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Fraudulent Transfers Pre-Bankruptcy

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    Fraudulent Transfers Pre-Bankruptcy

    June 7, 2011

    In his article Recent Developments in Asset Protection Law published in the Wealth Strategies Journal, Jay D. Adkisson presents a litany of recent court cases which impact asset protection and estate planning. Adkisson details more than forty cases from District, Appelate and Circuit courts across the country that raise important questions in the areas of fraudulent transfers, bankruptcy fraud, executor interests, pre-bankruptcy planning, trusts, and business entities, among others issues. Find a complete description of these cases in Adkisson’s full article in the Wealth Strategies Journal.

    Of particular interest are two cases—one in Florida and one in California—which deal with fraudulent transfers and estate planning.

    In re Quaid, (2011 WL 285645, Bkrtcy.M.D.Fla., Jan. 26, 2011,), a Florida Debtor sought to protect his assets from Creditors by transferring his assets to a self-settled trust, declaring the assets exempt because of the spendthrift provision contained within the trust.[1]

    However, the Orlando Division of a U.S. Bankruptcy Court ruled that a spendthrift provision does not apply to assets in a self-settled trust (i.e., a trust where a beneficiary is also a settler) when the beneficiary contributes assets to this trust. Ultimately, the money that Debtor intended to shield—which amounted to almost $400,000—was included in his estate, allowing his assets to be reached by his Creditors.

    Months later in California, the case of Struyk v. Meltzer (2011 WL 1019916, Cal.App. 4 Dist, Unpublished, Mar. 23, 2011), raised important questions of fraudulent inter-spousal transfer of assets. In this case, a Debtor Husband—owing $500,000—transferred assets to his wife, who had no debts, by quitclaiming his interest in his residence to her.[2] The wife then assumed the residence as her “sole and separate property.”

    Both the husband and wife were sued for a fraudulent transfer. In their defense, they argued that there was no evidence the wife had any knowledge of the husband’s fraudulent intent, and therefore “did not accept quitclaim of the residence ‘with actual intent to hinder, delay or defraud’” the husband’s Creditor.[3]

    However, the jury found that the Husband did intentionally transfer the property to the Wife in order to defraud his creditor, which ultimately led to a “a jury verdict well in excess of the value of the assets that she received, which is a permissible result as the court describes. In other words, not only did this transfer totally fail, but it made things a lot worse and merely created a second debtor for the creditor to chase.”[4]

    These cases confirm a perhaps obvious intuition—that fraudulent transfers can prove counter-productive at best, and disastrous at worst. Both cases, by stipulating that a Creditor will be able to reach a Debtor’s assets even if these assets are placed in a self-settled trust or transferred to a spouse, serve as a warning call to those who attempt to escape Creditors by hiding assets through questionable methods. These cases also serve to remind all of us of the importance of using knowledgeable professionals in the estate planning and bankruptcy process to avoid the disastrous results that potentially accompany fraudulent transfers.

    Fradulent Transfers and Estate Planning Recent Cases and Important Caveats In his article Recent Developments in Asset Protection Law published in the Wealth Strategies Journal, Jay D. Adkisson presents a litany of recent court cases which impact asset protection and estate planning. Adkisson details more than forty cases from District, Appelate [...]
    Filed/discharged/closed Chapter 7 in 2010!

    #2
    Sorry to say this but both specific cases mentioned are not uncommon occurrences and the outcomes listed are typical and expected.

    As it relates to the transfer to a self settled trust, that "planning tool" door was closed on October 17, 2005 with the implementation of 11 USC 548(e). The look back period for such transfers is 10 years.

    As it relates to shifting assets to the non-filing spouse without consideration (and typically with the intent to hinder creditors) such has been a “no-no” for at least the 23 years that I have been in this business.

    Interesting to see that a self-proclaimed asset protection “guru” thinks these happenings are so unique and possibly not contemplated that they need special mentioning. Sorry, just not impressed by him.

    Des.

    Comment


      #3
      Originally posted by despritfreya View Post
      Interesting to see that a self-proclaimed asset protection “guru” thinks these happenings are so unique and possibly not contemplated that they need special mentioning. Sorry, just not impressed by him.
      Bkforum is lucky to have attorneys like you despritfreya, who are so helpful to people coming here for guidance. I'm sure all of these "bankruptcy & credit news" articles are old news to you and your fellow bankruptcy attorneys. The new folks who are just beginning their journey might glean some useful information out of these articles though.

      You'll always be bkforum's number 1 legal-expert "guru"
      Filed/discharged/closed Chapter 7 in 2010!

      Comment


        #4
        And with the proliferation of new attorneys in the bankruptcy world, they don't even know to ask or the signs to look for to head off these sorts of issues.

        Comment


          #5
          There is an interesting chapter 13 case in NJ that got appealed to the Circuit Court by a disgruntled creditor trying to claim that a prepetition transfer ( 2+ years prior ) of half the interest in the marital home to a spouse for $1 was a fraudulent transfer, but the debtor prevailed on every level.
          In re: Peter Richmond
          filed chapter 13..confirmed...converted to chapter 7...DISCHARGED!

          Comment


            #6
            Originally posted by catleg View Post
            There is an interesting chapter 13 case in NJ. . . a disgruntled creditor trying to claim that a prepetition transfer. . .to a spouse for $1 was a fraudulent transfer, but the debtor prevailed on every level. In re: Peter Richmond
            Yes, an interesting case especially since the transfer was not without consideration and the consideration paid by the wife's trust was actually used to pay that vindictive, stupid and disgruntled creditor. Here is a quote from the Court of Appeals decision affirming the District Court's ruling that upheld the bk court decision. . .

            ___________________

            "The facts surrounding the transfer of the interest in the marital home are undisputed. On May 18, 2004, Richmond transferred his interest to his wife for $1.00. Following the transfer, his wife gave a mortgage on the home for $200,000 to her family trust, the trust deposited the $200,000 into a joint account held by Richmond and his wife, and the money was used by Richmond to pay off a prior debt owed to the Borgata. Effectively, this allowed Richmond to convey his interest in the home to his wife in return for $200,000 (approximately half the fair market value of the home), which he immediately used to pay an existing debt. The Bankruptcy Court concluded that these facts surrounding the transfer, coupled with the fact that the transfer did not render Richmond insolvent, did not evidence an intent to defraud, delay, or hinder creditors, despite the “inference of [bad] intent” that would ordinarily arise from a transaction between spouses for nominal consideration. This finding, supported by the evidence described above, was not clearly erroneous. Based on these undisputed facts and examining the record as a whole, the District Court correctly concluded that, other than the insinuation of impropriety by virtue of the timing of Richmond’s bankruptcy filing, “the record is devoid of any evidence that the Plan was proposed in bad faith.” As both the Bankruptcy Court and the District Court emphasized, the undisputed facts demonstrated that (1) the plan was funded primarily by Richmond’s wife’s monthly income, (2) Richmond’s alleged gambling addiction had not impacted his ability to make preconfirmation plan payments for the preceding 12 months, and (3) Richmond did amend his schedules to reflect the prepetition transfer of his interest in the marital home, despite the fact that that disclosure was not explicitly required because it occurred more than two years prepetition. Accordingly, we conclude that the Bankruptcy Court did not err in confirming Richmond’s plan."

            _________________________

            You have to know which battles to fight. Unfortunately the casino had an open checkbook and did not care what it paid its barrage of lawyers for a dog of an argument. Hope Debtor's counsel went after his fees.

            Des.

            Comment


              #7
              They sue literally everyone (pour l'encouragement de les autres).
              But it's strictly bush league collections lawyers who also work for PRAA.
              The real powerhouse NJ gambling law firm is located in AC, and it's not the guys who argued this case.
              filed chapter 13..confirmed...converted to chapter 7...DISCHARGED!

              Comment


                #8
                Originally posted by catleg View Post
                They sue literally everyone. . . But it's strictly bush league collections lawyers who also work for PRAA.
                The real powerhouse NJ gambling law firm is located in AC, and it's not the guys who argued this case.
                Maybe you should e mail that firm a link to this thread so it can see how stipud it looks to outsiders.

                Des.

                Comment


                  #9
                  Yikes! I'm afraid of them!
                  For all I know they consider that case a success (to scare others).
                  filed chapter 13..confirmed...converted to chapter 7...DISCHARGED!

                  Comment

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