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The Vermont Statutes Online
Title
08
:
Banking and Insurance
Chapter
145
:
SUPERVISION, REHABILITATION, AND LIQUIDATION OF INSURERS
Subchapter
003
:
FORMAL PROCEEDINGS
§
7067. Voidable preferences and liens
(a)(1) A
preference is a transfer of any of the property of an insurer to or for the
benefit of a creditor, for or on account of an antecedent debt, made or
suffered by the insurer within one year before the filing of a successful
petition for liquidation under this chapter, the effect of which transfer may
be to enable the creditor to obtain a greater percentage of this debt than
another creditor of the same class would receive. If a liquidation order is
entered while the insurer is already subject to a rehabilitation order, then
such transfers shall be deemed preferences if made or suffered within one year
before the filing of the successful petition for rehabilitation, or within two
years before the filing of the successful petition for liquidation, whichever
time is shorter.
(2) A preference
may be avoided by the liquidator if:
(A) the insurer
was insolvent at the time of the transfer of property;
(B) the transfer
of property was made within four months before the filing of the petition;
(C) the creditor
receiving it or to be benefited thereby or his or her agent acting with
reference thereto had, at the time when the transfer of property was made,
reasonable cause to believe that the insurer was insolvent or was about to
become insolvent; or
(D) the creditor
receiving transferred property was an officer, or any employee or attorney or
other person who was in fact in a position of comparable influence in the
insurer to an officer whether or not he or she held such position, or any
shareholder holding directly or indirectly more than five per centum of any
class of any equity security issued by the insurer, or any other person, firm,
corporation, association, or aggregation of persons with whom the insurer did
not deal at arm's length.
(3) Where the
preference is voidable, the liquidator may recover the property or, if it has
been converted, its value from any person who has received or converted the
property; except where a bona fide purchaser or lienor has given less than fair
equivalent value, he or she shall have a lien upon the property to the extent
of the consideration actually given by him or her. Where a preference by way of
lien or security title is voidable, the Court may on due notice order the lien
or title to be preserved for the benefit of the estate, in which event the lien
or title shall pass to the liquidator.
(b)(1) A
transfer of property other than real property shall be deemed to be made or
suffered when it becomes so far perfected that no subsequent lien obtainable by
legal or equitable proceedings on a simple contract could become superior to
the rights of the transferee.
(2) A transfer
of real property shall be deemed to be made or suffered when it becomes so far
perfected that no subsequent bona fide purchaser from the insurer could obtain
rights superior to the rights of the transferee.
(3) A transfer
which creates an equitable lien shall not be deemed to be perfected if there
are available means by which a legal lien could be created.
(4) A transfer
not perfected prior to the filing of a petition for liquidation shall be deemed
to be made immediately before the filing of the successful petition.
(5) The
provisions of this subsection apply whether or not there are or were creditors
who might have obtained liens or persons who might have become bona fide
purchasers.
(c)(1) A lien
obtainable by legal or equitable proceedings upon a simple contract is one
arising in the ordinary course of such proceedings upon the entry or docketing
of a judgment or decree, or upon attachment, garnishment, execution, or like
process, whether before, upon, or after judgment or decree and whether before
or upon levy. It does not include liens which under applicable law are given a
special priority over other liens which are prior in time.
(2) A lien
obtainable by legal or equitable proceedings could become superior to the
rights of a transferee, or a purchaser could obtain rights superior to the
rights of a transferee within the meaning of subsection (b) of this section, if
such consequences would follow only from the lien or purchase itself, or from
the lien or purchase followed by any step wholly within the control of the
respective lienholder or purchaser, with or without the aid of ministerial
action by public officials. Such a lien could not, however, become superior and
such a purchase could not create superior rights for the purpose of subsection
(b) of this section through any acts subsequent to the obtaining of such a lien
or subsequent to such a purchase which requires the agreement or concurrence of
any third party or which requires any further judicial action or ruling.
(d) A transfer
of property for or on account of a new and contemporaneous consideration which
is deemed under subsection (b) of this section to be made or suffered after the
transfer because of delay in perfecting it does not thereby become a transfer
for or on account of an antecedent debt if any acts required by the applicable
law to be performed in order to perfect the transfer as against liens or bona
fide purchasers' rights are performed within 21 days or any period expressly
allowed by the law, whichever is less. A transfer to secure a future loan, if
such a loan is actually made, or a transfer which becomes security for a future
loan, shall have the same effect as a transfer for or on account of a new and
contemporaneous consideration.
(e) If any lien
deemed voidable under subdivision (a)(2) of this section has been dissolved by
the furnishing of a bond or other obligation, the surety on which has been
indemnified directly or indirectly by the transfer of or the creation of a lien
upon any property of an insurer before the filing of a petition under this
chapter which results in a liquidation order, the indemnifying transfer or lien
shall also be deemed voidable.
(f) The property
affected by any lien deemed voidable under subsections (a) and (e) of this
section shall be discharged from such lien, and that property and any of the
indemnifying property transferred to or for the benefit of a surety shall pass
to the liquidator, except that the Court may on due notice order any such lien
to be preserved for the benefit of the estate and the Court may direct that
such conveyance be executed as may be proper or adequate to evidence the title
of the liquidator.
(g) The Superior
Court of Washington County shall have summary jurisdiction of any proceeding by
the liquidator to hear and determine the rights of any parties under this
section. Reasonable notice of hearing in the proceeding shall be given to all parties
in interest, including the obligee of a releasing bond or other like
obligation. Where an order is entered for the recovery of indemnifying property
in kind or for the avoidance of an indemnifying lien, the Court, upon
application of any party in interest, shall in the same proceeding ascertain
the value of the property or lien, and if the value is less than the amount for
which the property is indemnity or less than the amount of the lien, the
transferee or lienholder may elect to retain the property or lien upon payment
of its value, as ascertained by the court, to the liquidator, within such
reasonable times as the Court shall fix.
(h) The
liability of the surety under a releasing bond or other like obligation shall
be discharged to the extent of the value of the indemnifying property recovered
or the indemnifying lien nullified and avoided by the liquidator, or where the
property is retained under subsection (g) of this section to the extent of the
amount paid to the liquidator.
(i) If a
creditor has been preferred, and afterward in good faith gives the insurer
further credit without security of any kind, for property which becomes a part
of the insurer's estate, the amount of the new credit remaining unpaid at the
time of the petition may be set off against the preference which would
otherwise be recoverable.
(j) If an
insurer shall, directly or indirectly, within four months before the filing of
a successful petition for liquidation under this chapter, or at any time in
contemplation of a proceeding to liquidate it, pay money or transfer property
to an attorney for services rendered or to be rendered, the transactions may be
examined by the Court on its own motion or shall be examined by the Court on
petition of the liquidator and shall be held valid only to the extent of a
reasonable amount to be determined by the Court, and the excess may be
recovered by the liquidator for the benefits of the estate provided that where
the attorney is in a position of influence in the insurer or an affiliate thereof
payment of any money or the transfer of any property to the attorney for
services rendered or to be rendered shall be governed by the provision of
subdivision (a)(2)(D) of this section.
(k)(1) Every
officer, manager, employee, shareholder, member, subscriber, attorney, or any
other person acting on behalf of the insurer who knowingly participates in
giving any preference when he or she has reasonable cause to believe the
insurer is or is about to become insolvent at the time of the preference shall
be personally liable to the liquidator for the amount of the preference. It is permissible to infer
that there is a reasonable cause to so believe if the transfer was made within
four months before the date of filing of this successful petition for
liquidation.
(2) Every person
receiving any property from the insurer or the benefit thereof as a preference
voidable under subsection (a) of this section shall be personally liable
therefor and shall be bound to account to the liquidator.
(3) Nothing in
this subsection shall prejudice any other claim by the liquidator against any
person. (Added 1991, No. 45, § 2, eff. May 29, 1991.)