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partially avoidable preferential lien transfer ?
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My vote goes to "a"
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
mitnicklaw@aol.com
Sent: Thursday, February 18, 2010 1:03 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] partially avoidable preferential lien transfer ?
Prospective debtor owns real property encumbered by a third party deed of
trust securing payment of $250k. Property is worth $300k. No other liens.
Insider pays off $250k debt secured by the property that matured, and 10
days later becomes the beneficiary of one new recorded deed of trust that
secures the $250k payoff and another $100k in loans made years before. Assuming that the recent payoff of the matured debt can fall within the
contemporaneous exchange defense (or is otherwise defensible), and ignoring
UFTA and 548 issues, will
[a] a "partial" avoidance of the lien occur to the extent of the transfer of
the lien of the deed of trust as it relates to the securing of the much
older loans,
the entire lien be avoidable based upon the (belated) security provided
for the much older loans, or
[c] is there no avoidance because the lien as to the more recent loan is
defensible under 547(c) ?
The issue arises due to 547(c)'s "trustee may not avoid" language and (c)(1)
and (c)(2)'s "to the extent that" language.
Thanks for any input.
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Message
My vote goes to
"a"
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
Prospective debtor owns real property encumbered by a third party deed of
trust securing payment of $250k. Property is worth $300k. No other liens.
Insider pays off $250k debt secured by the property that matured, and 10
days later becomes the beneficiary of one new recorded deed of trust that
secures the $250k payoff and another $100k in loans made years before.
Assuming that the recent payoff of the matured debt can fall within the
contemporaneous exchange defense (or is otherwise defensible), and ignoring
UFTA and 548 issues, will
[a] a "partial" avoidance of the lien occur to the extent of the transfer
of the lien of the deed of trust as it relates to the securing of the much
older loans,
the entire lien be avoidable based upon the (belated) security
provided for the much older loans, or
[c] is there no avoidance because the lien as to the more recent loan is
defensible under 547(c) ?
The issue arises due to 547(c)'s "trustee may not avoid" language and
(c)(1) and (c)(2)'s "to the extent that" language.
Thanks for any input.
Prospective debtor owns real property encumbered by a third party deed of
trust securing payment of $250k. Property is worth $300k. No
other liens. Insider pays off $250k debt secured by the
property that matured, and 10 days later becomes the beneficiaryof one new recorded deed of trust that secures the $250k payoff
and another $100k in loans made years before.
Assuming that the recent payoff of the matured debt can fall within
the contemporaneous exchange defense (or is otherwise defensible), andignoring UFTA and 548 issues, will
[a] a "partial" avoidance of the lien occur to the extent
of the transfer of the lien of the deed of trust as it relates to thesecuring of the much older loans,
the entire lien be avoidable based upon the (belated)
security provided for the much older loans, or
[c] is there no avoidance because the lien as to the
more recent loan is defensible under 547(c) ?
The issue arises due to 547(c)'s "trustee may not avoid" language and(c)(1) and (c)(2)'s "to the extent that" language.
Thanks for any input.
The post was migrated from Yahoo.