What a transferee can say when asked to give the money back.
Esshaki Legal Media TeamCurrent as of March 2024
A transferee facing an avoidance claim has more defenses than the badges of
fraud suggest.
Good faith and value. A transfer is not voidable against a person who took
in good faith and for a reasonably equivalent value, and a transferee who gave
value retains a lien or may enforce the obligation to the extent of the value
given. Good faith is assessed objectively in most formulations — inquiry notice
of the debtor’s intent defeats it.
Reasonably equivalent value. Payment of an antecedent debt is value.
Ordinary course payments to a trade creditor are the easiest transfers to
defend.
Solvency. The constructive fraud theories require insolvency, unreasonably
small capital, or an inability to pay debts as they came due. A contemporaneous
balance sheet and cash flow analysis is the defense, and expert valuation
frequently decides it.
Limitations. The periods are specific and shorter than general contract
periods, running from the transfer or, for actual fraud, from reasonable
discovery, with an outer limit.
Indirect benefit. Where the debtor did not receive value directly but
benefited — a guarantee supporting a facility its affiliate drew on — courts
consider the indirect benefit received.
Standing. Whether the claimant was a creditor at the relevant time.