Colorado § 38-8-102 - Definitions.

§ 38-8-102. Definitions.

As used in this article 8, unless the context otherwise requires:

(1) "Affiliate" means:

(a) A person that directly or indirectly owns, controls, or holds with power to vote twenty percent or more of the outstanding voting securities of the debtor, other than a person that holds the securities:

(I) As a fiduciary or agent without sole discretionary power to vote the securities; or

(II) Solely to secure a debt, if the person has not in fact exercised the power to vote;

(b) A corporation, twenty percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the debtor or a person that directly or indirectly owns, controls, or holds with power to vote, twenty percent or more of the outstanding voting securities of the debtor, other than a person that holds the securities:

(I) As a fiduciary or agent without sole discretionary power to vote the securities; or

(II) Solely to secure a debt, if the person has not in fact exercised the power to vote;

(c) A person whose business is operated by the debtor under a lease or other agreement, or a person substantially all of whose assets are controlled by the debtor; or

(d) A person that operates the debtor's business under a lease or other agreement or controls substantially all of the debtor's assets.

(2) "Asset" means property of a debtor. "Asset" shall not include:

(a) Property to the extent it is encumbered by a valid lien;

(b) Property to the extent it is generally exempt immediately prior to the time of transfer under nonbankruptcy law; or

(c) An interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.

(3) "Claim", except as the term is used in "claim for relief", means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.

(4) "Control" of a debtor or debtor's property by another person does not include conduct undertaken by the other person to enforce rights existing under a valid agreement, entered into in good faith and not primarily for the purpose of obtaining control of the debtor or the debtor's property, including without limitation a lease of such property.

(5) "Creditor" means a person who has a claim.

(6) "Debt" means liability on a claim.

(7) "Debtor" means a person who is liable on a claim.

(7.5) "Electronic" means technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

(7.7) "Entity" has the same meaning as set forth in section 7-90-102 (20).

(8) "Insider" includes:

(a) If the debtor is an individual:

(I) A relative of the debtor or of a general partner of the debtor;

(II) A partnership in which the debtor is a general partner;

(III) A general partner in a partnership described in subparagraph (II) of this paragraph (a); or

(IV) A corporation of which the debtor is a director, officer, or person in control;

(b) If the debtor is a corporation:

(I) A director of the debtor;

(II) An officer of the debtor;

(III) A person in control of the debtor;

(IV) A partnership in which the debtor is a general partner;

(V) A general partner in a partnership described in subparagraph (IV) of this paragraph (b); or

(VI) A relative of a general partner, director, officer, or person in control of the debtor;

(c) If the debtor is a partnership:

(I) A general partner in the debtor;

(II) A relative of a general partner in, or a general partner of, or a person in control of the debtor;

(III) Another partnership in which the debtor is a general partner;

(IV) A general partner in a partnership described in subparagraph (III) of this paragraph (c); or

(V) A person in control of the debtor;

(d) An affiliate, or an insider of an affiliate as if the affiliate were the debtor; or

(e) A managing agent of the debtor.

(9) "Lien" means a charge against or an interest in property to secure payment of a debt or performance of an obligation, and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common-law lien, or a statutory lien.

(10) "Person" has the meaning set forth in section 7-90-102 (49).

(11) "Property" means anything that may be the subject of ownership.

(11.5) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(12) "Relative" means an individual related by consanguinity within the third degree as determined by the common law, a spouse, or an individual related to a spouse within the third degree as so determined, and includes an individual in an adoptive relationship within the third degree.

(12.5) "Sign" or "signature" has the meaning set forth in section 7-90-102 (60.5).

(13) "Transfer" means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.

(14) "Valid lien" means a lien that is effective against the holder of a judicial lien subsequently obtained by legal or equitable process or proceedings.

Source: L. 91: Entire article added, p. 1681, § 1, effective July 1. L. 2025: IP, IP(1)(a), (1)(a)(II), IP(1)(b), (1)(b)(I), (1)(d), (3), IP(8), and (10) amended and (7.5), (7.7), (11.5), and (12.5) added, (SB 25-133), ch. 57, p. 237, § 2, effective August 6.

Editor's note - Colorado legislative change: This section was numbered as section 1 in the uniform act. In the introductory portion to this section, after the word "article", Colorado added a comma and the words "unless the context otherwise requires". In the introductory portion to subsection (2), Colorado replaced a comma with a period and changed the words "but the term does not include" to "'Asset' shall not include". In subsection (2)(b), after "exempt", Colorado added "immediately prior to the time of transfer". The definition of "control" in subsection (4) has been added and subsequent definitions renumbered accordingly. In subsection (8), the word "means" has been substituted for "includes".

ANNOTATION

"Creditor" includes persons with unlitigated claims against a defendant. Sands v. New Age Family P'ship, Ltd., 897 P.2d 917 (Colo. App. 1995).

The general assembly restricted the definition of "insider" under this act by substituting the word "means" in place of the word "includes" in the uniform act. Although the general assembly chose to change only one word—switching the word "includes" to "means"—the change in verbs has substantive implications. The terms "means" and "includes" are not necessarily synonymous. The natural distinction would be that where "means" is employed, the term and its definition are to be interchangeable equivalents, and that the verb "includes" imports a general class, some of whose particular instances are those specified in the definition. In re Blair, 594 B.R. 712 (Bankr. D. Colo. 2018).

Under the plain meaning of subsection (8), the term "insider" is restricted exclusively to those narrow categories of persons that are listed. The first category includes a "relative of the debtor". In re Blair, 594 B.R. 712 (Bankr. D. Colo. 2018).

A fiancée does not qualify as a "relative of the debtor". In re Blair, 594 B.R. 712 (Bankr. D. Colo. 2018).

"Insider" includes spouses; therefore, the burden of proof lies with the creditor to prove each and every element of a fraudulent transfer under the statute before the debtor and spouse must come forward to prove their entitlement to the defense of good faith and reasonably equivalent value. In re Thomason, 202 B.R. 768 (Bankr. D. Colo. 1996).

"Obligation," not specifically defined in this section, is generally synonymous with "transfer" and includes the assumption by the debtor of a duty to transfer an asset as a fraudulent transfer, even though no actual transfer has as yet taken place. Sands v. New Age Family P'ship, Ltd., 897 P.2d 917 (Colo. App. 1995).

Neither "transfer" nor "obligation" refers to the creditor's claim against the debtor, but refers instead to the transaction by which the debtor sought to place assets beyond the reach of creditors. Sands v. New Age Family P'ship, Ltd., 897 P.2d 917 (Colo. App. 1995).

A transaction between a husband and wife is presumptively fraudulent. Nevertheless, the movant must still establish an intent to hinder, delay, or defraud. Krol v. Unglaub, 332 B.R. 303 (Bankr. N.D. Ill. 2005).

Debtor's transfers to his fiancée and her company were not fraudulent transfers to an insider. Because the fiancée had not married debtor, she did not qualify as a relative. Nor was the company she owned a relative of the debtor. In re Blair, 594 B.R. 712 (Bankr. D. Colo. 2018).

As to the other exclusive categories of "insiders" listed in subsection (8), neither the fiancée nor her company qualified as "insiders" because neither was: (1) a partnership in which the debtor was a general partner; (2) a general partner in such a partnership; or (3) a corporation of which the debtor was a director, officer, or person in control. In re Blair, 594 B.R. 712 (Bankr. D. Colo. 2018).

Applied in Wilson v. Pauling, 457 F. Supp. 3d 965 (D. Colo. 2020).