Nebraska Revised Statute 36-702

Chapter 36 Section 702

36-702.

Terms, defined.

As used in the Uniform Fraudulent Transfer Act:

(1) Affiliate means:

(i) a person who directly or indirectly owns, controls, or holds with power to vote, twenty percent or more of the outstanding voting securities of the debtor, other than a person who holds the securities,

(A) as a fiduciary or agent without sole discretionary power to vote the securities; or

(B) solely to secure a debt, if the person has not exercised the power to vote;

(ii) a corporation twenty percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the debtor or a person who directly or indirectly owns, controls, or holds, with power to vote, twenty percent or more of the outstanding voting securities of the debtor, other than a person who holds the securities,

(A) as a fiduciary or agent without sole power to vote the securities; or

(B) solely to secure a debt, if the person has not in fact exercised the power to vote;

(iii) a person whose business is operated by the debtor under a lease or other agreement, or a person substantially all of whose assets are controlled by the debtor; or

(iv) a person who operates the debtor's business under a lease or other agreement or controls substantially all of the debtor's assets.

(2) Asset means property of a debtor, but the term does not include:

(i) property to the extent it is encumbered by a valid lien;

(ii) property to the extent it is generally exempt under nonbankruptcy law; or

(iii) an interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.

(3) Claim means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.

(4) Creditor means a person who has a claim.

(5) Debt means liability on a claim.

(6) Debtor means a person who is liable on a claim.

(7) Insider includes:

(i) if the debtor is an individual,

(A) a relative of the debtor or of a general partner of the debtor;

(B) a partnership in which the debtor is a general partner;

(C) a general partner in a partnership described in subdivision (B) of this subdivision;

(D) a limited liability company of which the debtor is a member; or

(E) a corporation of which the debtor is a director, officer, or person in control;

(ii) if the debtor is a corporation,

(A) a director of the debtor;

(B) an officer of the debtor;

(C) a person in control of the debtor;

(D) a partnership in which the debtor is a general partner;

(E) a general partner in a partnership described in subdivision (D) of this subdivision;

(F) a limited liability company of which the debtor is a member; or

(G) a relative of a general partner, director, officer, or person in control of the debtor;

(iii) if the debtor is a partnership,

(A) a general partner in the debtor;

(B) a relative of a general partner in, a general partner of, or a person in control of the debtor;

(C) another partnership in which the debtor is a general partner;

(D) a general partner in a partnership described in subdivision (C) of this subdivision;

(E) a limited liability company of which the debtor is a member; or

(F) a person in control of the debtor;

(iv) if the debtor is a limited liability company,

(A) a member of the debtor;

(B) a relative of a member of the debtor;

(C) a person in control of the debtor;

(D) another limited liability company of which the debtor is a member;

(E) a partnership in which the debtor is a general partner;

(F) a general partner in a partnership described in subdivision (E) of this subdivision; or

(G) a corporation of which the debtor is a director, officer, or person in control;

(v) an affiliate, or an insider of an affiliate as if the affiliate were the debtor; and

(vi) a managing agent of the debtor.

(8) Lien means a charge against or an interest in property to secure payment of a debt or performance of an obligation, and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common-law lien, or a statutory lien.

(9) Person means an individual, partnership, limited liability company, corporation, association, organization, government or governmental subdivision or agency, business trust, estate, trust, or any other legal or commercial entity.

(10) Property means anything that may be the subject of ownership.

(11) Relative means an individual related by consanguinity within the third degree as determined by the common law, a spouse, or an individual related to a spouse within the third degree as so determined, and includes an individual in an adoptive relationship within the third degree.

(12) Transfer means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.

(13) Valid lien means a lien that is effective against the holder of a judicial lien subsequently obtained by legal or equitable process or proceedings.

Source

  • Laws 1989, LB 423, § 2;
  • Laws 1993, LB 121, § 200.

Annotations

  • Pursuant to subsection (3) of this section, a spouse's right to an equitable distribution of the marital estate is not a "right to payment" under the Uniform Fraudulent Transfer Act. Reed v. Reed, 275 Neb. 418, 747 N.W.2d 18 (2008).

  • An appeal of a district court's determination that a transfer of an asset was not in violation of the Uniform Fraudulent Transfer Act is equitable in nature. Parker v. Parker, 268 Neb. 187, 681 N.W.2d 735 (2004).

  • Under subsection (7)(i)(A) of this section, an ex-wife does not count as an "insider." Parker v. Parker, 268 Neb. 187, 681 N.W.2d 735 (2004).

  • When original conveyances of property held in joint tenancy take place long before plaintiff's claim arises, the operation of common-law joint tenancy does not qualify as a transfer as defined in subsection (12) of this section. Mahlin v. Goc, 249 Neb. 951, 547 N.W.2d 129 (1996).