A fraudulent transfer is any transfer for less than equivalent value made while the debtor was or that caused the debtor to be insolvent. The bankruptcy code allows the trustee to look back two years for fraudulent transfers. In a chapter 7 case, insolvency is presumed for any transfer that occurred in the 90 days prior to filing. To clarify:
- Any transfer of property for less than it's value made in the 90 days prior to filing is fraudulent.
- Any transfer of property for less than it's value made between 91 and 730 days before filing is fraudulent if
- at the time you made the transfer you were insolvent or
- you became insolvent as a result of the transfer
That you intended the property to be a gift is of no consequence - transfers that meet the criteria above are deemed fraudulent regardless of intent. The trustee may take the property from whoever it was transferred to and sell it for the benefit of the estate. If the person you transferred the property to no longer has the property the trustee may force that person to pay what the property was worth at the time of the transfer.
It is imperative that you disclose any significant gifts or transfers of property to friends or family so we can assess the situation and advise you of the risks.
If you lost considerable value in a pawn shop or title loan transaction, the trustee may able to recover the amount between what you received for the property transferred and what the property was actually worth. If you have available exemptions, you may be able to get some or all of the money you lost in the transaction back. Same goes for extortionate fees charged by payday loan or check cashing companies. In either case if there are no exemptions left, the proceeds will go to the estate.
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