The constructive fraudulent transfer provisions of the Bankruptcy Code (§548(a)(1)(B)) and state law (made applicable in bankruptcy cases under Bankruptcy Code §544(b)) give the bankruptcy estate representative (e.g., a Chapter 11 trustee, debtor-in-possession or creditors' committee (through derivative standing, discussed below)) the right to avoid a transfer of an interest of the debtor in property, or any obligation incurred by the debtor if the debtor, among other things: 1) received less than reasonably equivalent value in exchange for such transfer or obligation incurred; and 2) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result thereof.
Mitigating Lender Risk in Constructive Fraudulent Transfer Litigation
Lenders must carefully analyze the full ramifications of how best to approach the constructive fraudulent transfer issue when it emerges in their bankruptcy case.
By
Arthur Steinberg and Michael R. Handler
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