CHAPTER 402-C INSURERS REHABILITATION AND LIQUIDATION
Formal Proceedings
Section 402-C:30
402-C:30 Fraudulent Transfers Prior to Petition. –
I.
Definition and Effect. Every transfer made or suffered and every obligation incurred by an insurer within one year prior to the filing of a successful petition for rehabilitation or liquidation under this chapter is fraudulent as to then existing and future creditors if made or incurred without fair consideration, or with actual intent to hinder, delay or defraud either existing or future creditors. A transfer made or an obligation incurred by an insurer ordered to be rehabilitated or liquidated under this chapter, which is fraudulent under this section, may be avoided by the receiver, except as to a person who in good faith is a purchaser, lienor or obligee for a present fair equivalent value; and except that any purchaser, lienor or obligee, who in good faith has given a consideration less than fair for such transfer, lien or obligation, may retain the property, lien or obligation as security for repayment. The court may, on due notice, order any such transfer or obligation to be preserved for the benefit of the estate, and in that event the receiver shall succeed to and may enforce the rights of the purchaser, lienor or obligee.
II.
Perfection of Transfers.
(a)
Personal Property. 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 under RSA 402-C:32, III.
(b)
Real Property. 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.
(c)
Equitable Liens. 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.
(d)
Transfer Not Perfected Prior to Petition. Any 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.
(e)
Actual Creditors Unnecessary. This paragraph applies whether or not there are or were creditors who might have obtained any liens or persons who might have become bona fide purchasers.
III.
Fraudulent Reinsurance Transactions. Any transaction of the insurer with a reinsurer shall be deemed fraudulent and may be avoided by the receiver under paragraph I if:
(a) The transaction consists of the termination, adjustment or settlement of a reinsurance contract in which the reinsurer is released from any part of its duty to pay the originally specified share of losses that had occurred prior to the time of the transaction, unless the reinsurer gives a present fair equivalent value for the release; and
(b) Any part of the transaction took place within one year prior to the date of filing of the petition through which the receivership was commenced.
IV. Exception. Notwithstanding paragraph I, RSA 402-C:31, or any other provision of this chapter, no receiver or any other person shall avoid any transfer of, or any obligation to transfer, money or any other property arising under or in connection with any pledge, security, credit, collateral, loan, advances, reimbursement, or guarantee agreement or arrangement or any similar agreement, arrangement or other credit enhancement to which a Federal Home Loan Bank is a party, that is made, suffered, or incurred prior to or after the filing of a successful petition for rehabilitation or liquidation under this chapter, or otherwise would be subject to avoidance under this section or RSA 402-C:31; provided, however, that such a transfer or obligation may be avoided under this section or RSA 402-C:31 if such transfer or obligation was made, suffered, or incurred with actual intent to hinder, delay, or defraud the insurer, the receiver, or existing or future creditors.