Bankruptcy ~ 548
Site.Mainbk548 History
Hide minor edits - Show changes to markup
BANKRUPTCY CODE § 548 (11 USC § 544)
- Fraudulent Transfers And Obligations
BANKRUPTCY CODE § 548 (11 USC § 548) -- Fraudulent Transfers And Obligations
- Section 548 largely sets out the substantive law of fraudulent transfers in bankruptcy, while § 550 sets out the defenses of the transferee and some limitations upon fraudulent transfer actions in bankruptcy.It is very important to know that in bankruptcy the primary tool for dealing with a debtor's late transfers are the provisions dealing with preferential transfers, in contrast to state law where the primary tool is the UFTA/UVTA and many states do not even have preferential transfer laws. There is an academic question as to whether the U.S. Bankruptcy Code should even have its own fraudulent transfer laws, since state fraudulent transfer laws are almost always used by bankruptcy trustees and creditors anyway. As Prof. Ken Kettering, Reporter for the UVTA, has remarked: "Since the primary weapon in bankruptcy is preferential transfer law, and much better developed state fraudulent transfer law is also available, the bankruptcy code's fraudulent transfer provisions are simply a luxury, akin to leather bucket seats."
- Section 548 largely sets out the substantive law of fraudulent transfers in bankruptcy, while § 550 sets out the defenses of the transferee and some limitations upon fraudulent transfer actions in bankruptcy. Note that § 548 is used less in bankruptcy proceedings than "applicable state law" in the form of the local state UFTA/UVTA via § 544. There may, however, be occasions when § 548 is preferable to state law, e.g., as § 548 relates to self-settled trusts.It is very important to realize that in bankruptcy the primary tool for dealing with a debtor's late transfers are the provisions relating to preferential transfers, in contrast to state law where the primary tool is the UFTA/UVTA and many states do not even have preferential transfer laws. There is an academic question as to whether the U.S. Bankruptcy Code should even have its own fraudulent transfer laws, since state fraudulent transfer laws are most often used by bankruptcy trustees and creditors anyway. As Prof. Ken Kettering, Reporter for the UVTA, has remarked: "Since the primary weapon in bankruptcy is preferential transfer law, and much better developed state fraudulent transfer law is also available, the bankruptcy code's fraudulent transfer provisions are simply a luxury, akin to leather bucket seats."
(:title TOPICSHORT:) (:Summary: TOPICLONG:) (:description TOPICLONG:) (:keywords voidable transaction, uvta, fraudulent transfer, ufta, fraudulent conveyance, TOPIC:)
(:title Bankruptcy ~ 548:) (:Summary: Bankruptcy ~ 548:) (:description Bankruptcy ~ 548:) (:keywords voidable transaction, uvta, fraudulent transfer, ufta, fraudulent conveyance, bankruptcy, 548:)
Bankruptcy Bankruptcy PAGENAME
bk548 Bankruptcy Mainbk54
TEXT
BANKRUPTCY CODE § 548 (11 USC § 544)
- Fraudulent Transfers And Obligations
(a)
- (II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital;
- (III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured; or
- (IV) made such transfer to or for the benefit of an insider, or incurred such obligation to or for the benefit of an insider, under an employment contract and not in the ordinary course of business.
(b) The trustee of a partnership debtor may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, to a general partner in the debtor, if the debtor was insolvent on the date such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation.
(c) Except to the extent that a transfer or obligation voidable under this section is voidable under section 544, 545, or 547 of this title, a transferee or obligee of such a transfer or obligation that takes for value and in good faith has a lien on or may retain any interest transferred or may enforce any obligation incurred, as the case may be, to the extent that such transferee or obligee gave value to the debtor in exchange for such transfer or obligation.
(d)
- (1) For the purposes of this section, a transfer is made when such transfer is so perfected that a bona fide purchaser from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest in the property transferred that is superior to the interest in such property of the transferee, but if such transfer is not so perfected before the commencement of the case, such transfer is made immediately before the date of the filing of the petition.
(e)
BANKRUPTCY FRAUDULENT TRANSFER OPINIONS
- Exempt Property TransfersIn re Vorhes, 2018 WL 1577980 (N.D.Iowa, March 29, 2018).Self-Settled Trust or Similar DeviceIn re Cyr (Rodriquez v. Cyr), 2019 WL 1495137 (W.D.Tex., April 1, 2019).Statute of LimitationsIn re Kipnis, 2016 WL 4543772 (Bk.S.D.Fla., 2016).
TEXT TOPICS AND OPINIONS
(:pagelist link=Category.TEXT list=normal fmt=title:)
BANKRUPTCY SECTION 548 TOPICS AND OPINIONS
(:pagelist link=Category.bk548 list=normal fmt=title:)
(:title TOPICSHORT:)
(:Summary: TOPICLONG:)
(:description TOPICLONG:)
(:keywords voidable transaction, uvta, fraudulent transfer, ufta, fraudulent conveyance, TOPIC:)
(:linebreaks:)
Bankruptcy Bankruptcy PAGENAME
TEXT
TEXT TOPICS AND OPINIONS
(:pagelist link=Category.TEXT list=normal fmt=title:)