A preferential transfer is a payment made by a debtor to certain preferred creditors prior to filing bankruptcy. Florida and federal bankruptcy laws do not allow potential filers to favor certain unsecured creditors over others just prior to filing. The court can set aside a transfer it deems preferential. If…
Technology has made it easier for people to operate a business at or next to their primary residence. Operating a commercial venture on the property where you reside raises issues about Florida’s homestead exemption from creditors. The issue is whether a Florida resident can operate a commercial business on his…
A self-directed IRA is a personal IRA plan where the owner can invest IRA funds in assets other than marketable securities, such as real estate. There are companies that provide qualifying IRA plan documentation and who hold title to your customized IRA assets. The self-directed plan provisions require that the…
I’ve warned many clients against making fraudulent transfers of money to their non-debtor spouse or to tenants by entireties with their spouse. A creditor may get a general money judgment against the non-debtor spouse for the value of assets transferred. The transfer to the spouse risks making the spouse a…
Florida residency is significant if bankruptcy is more than one way. A person may not claim Florida bankruptcy exemptions unless he has resided in Florida for two years. Prior to two year residency, the debtor is eligible for exemptions in the state where he most recently lived for two years….
Here is an example of the importance of being truthful on your bankruptcy petition if you file bankruptcy. A man consulted with us about filing Chapter 7 bankruptcy in Florida after he had previously filed in another state five years ago. In the previous filing, the court denied the client…
People avoid filing Chapter 7 bankruptcy if they have non-exempt property with significant equity. Yet, consider a debtor who owns real estate that has appreciated and therefore has a built in liability for capital gain. If that debtor files bankruptcy could the IRS hold him personal liable after bankruptcy for…
A bankruptcy debtor cannot discharge debts incurred by false representation or actual fraud. Appellate court decisions split as to whether a debt incurred as part of a fraudulent transfer of assets is included in the category of “actual fraud” that may not be discharged in bankruptcy. Some courts have held…
A recent bankruptcy court decision addressed the issue of whether people who assist a debtor’s pre-bankruptcy fraudulent transfers can be held liable for damages in the bankruptcy proceeding. In this case, a trustee hired to liquidate debtor property filed a complaint pursuant to Section 544(b) of the Bankruptcy Code against…
Family partnership and limited liability companies provide asset protection in state court collection proceedings because creditor’s collection tools are limited by Florida statute to a charging lien on distributions. Less clear is how a debtor’s partnership interest or LLC interest would be treated if the debtor filed bankruptcy. The bankruptcy…
