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See also Article: J. Adkisson, [[https://www.forbes.com/sites/jayadkisson/2019/05/30/understanding-the-elements-of-the-uvta-tests-for-a-voidable-transaction/|2019.05.30|Understanding The Elements Of The UVTA Tests For A Voidable Transaction]], Forbes.com, 30 May 2019.
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See also Article: J. Adkisson, [[https://www.forbes.com/sites/jayadkisson/2019/05/30/understanding-the-elements-of-the-uvta-tests-for-a-voidable-transaction/|Understanding The Elements Of The UVTA Tests For A Voidable Transaction]], Forbes.com, 30 May 2019.
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See also Article: J. Adkisson, Understanding The Elements Of The UVTA Tests For A Voidable Transaction, Forbes.com, 30 May 2019.
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See also Article: J. Adkisson, [[https://www.forbes.com/sites/jayadkisson/2019/05/30/understanding-the-elements-of-the-uvta-tests-for-a-voidable-transaction/|2019.05.30|Understanding The Elements Of The UVTA Tests For A Voidable Transaction]], Forbes.com, 30 May 2019.
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!!!TESTS GENERALLY ARTICLES
* [[https://www.forbes.com/sites/jayadkisson/2019/05/30/understanding-the-elements-of-the-uvta-tests-for-a-voidable-transaction/|2019.05.30]] ... Understanding The Elements Of The UVTA Tests For A Voidable Transaction
* [[https://www.forbes.com/sites/jayadkisson/2017/03/25/the-uvta-baedeker-is-the-transaction-voidable/|2017.03.25]] ... The UVTA Baedeker: Is The Transaction Voidable?
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While the structural arrangement of the statutory text of the UVTA is, like its predecessors, insufferable, the actual decision-making process that a litigator will go through to determine if a fraudulent transfer exists is actually relatively straightforward and not complex. The following decision path illustrates this process. While this decision path isn't exactly right, see Note below the chart, it should assist litigators in reaching a quick conclusion as to whether a given voidable transaction action is viable.
!!!Step #1. Is The Transfer Voidable?
->The creditor must satisfy at least one of the following tests:
-->Insolvency Test § 5(a)
-->Overextending Insolvency Test § 4(a)(2)(i)
-->Sinking Insolvency Test § 4(a)(2)(ii)
-->Insider Preference Test § 5(b)
-->Intent Test § 4(a)
->If the creditor can satisfy at least one test, then go to Step #2. If not, the creditor loses.
!!!Step #2. Can The Transferee Assert A Defense?
->The transferee must establish at least one of the following defenses:
-->The Extinguishment Period Has Run § 9
-->Transferee Was In Good Faith And Gave Value § 8(d)
-->If the transferee can establish at least one defense, the creditor loses. If not, then go to Step #3.
->NOTE: Some of the tests have their own specific defenses that a transferee in a particular case might utilize. These defenses are considered on the page for each test.
!!!Step #3. Does The Creditor Have A Remedy?
->The creditor must establish the availability of at least one remedy:
-->Non-Monetary Remedy (Avoidance, etc.) § 7
-->Money Judgment § 8(b) and (c)
->If the creditor can establish the availability of at least one remedy, the creditor prevails. If not, the creditor loses.
'''NOTE:''' Arguably, one might look at the defenses first, i.e., if the transferee was in good faith and gave reasonably equivalent value, or if the action has been extinguished by the passage of time, then the remainder of the analysis can be no more than academic. However, at least with the extinguishment issue, this can become a "chicken/egg" sort of question, as there are different extinguishment periods for different sorts of voidable transactions.
!!!THE TESTS EXPLAINED
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While the structural arrangement of the statutory text of the UVTA is, like its predecessors, insufferable, the actual decision-making process that a litigator will go through to determine if a fraudulent transfer exists is actually relatively straightforward and not complex. The following decision path illustrates this process. While this decision path isn't exactly right, see Note below the chart, it should assist litigators in reaching a quick conclusion as to whether a given voidable transaction action is viable.
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!!VOIDABLE TRANSACTION DECISION PATH
-->While the structural arrangement of the statutory text of the UVTA is, like its predecessors, insufferable, the actual decision-making process that a litigator will go through to determine if a fraudulent transfer exists is actually relatively straightforward and not complex. The following decision path illustrates this process. While this decision path isn't exactly right, see Note below the chart, it should assist litigators in reaching a quick conclusion as to whether a given voidable transaction action is viable.
!!!Step #1. Is The Transfer Voidable?
->The creditor must satisfy at least one of the following tests:
-->Insolvency Test § 5(a)
-->Overextending Insolvency Test § 4(a)(2)(i)
-->Sinking Insolvency Test § 4(a)(2)(ii)
-->Insider Preference Test § 5(b)
-->Intent Test § 4(a)
->If the creditor can satisfy at least one test, then go to Step #2. If not, the creditor loses.
!!!Step #2. Can The Transferee Assert A Defense?
->The transferee must establish at least one of the following defenses:
-->The Extinguishment Period Has Run § 9
-->Transferee Was In Good Faith And Gave Value § 8(d)
-->If the transferee can establish at least one defense, the creditor loses. If not, then go to Step #3.
->NOTE: Some of the tests have their own specific defenses that a transferee in a particular case might utilize. These defenses are considered on the page for each test.
!!!Step #3. Does The Creditor Have A Remedy?
->The creditor must establish the availability of at least one remedy:
-->Non-Monetary Remedy (Avoidance, etc.) § 7
-->Money Judgment § 8(b) and (c)
->If the creditor can establish the availability of at least one remedy, the creditor prevails. If not, the creditor loses.
'''NOTE:''' Arguably, one might look at the defenses first, i.e., if the transferee was in good faith and gave reasonably equivalent value, or if the action has been extinguished by the passage of time, then the remainder of the analysis can be no more than academic. However, at least with the extinguishment issue, this can become a "chicken/egg" sort of question, as there are different extinguishment periods for different sorts of voidable transactions.
!!!THE TESTS EXPLAINED
-->While the structural arrangement of the statutory text of the UVTA is, like its predecessors, insufferable, the actual decision-making process that a litigator will go through to determine if a fraudulent transfer exists is actually relatively straightforward and not complex. The following decision path illustrates this process. While this decision path isn't exactly right, see Note below the chart, it should assist litigators in reaching a quick conclusion as to whether a given voidable transaction action is viable.
!!!Step #1. Is The Transfer Voidable?
->The creditor must satisfy at least one of the following tests:
-->Insolvency Test § 5(a)
-->Overextending Insolvency Test § 4(a)(2)(i)
-->Sinking Insolvency Test § 4(a)(2)(ii)
-->Insider Preference Test § 5(b)
-->Intent Test § 4(a)
->If the creditor can satisfy at least one test, then go to Step #2. If not, the creditor loses.
!!!Step #2. Can The Transferee Assert A Defense?
->The transferee must establish at least one of the following defenses:
-->The Extinguishment Period Has Run § 9
-->Transferee Was In Good Faith And Gave Value § 8(d)
-->If the transferee can establish at least one defense, the creditor loses. If not, then go to Step #3.
->NOTE: Some of the tests have their own specific defenses that a transferee in a particular case might utilize. These defenses are considered on the page for each test.
!!!Step #3. Does The Creditor Have A Remedy?
->The creditor must establish the availability of at least one remedy:
-->Non-Monetary Remedy (Avoidance, etc.) § 7
-->Money Judgment § 8(b) and (c)
->If the creditor can establish the availability of at least one remedy, the creditor prevails. If not, the creditor loses.
'''NOTE:''' Arguably, one might look at the defenses first, i.e., if the transferee was in good faith and gave reasonably equivalent value, or if the action has been extinguished by the passage of time, then the remainder of the analysis can be no more than academic. However, at least with the extinguishment issue, this can become a "chicken/egg" sort of question, as there are different extinguishment periods for different sorts of voidable transactions.
!!!THE TESTS EXPLAINED
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As set forth below, there are five tests (§§ 4(a)(1), (2)(i), (2)(ii), 5(a) and (b)) to determine if a fraudulent transfer has occurred. But the vast majority of cases will be decided by one of two tests:
to:
As set forth below, there are five tests (§§ 4(a)(1), (2)(i), (2)(ii), 5(a) and (b)) to determine if a fraudulent transfer has occurred. A [[#testchart|comparison chart]] below demonstrates the element of each tests and how the tests differ. However, the vast majority of cases will in practice be decided by one of two tests:
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One might observe that there are really three forms of insolvency tests found in the UVTA, since the [[Mainuvta04b2testinsolvencyoverextending|Overextending Insolvency Test]] of § 4(a)(i) and the Sinking Insolvency Test of § 4(a)(ii) effectively amount to "zone of insolvency" tests. With these latter two tests, perhaps the debtor isn't technically insolvent, but if there are certain other factors present, being close to insolvent is enough.
The Insider Preference Test of § 5(b) is not really a fraudulent transfer test in the classic sense, but a preference test somewhat similar to that found in U.S. bankruptcy law. Recognizing this, some states, most notably California which has its own preferential transfer scheme, did not enact § 5(b) into their version of the UVTA.
The Insider Preference Test of § 5(b) is not really a fraudulent transfer test in the classic sense, but a preference test somewhat similar to that found in U.S. bankruptcy law. Recognizing this, some states, most notably California which has its own preferential transfer scheme, did not enact § 5(b) into their version of the UVTA.
to:
One might observe that there are really three forms of insolvency tests found in the UVTA, since the [[Mainuvta04b2testinsolvencyoverextending|Overextending Insolvency Test]] of § 4(a)(i) and the [[Mainuvta04b2testinsolvencysinking|Sinking Insolvency Test]] of § 4(a)(ii) effectively amount to "zone of insolvency" tests. With these latter two tests, perhaps the debtor isn't technically insolvent, but if there are certain other factors present then being close to insolvent is good enough.
The [[Mainuvta05btestpreference|Insider Preference Test]] of § 5(b) is not really a fraudulent transfer test in the classic sense, but a preference test somewhat similar to that found in U.S. bankruptcy law. Recognizing this, some states, most notably California which has its own preferential transfer scheme, did not enact § 5(b) into their version of the UVTA.
The [[Mainuvta05btestpreference|Insider Preference Test]] of § 5(b) is not really a fraudulent transfer test in the classic sense, but a preference test somewhat similar to that found in U.S. bankruptcy law. Recognizing this, some states, most notably California which has its own preferential transfer scheme, did not enact § 5(b) into their version of the UVTA.
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-->2. Overextending Insolvency Test
Test
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-->2. [[Mainuvta04b2testinsolvencyoverextending|Overextending Insolvency Test]]
-->3. [[Mainuvta04b2testinsolvencysinking|Sinking Insolvency Test]]
-->4. [[Mainuvta05btestpreference|Insider Preference Test]]
-->3. [[Mainuvta04b2testinsolvencysinking|Sinking Insolvency Test]]
-->4. [[Mainuvta05btestpreference|Insider Preference Test]]
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One might observe that there are really three forms of insolvency tests found in the UVTA, since the Overextending Insolvency Test of § 4(a)(i) and the Sinking Insolvency Test of § 4(a)(ii) effectively amount to "near insolvency" tests.
to:
One might observe that there are really three forms of insolvency tests found in the UVTA, since the [[Mainuvta04b2testinsolvencyoverextending|Overextending Insolvency Test]] of § 4(a)(i) and the Sinking Insolvency Test of § 4(a)(ii) effectively amount to "zone of insolvency" tests. With these latter two tests, perhaps the debtor isn't technically insolvent, but if there are certain other factors present, being close to insolvent is enough.
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* '''[[Mainuvta04a1testintent|Intent Test]''': Whether the Debtor intended to diminish the enforcement rights of creditors (§ 4(a)(1), also known by the oxymoron "Actual Fraudulent Transfer").
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* '''[[Mainuvta04a1testintent|Intent Test]]''': Whether the Debtor intended to diminish the enforcement rights of creditors (§ 4(a)(1), also known by the oxymoron "Actual Fraudulent Transfer").
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* Intent Test: Whether the Debtor intended to diminish the enforcement rights of creditors (§ 4(a)(1), also known by the poorly descriptive term "Actual Fraudulent Transfer").
The slang terms for these tests, "Actual Fraudulent Transfer" and "Constructive Fraudulent Transfer", areanachronisms that are not at all descriptive of the analysis that is utilized by the UVTA. In fact, the use of these terms is counterproductive and confusing, and the better practice is to simply drop their usage altogether.
The slang terms for these tests, "Actual Fraudulent Transfer" and "Constructive Fraudulent Transfer", are
to:
* '''[[Mainuvta04a1testintent|Intent Test]''': Whether the Debtor intended to diminish the enforcement rights of creditors (§ 4(a)(1), also known by the oxymoron "Actual Fraudulent Transfer").
The slang terms for these tests, "Actual Fraudulent Transfer" and "Constructive Fraudulent Transfer", are oxymorons that are not at all descriptive of the analysis that is utilized by the UVTA. In fact, the use of these terms is counterproductive and confusing, and the better practice is to simply drop their usage altogether.
The slang terms for these tests, "Actual Fraudulent Transfer" and "Constructive Fraudulent Transfer", are oxymorons that are not at all descriptive of the analysis that is utilized by the UVTA. In fact, the use of these terms is counterproductive and confusing, and the better practice is to simply drop their usage altogether.
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-->5. Intent Test (as proven by the Badges of Fraud)
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-->5. [[Mainuvta04a1testintent|Intent Test]] (as proven by the Badges of Fraud)
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* Insolvency Test: Was the Debtor insolvent (or rendered insolvent) at the time of the transfer, and did the Debtor receive "reasonably equivalent value" in exchange (§5(a), also known by the oxymoron "Constructive Fraudulent Transfer"); and
to:
* '''[[Mainuvta05atestinsolvency|Insolvency Test]]''': Was the Debtor insolvent (or rendered insolvent) at the time of the transfer, and did the Debtor receive "reasonably equivalent value" in exchange (§5(a), also known by the oxymoron "Constructive Fraudulent Transfer"); and
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-->Insolvency Test
-->Sinking Insolvency Test
-->Insider Preference Test
-->Sinking Insolvency Test
-->Insider Preference Test
to:
-->1. [[Mainuvta05atestinsolvency|Insolvency Test]]
-->2. Overextending Insolvency Test
-->3. Sinking Insolvency Test
-->4. Insider Preference Test
-->2. Overextending Insolvency Test
-->3. Sinking Insolvency Test
-->4. Insider Preference Test
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-->Intent Test (as proven by the Badges of Fraud)
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-->5. Intent Test (as proven by the Badges of Fraud)
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(:title TOPICSHORT:)
(:Summary:TOPICLONG:)
(:descriptionTOPICLONG:)
(:keywords voidable transaction, uvta, fraudulent transfer, ufta, fraudulent conveyance, tests, elements, TOPIC:)
(:Summary:
(:description
(:keywords voidable transaction, uvta, fraudulent transfer, ufta, fraudulent conveyance, tests, elements
to:
(:title Tests ~ Overview:)
(:Summary: Tests ~ Overview:)
(:description Tests ~ Overview:)
(:keywords voidable transaction, uvta, fraudulent transfer, ufta, fraudulent conveyance, tests, elements:)
(:Summary: Tests ~ Overview:)
(:description Tests ~ Overview:)
(:keywords voidable transaction, uvta, fraudulent transfer, ufta, fraudulent conveyance, tests, elements:)
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Tests [[!Tests]] [--Mainuvta45tests--]
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!!VOIDABLE TRANSACTION TESTS
As set forth below, there are five tests (§§ 4(a)(1), (2)(i), (2)(ii), 5(a) and (b)) to determine if a fraudulent transfer has occurred. But the vast majority of cases will be decided by one of two tests:
* Insolvency Test: Was the Debtor insolvent (or rendered insolvent) at the time of the transfer, and did the Debtor receive "reasonably equivalent value" in exchange (§5(a), also known by the oxymoron "Constructive Fraudulent Transfer"); and
* Intent Test: Whether the Debtor intended to diminish the enforcement rights of creditors (§ 4(a)(1), also known by the poorly descriptive term "Actual Fraudulent Transfer").
The slang terms for these tests, "Actual Fraudulent Transfer" and "Constructive Fraudulent Transfer", are anachronisms that are not at all descriptive of the analysis that is utilized by the UVTA. In fact, the use of these terms is counterproductive and confusing, and the better practice is to simply drop their usage altogether.
The Insolvency Test of §5(a) by its nature is often resolved on summary judgment, and (rather uniquely as a matter of litigation practice) frequently in favor of creditors. By contrast, the Intent Test of §4(a)(1) is almost invariably disputed (what debtor would admit to cheating creditors unless he wanted the transaction unwound?), leading to significant factual questions of intent, and thus normally precluding the granting of summary judgment.
Thus, the Insolvency Test is the "more certain" test between the two, and promises creditors the prospect of an early judgment that avoids the costs of prolonged litigation and trial. Creditors, therefore, quite naturally will assert and vigorously prosecute the Insolvency Test when they believe the facts are in their favor, and for this reason between the two tests of §§ 4(a)(1) and 5(a), it is the Insolvency Test that will ordinarily be measured first.
One might observe that there are really three forms of insolvency tests found in the UVTA, since the Overextending Insolvency Test of § 4(a)(i) and the Sinking Insolvency Test of § 4(a)(ii) effectively amount to "near insolvency" tests.
The Insider Preference Test of § 5(b) is not really a fraudulent transfer test in the classic sense, but a preference test somewhat similar to that found in U.S. bankruptcy law. Recognizing this, some states, most notably California which has its own preferential transfer scheme, did not enact § 5(b) into their version of the UVTA.
IMPORTANT NOTE: For creditors the Intent Test is the least desirable test, to be used only as a fall-back alternative if none of the other tests can be satisfied. Creditors' counsel who are unfamiliar with this body of law will -- due to their inexperience in this area -- almost inevitably start with the Intent Test first, and start floundering around with the Badges of Fraud, which is more often than not the worst way to go about it.
Prefatory Note (UFTA 1984).
->The basic structure and approach of the Uniform Fraudulent Conveyance Act are preserved in the Uniform Fraudulent Transfer Act.
->There are two sections in the new Act delineating what transfers and obligations are fraudulent. Section 4(a) is an adaptation of three sections of the U.F.C.A.; § 5(a) is an adaptation of another section of the U.F.C.A.; and § 5(b) is new.
->One section of the U.F.C.A. (§ 8) is not carried forward into the new Act because deemed to be redundant in part and in part susceptible of inequitable application.
->Both Acts declare a transfer made or an obligation incurred with actual intent to hinder, delay, or defraud creditors to be fraudulent.
->Provisions of the new Act, carried forward with little change from the Uniform Fraudulent Conveyance Act, render a transfer made or obligation incurred without adequate consideration to be constructively fraudulent—i.e., without regard to the actual intent of the debtor—under one of the following conditions:
-->(1) the debtor was left by the transfer or obligation with unreasonably small assets for a transaction or business in which the debtor was engaged or was about to engage;
-->(2) the debtor intended to incur, or believed or reasonably should have believed that the debtor would incur, more debts than the debtor would be able to pay as they become due; or
-->(3) the debtor was insolvent at the time or as a result of the transfer or obligation.
As set forth below, there are five tests (§§ 4(a)(1), (2)(i), (2)(ii), 5(a) and (b)) to determine if a fraudulent transfer has occurred. But the vast majority of cases will be decided by one of two tests:
* Insolvency Test: Was the Debtor insolvent (or rendered insolvent) at the time of the transfer, and did the Debtor receive "reasonably equivalent value" in exchange (§5(a), also known by the oxymoron "Constructive Fraudulent Transfer"); and
* Intent Test: Whether the Debtor intended to diminish the enforcement rights of creditors (§ 4(a)(1), also known by the poorly descriptive term "Actual Fraudulent Transfer").
The slang terms for these tests, "Actual Fraudulent Transfer" and "Constructive Fraudulent Transfer", are anachronisms that are not at all descriptive of the analysis that is utilized by the UVTA. In fact, the use of these terms is counterproductive and confusing, and the better practice is to simply drop their usage altogether.
The Insolvency Test of §5(a) by its nature is often resolved on summary judgment, and (rather uniquely as a matter of litigation practice) frequently in favor of creditors. By contrast, the Intent Test of §4(a)(1) is almost invariably disputed (what debtor would admit to cheating creditors unless he wanted the transaction unwound?), leading to significant factual questions of intent, and thus normally precluding the granting of summary judgment.
Thus, the Insolvency Test is the "more certain" test between the two, and promises creditors the prospect of an early judgment that avoids the costs of prolonged litigation and trial. Creditors, therefore, quite naturally will assert and vigorously prosecute the Insolvency Test when they believe the facts are in their favor, and for this reason between the two tests of §§ 4(a)(1) and 5(a), it is the Insolvency Test that will ordinarily be measured first.
One might observe that there are really three forms of insolvency tests found in the UVTA, since the Overextending Insolvency Test of § 4(a)(i) and the Sinking Insolvency Test of § 4(a)(ii) effectively amount to "near insolvency" tests.
The Insider Preference Test of § 5(b) is not really a fraudulent transfer test in the classic sense, but a preference test somewhat similar to that found in U.S. bankruptcy law. Recognizing this, some states, most notably California which has its own preferential transfer scheme, did not enact § 5(b) into their version of the UVTA.
IMPORTANT NOTE: For creditors the Intent Test is the least desirable test, to be used only as a fall-back alternative if none of the other tests can be satisfied. Creditors' counsel who are unfamiliar with this body of law will -- due to their inexperience in this area -- almost inevitably start with the Intent Test first, and start floundering around with the Badges of Fraud, which is more often than not the worst way to go about it.
Prefatory Note (UFTA 1984).
->The basic structure and approach of the Uniform Fraudulent Conveyance Act are preserved in the Uniform Fraudulent Transfer Act.
->There are two sections in the new Act delineating what transfers and obligations are fraudulent. Section 4(a) is an adaptation of three sections of the U.F.C.A.; § 5(a) is an adaptation of another section of the U.F.C.A.; and § 5(b) is new.
->One section of the U.F.C.A. (§ 8) is not carried forward into the new Act because deemed to be redundant in part and in part susceptible of inequitable application.
->Both Acts declare a transfer made or an obligation incurred with actual intent to hinder, delay, or defraud creditors to be fraudulent.
->Provisions of the new Act, carried forward with little change from the Uniform Fraudulent Conveyance Act, render a transfer made or obligation incurred without adequate consideration to be constructively fraudulent—i.e., without regard to the actual intent of the debtor—under one of the following conditions:
-->(1) the debtor was left by the transfer or obligation with unreasonably small assets for a transaction or business in which the debtor was engaged or was about to engage;
-->(2) the debtor intended to incur, or believed or reasonably should have believed that the debtor would incur, more debts than the debtor would be able to pay as they become due; or
-->(3) the debtor was insolvent at the time or as a result of the transfer or obligation.
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[[#testslisted]] [--#testslisted--]
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!!!AVOIDABLE TRANSACTION TESTS LISTED
->Use these four tests first if you can, since a creditor can often win these on summary judgment.
-->Insolvency Test
-->Overextending Insolvency Test
-->Sinking Insolvency Test
-->Insider Preference Test
->Use the Intent Test last, as summary judgment is difficult to obtain.
-->Intent Test (as proven by the Badges of Fraud)
----
[[#testchart]] [--#testchart--]
----
!!!TEST ELEMENTS COMPARISON CHART
https://voidabletransactions.com/images/uvta_tests_191202_sand_poster_.png
See also Article: J. Adkisson, Understanding The Elements Of The UVTA Tests For A Voidable Transaction, Forbes.com, 30 May 2019.
[[<<]]
[[<<]]
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!!!TESTS TOPICS AND OPINIONS
(:pagelist link=Category.Tests list=normal fmt=title:)
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!!!AVOIDABLE TRANSACTION TESTS LISTED
->Use these four tests first if you can, since a creditor can often win these on summary judgment.
-->Insolvency Test
-->Overextending Insolvency Test
-->Sinking Insolvency Test
-->Insider Preference Test
->Use the Intent Test last, as summary judgment is difficult to obtain.
-->Intent Test (as proven by the Badges of Fraud)
----
[[#testchart]] [--#testchart--]
----
!!!TEST ELEMENTS COMPARISON CHART
https://voidabletransactions.com/images/uvta_tests_191202_sand_poster_.png
See also Article: J. Adkisson, Understanding The Elements Of The UVTA Tests For A Voidable Transaction, Forbes.com, 30 May 2019.
[[<<]]
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!!!TESTS TOPICS AND OPINIONS
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