Search This Blog

Tuesday, July 10, 2012

When is the Appropriate Time to File Chapter 7 Bankruptcy? Part One:Preferential Transfers

    After the initial determination that a Chapter 7 bankruptcy is the best option for a client one of the next issues that needs to addressed is when should they file? There are a number of factors that determine the appropriate time to file some of which can have significant consequences if not handled properly. The discussion below focuses on the effect of preferential transfers and the appropriate time to file bankruptcy. First, assuming there are no other reasons to hold off filing the existence of a judgment with wage and bank executions makes filing as soon as possible necessary to avoid and decrease any future losses. This need to file right away may be countered, however, with the existence of a preferential transfer which may mean the client needs to delay their filing till the relevant preference period expires. If a loan is repaid to an insider relative within one year of a bankruptcy filing this automatically is considered an avoidable transfer by the bankruptcy code. What this means is that the bankruptcy trustee can go after poor mom and dad for the money that was repaid to them and disburse that to the debtor's creditors. Certainly not a result any client wants his parents or siblings to have to go through as a consequence of their bankruptcy filing. The remedy of course is to wait till the year has expired before filing bankruptcy. Also it is important that the payment back to mom and dad was a valid repayment of a loan and not a fraudulent conveyance to hide assets from creditors. I will leave the discussion of fraudulent conveyances for another post, but suffice it to say that the look back period is at least 4 years for these types of transfers and even then depending on what, when and how much was transferred bankruptcy may never be an option.   
During the pre-filing ninety day preference period any payment in excess of $600 to any creditor of an antecedent debt can be avoided by the trustee. An antecedent debt, for example, is an old credit card bill or medical bill as opposed to a monthly mortgage, utility or car payment. Now in many cases unlike a transfer to an insider relative a client may not care if a trustee were to go after Bank of America to get back a $1,000 preferential credit card payment and still file within the ninety days. This may and usually is not the case when the payment is to the family dentist for some recent dental work who the client wishes to remain on good terms with. Again the remedy is very simple just wait for the 90 days to expire to file bankruptcy and Doctor Goodteeth will not hear from the trustee and will continue to treat the family. This post only touches upon the timing of a bankruptcy filing in relation to possible preferential transfers and there are several other factors including asset issues, foreclosure and/or loan modification status and income fluctuations among others that need to be considered before filing bankruptcy. I will address these issues in future posts so stay tuned for Part Two.


  1. A short note to tell you that I found your post useful. Thanks!
    Bankruptcy Law Miami

  2. Just a quick note to let you know that I appreciated your insights about the topic. Quite helpful for what I am interested in these days.

    foreclosure defense florida

  3. Hello! I am glad to stop by your site and know more about bankruptcy lawyers. Keep it up! This is a good read. I will be looking forward to visit your page again and for your other posts as well. Thank you for sharing your thoughts about bankruptcy lawyers.
    In Argentina de national Act "24.522 de Concursos y Quiebras" regulates the Bankruptcy and the Reorganization of the individuals and companies, public entities are not included.
    Stop and prevent foreclosure by seeking help with bankruptcy lawyers suffolk county, ny

  4. Bankruptcy Lawyer Waukesha has served many people regarding bankruptcy issues. Many of their lawyers are the best in the field and that is why they are trust by the people. Assuring that if they get their services they can succeed and get back in the right track.

  5. Thanks for sharing useful information. Indeed IRS Settlement was a big pain and it almost screwed my future, poor credit score and all worse that can happen. Still i was lucky to find few experts that helped in my irs debt settlement, were experts and help me in IRS settlement quickly. I was helped, hope you will too.