Friday, December 28, 2012
The conversion of a 401k or ira to pay creditors can be avoided by filing Chapter 7 Bankruptcy. These types of retirement accounts are exempt assets and can be kept for their future intended usage as retirement income. It is a mistake to convert an exempt asset like a 401k into a non-exempt asset by taking a 401k advance and deposit it into a personal bank account. The fact the funds can be traced back to the exempt 401k does not change the fact that they are no longer exempt. This mistake can be compounded by paying creditors with it if you could instead qualify for a discharge of your debts under Chapter 7 Bankruptcy. Also even if you do not pay creditors with these funds what may appear to be a logical decision to deposit these funds into a relative's bank account to avoid any bank executions from outstanding judgments is a problem since the asset is now now longer exempt and has been transferred to an insider which under the Bankruptcy Code the Chapter 7 trustees can treat as an avoidable transfer for two years prior to the bankruptcy filing. Even if these funds have been paid back to the debtor prior to filing that does not cure the fraudulent conveyance under the terms of the Code and the relative who was doing the debtor a favor is subject to suit by a bankruptcy trustee for the amount transferred. Whenever faced with overwhelming debts before you liquidate your retirement accounts you should consult with a bankruptcy attorney to review your options to see if you can keep these accounts and discharge the debts with a bankruptcy filing.