Central District Consumer Bankruptcy Attorney's Association

In light of the attached cases, Mejia v. Reed, 31 Cal.4th 657, and Beverly
v. Wolkowitz, 374 B.R. 221 (hello, Dennis McGoldrick!), a trustee can avoid
a transfer of assets pursuant to a Marital Settlement Agreement as
"fraudulent transfers" if the elements are met.
I have many questions, so please bear with me.
1) What if a transfer of property to nondebtor ex-spouse pursuant to the
MSA was outside the 4 year statute of limitations? Under Cal. Civ. Code
3439.09(c), the statute of limitations can be extended to 7 years. I did
not find any cases in the 9th Circuit where CC 3439.09(c) was implicated
except with respect to a trust. If the transfer may have been a
constructive fraud but is beyond the 4 year SOL under state law, is the BK
trustee then also barred or are there some tricks up his sleeve with
respect to this? I know 544 is referred to as the trustee's "strong arm
powers" but I have yet to really understand this section.
2) What if at the time of the divorce the Debtor was not insolvent but
became so a year later and not as a result of any transfers but because of
business reverses? Is the solvency at the time of transfer an absolute
defense to fraudulent transfer unless intent can be shown?
3) What if during the 4 years prior to filing BK, the Debtor proceeded to
make alimony payments under the MSA, while Debtor was insolvent. The
alimony was agreed to by the parties and based on 30 years of marriage, but
this written agreement was not filed with or blessed by the family
law court. Would a trustee seek to avoid reasonable alimony payments to
ex-(house)wife of 30 years because Debtor was insolvent during that time?
Any articles on these issues you can point me to would be much appreciated.
Holly Roark
holly@roarklawoffices.com
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
In light of the attached cases, Mejia v. Reed, 31 Cal.4th 657, and Beverly v. Wolkowitz, 374 B.R. 221 (hello, Dennis McGoldrick!), a trustee can avoid a transfer of assets pursuant to a Marital Settlement Agreement as "fraudulent transfers" if the elements are met.
I have many questions, so please bear with me.
1) What if a transfer of property to nondebtor ex-spouse pursuant to the MSA was outside the 4 year statute of limitations? Under Cal. Civ. Code 3439.09(c), the statute of limitations can be extended to 7 years. I did not find anycases in the 9thCircuit where CC 3439.09(c) was implicated except with respect to a trust. If the transfer may have been a constructive fraud butrred or are there some tricks up his sleeve with respect to this? I know 544 is referred to as the trustee's "strong arm powers" but I have yet to really understand this section.
2) What if at the time of the divorce the Debtor was not insolvent but became so a year later and not as a result of any transfers but because of business reverses? Is the solvency at the timeof transfer an absolute defense to fraudulent transfer unless intent can be shown?3) What ifduringthe 4 years prior to filing BK, the Debtor proceeded to make alimony payments under the MSA,whileDebtor was insolvent. The alimony wasagreed to by the parties andbased on 30 years of marriage, but this written agreement was not filed with or blessed by the family lawcourt.wife of 30 years because Debtor was insolvent during that time?
Any articles on these issues you can point me to would be much appreciated.
Holly Roark
holly@roarklawoffices.com
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
X-Attachment-Id: f_h98tpfrc0
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filename="Mejia v. Reed, 31 Cal.4th 657.pdf"
X-Attachment-Id: f_h98tpfsj1

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