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33-208. Defenses, liability and protection of transferee. (a) A transfer or obligation is not voidable under subsection (a)(1) of K.S.A. 33-204 against a person who took in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee.

(b) Except as otherwise provided in this section, to the extent a transfer is voidable in an action by a creditor under subsection (a)(1) of K.S.A. 33-207, the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (c), or the amount necessary to satisfy the creditor's claim, whichever is less. The judgment may be entered against:

(1) The first transferee of the asset or the person for whose benefit the transfer was made; or

(2) any subsequent transferee other than a good faith transferee who took for value or from any subsequent transferee.

(c) If the judgment under subsection (b) is based upon the value of the asset transferred, the judgment must be for an amount equal to the value of the asset at the time of the transfer, subject to adjustment as the equities may require.

(d) Notwithstanding voidability of a transfer or an obligation under this act, a good faith transferee or obligee is entitled, to the extent of the value given the debtor for the transfer or obligation to:

(1) A lien on or a right to retain any interest in the asset transferred;

(2) enforcement of any obligation incurred; or

(3) a reduction in the amount of the liability on the judgment.

(e) A transfer is not voidable under subsection (a)(2) of K.S.A. 33-204 or 33-205 if the transfer results from:

(1) Termination of a lease upon default by the debtor when the termination is pursuant to the lease and applicable law; or

(2) enforcement of a security interest in compliance with article 9 of the uniform commercial code.

(f) A transfer is not voidable under subsection (b) of K.S.A. 33-205:

(1) To the extent the insider gave new value to or for the benefit of the debtor after the transfer was made unless the new value was secured by a valid lien;

(2) if made in the ordinary course of business or financial affairs of the debtor and the insider; or

(3) if made pursuant to good faith effort to rehabilitate the debtor and the transfer secured present value given for that purpose as well as an antecedent debt of the debtor.

History: L. 1998, ch. 13, ยง 8; January 1, 1999.

Law Review and Bar Journal References:

"The Kansas Uniform Fraudulent Transfer Act," Leon B. Graves, 68 J.K.B.A. No. 6, 34 (1999).

"The Kansas Revised Uniform Partnership Act," Edwin W. Hecker Jr., 68 J.K.B.A. No. 9, 16 (1999).

CASE ANNOTATIONS

1. Under the dominion test, debtor's subsidiary was a "conduit," not an initial transferee, of subsidized loan payments transferred to finance company; alternatively, even if subsidiary was an initial transferee, trustee could recover from finance company because it did not establish the "for value and in good faith" defense. In re Brooke Corp., 568 B.R. 378, 416 (Bankr. D. Kan. 2017).


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