The debtor’s adversary complaint stated a claim under sections 522 and 524 against a creditor who pursued state court action to avoid the transfer of community property from the non-debtor spouse to the debtor after the debtor had obtained discharge of the creditor’s claim. Rhodes v. Pecanland Village Shopping Center, LLC., No. 19-31559, Adv. Proc. No. 22-3010 (Bankr. W.D. La. Dec. 14, 2022). Read More
Tag Archive: transfer avoidance
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Non-Debtor Spouse Transfers Interest to Debtor Post-Discharge
Posted by NCBRC - January 5th, 2023
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Change of Beneficiary Not Avoidable Transfer
Posted by NCBRC - May 6th, 2021
The chapter 7 debtor’s change of beneficiary in his life insurance policy from his employer to his wife was not an avoidable property transfer where the debtor retained his interest in the policy and the transfer did not diminish the bankruptcy estate. Harden v. Harrison (In re Harrison), 2021 WL 739533, No. 19-5730, Adv. Proc. No. 20-113 (Bankr. E.D. N.C. Feb. 22, 2021). Read More
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Debtor May Avoid County Tax Foreclosure Sale
Posted by NCBRC - April 27th, 2021
A county’s tax sale of the debtor’s farm was avoidable as constructively fraudulent under section 548, where the debtor was insolvent at the time of the title transfer and the tax debt was substantially less than the fair market value of the property. DuVall v. County of Ontario, No.19-20179, Adv. Proc. No. 19-2011 (Bankr. W.D. N.Y. Feb. 18, 2021). Read More
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Transfer of Funds Divided between Creditor and Creditor’s Agent Fully Avoidable
Posted by NCBRC - January 29th, 2021
Garnished wages divided between the creditor and his agent in accordance with their fee agreement were an avoidable transfer in their entirety even though the creditor never received the portion withheld by the agent. Hooker v. Wanigas Credit Union, No. 20-2252 (6th Cir. Jan. 26, 2021) (unpublished).
During the ninety-day preference period,Wanigas Credit Union, through its agent, Shek Law Offices, garnished $884.13 from the debtor’s wages in satisfaction of a judgment Wanigas had against the debtor. Shek retained $452.60 of the garnished wages and sent the remaining $431.53 to Wanigas. After filing for bankruptcy the debtor sought turnover of the funds under section 547(b)(1) as a preferential transfer. Wanigas turned over only the funds it received. It argued that the portion retained by Shek was not subject to turnover because Wanigas never received the funds, and in the alternative, because the funds were subject to an attorney-charging lien. The bankruptcy court denied Wanigas’s motion for summary judgment and ordered turnover of the funds. The district court granted leave to appeal and affirmed. Read More
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Avoidability of Tuition Payments Depends on Timing
Posted by NCBRC - December 12th, 2018
Once tuition funds became non-refundable, the universities receiving the funds would be considered initial transferees and the transfers would be subject to avoidance under section 550(a). Pergament v. Brooklyn Law School, Nos. 18-2204, 18-2235, 18-2236 (E.D. N.Y. amended opinion Jan. 4, 2019).
In three adversary proceedings, the Chapter 7 Trustee, Marc Pergament, sought to recover tuition payments the debtor, Harold Adamo, made for his children’s education in three universities. The bankruptcy court found that the trustee could not avoid the transfers because the institutions were subsequent transferees who took in good faith under section 550(b). Read More
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HAVEN Act Guide
The Honoring American Veterans in Extreme Need Act of 2019 (“HAVEN Act”) excludes certain benefits paid to veterans or their family members from the definition of current monthly income (“CMI”) found in the Bankruptcy Code. The HAVEN Act amends § 101(10A) of the Bankruptcy Code and supplements the 2005 amendments to the Code that excluded other government benefits, such as social security income.
This Guide provides an overview of the HAVEN Act identifies benefits that are excluded, and answers frequently asked questions.
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