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Red Flags in Bankruptcy

How to Avoid Problems When Filing for Bankruptcy in New York

If you are considering filing for bankruptcy, there are many factors that must be considered. It is therefore of utmost importance for your bankruptcy attorney to have a thorough knowledge of your financial situation. When meeting with a new client, I take the time to talk with the client and review all necessary information. The initial meeting with a client usually takes between one and two hours. I ask a lot of questions, not only to gather the information needed to prepare the bankruptcy petition, but also to determine if there are any potential problems. Often, these issues can be addressed by proper planning. If necessary, we will wait to file the bankruptcy petition to allow certain time periods to pass. Below are some of the “red flags” that can lead to trouble if not addressed prior to the bankruptcy filing.

Long Island Bankruptcy Red Flags Lawyer

Contact the law firm of Andrew M. Doktofsky, P.C. at (631) 673-9600 for your questions about problems to avoid when filing for bankruptcy. Call Andrew M. Doktofsky, P.C. today if you have questions about red flags in bankruptcy throughout the areas of  Suffolk County and Nassau County, New York.


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Problem: Asset Transfers

Transfers of assets for less than fair value, made within the six-year period preceding a bankruptcy filing, are considered fraudulent transfers and can be recovered by a Chapter 7 trustee. This usually arises in the context of a transfer from the debtor to a spouse or other family member. The reason for the transfer is not relevant – what is critical is that the debtor did not receive fair value in return. Keep in mind that the Statement of Financial Affairs, which must be filed with the bankruptcy petition, only requires disclosure of transfers within the two years preceding the bankruptcy filing. However, at the meeting with the bankruptcy trustee, the debtor will always be asked about transfers made within the prior six years. This is because the statute of limitations for fraudulent transfers in New York is six years and a Chapter 7 trustee can recover fraudulent transfers made within that period.

Solution:

  • Wait to file. The simplest answer, if possible, is to wait until the six years has passed before filing the bankruptcy. This is a realistic solution only if the six years will be expiring sometime in the near future.
  • Undo the fraudulent transfer. Fraudulent transfers in New York can be “undone” by transferring the asset back to the debtor. Whether this makes sense to do depends on the value of the asset and whether or not it can be exempted in a Chapter 7 bankruptcy. However, it is important to consult with a bankruptcy attorney before transferring assets back to the debtor. Under certain circumstances, it may be necessary to wait one year after re-conveying the property to file the bankruptcy petition.
  • File under Chapter 13. When filing a Chapter 13 bankruptcy, fraudulent transfers are considered in a “liquidation analysis” of the Chapter 13 plan. That is, the amount to be paid to unsecured creditors must be at least what they would receive in a Chapter 7. So, to the extent that a fraudulent transfer could be recovered by a Chapter 7 trustee, the value of that property must be considered in determining whether the Chapter 13 plan proposes to repay creditors a sufficient amount.
  • File the bankruptcy anyway. A fraudulent transfer made within one year of the filing, with the intent to defraud a creditor, or the bankruptcy estate, can result in a denial of discharge. However, aside from that, fraudulent transfers usually will not affect a debtor’s discharge. The consequences of a fraudulent transfer will fall upon the recipient of the property. If this is a spouse, then filing the bankruptcy can be a problem. However, if the property was transferred to, for instance, a former girlfriend/boyfriend, then filing the bankruptcy may not have any negative consequences for the debtor.

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Problem: Preferential Payments to Insiders

Debtors who have borrowed money from family members or friends often wish to repay these loans before filing for bankruptcy. If repayment is made in the one year preceding the bankruptcy filing, a Chapter 7 trustee can recover the money paid and redistribute it among all of the debtor’s creditors.

Solution:

  • Wait at least one year from the date of the repayment before filing for bankruptcy. This eliminates the problem entirely.
  • Have the friend or family member return the payment. This is considered a new loan and will serve to undo the preferential payment.

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Problem: Home Equity Loans or Cash Received From Refinancing the Debtor’s Home

It is common for people to have taken equity out of their homes in recent years. This can be a potential problem, depending on how long before the bankruptcy filing this was done, and the amount of cash taken out.

Solution: Preparation

The debtor must be able to account for how the money was used. This information does not appear anywhere in the schedules that are filed with the bankruptcy petition. However, the bankruptcy trustee will always inquire as to how the proceeds of a refinancing or home equity loan were used. I always advise my clients to make up a list of how the money was spent. If it was for home improvements, they should be able to tell the trustee the specific work that was done on the house and the cost of the work. If debts were paid, the debtor should be able to say what debts were paid and how much. Often, debts are paid directly from the loan proceeds and will show on the HUD-1 statement that is prepared at the closing. Sometimes, loan proceeds are used for living expenses. If this was the case, there should be a reason for doing so, usually because of extended periods of unemployment. Again, preparation is the key to avoiding problems with the bankruptcy trustee.


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Problem: Recent Credit Card Usage

Using credit cards in the period leading up to the bankruptcy filing must be avoided. If there has been recent usage on the credit cards, especially if for purchases that are not essential, the debtor can be denied a discharge or the debt can be deemed non-dischargeable.

Solution: Wait to file.

Under certain circumstances, it may be advisable to wait six months to one year after using the credit cards to file for bankruptcy. This will allow a sufficient amount of time to pass so that the credit card usage is not an issue. If the debtor can make minimum payments on the credit cards, this will show a good faith intention to repay the debt and will also prevent the commencement of legal action against the debtor while waiting to file for bankruptcy.


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Problem: The debtor earns cash income

When filing for bankruptcy, debtors must disclose their current income and the income that they have earned in the six months preceding the bankruptcy. Paystubs for the 60 days preceding the bankruptcy must be filed with the petition. In addition, debtors must provide the bankruptcy trustee with their most recently filed tax return. Problems can arise if the debtor works “off the books” or is self employed.

Solution:

If practical, the debtor should start getting paid on the books. At least sixty days should pass before filing the bankruptcy so that the required pay stubs can be filed. If getting paid off the books, then it is important that all cash income be deposited into a bank account so that the income can be documented. Expenses should then be paid for by check or debit card. The debtor’s tax return should reflect their actual cash income.

If the debtor is self-employed, there should be a separate bank account for the business. Business expenses should be paid from the business account. All income and expenses should be documented so that the net business income can be determined.

If there is a discrepancy between the debtor’s actual income and the most recently filed tax return, the debtor’s tax return should be amended. While this may result in additional tax liability (which would not be dischargeable), it is the preferable course of action. Otherwise, the debtor may be asked by a bankruptcy trustee to explain the discrepancy.


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Andrew M. Doktofsky, P.C. | Long Island Bankruptcy Attorney Explains Potential Problems in Bankruptcy

Contact the law firm of Andrew M. Doktofsky, P.C. today at 631) 673-9600 for a free consultation about how to avoid problems when filing for bankruptcy throughout Suffolk County and Nassau County, New York. Andrew Doktofsky is an experienced Long Island bankruptcy lawyer who will  advise you on how to properly prepare for bankruptcy in order to achieve a favorable outcome.