1. (a) A transfer made by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made, if the debtor made the transfer:

   1. (1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or

   2. (2) without receiving a reasonably equivalent value in exchange for the transfer, and the debtor:

      1. (i) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
      2. (ii) intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they became due.

2. (b) In determining actual intent under subsection (a)(1), consideration may be given, among other factors, to whether:

   1. (1) the transfer was to an insider;
   2. (2) the debtor retained possession or control of the property transferred after the transfer;
   3. (3) the transfer was concealed or not disclosed;
   4. (4) before the transfer was made, the debtor had been sued or threatened with suit;
   5. (5) the transfer was of substantially all the debtor’s assets;
   6. (6) the debtor absconded;
   7. (7) the debtor removed or concealed assets;
   8. (8) the value of the consideration received by the debtor was not reasonably equivalent to the value of the asset transferred;
   9. (9) the debtor was insolvent or became insolvent shortly after the transfer was made;
   10. (10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and
   11. (11) the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor.
3. (c) A creditor making a claim for relief under subsection (a) has the burden of proving the elements of the claim for relief by a preponderance of the evidence.

(Act 2018-163, §1.)