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2018 Georgia Code 18-2-72 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 18-2-72 Case Law from Google Scholar Amendments to OCGA 18-2-72

TITLE 18 DEBTOR AND CREDITOR

Section 2. Debtor and Creditor Relations, 18-2-1 through 18-2-85.

ARTICLE 4 UNIFORM VOIDABLE TRANSACTIONS ACT

18-2-72. Determining insolvency.

  1. A debtor is insolvent if, at a fair valuation, the sum of the debtor's debts is greater than the sum of the debtor's assets.
  2. A debtor who is generally not paying his or her debts as they become due other than as a result of a bona fide dispute is presumed to be insolvent. The presumption imposes on the party against which the presumption is directed the burden of proving that the nonexistence of insolvency is more probable than its existence.
  3. Assets under this Code section do not include property that has been transferred, concealed, or removed with intent to hinder, delay, or defraud creditors or that has been transferred in a manner making the transfer voidable under this article.
  4. Debts under this Code section do not include an obligation to the extent it is secured by a valid lien on property of the debtor not included as an asset.

(Code 1981, §18-2-72, enacted by Ga. L. 2002, p. 141, § 3; Ga. L. 2015, p. 996, § 4A-1/SB 65.)

JUDICIAL DECISIONS

Determining the date of insolvency for purposes of a breach of trust claim under Georgia's common law did not require the application of an insolvency standard differing significantly from the fair valuation standard under O.C.G.A. § 18-2-72. Post-Confirmation Comm. for Small Loans, Inc. v. Martin, F. Supp. 2d (M.D. Ga. June 13, 2016).

Insolvency resulting in constructive fraud pled.

- Actual fraud was adequately pled by alleging badges of fraud sufficient to infer the fraudulent nature of transfers to insiders; moreover, insolvency resulting in constructive fraud also was adequately pled. Ralls Corp. v. Huerfano River Wind, LLC, 27 F. Supp. 3d 1303 (N.D. Ga. 2014).

Judgment against debtor.

- Debtor's transfer of real property to the debtor's spouse, a default judgment in a lawsuit, which the trustee claimed rendered the debtor insolvent, in which the spouse did not participate and which was filed after the transfer did not prove the debtor's insolvency at the time of the transfer for purposes of former O.C.G.A. § 18-2-22(3); the spouse's status as the debtor's spouse, standing alone, did not establish privity with the debtor, and the judgment against the debtor did not bind the spouse. Thurmond v. Turner (In re Turner), Bankr. (Bankr. N.D. Ga. Sept. 19, 2006).

RESEARCH REFERENCES

Am. Jur. 2d.

- 37 Am. Jur. 2d, Fraudulent Conveyances and Transfers, § 18 et seq.

C.J.S.

- 37 C.J.S., Fraudulent Conveyances, § 63 et seq.

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