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Fraudulent Transfer?
Agree with Ray, with one possible caveat - I believe there is caselaw that says something along the lines that if the property is not titled in the debtor's name on the petition date, debtor loses the homestead exemption. If that is true, then Ray's query about quitclaiming back to H & W is even more pertinent, and why take a chance? (only downside might be that lender could call in the loan on grounds of unauthorized transfer, but better than losing the homestead altogether and having trustee sell property with nothing going to debtors).
PLEASE NOTE OUR NEW ADDRESS/CONTACT INFO BELOW
Joseph E. Caceres, Esq.
Caceres & Shamash, LLP
8200 Wilshire Blvd., Suite 400
Beverly Hills, CA 90211
Tel: (310) 205-3400 x 65
Fax: (310) 878-8308
E-mail: jec@locs.com
________________________________
H. Aver [ray@averlaw.com]
Sent: Monday, March 02, 2009 8:33 AM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Fraudulent Transfer?
Tyson:
It appears from facts summarized that H has both legal and equitable title and that W has equitable title. Equitable title is property of a bankruptcy estate.
Couple of questions: (a) Was purchase price, mortgage payments, insurance payments, etc. always made from community property? (b) Is there a post nuptial agreement providing that W does not have title?
Assuming answers are (a) Yes and (b) No. No fraudulent transfer, wife has sufficient interest for homestead purposes under California law.
Query: Why not just have H deed back to H and W?
Raymond H. Aver, Esquire
Law Offices of Raymond H. Aver
A Professional Corporation
12424 Wilshire Boulevard
Suite 720
Los Angeles, CA 90025
Phone: (310) 571-3511
Fax: (310) 571-3512
e-mail: ray@averlaw.com
________________________________
Sent: Saturday, February 28, 2009 3:50 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Fraudulent Transfer?
Husband and wife own and live in home for 10 years. 3 years ago W
quitclaims home to husband only pursuant to home refinance. W wants to
file a bankruptcy (she still and has always, lived in the home). Is
this a fraudulent transfer? Can this person take a homestead exemption?
Thanks for any feedback!!!!!
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Agree with Ray, with one possible caveat - I believe there is caselaw that says something along the lines that if the property is not titled in the debtor's name on the petition date, debtor loses
the homestead exemption. If that is true, then Ray's query about quitclaiming back to H & W is even more pertinent, and why take a chance? (only downside might be that lender could call in the loan on grounds of unauthorized transfer, but better than losing
the homestead altogether and having trustee sell property with nothing going to debtors).
PLEASE NOTE OUR NEW ADDRESS/CONTACT INFO BELOW
Joseph E. Caceres, Esq.
Caceres & Shamash, LLP
8200 Wilshire Blvd., Suite 400
Beverly Hills, CA 90211
Tel: (310) 205-3400 x 65
Fax: (310) 878-8308
E-mail: jec@locs.com
From: cdcbaa@yahoogroups.com [cdcbaa@yahoogroups.com] On Behalf Of Raymond H. Aver [ray@averlaw.com]
Sent: Monday, March 02, 2009 8:33 AM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Fraudulent Transfer?
Tyson:
It appears from facts summarized that H has both legal and equitable title and that W has equitable title. Equitable title is property
of a bankruptcy estate.
Couple of questions: (a) Was purchase price, mortgage payments, insurance payments, etc. always made from community property? (b)
Is there a post nuptial agreement providing that W does not have title?
Assuming answers are (a) Yes and (b) No. No fraudulent transfer, wife has sufficient interest for homestead purposes under California
law.
Query: Why not just have H deed back to H and W?
Raymond H. Aver, Esquire
The post was migrated from Yahoo.
Tyson:
It appears from facts summarized that H has both legal and equitable title
and that W has equitable title. Equitable title is property of a bankruptcy
estate.
Couple of questions: (a) Was purchase price, mortgage payments, insurance
payments, etc. always made from community property? (b) Is there a post
nuptial agreement providing that W does not have title?
Assuming answers are (a) Yes and (b) No. No fraudulent transfer, wife has
sufficient interest for homestead purposes under California law.
Query: Why not just have H deed back to H and W?
Raymond H. Aver, Esquire
Law Offices of Raymond H. Aver
A Professional Corporation
12424 Wilshire Boulevard
Suite 720
Los Angeles, CA 90025
Phone: (310) 571-3511
Fax: (310) 571-3512
e-mail: ray@averlaw.com
_____
The post was migrated from Yahoo.
Husband and wife own and live in home for 10 years. 3 years ago W
quitclaims home to husband only pursuant to home refinance. W wants to
file a bankruptcy (she still and has always, lived in the home). Is
this a fraudulent transfer? Can this person take a homestead exemption?
Thanks for any feedback!!!!!
The post was migrated from Yahoo.