Because modern voidable transaction laws permit certain transactions to be avoided despite the lack of any actual fraud, the advice of experienced legal counsel is often necessary for avoiding transfers which may suggest fraud that is constructive or otherwise not purposeful. Managing, and therefore, mitigating the risk of voidable transactions involves balancing cost and results. As with most transactions, the insertion of certain, key, important terms in an agreement may help bring desired results.
Cal. Civ. Code § 3439.04(a) refers to transfers made or obligations incurred by a debtor with actual intent to harm one of its creditors by hindering, delaying, or defrauding the creditor. Thus, “actual intent” must be present for the transfer to be “voidable” under the statute. Cal. Civ. Code § 3439.04(b) states that any determination of actual intent states must consider eleven (11) factors set out in § 3439.04(b).
Less than two years ago, the California legislature accepted a proposal to adopt amendments to the California Uniform Fraudulent Transfer Act (UFTA). Effective on January 1, 2016, one of the amendments changed the name of the statute to the “Uniform Voidable Transactions Act” (UVTA). The amendments also eliminated the word “fraudulent” from the statute, replacing it with “voidable.” This, in itself, is an interesting fact since California law at the time of the amendments provided that a fraudulent transfer is void from inception.
Upon the filing of most Chapter 11 bankruptcy cases, a hearing will be held by the bankruptcy court to review and hear an array of motions filed by the debtor. These motions typically include approval to make post-petition financing arrangements and immediate payment on pre-petition debt as necessary. These motions also seek approval of the employment and payment of professionals including, but not limited to, attorneys, appraisers, and real estate brokers.
Creditors in bankruptcy cases may receive the right to payment despite the problems and issues that arise when a borrower files a bankruptcy case. These rights and remedies must be exercised in a timely fashion. Creditors must remember to take certain action, or perhaps better put, refrain from certain action in the case that any borrower that is an obligee for a debt files a bankruptcy case.
The California legislature enacted SB 800, the Right to Repair Act (the “Act”), in 2003. In Elliott Homes, Inc. v. The Superior Court of Sacramento County, the Court of Appeal of the State of California, Third Appellate District, addressed a construction defect dispute which involved the application of the Right to Repair Act. The Act “applies only to new residential units where the purchase agreement with the buyer was signed by the seller on or after January 1, 2003.”
In a case heard before the U.S. District Court of Nevada in the last year, the question of whether a state had personal jurisdiction over the corporation’s directors and officers was addressed. In January of 2017, the Court found that the exercise of jurisdiction by the State of Nevada over the directors and officers named in a derivative did not offend traditional notions of fair place and substantial justice.
A recent case heard in the Northern District of California resolved a priority issue between a secured lender and judgment creditor pursuant to the take-free rule of Article 9. The case involved a debtor who granted a consensual security interest in a deposit account to a secured lender and a judgment creditor who levied the same deposit account.
As technology moves forward, it affects many aspects of the business world, including the ease in which parties may conduct business transactions. Doing business within a digital environment is still largely unprecedented in many markets and requires certain safeguards to “anticipate the unanticipated.” Thus, the California Assembly and Senate are tasked with enacting legislation that adapts to the needs of the 21st Century business world.
Just after New Year’s Day, the U.S. District Court for the Central District of California certified for appellate review its Order finding that a payday lender based in California violated the Consumer Financial Protection Act (CFPA) based on its apparent violations of California state law. The lender used what has become commonly known as a “rent-a-tribe” scheme in an attempt to avoid the applicability of California laws on usurious lending and interest rates.