Guam Voidable Transaction UVTA Fraudulent Transfer UFTA

 

Guam Fraudulent Transfer Laws

 

{ Check Currency - Current Only As Of January 1, 2020 }

 

20 G.C.A. §S 6101, et seq.

 

§ 6101. Transfers, Etc., Defraud Creditors.

 

(Information regarding effective dates, repeals, etc. is provided subsequently in this document.)

 

Every transfer of property or charge thereon made, every obligation incurred, and every judicial proceeding taken, with intent to delay or defraud any creditor or other person of his demands, is void against all creditors of the debtor, and their successors in interest, and against any person upon whom the estate of the debtor devolves in trust for the benefit of others than the debtor.

 

§ 6102. Creditor’s Rights Judicially Determined.

 

(Information regarding effective dates, repeals, etc. is provided subsequently in this document.)

 

A creditor can avoid the act or obligation of his debtor for fraud only where the fraud obstructs the enforcement, by legal process, of his right to take the property affected by the transfer or obligation.

 

§ 6103. Question of Fraud, How Determined.

 

(Information regarding effective dates, repeals, etc. is provided subsequently in this document.)

 

In all cases arising under 21 GCA § 41101 [Void Instruments, purchases], or under the provisions of this Chapter, except as otherwise provided in 7 GCA § 50500 [Transfers, Etc., Defraud Creditors], the question of fraudulent intent is one of fact and not of law; nor can any transfer or charge be adjudged fraudulent solely on the ground that it was not made for a valuable consideration; provided, however, that any transfer or encumbrance of property made or given voluntarily, or without a valuable consideration, by a party while insolvent or in contemplation of insolvency, shall be fraudulent, and void as to existing creditors.

 

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 9 G.C.A. § 46.55

 

 § 46.55. Defrauding Creditors; Defined & Punished.

 

(Information regarding effective dates, repeals, etc. is provided subsequently in this document.)

 

(a) A person commits an offense, he:

 

(1) destroys, removes, conceals, encumbers, transfers or otherwise deals with property subject to a security interest with intent to defeat enforcement of that security interest;

 

(2) sells, assigns, exchanges, secretes, injures, destroys or otherwise disposes of any property upon which he has previously executed a mortgage or any instrument that operates as such, with intent to defraud the mortgages or a purchaser thereof;

 

(3) secretes, removes, assigns, conveys or otherwise disposes of his property with intent to defraud a judgment creditor or to prevent that property from being made liable for the payment of his debts;

 

(4) with intent to defraud, buys, receives, conceals or aids in concealing personal property, knowing it or any interest therein to be hired, leased or held as collateral security; or

 

(5) Intentionally sells, mortgages, conveys, conceals or aids in concealing personal property received by him upon a written conditional sale or lease agreement, or any other written agreement by which it or any interest therein is held as collateral security, before performance of any conditions precedent to acquiring the title thereto (A) without the consent in writing of the conditional seller, lessor or other holder of the security interest or (B) without disclosure to any buyer or transferee of the existence and terms of the conditional sale, lease or security agreement.

 

(b) An offense under this Section is a felony of the third degree if the value of the property which is the subject of the offense exceeds Ten Thousand Dollars in value. Otherwise the offense is a misdemeanor.

 

COMMENT: Section 46.55 supersedes Penal Code §§ 154, 155, 502a, and 502b. This Section is necessary because the statutes dealing with theft are framed in terms of property of another, the term being defined to exclude the subject matter of this Section. Section 46.55 deviates from the Model Penal Code by upgrading the offense to a third degree felony where the property which is the subject of the offense exceeds $10,000 in value.

 

Section 46.55 also includes within its scope the buyer and receiver of the property if he has acted with the requisite intent to defraud.

 

§ 46.60. Fraud in Insolvency; Defined & Punished.

 

(Information regarding effective dates, repeals, etc. is provided subsequently in this document.)

 

(a) A person commits a misdemeanor, if, with intent to defraud a creditor and with knowledge either that proceedings have been or are about to be instituted for the appointment of an administrator or that a composition agreement or other arrangement for the benefit of creditors has been or is about to be made, he:

 

(1) conveys, transfers, removes, conceals, destroys encumbers or otherwise disposes of any part of or any interest in the debtor’s estate;

 

(2) obtains any substantial part of or interest in the debtor’s estate;

 

(3) presents to any creditor or to the administrator any writing or record relating to the debtor’s estate or to a creditor’s claim, knowing the writing or record to contain a false material statement;

 

(4) fails or refuses to disclose any information that he is required by law to furnish to the administrator regarding the existence, amount or location of any part of or any interest in the debtor’s estate; or

 

(5) misrepresents any information furnished to the administrator regarding the existence, amount or location of any part of or any interest in the debtor’s estate.

 

(b) As used in this Section, Aadministrator means an assignee or trustee for the benefit of creditors, a conservator, a receiver or any other person entitled to administer property for the benefit of creditors.

 

COMMENT: A new Section. This Section is narrowly drawn in that the defendant must have an intent to defraud a creditor, although not necessarily his own, and must know of the actual or impending appointing of an administrator in an insolvency proceeding, or that a composition or other arrangement for the benefit of creditors has been or is about to be made.

 

Considering the large number of bankruptcies and insolvencies which have been occurring on Guam, this Section could be of some use.

 

RECENT ARTICLES

 

2020.06.30 ... Attorney Fees Held Awardable Under Nevada Fraudulent Transfer Law In Morgan Stanley Opinion

2020.06.11 ... Bank That Was Financially Involved With Debtor Gets Caught Up In Fraudulent Transfer Case In Wilson

2020.05.21 ... Utah Supreme Court Rejects Mixed Motive Test For Intentional Fraudulent Transfers In Jones Case

2020.01.06 ... Twyne’s Case And The Most Infamous Flock Of Sheep In Anglo-American Law

2019.12.07 ... New York Finally Modernizes Its Fraudulent Transfer Laws By Adopting The Uniform Voidable Transactions Act

2019.10.29 ... Repeal Of Kentucky’s Fraudulent Transfer Law In Favor Of UVTA Causes Headaches In Orchard

2019.10.19 ... Texas Homestead Gets Constitutional Protection From Fraudulent Transfer Claim In Lapides

 

 

Many more articles on voidable transactions law found here

 

UVTA - LOGICAL ORGANIZATION

(Designed For Litigators)

 

Click here to go to the Voidable Transactions Decision Chart

 

Overview of UVTA -- The process and result

 

Learn The Vocabulary Of The Act (Main Page)

• Who are the parties? (Main Page)
• Creditor - Debtor - Insider & Affiliate - Relative - Organization & Person
• What is a Claim and Debt? - Establishes when the claim arose, and the amount of the claim
• What is an Asset and Property? - Not all property are assets because certain categories of property are excluded
• What is a Lien and a Valid Lien? - Liens also determine the value of assets
• What is a Transfer and when has it occurred? - Not all movement of property are transfers
• What is Value? - Value may have very different meanings to creditors and debtors
• What does Insolvency mean? - Sometimes very difficult to determine

 

Has A Voidable Transaction Occurred? (Main Page)

• Insolvency Test - The best test for creditors to use when available
• Insider Preference Test - Not really a voidable transaction test, but instead a preferential transfer test
• Overextending Insolvency Test - The debtor engaged in a transaction for which it did not have the necessary financial strength
• Sinking Insolvency Test - The debtor knew or should have known that insolvency was near
• Intent Test - The debtor intended to hinder, delay or defraud any creditor
• Badges of Fraud - One of the most misunderstood subjects and frequently misapplied

 

Does The Transferee Have A Defense? (Main Page)

• Extinguishment Periods a/k/a (incorrectly) Statute of Limitations - When UVTA actions cease to be viable
• Transferee's Good Faith - How a transferee can avoid liability

 

What Remedies Are Available? (Main Page)

• Non-Money Remedy (Avoidance, Injunction, Attachment, Levy, Receiver, Other) - The most common remedies which restore title to the asset in the debtor for purposes of the creditor's enforcement
• Money Judgment - When the remedy of avoidance is unattractive

 

Other Helpful Provisions (Main Page)

• Burdens of Proof - Who proves what and when
• Conflicts-Of-Laws - When multiple jurisdictions' laws may apply and they differ
• Applicability to Protected Series Organizations (Series LLCs) - Intra-series transfers may be voidable transactions
• Uniformity Between States - When the courts of one jurisdiction should look at UVTA rulings in another
• Supplementary Law - Resolving issues that are not covered by the UVTA
• Electronic Signatures - An utter waste of statutory drafting
• Title of the Act - Dumping fraudulent transfer for voidable transaction
• Conforming Amendments - Information for enacting legislatures

 

UVTA - NUMERICAL ORGANIZATION

(Confusing & Difficult To Use)

 

The Uniform Law Commission's complete copy of the UVTA with comments in PDF format is available here. The webpage for the UVTA, showing states that have enacted and much other information regarding the Act is found here.

 

1 - Definitions

(1) Affiliate -- (2) Asset -- (3) Claim -- (4) Creditor -- (5) Debt -- (6) Debtor -- (7) Electronic -- (8) Insider -- (9) Lien -- (10) Organization -- (11) Person -- (12) Property -- (13) Record -- (14) Relative -- (15) Sign -- (16) Transfer -- (17) Valid Lien

2 - Insolvency - How insolvency is calculated

3 - Value - Issues relating to calculating value

4 - Transfer Or Obligation Voidable As To Present Or Future Creditor

(a)(1) {Intent Test} - To hinder, delay or defraud any creditor

(a)(2)(i) {Overextending Insolvency Test} - The debtor engages in a transaction for which it does not have the financial strength

(a)(2)(ii) {Sinking Insolvency Test} - The debtor is not technically insolvent but headed for insolvency

(b) {Badges of Fraud} - Circumstances available to prove the debtor's intent

5 - Transfer or Obligation Voidable As To Present Creditor

(a) {Insolvency Test} - The test preferred by creditors

(b) {Insider Preference Test} - Not really a fraudulent transfer test at all

6 - When Transfer Is Made Or Obligation Is Incurred - Determines the time of the transfer

7 - Remedies Of Creditor

      {Non-Money Judgment Remedies} - Avoidance, attachment, etc.

8 - Defenses, Liability, And Protection Of Transferee Or Obligee

{Main Provisions} -The transferee's good faith for-value defense

(b) and (c) {Money Judgment Remedy} - Alternative remedy for creditors when avoidance is not good enough

9 - Extinguishment Of Claim For Relief - Similar to Statutes of Limitation

10 - Governing Law - Conflicts of Laws provisions

11 - Application To Series Organization - Applies to intra-series transfers

12 - Supplementary Provisions - Allows application of other law to issues unresolved by the UVTA

13 - Uniformity Of Application And Construction - Court opinions from other states may be looked to for guidance

14 - Relation To Electronic Signatures In Global And National Commerce - Waste of statutory space

15 - Short Title - From fraudulent transfers to voidable transactions

16 - Repeals; Conforming Amendment - Information for enacting legislatures

 

OTHER SOURCES OF

FRAUDULENT TRANSFER LAW

 

Fraudulent Transfers In Bankruptcy - Main Page

• Bankruptcy Code Section 544 - Trustee as lien creditor and as successor to certain creditors and purchasers
• Bankruptcy Code Section 548 -- Fraudulent Transfers And Obligations
• Bankruptcy Code Section 550 -- Liability of Transferee of Fraudulent Transfer

 

28 U.S.C. § 3301, et seq. - Where United States is the creditor

 

Common Law Fraudulent Transfer - Still exists in most states

 

Fraudulent Conveyances Act of 1571 a/k/a Statute of 13 Elizabeth - The medieval statute to which the modern American UVTA traces some of its roots.

 

Statutes Of The U.S. Jurisdictions -- State and Territorial Voidable Transaction and Fraudulent Transfer Laws

 

TOPICAL COURT OPINIONS

 

DEFINITIONS

     Creditor Definition - Court opinions on the definition of creditor

     Debtor Insider Affiliate Relative Organization Person Definitions   - Court opinions on the definitions of debtor, insider, etc.

     Claim And Debt Definitions  - Court opinions on the definitions of claim and debt

     Asset And Property Definitions  - Court opinions on the definitions of assets and property

     Lien And Valid Lien Definitions  - Court opinions on the definitions of lien and valid lien

     Transfer Definition  - Court opinions on the definition of transfer

     Value And Reasonably Equivalent Value (REV) Definition  - Court opinions on the definitions of value and reasonably equivalent value

     Insolvency Definition  - Court opinions on the definition of insolvency

TESTS

     Insolvency Test  - Court opinions relating to the Insolvency Test

     Insider Preference Test  - Court opinions relating to the Insider Preference Test

     Overextending Insolvency Test  - Court opinions relating to the Overextending Insolvency Test

     Sinking Insolvency Test  - Court opinions relating to the Sinking Insolvency Test

     Intent Test  - Court opinions relating to the Intent Test

           Badges Of Fraud  - Court opinions relating to the Badges of Fraud

DEFENSES

     Extinguishment Periods a/k/a (incorrectly) Statute Of Limitations  - Court opinions relating to the extinguishment periods

     Transferee Good Faith  - Court opinions relating to the transferee good faith for-value defense

REMEDIES

     Non-Money Remedies  - Court opinions relating to avoidance and other non-money remedies

     Money Judgment Remedies  - Court opinions relating to money judgments

     Attorney Fees -- Court opinions relating to awards of attorney fees

OTHER

     Burdens of Proof  - Court opinions relating to the burdens of proof

     Conflict Of Laws  - Court opinions relating to conflict of laws

     Uniformity  - Court opinions relating to uniformity with the laws of other jurisdictions

     Supplementary Law  - Court opinions relating to the interplay of the UVTA with other law

     Jurisdictional Issues - Court opinions relating to jurisdiction of UVTA actions.

BANKRUPTCY

     Section 548  - Court opinions relating to 11 USC 548

 

OTHER RESOURCES

 

• Decision Chart - How to resolve UVTA cases
• Topical Court Opinions - Collection of interesting court opinions
• Useful Articles and References - Other articles of interest
• Jay Adkisson's Available Services - Stuff I do

 

OTHER INFORMATIONAL WEBSITES

by Jay Adkisson

 

• Jay Adkisson - More about Jay D. Adkisson, background, books, articles, speaking appearances.

 

• Captive Insurance - Licensed insurance companies formed by the parent organization to handle the insurance and risk management needs of the business, by the author of the best-selling book on the topic: Adkisson's Captive Insurance Companies.

 

• Asset Protection - The all-time best-selling book on asset protection planning by Jay Adkisson and Chris Riser.

 

• Creditor-Debtor - An explanation of common creditor remedies, strategies and tactics to enforce a judgment, including a discussion of common debtor asset protection strategies.

 

• Private Retirement Plans - An exploration of a unique creditor exemption allowed under California law which can be very beneficial but is often misused.

 

• Charging Orders - The confusing remedy against a debtor's interest in an LLC or partnership is explained in reference to the Uniform Partnership Act, the Uniform Limited Partnership Act, and the Uniform Limited Liability Company Act.

 

• Protected Series - An examination of the single most complex statutory legal structure yet created, with particular reference to the Uniform Protected Series Act of 2017.

 

• California Enforcement of Judgments Law - Considers the topic of judgment enforcement in California, including the California Enforcement of Judgments Law and other laws related to California creditor-debtor issues.

 

• Anti-SLAPP Laws - A collection of and commentary about Anti-SLAPP laws and significant court decisions on the subject within the United States, and special section on California Anti-SLAPP.

 

© 2020 Jay D. Adkisson. All rights reserved. No claim to government works or the works of the Uniform Law Commission. The information contained in this website is for general educational purposes only, does not constitute any legal advice or opinion, and should not be relied upon in relation to particular cases. Use this information at your own peril; it is no substitute for the legal advice or opinion of an attorney licensed to practice law in the appropriate jurisdiction. This site https://voidabletransactions.com Contact: jay [at] jayad.com or by phone to 702-953-9617 or by fax to 877-698-0678.