AN ACT TO AMEND THE UNIFORM FRAUDULENT TRANSFER ACT TO ADOPT THE AMENDMENTS APPROVED BY THE UNIFORM LAW COMMISSION IN 2014 AND TO MAKE RELATED CONFORMING AND TECHNICAL AMENDMENTS, AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION.
Amends the title of GS Chapter 39, Article 3A to read “Uniform Voidable Transactions Act” (was, Uniform Fraudulent Transfer Act).
Amends GS 39-23.1, the definitions section for the above act, making technical and clarifying changes. Also adds new terms and definitions to the section, including electronic, organization, record, and sign.
Amends GS 39-23.2 to provide that a debtor that is not paying debts as they become due, other than as a result of a bona fide dispute, is presumed to be insolvent (previously, did not include language about a bona fide dispute). Also adds language providing that the presumption imposes on the party against which the presumption is directed the burden of proving that the nonexistence of insolvency is more probably that its existence. Deletes language that provided for what constituted an insolvent partnership. Makes technical and clarifying changes.
Amends the catchline of GS 39-23.4 to read as “Transfer or obligation voidable as to present or future creditor” (was, Transfers fraudulent as to present and future creditors). Provides that a transfer made or obligation incurred by a debtor is voidable (was, fraudulent) as to a creditor, whether the creditor’s claim arose before or after the transfer/obligation was incurred if specified conditions are met. Adds clarifying language that provides that a creditor making a claim for relief under GS 39-23.4(a) has the burden of proving the elements of the claim for relief by a preponderance of the evidence.
Amends the catchline of GS 39-23.5 to read “Transfer or obligation voidable as to present creditor” (was, Transfers fraudulent as to present creditors). Provides that a transfer made or obligation incurred by a debtor is voidable (was, fraudulent) as to a creditor, whose claim arose before the transfer/obligation was made/incurred. Adds clarifying language that provides that a creditor making a claim for relief under GS 39-23.5(a) or (b) has the burden of proving the elements of the claim for relief by a preponderance of the evidence.
Amends GS 39-23.6, concerning when transfers or obligations are considered to be made or incurred, making technical and clarifying changes. Amends language concerning when an obligation is incurred, providing it has incurred when, if evidenced by a record, when the signed record is delivered to or for the benefit of the oblige (was, if evidenced by a writing, the obligation was incurred when it was executed by the obligor and delivered to or for the benefit of the oblige).
Amends GS 39-23.7, making a technical change to the catchline which now reads as “Remedies of creditor”, (was, Remedies of creditors). Makes technical changes.
Amends the catchline of GS 39-23.8 to read “Defenses, liability, and protection of transferee or oblige (was, Defenses, liability, and protection of transferee). Clarifies which provisions apply when a transfer is avoidable in an action by a creditor pursuant to GS 39-23.7. Makes organizational changes. Provides that a creditor can recover a judgment for the value of the asset transferred and provides who that judgment can be entered against, including new language that allows it to be entered against an immediate or mediate transferee of the first transferee as long as they are not (1) a good faith transferee that took for value or (2) an immediate or mediate good-faith transferee of a person described in GS 39-23.8(b)1. Also provides that a recovery pursuant to GS 39-23.7(a)(1) or (b) of or from the asset transferred or its proceeds, by levy or otherwise is only available against a person described in GS 39-23.8(1)a or (1)b. Makes clarifying changes.
Enacts new GS 39-23.8(g), which outlines four technical rules for the determination for the burden of proving matters in GS 39-23.8.
Enacts new GS 39-23.8(h) to clarify that the standard of proof required to establish matters in GS 39-23.8 is by the preponderance of the evidence.
Amends the catchline of GS 39-23.9 to read “Extinguishment of claim of relief” (was, Extinguishment of cause of action). Replaces the phrase “cause of action” with “claim for relief”. Makes technical and clarifying changes providing that the subsection now refers only to claims of relief for voidable transfers. Makes further technical changes.
Enacts new GS 39-23.9A, Governing law, which outlines rules for determining a debtor’s location for the purpose of determining jurisdiction. Clarifies that a claim for relief in the nature of a claim for relief under GS Chapter 39, Article 3A is to be governed by the local law of the jurisdiction in which the debtor is located when the transfer is made or obligation is incurred.
Enacts new GS 39-23.9B, Application to series organization. Provides definitions for use including protected series and series organization. Provides that a series organization and each protected series of the organization is a separate person for the purposes of GS Chapter 39, Article 3A.
Enacts new GS 39-23.11A, Relation to Electronic Signatures in Global and National Commerce Act, which provides that GS Chapter 39, Article 3A, modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, with a few specified limitations.
Makes clarifying changes.
Amends GS 50-13.4(f), concerning child support enforcement remedies, making technical and conforming changes.
Amends GS 50-16.7(h), concerning a dependent spouse with alimony or support orders, making technical and conforming changes.
Directs the Revisor of Statutes to print all relevant portions of the Official Comments to the Uniform Voidable Transactions Act and explanatory comments of the drafters of the act as annotations to the published General Statutes.
Effective October 1, 2015, applying to transfer/obligations made/incurred on or after that date.
© 2021 School of Government The University of North Carolina at Chapel Hill
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