PJC Business

F RAUD AND N EGLIGENT M ISREPRESENTATION

PJC 105.28

b. solely to secure a debt, if the person or entity has not exercised the power to vote; 2. whose business is operated by Dean Debtor under a lease or other agreement, or a person or entity substantially all of whose assets are controlled by Dean Debtor ; or 3. who operates Dean Debtor ’s business under a lease or other agreement or controls substantially all of Dean Debtor ’s assets. [If the alleged affiliate is a corporation, the following additional definition may be included.] “Affiliate” also means a corporation 20 percent or more of whose outstanding voting securities are directly or indirectly owned, con trolled, or held with power to vote by Dean Debtor . Insolvent. PJC 105.28 assumes insolvency is undisputed. If insolvency is undis puted, the court may instruct the jury regarding the fact and date of insolvency. If insolvency is disputed, the following instruction (which is derived from Code section 24.003) should be submitted: A debtor is “insolvent” if the sum of the debtor’s debts is greater than all of the debtor’s assets at a fair valuation. A debtor who is gen erally not paying the debtor’s debts as they become due is presumed to be insolvent. Transfer. If there is a fact issue regarding whether an asset was transferred, the relevant portions of the following definition (which is taken from Code section 24.002(12)) should be submitted: “Transfer” means every mode, direct or indirect, absolute or con ditional, 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.

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