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Fraudulent Transfer/ Insider Preference?
My reading of 360 is just the opposite. I read it to say that without a
writing (signed by the party to be charged) which states that a payment
shall be sufficient acknowledgement or promise of a continuing contract,
payment of interest or principal does not start the running of a new period.
Pat
Patrick T. Green, Esq.
Fitzgerald & Green, Attorneys at Law
1010 E. Union Street Suite 206
Pasadena, CA 91106
Ph: (626) 449-8433
Fax: (626) 449-0565
pg23@earthlink.net
Silvio Nardoni
Sent: Tuesday, June 21, 2005 5:30 AM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Re: Fraudulent Transfer/ Insider Preference?
Jon:
Thanks for the help.
Silvio Nardoni
At 12:59 PM 6/18/2005, you wrote:
>Take a look at CCP 360. Any payment on a promissory note extends
>(starts over) the SOL. Hope that helps. Jon
>
>
>--- In cdcbaa@yahoogroups.com, Silvio Nardoni
>wrote:
> > Dear Colleagues:
> >
> > I have a situation where I'm not confident that my analysis is
>correct, so
> > I invite your comment:
> >
> > Husband has substantial ($275K +) pre-marital tax debts.
> > Husband and Wife have pre-nuptial agreement that each will retain
>his/her
> > property before marriage as separate property, and that post-
>marital
> > earnings of each spouse are separate property.
> > In May 2000, Husband loans Wife $100K (presumably from post-
>marital
> > earnings). Loan is evidenced by demand note on which Wife has
>made regular
> > interest payments up until today. Wife used money to purchase a
>boat on
> > which she claims a homestead exemption.
> >
> > As I understand it, under California law, statute of limitations
>on a
> > demand note begins to run on the day of the note, since the law
>presumes
> > that a demand is made immediately.
> >
> > Now, more than four years has elapsed since Wife signed note.
>Action on
> > the note is presumably barred by S/Limitations.
> >
> > Questions:
> >
> > 1. Is Husband's failure to bring action on the note or get a
> > renewal/extension a preferential transfer to Wife? If so, when
>did
> > transfer occur?
> > 2. Is Husband's failure to bring action on the note or get a
> > renewal/extension a fraudulent transfer? (Recall that H was
>probably
> > insolvent when loan originally made.)
> > 3. If H files Chapter 7, can trustee administer the promissory
>note as an
> > asset of the estate?
> > 4. Does your answer change if note secured by a lien on the
>boat?
> >
> > This is NOT a law-school examination question, although it sort of
>reads
> > like one.
> >
> > Thanks,
> >
> > Silvio Nardoni
> > Glendale, CA
>
>
>
>
>
>
>
>Yahoo! Groups Links
>
>
>
>
Yahoo! Groups Links
The post was migrated from Yahoo.
Jon:
Thanks for the help.
Silvio Nardoni
At 12:59 PM 6/18/2005, you wrote:
>Take a look at CCP 360. Any payment on a promissory note extends
>(starts over) the SOL. Hope that helps. Jon
>
>
>--- In cdcbaa@yahoogroups.com, Silvio Nardoni
>wrote:
> > Dear Colleagues:
> >
> > I have a situation where I'm not confident that my analysis is
>correct, so
> > I invite your comment:
> >
> > Husband has substantial ($275K +) pre-marital tax debts.
> > Husband and Wife have pre-nuptial agreement that each will retain
>his/her
> > property before marriage as separate property, and that post-
>marital
> > earnings of each spouse are separate property.
> > In May 2000, Husband loans Wife $100K (presumably from post-
>marital
> > earnings). Loan is evidenced by demand note on which Wife has
>made regular
> > interest payments up until today. Wife used money to purchase a
>boat on
> > which she claims a homestead exemption.
> >
> > As I understand it, under California law, statute of limitations
>on a
> > demand note begins to run on the day of the note, since the law
>presumes
> > that a demand is made immediately.
> >
> > Now, more than four years has elapsed since Wife signed note.
>Action on
> > the note is presumably barred by S/Limitations.
> >
> > Questions:
> >
> > 1. Is Husband's failure to bring action on the note or get a
> > renewal/extension a preferential transfer to Wife? If so, when
>did
> > transfer occur?
> > 2. Is Husband's failure to bring action on the note or get a
> > renewal/extension a fraudulent transfer? (Recall that H was
>probably
> > insolvent when loan originally made.)
> > 3. If H files Chapter 7, can trustee administer the promissory
>note as an
> > asset of the estate?
> > 4. Does your answer change if note secured by a lien on the
>boat?
> >
> > This is NOT a law-school examination question, although it sort of
>reads
> > like one.
> >
> > Thanks,
> >
> > Silvio Nardoni
> > Glendale, CA
>
>
>
>
>
>
>
>Yahoo! Groups Links
>
>
>
>
The post was migrated from Yahoo.
Take a look at CCP 360. Any payment on a promissory note extends
(starts over) the SOL. Hope that helps. Jon
wrote:
> Dear Colleagues:
>
> I have a situation where I'm not confident that my analysis is
correct, so
> I invite your comment:
>
> Husband has substantial ($275K +) pre-marital tax debts.
> Husband and Wife have pre-nuptial agreement that each will retain
his/her
> property before marriage as separate property, and that post-
marital
> earnings of each spouse are separate property.
> In May 2000, Husband loans Wife $100K (presumably from post-
marital
> earnings). Loan is evidenced by demand note on which Wife has
made regular
> interest payments up until today. Wife used money to purchase a
boat on
> which she claims a homestead exemption.
>
> As I understand it, under California law, statute of limitations
on a
> demand note begins to run on the day of the note, since the law
presumes
> that a demand is made immediately.
>
> Now, more than four years has elapsed since Wife signed note.
Action on
> the note is presumably barred by S/Limitations.
>
> Questions:
>
> 1. Is Husband's failure to bring action on the note or get a
> renewal/extension a preferential transfer to Wife? If so, when
did
> transfer occur?
> 2. Is Husband's failure to bring action on the note or get a
> renewal/extension a fraudulent transfer? (Recall that H was
probably
> insolvent when loan originally made.)
> 3. If H files Chapter 7, can trustee administer the promissory
note as an
> asset of the estate?
> 4. Does your answer change if note secured by a lien on the
boat?
>
> This is NOT a law-school examination question, although it sort of
reads
> like one.
>
> Thanks,
>
> Silvio Nardoni
> Glendale, CA
The post was migrated from Yahoo.
Dear Colleagues:
I have a situation where I'm not confident that my analysis is correct, so
I invite your comment:
Husband has substantial ($275K +) pre-marital tax debts.
Husband and Wife have pre-nuptial agreement that each will retain his/her
property before marriage as separate property, and that post-marital
earnings of each spouse are separate property.
In May 2000, Husband loans Wife $100K (presumably from post-marital
earnings). Loan is evidenced by demand note on which Wife has made regular
interest payments up until today. Wife used money to purchase a boat on
which she claims a homestead exemption.
As I understand it, under California law, statute of limitations on a
demand note begins to run on the day of the note, since the law presumes
that a demand is made immediately.
Now, more than four years has elapsed since Wife signed note. Action on
the note is presumably barred by S/Limitations.
Questions:
1. Is Husband's failure to bring action on the note or get a
renewal/extension a preferential transfer to Wife? If so, when did
transfer occur?
2. Is Husband's failure to bring action on the note or get a
renewal/extension a fraudulent transfer? (Recall that H was probably
insolvent when loan originally made.)
3. If H files Chapter 7, can trustee administer the promissory note as an
asset of the estate?
4. Does your answer change if note secured by a lien on the boat?
This is NOT a law-school examination question, although it sort of reads
like one.
Thanks,
Silvio Nardoni
Glendale, CA
The post was migrated from Yahoo.