378A.080 Defenses, liability, and protection of transferee or obligee.
605 words·~3 min read·
/ky/chapter-378a/378a-080A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(1)A transfer or obligation is not voidable under KRS 378A.040(1)(a) against a person
that took in good faith and for a reasonably equivalent value given the debtor or
against any subsequent transferee or obligee.
(2)To the extent a transfer is avoidable in an action by a creditor under KRS
378A.070(1)(a), the following rules 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:
1. The first transferee of the asset or the person for whose benefit the
transfer was made; or
2. An immediate or mediate transferee of the first transferee, other than:
a. A good-faith transferee that took for value; or
b. An immediate or mediate good-faith transferee of a person
described in subdivision a. of this subparagraph; and
(b)Recovery pursuant to KRS 378A.070(1)(a) or
(b)of or from the asset
transferred or its proceeds, by levy or otherwise, is available only against a
person described in subsection (2)(a)1. or 2. of this section.
(3)If the judgment under subsection
(2)of this section is based upon the value of the
asset transferred, the judgment shall 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 this chapter, 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 an interest in the asset transferred;
(b)Enforcement of an obligation incurred; or
(c)A reduction in the amount of the liability on the judgment.
(5)A transfer is not voidable under KRS 378A.040(1)(b) or 378A.050 if the transfer
results from:
(a)Termination of a lease upon default by the debtor when the termination is
pursuant to the lease and applicable law; or
(b)Enforcement of a security interest in compliance with Subtitle 9 of KRS
Chapter 355, other than acceptance of collateral in full or partial satisfaction
of the obligation it secures.
(6)A transfer is not voidable under KRS 378A.050(2):
(a)To the extent the insider gave new value to or for the benefit of the debtor
after the transfer was made, except to the extent the new value was secured by
a valid 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 following rules determine the burden of proving matters referred to in this
section:
(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 invoked;
(b)Except as otherwise provided in paragraphs
(c)and
(d)of this subsection, the
creditor has the burden of proving each applicable element of subsections
or
(3)of this section;
(c)The transferee has the burden of proving the applicability to the transferee of
subsection (2)(a)2.a. or b. of this section; and
(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.