Trustee’s Powers-What is a Fraudulent Conveyance?

by Dana Wilkinson, Attorney at Law

August 14, 2007

In addition to the ability to avoid a preference, explained here and here, a Chapter 7 trustee also has the power to set aside or unwind other transfers. While a preference usually assumes that there is a valid underlying debt, the trustee can also avoid transfers to others who are not creditors. Commonly referred to as a “fraudulent conveyance” for historical reasons, there is generally no requirement that the trustee prove any actual fraud, or intent to commit fraud. In general the term refers to a transfer for which the debtor received less than reasonably equivalent value.

A fraudulent conveyance can be a voluntary transfer. The classic example is the one that gives rise to the name–a transfer of property to a family member or other entity in order to place the property out of reach of creditors (or delay those creditors). It is the trustee’s ability to avoid fraudulent transfers that makes it fruitless to give your (pick one) parent, brother, friend, wife, all your property, and then file bankruptcy. Deeding your house to a family member in order to file bankruptcy will not save your home. It will prevent you from claiming any exemption you would otherwise be entitled to, and it will buy your family member a lawsuit, so is generally not a good idea. That’s just one example, though. There are any number of transactions a trustee can unwind, even if it never occurred to you to try to avoid the claims of creditors. A gift can certainly be a fraudulent transfer, but so can a a sale if you don’t get fair value in return. Let’s say your dad sold you a couple of acres adjacent to his property for $10,000 in 2000. You’re facing bankruptcy, and the property has appreciated to a current value of $25,000. Rather than let the property go to a stranger, you sell the property back to your dad for $10,000. That’s probably going to be treated as a fraudulent transfer, even though you got back your investment.

Some other examples: A trustee in my district recently sued to recover the value of a car that was a graduation gift to the debtor’s daughter three years before the bankruptcy was filed. In another case, a trustee sued to recover the cost of a lavish wedding, also from the debtor’s daughter. Although it is rare, a trustee can also seek to recover an involuntary transfer in certain circumstances.

The bankruptcy code contains fraudulent transfer provisions, and most states have similar statutes that work on the same general premise. Trustees can use the federal statute, or a state statute, whichever is advantageous to the trustee. Usually the statute of limitations under the state statutes are longer, and they vary from state to state. Just because the transfer took place outside the time frame specified in the bankruptcy code doesn’t necessarily mean that the transfer will be allowed to stand.

Possible fraudulent conveyances are a trap for the unwary, particularly those who file bankruptcy without the benefit of competent bankruptcy counsel. Experienced bankruptcy counsel will screen for such transfers, but part of that equation is full disclosure by the debtor. It is also important to note the importance of seeking the advice of counsel before making a transfer. A bankruptcy lawyer will be able to recommend a course of action that will protect your assets much better than deeding them to your brother-in-law.

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Däna (pronounced "Donna") Wilkinson, has been a bankruptcy lawyer in South Carolina for 20 years. She is certified as a bankruptcy specialist by the South Carolina Supreme Court.

Last modified: October 22, 2012