This post assumes familiarity with my last two posts (Part 1 and Part 2) of this multi-part series.  Thus, while you can certainly read this post without reading those previous ones, you’ll get more out of it if you read those posts first.

V.  Some Other Issues Associated With Liens

A.  Is The Lien Perfected?

Suppose the debtor and all the debt’s assets are in Los Angeles County at the time the creditor records a lien in Orange County against the debtor’s principal residence in Los Angeles.  Is the creditor’s claim secured?  No.  The lien must be recorded in the county where the asset is.  Therefore, if the lien is recorded in the wrong county, the creditor’s is not a perfected security interest.  See, e.g., Cal. Civ. Code § 1169 (“Instruments entitled to be recorded must be recorded by the County Recorder of the county in which the real property affected thereby is situated.”).

B.  Is The Lien To Be Stripped Really A Junior Lien?

Sometimes a debtor will buy a house with what is called an 80/20 loan because the debtor can’t come up with the 20% down payment.  If the 20% loan is recorded first, then the junior is the 80% loan, which has a much bigger value.  Given the relatively small size of the 20% loan, the junior lien may not be wholly unsecured.
Continue Reading Lien Avoidance in Individual Cases – Part 3: Other Issues Associated with Liens

Last will and testamentIf you become entitled to receive an inheritance during the pendency of your Chapter 13 bankruptcy, can you disclaim all or part of it?  That was the subject of a few questions that a fellow bankruptcy attorney recently asked me.  I found the exchange interesting, so I am posting it for your edification.

Question 1:

baby's lost his assetsThis post is the fifth in a series in which I discuss fraudulent transfers.  This one deals with the consequences of fraudulent transfers, and the importance of prebankruptcy planning.

E.         Denial Of Discharge And The Loss Of Assets

A discharge may not be available to a debtor who engages in prepetition fraudulent transfers:

The court shall grant the debtor a discharge, unless — . . . the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, . . . or has permitted to be transferred, removed, destroyed . . . — . . . property of the debtor, within one year before the date of the filing of the petition . . .

11 U.S.C. § 727(a)(2)(A)

And as I have discussed in great detail in my previous fraudulent transfer posts, the bankruptcy trustee can avoid the transfers and seize the assets.  Furthermore, once the debtor has transferred the asset, it no longer belongs to the debtor, and cannot be exempted in the debtor’s bankruptcy.
Continue Reading Fraudulent Transfers V

This post is the third in a series in which I will discuss fraudulent transfers.  It covers the statutory definitions.  This one’s a bit long because the definitions are a bit labyrinthine.  If you think it’s dry, then avoid Syrahs and stick to Rieslings.

C.        The Definition Of Fraudulent Transfer

1.        The Intent Definition

i.          The Bankruptcy Code’s Definition

11 U.S.C. § 548(a) contains two independent definitions of fraudulent transfer.  We begin with the first definition, found in § 548(a)(1)(A).  A transfer is fraudulent (with emphasis added):

if the debtor voluntarily or involuntarily — made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted.

An interesting feature of this definition is that the transfer need not have been voluntary on the part of the debtor.  Thus, even though the term “fraudulent transfer” seems to imply ill intent on the part of the debtor, the debtor might not have wanted the transfer to take place.  The statutory ill intent is on the part of the transferor, who may or may not be the debtor.

This first definition in the Bankruptcy Code captures the essence of Horace’s behavior.  (Horace was the ancient Roman we met in our first fraudulent transfer post.)  The transfer was done with the intent to hinder, delay, or defraud the creditor.  An important feature of this definition is that it requires the transfer to have been made after the debt in question was incurred.  Therefore, using § 548 the trustee would be unable to avoid transfers that antedated the incurrence of the debtor’s debts.  This is in contradistinction to the first definition given in California’s UFTA.  (As with the Bankruptcy Code, the UFTA has two independent definitions of “fraudulent transfer.”)
Continue Reading Fraudulent Transfers III

This post is the second in a series in which I will discuss fraudulent transfers.  I have been told that my posts are too long.  Therefore, today I’ll briefly discuss the source of a bankruptcy trustee’s fraudulent transfer avoidance powers.

B.        The Trustee As Heir To Creditors’ Avoidance Power

One of the complications associated with fraudulent transfer jurisprudence in bankruptcy is found, not in 11 U.S.C. § 548 (the statutory section dealing with fraudulent transfers), but in 11 U.S.C. § 544(b)(1) (emphasis added):

Except as provided in paragraph (2), the trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title or that is not allowable only under section 502 (e) of this title.

This means that the trustee  can appeal to nonbankruptcy law to avoid a fraudulent transfer.
Continue Reading Fraudulent Transfers II