Chapter 095

Chapter 95 — Uniform Voidable Transactions Act

2023 EDITION

UNIFORM VOIDABLE TRANSACTIONS ACT

PROPERTY RIGHTS AND TRANSACTIONS

95.200 Definitions for ORS 95.200 to 95.310

95.210 Insolvency

95.220 Value

95.230 Transfer or obligation voidable as to present or future creditor

95.240 Transfer or obligation voidable as to present creditor

95.250 When transfer is made or obligation is incurred

95.260 Remedies of creditor

95.270 Defenses, liability and protection of transferee or obligee

95.280 Extinguishment of claim for relief

95.283 Governing law

95.286 Application to series organization

95.290 Supplementary provisions

95.300 Uniformity of application and construction

95.305 Relation to Electronic Signatures in Global and National Commerce Act

95.310 Short title

95.010 [Repealed by 1985 c.664 §16]

95.020 [Repealed by 1985 c.664 §16]

95.030 [Repealed by 1985 c.664 §16]

95.040 [Repealed by 1985 c.664 §16]

95.050 [Repealed by 1985 c.664 §16]

95.060 [Repealed by 1985 c.664 §16]

95.070 [Repealed by 1985 c.664 §16]

95.080 [Repealed by 1985 c.664 §16]

95.090 [Repealed by 1985 c.664 §16]

95.100 [Repealed by 1985 c.664 §16]

95.200 Definitions for ORS 95.200 to 95.310. As used in ORS 95.200 to 95.310:

(1) “Affiliate” means:

(a) A person that directly or indirectly owns, controls or holds with power to vote 20 or more percent of the outstanding voting securities of the debtor, other than a person that holds the securities:

(A) As a fiduciary or agent without sole discretionary power to vote the securities; or

(B) Solely to secure a debt, if the person has not in fact exercised the power to vote.

(b) An organization, 20 or more percent of whose outstanding voting securities or other voting interests are directly or indirectly owned, controlled or held with power to vote by the debtor or by a person that directly or indirectly owns, controls or holds with power to vote 20 or more percent of the outstanding voting securities or other voting interests of the debtor, other than a person that holds the securities:

(A) As a fiduciary or agent without sole discretionary power to vote the securities or other voting interests; or

(B) Solely to secure a debt, if the person has not in fact exercised the power to vote.

(c) A person whose business is operated by the debtor under a lease or other agreement, or a person substantially all of whose assets are controlled by the debtor.

(d) A person that operates the debtor’s business under a lease or other agreement or controls substantially all of the debtor’s assets.

(2) “Asset” means property of a debtor but does not include:

(a) Property to the extent encumbered by a valid lien;

(b) Property to the extent that it is generally exempt under nonbankruptcy law; or

(c) An interest in property held in tenancy by the entireties to the extent not subject to process by a creditor holding a claim against only one tenant.

(3)(a) “Claim” means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured.

(b) “Claim for relief” does not have the same meaning as the term “claim.”

(4) “Creditor” means a person that has a claim.

(5) “Debt” means liability on a claim.

(6) “Debtor” means a person that is liable on a claim.

(7) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capacities.

(8) “Insider” includes:

(a) If the debtor is an individual:

(A) A relative of the debtor or of a general partner of the debtor;

(B) A partnership in which the debtor is a general partner;

(D) A corporation of which the debtor is a director, officer, manager or person in control.

(b) If the debtor is a corporation:

(A) A director of the debtor;

(B) An officer of the debtor;

(D) A partnership in which the debtor is a general partner;

(E) A general partner in a partnership described in subparagraph (D) of this paragraph; or

(F) A relative of a general partner, director, officer or person in control of the debtor.

(A) A general partner in the debtor;

(B) A relative of a general partner in, a general partner of, or a person in control of the debtor;

(D) A general partner in a partnership described in subparagraph (C) of this paragraph; or

(E) A person in control of the debtor.

(d) If the debtor is a limited liability company or other business organization:

(A) A member of the debtor; or

(B) A manager, or other person in control, of the debtor.

(e) An affiliate or an insider of an affiliate as if the affiliate were the debtor.

(f) A managing agent of the debtor.

(9) “Lien” means a charge against or an interest in property to secure payment of a debt or performance of an obligation, including a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common-law lien or a statutory lien.

(10) “Organization” means a person other than an individual.

(11) “Person” means an individual, partnership, corporation, association, organization, government or governmental subdivision or agency, business trust or any other legal or commercial entity.

(12) “Property” means anything that may be the subject of ownership.

(13) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in any perceivable form.

(14) “Relative” means an individual related by consanguinity within the third degree as determined by the common law, a spouse, or an individual related to a spouse within the third degree as so determined, and includes an individual in an adoptive relationship within the third degree.

(15) “Sign” means, with present intent to authenticate or adopt a record:

(a) To execute or adopt a tangible symbol; or

(b) To attach to or logically associate with the record an electronic symbol, sound or process.

(16) “Transfer” means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes a payment of money, a release, a lease and the creation of a lien or other encumbrance.

(17) “Valid lien” means a lien that is effective against the holder of a judicial lien subsequently obtained by legal or equitable process or proceedings. [1985 c.664 §1; 2009 c.294 §13; 2023 c.83 §5]

Note: Section 14, chapter 83, Oregon Laws 2023, provides:

Sec, 14. (1) Sections 2 to 4 of this 2023 Act [95.283, 95.286 and 95.305] and the amendments to ORS 95.200, 95.210, 95.220, 95.230, 95.240, 95.250, 95.270, 95.280 and 95.310 by sections 5 to 13 of this 2023 Act:

(a) Apply to a transfer made or obligation incurred on or after the effective date of this 2023 Act [January 1, 2024];

(b) Do not apply to a transfer made or obligation incurred before the effective date of this 2023 Act; and

(2) For the purposes of this section, a transfer is made and an obligation is incurred at the time described in ORS 95.250, as amended by section 10 of this 2023 Act. [2023 c.83 §14]

95.210 Insolvency. (1) A debtor is insolvent if, at a fair valuation, the sum of the debtor’s debts is greater than the sum of the debtor’s assets.

(2) A debtor that is generally not paying the debtor’s debts as they become due, other than as a result of a bona fide dispute, is rebuttably presumed to be insolvent.

(3) Assets under this section do not include property that has been transferred, concealed or removed with intent to hinder, delay, or defraud creditors or that has been transferred in a manner making the transfer voidable under ORS 95.200 to 95.310.

(4) Debts under this section do not include an obligation to the extent the obligation is secured by a valid lien on property of the debtor not included as an asset. [1985 c.664 §2; 2023 c.83 §6]

Note: See note under 95.200.

95.220 Value. (1) Value is given for a transfer or an obligation if in exchange for the transfer or obligation property is transferred or an antecedent debt is secured or satisfied, but value does not include an unperformed promise made otherwise than in the ordinary course of the promisor’s business to furnish support to the debtor or another person.

(2) For the purposes of ORS 95.230 (1)(b) and 95.240, a person gives a reasonably equivalent value if the person acquires an interest of the debtor in an asset pursuant to a regularly conducted, noncollusive foreclosure sale or execution of a power of sale for the acquisition or disposition of the interest of the debtor upon default under a mortgage, deed of trust or security agreement.

(3) A transfer is made for present value if the exchange between the debtor and the transferee is intended by them to be contemporaneous and is in fact substantially contemporaneous. [1985 c.664 §3; 2023 c.83 §7]

Note: See note under 95.200.

95.230 Transfer or obligation voidable as to present or future creditor. (1) A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:

(a) With actual intent to hinder, delay or defraud any creditor of the debtor; or

(b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:

(A) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or

(B) Intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they become due.

(2) In determining actual intent under subsection (1)(a) of this section, consideration may be given, among other factors, to whether:

(a) The transfer or obligation was to an insider;

(b) The debtor had retained possession or control of the property transferred after the transfer;

(d) Before the transfer was made or obligation was incurred, the debtor was sued or threatened with suit;

(e) The transfer was of substantially all the debtor’s assets;

(f) The debtor had absconded;

(g) The debtor had removed or concealed assets;

(h) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;

(i) The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;

(j) The transfer had occurred shortly before or shortly after a substantial debt was incurred; and

(k) The debtor had transferred the essential assets of the business to a lienor who had transferred the assets to an insider of the debtor.

(3) A creditor making a claim for relief under this section has the burden of proving the elements of the claim for relief by preponderance of the evidence. [1985 c.664 §4; 2023 c.83 §8]

Note: See note under 95.200.

95.240 Transfer or obligation voidable as to present creditor. (1) A transfer made or obligation incurred by a debtor is voidable as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.

(2) A transfer made by a debtor is voidable as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time and the insider had reasonable cause to believe that the debtor was insolvent.

(3) Subject to ORS 95.210, a creditor making a claim for relief under this section has the burden of proving the elements of the claim for relief by a preponderance of the evidence. [1985 c.664 §5; 2023 c.83 §9]

Note: See note under 95.200.

95.250 When transfer is made or obligation is incurred. For the purposes of ORS 95.200 to 95.310:

(1) A transfer is made:

(a) With respect to an asset that is real property other than a fixture, but including the interest of a seller or purchaser under a contract for the sale of the asset, when the transfer is so far perfected that a good-faith purchaser of the asset from the debtor against which applicable law permits the transfer to be perfected cannot acquire an interest in the asset that is superior to the interest of the transferee; and

(b) With respect to an asset that is not real property or that is a fixture, when the transfer is so far perfected that a creditor on a simple contract cannot acquire a judicial lien otherwise than under ORS 95.200 to 95.310 that is superior to the interest of the transferee.

(2) If applicable law permits the transfer to be perfected as provided in subsection (1) of this section and the transfer is not so perfected before the commencement of an action for relief under ORS 95.200 to 95.310, the transfer is deemed made immediately before the commencement of the action.

(3) If applicable law does not permit the transfer to be perfected as provided in subsection (1) of this section, the transfer is made when it becomes effective between the debtor and the transferee.

(4) A transfer is not made until the debtor has acquired rights in the asset transferred.

(5) An obligation is incurred:

(a) If oral, when it becomes effective between the parties.

(b) If evidenced by a record, when the record signed by the obligor is delivered to or for the benefit of the obligee. [1985 c.664 §6; 2023 c.83 §10]

Note: See note under 95.200.

95.260 Remedies of creditor. (1) In any action for relief against a transfer or obligation under ORS 95.200 to 95.310, a creditor, subject to the limitations provided in ORS 95.270, may obtain:

(a) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim.

(b) An attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by any applicable provision of any other statute or the Oregon Rules of Civil Procedure.

(A) An injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;

(B) Appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or

(2) If a creditor has obtained a judgment on a claim against the debtor and if the court so orders, the creditor may levy execution on the asset transferred or its proceeds. [1985 c.664 §7]

95.270 Defenses, liability and protection of transferee or obligee. (1) A transfer or obligation is not voidable under ORS 95.230 (1)(a) as against a person that took in good faith and for a reasonably equivalent value given the debtor or as against any subsequent transferee or obligee.

(2) To the extent a transfer is avoidable in an action by a creditor under ORS 95.260 (1)(a), the following apply:

(a) Except as otherwise provided in this section, the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (3) of this section, or the amount necessary to satisfy the creditor’s claim, whichever is less. The judgment may be entered against:

(A) The first transferee of the asset or the person for whose benefit the transfer was made; or

(B) An immediate or mediate transferee of the first transferee, other than:

(i) A good-faith transferee that took for value; or

(ii) An immediate or mediate good-faith transferee of a person described in sub-subparagraph (i) of this subparagraph.

(b) Recovery under ORS 95.260 (1)(a) or (2) of, or from, the asset transferred or its proceeds, by levy or otherwise, is available only against a person described in paragraph (a) of this subsection.

(3) If the judgment under subsection (2) of this section is based upon the value of the asset transferred, the judgment must be for an amount equal to the value of the asset at the time of the transfer, subject to adjustment as the equities may require.

(4) Notwithstanding voidability of a transfer or an obligation under ORS 95.200 to 95.310, a good-faith transferee or obligee is entitled, to the extent of the value given the debtor for the transfer or obligation, to:

(a) A lien on or a right to retain any interest in the asset transferred;

(b) Enforcement of any obligation incurred; or

(5) A transfer is not voidable under ORS 95.230 (1)(b) or 95.240 if the transfer results from:

(a) Termination of a lease upon default by the debtor when the termination is pursuant to the terms of the lease and applicable law; or

(b) Enforcement of a security interest in compliance with ORS chapter 79.

(6) A transfer is not voidable under ORS 95.240 (2):

(a) To the extent the insider gave new value to or for the benefit of the debtor after the transfer was made unless the new value was secured by an otherwise unavoidable lien;

(b) If made in the ordinary course of business or financial affairs of the debtor and the insider; or

(c) If made pursuant to a good-faith effort to rehabilitate the debtor and the transfer secured present value given for that purpose as well as an antecedent debt of the debtor.

(7) The burden of proving matters referred to in this section is determined as follows:

(a) A party that seeks to invoke subsection (1), (4), (5) or (6) of this section has the burden of proving the applicability of the subsection.

(b) Except as otherwise provided in paragraphs (c) and (d) of this subsection, the creditor has the burden of proving each applicable element of subsection (2) or (3) of this section.

(c) The transferee has the burden of proving the applicability to the transferee of subsection (2)(a)(B)(i) or (ii) of this section.

(d) A party that seeks adjustment under subsection (3) of this section has the burden of proving the adjustment.

(8) The standard of proof required to establish matters referred to in this section is preponderance of the evidence. [1985 c.664 §8; 2001 c.445 §167; 2023 c.83 §11]

Note: See note under 95.200.

95.280 Extinguishment of claim for relief. A claim for relief with respect to a transfer or obligation under ORS 95.200 to 95.310 is extinguished unless action is brought:

(1) Under ORS 95.230 (1)(a) within four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant;

(2) Under ORS 95.230 (1)(b) or 95.240 (1), within four years after the transfer was made or the obligation was incurred; or

(3) Under ORS 95.240 (2), within one year after the transfer was made or the obligation was incurred. [1985 c.664 §9; 2023 c.83 §12]

Note: See note under 95.200.

95.283 Governing law. (1) A claim for relief in the nature of a claim for relief under ORS 95.200 to 95.310 is governed by the local law of the jurisdiction in which the debtor is located at the time the transfer is made or the obligation is incurred.

(2) For purposes of this section, a debtor’s location is determined as follows:

(a) A debtor who is an individual is located at the individual’s principal residence.

(b) A debtor that is an organization and has only one place of business is located at its place of business.

(c) A debtor that is an organization and has more than one place of business is located at its chief executive office. [2023 c.83 §2]

Note: See note under 95.200.

95.286 Application to series organization. (1) For the purposes of ORS 95.200 to 95.310, a series organization and each protected series of the organization is a separate person, even if for other purposes a protected series is not a person separate from the series organization or other protected series of the organization.

(2) As used in this section:

(a) “Protected series” means an arrangement, however denominated, created by a series organization that, pursuant to the law under which the series organization is organized, has the characteristics set forth in paragraph (b) of this subsection.

(b) “Series organization” means an organization that, pursuant to the law under which it is organized, has the following characteristics:

(A) The organic record of the organization provides for creation by the organization of one or more protected series, however denominated, with respect to specified property of the organization, and for records to be maintained for each protected series that identify the property of or associated with the protected series.

(B) Debt incurred or existing with respect to the activities of, or property of or associated with, a particular protected series is enforceable against the property of or associated with the protected series only, and not against the property of or associated with the organization or other protected series of the organization.

(C) Debt incurred or existing with respect to the activities or property of the organization is enforceable against the property of the organization only, and not against the property of or associated with a protected series of the organization. [2023 c.83 §3]

Note: See note under 95.200.

95.290 Supplementary provisions. Unless displaced by the provisions of ORS 95.200 to 95.310, the principles of law and equity, including the law merchant and the law relating to principal and agent, estoppel, laches, fraud, misrepresentation, duress, coercion, mistake, insolvency or other validating or invalidating cause, supplement its provisions. [1985 c.664 §10]

95.300 Uniformity of application and construction. ORS 95.200 to 95.310 shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of ORS 95.200 to 95.310 among states enacting it. [1985 c.664 §11]

95.305 Relation to Electronic Signatures in Global and National Commerce Act. ORS 95.200 to 95.310 modifies, limits and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but does not modify, limit or supersede 15 U.S.C. 7001(c) or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b). [2023 c.83 §4]

Note: See note under 95.200.

95.310 Short title. ORS 95.200 to 95.310 may be cited as the Uniform Voidable Transactions Act. [1985 c.664 §12; 2023 c.83 §13]

Note: See note under 95.200.

_______________