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Hypothetical re Section 548 Complaint
in ch 7, the debtors atty does Not represent the estate, so the debtor could waive the conflict. But without the waiver, cannot represent the creditor.
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Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Jan 29, 2015, at 2:54 PM, rdmlaw@ymail.com [cdcbaa] wrote:
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> From cdcbaa member Nina Javan:
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> Hi group,
>
> Long time listserv observer (if five or six months counts as a long time), first time listserv question-asker.
>
> In this highly hypothetical fact pattern, a Chapter 7 debtor gives a junior deed of trust to an individual a little over 3 years prior to the Petition Date. The DOT is on a generic short form DOT and states that it secures a $60K note. When asked, the Chapter 7 debtor says that there is no written note and that the DOT is based on an oral agreement between the two for money loaned. When the Chapter 7 debtor is asked for bank statements and/or checks showing the sums provided by the transferee, the debtor states that he/she cannot not do so, because the money was not loaned in a single transaction.
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> The Chapter 7 Trustee files a Section 548 Complaint against the transferee, and the attorney for the Debtor files an answer on behalf of the transferee (who, let's not forget, is a putative creditor of the estate, even though he is not listed in the schedules).
>
> Aside from all the other issues here (which you are welcome to expound upon), and aside from the conflict of interest, is there anything which actually prohibits the hypothetical Debtor's attorney from representing the creditor in the AP such that anyone other than the creditor or the debtor would have standing to address it (in some way) in bankruptcy court?
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> Thoughts on this are greatly appreciated, as this is a weird one.
>
> Nina Javan
>
> Margulies Faith, LLP
>
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> - Roksana D. Moradi, Esq.*
>
>
> *Certified Bankruptcy Specialist, State Bar of California, Board of Legal Specialization
>
> SIMON RESNIK HAYES LLP
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