Colo. Rev. Stat. § 38-8-110

Current through Chapter 519 of the 2024 Legislative Session and Chapter 2 of the 2024 First Extraordinary Session

Section 38-8-110 - Extinguishment of cause of action

(1) A cause of action with respect to a fraudulent transfer or obligation under this article is extinguished unless action is brought:

(a) Under section 38-8-105(1)(a), within four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant;

(b) Under section 38-8-105(1)(b) or 38-8-106(1), within four years after the transfer was made or the obligation was incurred; or

(c) Under section 38-8-106(2), within one year after the transfer was made or the obligation was incurred.

C.R.S. § 38-8-110

L. 91: Entire article added, p. 1689, § 1, effective July 1.

Colorado legislative change: This section was numbered as section 9 in the uniform act.

OFFICIAL COMMENT

(1) This section is new. Its purpose is to make clear that lapse of the statutory periods prescribed by the section bars the right and not merely the remedy. See Restatement of Conflict of Laws 2d § 143 Comments (b) and (c) (1971). The section rejects the rule applied in United States v. Gleneagles Inv. Co., 565 F.S. 556, 583 (M.D.Pa. 1983) (state statute of limitations held not to apply to action by United States based on Uniform Fraudulent Conveyance Act).

(2) Statutes of limitations applicable to the avoidance of fraudulent transfers and obligations vary widely from state to state and are frequently subject to uncertainties in their application. See Hesson, The Statute of Limitations in Actions to Set Aside Fraudulent Conveyances and in Actions Against Directors by Creditors of Corporations, 32 Cornell L.Q. 222 (1946); Annos., 76 A.L.R. 864 (1932), 128 A.L.R. 1289 (1940), 133 A.L.R. 1311 (1941), 14 A.L.R.2d 598 (1950), and 100 A.L.R.2d 1094 (1965). Together with § 6 (section 38-8-107 in C.R.S.), this section should mitigate the uncertainty and diversity that have characterized the decisions applying statutes of limitations to actions to fraudulent transfers and obligations. The periods prescribed apply, whether the action under this Act is brought by the creditor defrauded or by a purchaser at a sale on execution levied pursuant to § 7(b) (section 38-8-108(2) in C.R.S.) and whether the action is brought against the original transferee or subsequent transferee. The prescription of statutory periods of limitation does not preclude the barring of an avoidance action for laches. See § 10 (section 38-8-111 in C.R.S.) and the accompanying Comment infra.