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Collier Bankruptcy Practice Guide
 
Copyright 2016, Matthew Bender & Company, Inc., a member of the LexisNexis Group.


4-65 Collier Bankruptcy Practice Guide 65.syn


Title

Fraudulent Conveyances

Author

Editors-in-Chief: Alan N. Resnick;and Henry J. Sommer

Chapter Summary


ABSTRACT TEXT:

This chapter, Fraudulent Conveyances, concerns fraudulent transfers and obligations. It addresses the types of transactions which might be challenged as fraudulent, the elements of proof involved under the Code and applicable state law, burden of proof, choice of forum, statutes of limitations, and motions and defenses which may be asserted.

Specifically, the chapter covers the origin of fraudulent conveyance law. The chapter distinguishes fraudulent transfers from voidable transfers. The chapter considers nonbankruptcy statutes, and outlines operative principles respecting the fraudulent transfer laws. The chapter examines the role of the trustee, selection of the forum, sources of causes of actions, and uncovering the cause of action. It provides essential information pertaining to identifying limitations periods and understanding issues concerning choice of law, choice of forum, and choice of defendants.

The chapter discusses related causes of actions, and remedies of creditors upon refusal by a debtor in possession to bring an action. It provides detailed coverage of framing the complaint including the form of pleadings, complaints, jurisdictional allegations, the pleading capacity of the plaintiff, pleading the facts, anticipating the good faith defense, and requests for relief and requests for jury trial, or for provisional remedies. The chapter addresses framing the answer. It examines proving the case including preliminary matters, proving lack of fair consideration or equivalent value, proving insolvency, proving unreasonably small capital, proving intent to incur debts beyond ability to pay, proving intent to transfer under an employment contract, proving intent to hinder, and delay or defraud. The chapter also covers establishing the good faith defense, including proving good faith, proving value, proving no knowledge of voidability, proving lack of actual fraudulent intent, and proving expenditures for improvements.

The Collier Bankruptcy Practice Guide (Matthew Bender) is a strategic and procedural guide, which provides bankruptcy attorneys with a road map for their practice. It covers substantive and procedural law, including amendments to the Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. It provides strategic advice, checklists, forms, and research guides, as well as practice aids, which appear at the end of each chapter. It is organized in the sequence of bankruptcy litigation and highlights issues that arise each step of the way, reflecting the sequence of day-to-day practice. There are contributions from more than 40 prominent bankruptcy attorneys.

CORE TERMS:

Fraudulent conveyance,fraudulent transfer,voidable preference,forum,choice of law,capacity,pleadings,complaint,answer,insolvency,value,good faith,expenditures,bankruptcy

RELATED CHAPTERS: (View)

See Chapters 107-111 for coverage of adversary proceedings.

See Chapter 64 for discussion of preferences.

See Chapters 62-68 for consideration of the avoiding powers of a trustee.

See Chapter 26 for coverage of the duties of a Chapter 7 trustee.

See Chapter 55 for coverage of equitable subordination.

OTHER RELATED PUBLICATIONS:

See Collier Bankruptcy Manual (Matthew Bender) for definitive section-by-section analysis of the Bankruptcy Code, accompanied by detailed analysis of current rules, case law, and related non-bankruptcy law.

See Collier Compensation, Employment and Appointment of Trustees and Professionals in Bankruptcy Cases (Matthew Bender) for complete examination of the Code provisions, case law and current practice trends relevant to the compensation of attorneys, trustees and other professionals involved in bankruptcy cases, including ethical restrictions on employment and new requirements under local rules or administrative orders.

See Collier Business Workout Guide (Matthew Bender) for practical guidance on how to plan, carry out and complete an effective out-of-court restructuring or "workout."

See Collier Bankruptcy Exemption Guide (Matthew Bender) for a compilation of exemptions available in every state and territory, along with checklists of exemptions; complete text of statutory authority; text of federal non-Bankruptcy Code exemptions; analysis of constitutional problems; tenancy by the entirety issues; current case highlights; and a research guide.
 
 
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