Fraudulent Transfers and the Subsequent Transferee Defense Under the Bankruptcy Code and UFTA /UVTA
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Bankruptcy
- event Date
Wednesday, October 13, 2021
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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This CLE course will discuss the defense to a fraudulent transfer claim for subsequent transferees from the debtor, the requirements to meet the defense, the issue of value received in consideration for the transferred payment, and what can be recovered.
Mr. Hirschfield is an experienced practitioner in all aspects of insolvency and reorganization law. He regularly represents debtors, creditors' committees, debtor-in-possession lenders, and secured and unsecured creditors and acquirers of assets, in both out-of-court workouts and bankruptcy cases. His expertise extends beyond the United States to cross-border insolvency cases in various jurisdictions.
Mr. Skapof is experienced in all aspects of insolvency and reorganization matters. He regularly represents receivers, trustees, debtors, creditors’ committees, secured and unsecured creditors, bondholder groups, DIP and exit lenders, and acquirers of assets in both out-of-court restructurings or chapter 11 cases. Mr. Skapof has experience in the retail, commercial real estate, utilities, energy and healthcare sectors.
When a transfer is avoided under the Bankruptcy Code (and states' Uniform Fraudulent Transfer Act (UFTA), now known as the Uniform Voidable Transfers Act (UVTA)), a trustee may recover "the property transferred, or, if the court so orders, the value of such property" from several different players, but not from subsequent transferees who provide "value" for the transfers in good faith without knowledge of the avoidability of the initial transfer from the debtor.
Each of these criteria is litigated, including who is an initial transferee and the "mere conduit" defense, as well as the applicability of the IRS' 10-year lookback period.
In Rajala v. Spencer Fane L.L.P. (Generation Resources Holding Co. L.L.C.), 964 F.3d 958 (10th Cir. 2020), the Tenth Circuit arguably created a new defense when it held that, to qualify as a "transferee" under Section 550, a party must have received the actual "property transferred." In other words, Section 550 did not authorize recovery of proceeds of fraudulently transferred property from subsequent transferees, only of the originally transferred property. The decision has been widely and uniformly criticized as gutting fraudulent transfer law and policy.
Listen as our authoritative panel of bankruptcy practitioners reviews the defense to fraudulent transfer claims for subsequent transferees of payment from the debtor. The panel will discuss best practices for third-party recipients of the funds to avail themselves of the defense and debtors to challenge the defense.
- Section 550(b) and UFTA/UVTA defense for subsequent transferees
- Requirements to meet the subsequent transferee defense
- What is "value" received in consideration for the transferred payment
- What constitutes good faith
- Who is a subsequent transferee
- Recent case law developments under the Bankruptcy Code and the UFTA/UVTA
The panel will review these and other key issues:
- What is "value" received in consideration for the transferred payment?
- What must a subsequent transferee show to establish that it accepted the transfer in good faith?
- What factors can be relied upon in distinguishing between an initial transferee and a subsequent transferee?
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