![]() The increase to $12 million (2022) of the federal estate tax exemption ceiling has diminished “estate tax planning” as a reasonable defense against fraudulent transfer attacks. For example, many debtors explain transfers to family members as “estate tax planning.” This explanation is not credible when the debtor does not have a taxable estate that warrants estate tax planning. Such contributions ordinarily will not be undone as a fraudulent conveyance.Īfter a debtor becomes aware of a creditor’s claim and potential liability the debtor’s explanations for subsequent asset transfer must be credible. A typical contribution to your IRA or 401k plan is prudent and normal tax planning. Reasonable financial planning is not a reversible fraudulent transfer simply because one of the consequences of reasonable planning is increased asset protection. Examples include tax planning, estate planning, or supporting a dependent family member. There are reasons, other than a sale, why a debtor may transfer assets or convert assets without intending to hinder or delay creditors. ![]() When the debtor receives cash or another asset of reasonably equivalent value as part of a sale, the creditor can levy or garnish what the debtor has received from the sale. The debtor’s transfer of an asset to a third party for reasonable value is not a fraudulent transfer-it is a sale. Conveyances made with the primary intent other than creditor avoidance are not prohibited or reversible. Not all transfers or conversions that move assets beyond a creditor’s reach are fraudulent. How to Defend a Fraudulent Conveyance Claim Fraudulent conveyance liability stems from the moment someone becomes aware of potential liability. Important: People often mistakenly think that transfers or conversions of assets are OK if the creditor has not yet filed a lawsuit. A debtor’s conveyance is not immune from fraudulent conveyance issues just because no creditor has obtained a judgment or filed a lawsuit. The court must consider the debtor’s explanation of a conveyance to determine whether it was intended primarily to defeat creditors.Ī debtor’s transfer or conversion of property made after a creditor has a claim against the debtor is vulnerable to fraudulent conveyance allegations. These factors, and others, are referred to as “ badges of fraud.” However, just because a transfer involves one or more badges of fraud does not necessarily make that transfer fraudulent against creditors. The trial court must infer the debtor’s intent from the facts of each situation.įor example, a court examining the debtor’s intent could consider whether a transfer was made to a debtor’s family member, whether a transfer was concealed, whether the debtor retained effective use and control over the property transferred, or whether the transfer rendered the debtor insolvent. Debtors will not typically admit that their transfers or conversions were intended to protect against creditor collection. Conveyances are fraudulent if the debtor made the conveyance with the intent to hinder or delay creditor collections. The debtor’s intent is an essential element of a fraudulent conveyance. The Florida fraudulent transfer statute defines a transfer as “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.”īook Consultation Fraudulent Conveyance: Intent to Hinder or Delay Collection An example of fraudulent conversion is the debtor spending their non-exempt cash to purchase an exempt annuity. Moving money or other assets to a new location is not a transfer if the debtor has not changed ownership or title to the asset.Ī fraudulent conversion is a debtor’s conversion of non-exempt property to a different type of property, still owned by the debtor, that is exempt or immune from creditor attack. An example of a fraudulent transfer is transferring the legal title of property or registration of a financial account to the name of a debtor’s spouse or child. Florida Fraudulent Transfer Statute of LimitationsĪ fraudulent conveyance can be either a fraudulent transfer or a fraudulent conversion.Procedure Creditors Use to Challenge Fraudulent Conveyance.What Can a Creditor Do About a Fraudulent Conveyance?.How to Defend a Fraudulent Conveyance Claim.Fraudulent Conveyance: Intent to Hinder or Delay Collection.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |