor’sĭebts is greater than all of the debtor’s assets, at a fair valuation” or the debtor “is generally not paying If a creditor cannot show actual intent to defraud him or her, a credit may still show that a transfer still amounted to constructive fraud. To prove a constructive fraudulent transfer, a creditor has to prove that: (1) The creditor’s claim arose before the transfer (2) the debtor was not paid a reasonable value for what was transferred and, (3) the debtor was insolvent at the time of the transfer or became insolvent because of the transfer. Typically, debtors present evidence that one or more of the factors or “badges of fraud” is not applicable to rebut this presumption. If a plaintiff is able to prove the existence of one or more of those factors or one of the “badges of fraud”, a presumption of fraud arises. Once that presumption has arisen, the burden shifts to the debtor to prove that there was no fraudulent intent in the transfer of an asset. There is a lack of innocent purpose or use for the transfer. The transferor failed to produce available evidence explaining or rebutting a suspiciousĩ. The transferor retained a life estate or other interest in the property transferred.Ĩ. The transfer included all or substantially all of the transfer’s nonexempt property.ħ. A family or friendship relationship existed between the transferor and the transferee(s).Ħ. Secrecy or haste existed in carrying out the transfer.ĥ. Inadequate consideration was given for the transfer.Ĥ. The transferor knew there was or soon would be a large money judgment renderedģ. The transferor is in a precarious financial condition.Ģ. Since proving fraudulent intent almost always requires circumstantial evidence tough, courts also consider what have been deemed “badges of fraud” in determining whether there was intent to defraud.ġ. (11) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. (10) The transfer occurred shortly before or shortly after a substantial debt was incurred (9) The debtor was insolvent or became insolvent shortly after the transfer was made or Value of the asset transferred or the amount of the obligation incurred (8) The value of the consideration received by the debtor was reasonably equivalent to the (7) The debtor removed or concealed assets (5) The transfer was of substantially all the debtor’s assets (4) Before the transfer was made or obligation was incurred, the debtor had been sued or ![]() (3) The transfer or obligation was disclosed or concealed (2) The debtor retained possession or control of the property transferred after the transfer (1) The transfer or obligation was to an insider In determining actual intent to defraud a credit, the statute lists eleven (11) factors that may be considered. Under the actual fraud statute, a plaintiff must prove that the transfer was made “with actual intent to hinder, delay, or defraud” a creditor. Creditors must prove that a fraudulent transfer occurred through actual fraud or constructive fraud. Pursuant to the Tennessee Uniform Fraudulent Transfer Act, creditors can seek to set aside certain fraudulent transfers. Tennessee Fraudulent Transfers to Avoid Creditors Tennessee Fraudulent Transfers to Avoid Creditors
0 Comments
Leave a Reply. |
Details
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |