.jpg)
Question re marital settlement agreement, alimony, statut=
The part of 544 that you are dealing with is pretty straight forward. It basically says that if there is a State statute that gives the creditors more power to set aside transfers then the bankruptcy code give to the trustee, the trustee can use the state statue.
So Cal Civ Code 3439 gives creditors in the state of California a longer statue for fraudulent conveyance suits than the bk code in some circumstances.
Was the transfer outside 4 years? depends if the transfer was visible. 3439.09(a), i.e. DOT, or deed, recorded, visible - statute 4 years.
A check or a wire transfer from a private bank account, invisible. invisible, one year from discovery (really when reasonably could have discovered) of transfer, but not more than 7 years 3439.09(c).
n discovered." On can always discover recorded documents, but it is harder to discover old wire transfers, or diamond rings given to sisters or kids.
Can xfer be set aside if Not insolvent at time of divorce?:
depends: can be set aside if debtor intended to incur debts at time of xfer 3934.04a1
can be set aside if assets left not enough to pay reasonable expenses 3934.04a2A
you just have to read all of the exceptions in 3934.04, there are a bunch.
alimony payments to exwife? yes, they can be recaptured if debtor insolvent. (trustee's don't usually pursue this, unless like in Beverly, the court finds the whole MSA was to avoid a debt.)
d (hello back atcha)
________________________________
To: Strictly Bankruptcy Issues ; cdcbaa@yahoogroups.comSent: Wednesday, November 7, 2012 2:56 PM
Subject: [cdcbaa] Question re marital settlement agreement, alimony, statute of limitations, and fraudulent transfers [2 Attachments]
[Attachment(s) from Holly Roark included below]
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.09(c) was implicated except with respect to a trust. If the transfer may have been a constructive fraud butis 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 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 andwith or blessed by the family lawcourt. 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
The post was migrated from Yahoo.