Submitted by FFV on Fri, 01/27/2012 - 09:29
Posted in
Hello. I'm thinking about filing bankruptcy because of some major debt and a lost job. The problem is I had always intended on transferring all or part of my home to my only daughter as sort of an estate planning thing but I never got around to it. I read a little bit about fraudulent transfers and don't believe I'm transferring the house to screw my creditors, including the mortgage lender because this is part of a plan I've had for a while. Any thoughts?
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Fraudulent transfer
You should definitely not make any transfers of real property prior to filing bankruptcy without first talking to an experience attorney. The problem is that, regardless of what you were thinking about doing, if you transfer the home withing a year of filing your bankruptcy petition, that will certainly raise red flags. The bankruptcy code (11 U.S.C. Section 727(a)(2)(A) has this to say about fraudulent transfers: "[t]he court shall grant the debtor a discharge, unless . . . the debtor, with intent to hinder, delay, or defraud a creditor . . . has transferred, removed, destroyed, mutilated, or concealed . . . property of the debtor, within one year before the date of filing of the petition.”
I agree with you that, in your case, the key issue of intent is debatable, but the burden will be on you to convince the court that your motives are pure. Again, talk to a lawyer. Depending on your situation, you do not have to lose the house. Therefore your plan to transfer the house now (as opposed to some later date when you can still achieve your estate planning goals) in completely unnecessary. An attorney may be able to devise a plan that allows you to keep the home while still dealing with the debt issues you face. Good luck.