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Client "acquired" gift in August needs to file
Sorry it's taken me a few days to get back on the listserve. Thank you so much for all the helpful suggestions and the caselaw!
Susana B. Tolchard
"Mark T.Jessee" wrote:
Searching my recollection from the law school days: Gifts causa mortis are void if the grantor does not die. Furthermore, a gift to be effective it requires intent, delivery and acceptance. Either way the property really still belongs to the Aunt under the facts presented.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF
THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY
LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION,
DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY
US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS
MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
On Tue Dec 4 11:57 , 'Joseph E. Caceres' sent:
Please see the following 9th Circuit case, stating trustee can only sell property of the estate, and I believe distinguishing equitable vs. legal title. Should be helpful. In re Rodeo Canon Development Corporation, 362 F.3d 603, 608 (9th Cir. 2004).
Joseph E. Caceres, Esq.
Caceres & Shamash, LLP
8383 Wilshire Blvd., Suite 1010
Beverly Hills, CA 90211-2409
Tel: (323) 852-1600, x102
Fax: (323) 852-9009
E-mail: jec@locs.com
----- Original Message -----
To: cdcbaa@yahoogroups.com
Sent: Monday, December 03, 2007 7:13 PM
Subject: RE: [cdcbaa] Client "acquired" gift in August needs to file
I agree with your responses, except I dont think a fraudulent transfer action is necessarily inevitable. Theres a chance the trustee will not do anything if you tell it like it is, i.e., indicate that the transfer was made for intestacy purposes without consideration whereby your client had no equitable title and the Aunt simply got better and changed her mind. I have used the equitable title argument on many occasions in the past without any issues from trustees. Of course, if a trustee does decide to pursue an action, then youll have to defend . . . .
Raj T. Wadhwani
Wadhwani Law Firm, APLC
15233 Ventura Blvd., Suite 1120
Sherman Oaks, CA 91403
Phone: (818) 784-0500
Fax: (818) 784-0508
raj@wadhwanilaw.com
Sent: Monday, December 03, 2007 5:59 PM
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] Client "acquired" gift in August needs to file
Wow!
Well, it would be best to transfer the property back and then defend the inevitable fraudulent transfer action by arguing no consideration by Aunt. Transfer of real property requires "delivery". If Aunt never told client, then transfer may not have been valid in the first place. Probably other responses, but those are the first two off the top.
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.
Business bankruptcy specialist cert. by Amer. Bd. of Certification
-----Original Message-----
Sent: Monday, December 03, 2007 2:47 PM
To: CDCBAA
Subject: [cdcbaa] Client "acquired" gift in August needs to file
Good Afternoon-Potential client who, otherwise qualifies for a much-needed Ch 7, just found out that his aunt, thinking that she was on her death bed, put him on title to her house in August. Grant deed recorded last month. Aunt thought she did not have time to draft a will and intended to leave the house, free and clear, to my client. Aunt is still around. What's the best way to rectify this "estate planning" blunder and be able to file a Chapter 7 without risking a 548 complaint? Any suggestions are appreciated.
Susana B. Tolchard, Esq.
LAW OFFICES OF SUSANA B. TOLCHARD & ASSOCIATES
23734 Valencia Blvd., Suite 102
Valencia, CA 91355
Telephone: (661) 287-9986
Facsimile: (661) 287-9662
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Sorry it's taken me a few days to get back on the listserve. Thank you so much for all the helpful suggestions and the caselaw! Susana B. Tolchard"Mark T.Jessee" <mjessee@jesseelaw.com> wrote: Searching my recollection from the law school days: Gifts causa mortis are void if the grantor does not die. Furthermore, a gift to be effective it requires intent, delivery and acceptance. Either way the property really still belongs to
the Aunt under the facts presented.Mark T. Jessee Law Offices of Mark T. Jessee "A Debt Relief Agency" 50 W. Hillcrest Drive, Suite 200 Thousand Oaks, CA 91360 (805) 497-5868 NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION. On Tue Dec 4 11:57 , 'Joseph E. Caceres' sent: Please see the following 9th Circuit case, stating trustee can only sell property of the
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charset="windows-1251"
Mark remembered more from law school than I did. The facts as presented
suggest that transferee was not aware of transfer, hence no acceptance ---
and not transfer.
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.
Mark T.Jessee
Sent: Tuesday, December 04, 2007 12:44 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Client 'acquired' gift in August needs to file
Searching my recollection from the law school days: Gifts causa mortis are
void if the grantor does not die. Furthermore, a gift to be effective it
requires intent, delivery and acceptance. Either way the property really
still belongs to the Aunt under the facts presented.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868
NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF
THE TRANSMISSION, AND THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY
LAW. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION,DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE
NOTIFY
US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS
MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION.
On Tue Dec 4 11:57 , 'Joseph E. Caceres' sent:
Please see the following 9th Circuit case, stating trustee can only sell
property of the estate, and I believe distinguishing equitable vs. legal
title. Should be helpful. In re Rodeo Canon Development Corporation, 362
F.3d 603, 608 (9th Cir. 2004).
Joseph E. Caceres, Esq.
Caceres & Shamash, LLP
8383 Wilshire Blvd., Suite 1010
Beverly Hills, CA 90211-2409
Tel: (323) 852-1600, x102
Fax: (323) 852-9009
E-mail: jec@locs.com
To: cdcbaa@yahoogroups.com
Sent: Monday, December 03, 2007 7:13 PM
Subject: RE: [cdcbaa] Client "acquired" gift in August needs to file
I agree with your responses, except I dont think a fraudulent transfer
action is necessarily inevitable. Theres a chance the trustee will not do
anything if you tell it like it is, i.e., indicate that the transfer was
made for intestacy purposes without consideration whereby your client had
no equitable title and the Aunt simply got better and changed her mind. I
have used the equitable title argument on many occasions in the past without
any issues from trustees. Of course, if a trustee does decide to pursue an
action, then youll have to defend . . . .
Raj T. Wadhwani
Wadhwani Law Firm, APLC
15233 Ventura Blvd., Suite 1120
Sherman Oaks, CA 91403
Phone: (818) 784-0500
Fax: (818) 784-0508
raj@wadhwanilaw.com
_____
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