§ 31A-27a-508. Liability of transferee.

(1) Except as otherwise provided in this section, to the extent that the receiver obtains an order pursuant to Section 31A-27a-501, or avoids a transfer under Section 31A-27a-502, 31A-27a-503, 31A-27a-504, 31A-27a-506, or 31A-27a-507, the receiver may recover the property transferred, or the value of the property, from:

(a) the initial transferee of the transfer or the entity for whose benefit the transfer is made; or

(b) subject to Subsection (2), an immediate or mediate transferee of the initial transferee.

(2) The receiver may not recover under Subsection (1)(b) from:

(a) a transferee that takes for value, including satisfaction or securing of a present or antecedent debt:

(i) in good faith; and

(ii) without knowledge of the voidability of the transfer avoided; or

(b) an immediate or mediate good faith transferee of the transferee.

(3) A transfer avoided in accordance with this chapter is preserved for the benefit of the receivership estate, but only with respect to property of the insurer.

(4) In addition to the remedies specifically provided in Sections 31A-27a-501, 31A-27a-502, 31A-27a-503, 31A-27a-504, 31A-27a-506, and 31A-27a-507 and Subsection (1), if the receiver is successful in establishing a claim to the property or any part of the property, the receiver may recover judgment for the following:

(a) rental for the use of tangible property from the later of:

(i) the day on which the receivership order is entered; or

(ii) the date of the transfer; and

(b) in the case of funds or intangible property:

(i) the greater of:

(A) the actual interest;

(B) income earned by the property; or

(C) interest at the statutory rate for judgments; and

(ii) from the later of:

(A) the day on which the receivership order is entered; or

(B) the date of the transfer.

(5) In an action pursuant to this section, the receivership court may allow the receiver to seek recovery of the property involved or its value.

(6) In an action pursuant to Sections 31A-27a-501, 31A-27a-502, 31A-27a-503, 31A-27a-504, 31A-27a-506, 31A-27a-507, and 31A-27a-510:

(a) the receiver has the burden of proving the avoidability of a transfer; and

(b) the person against whom recovery or avoidance is sought has the burden of proving the nature and extent of any affirmative defense.

Enacted by Chapter 309, 2007 General Session