"Fraudulent Conveyance" -- Sounds scary, right?

 The Bankruptcy Code defines "fraudulent conveyance" as a transfer made within 2 years before the date of the filing of the petition, if the transfer was made with actual intent to hinder, delay, or defraud any creditor, OR if person making the transfer received "less than a reasonably equivalent value" and was insolvent when the transfer was made.  (This is a little abbreviated).  Minnesota law refers to this as a "voidable transfer", which may sound less scary, but the statute of limitations is longer.

The roots of fraudulent conveyance law go back to 1571 -- the time of Queen Elizabeth I of England (really!).  

The classic example of a fraudulent conveyance is that Bob is being sued because his business went under and in order to protect his 40 acres of hunting land in Cass County, he deeds it to his brother Ted without getting any payment.

Another example is that Bob sells the 40 acres of hunting land to his brother Ted for $5,000.00.  On the surface that looks okay, but it turns out that the land was actually worth $50,000.00.  In effect, Bob has made a gift to Ted of $45,000.00.  A bankruptcy trustee (or, outside of bankruptcy) a creditor can go to court and have the transfer reversed.

Fraudulent transfers can a be unintentional.  For instance, in a case called DeGiacomo v. Sacred Heart University, Inc., parents paid $64,000+ to a college to cover the tuition bill for their daughter, who was over age 18 at the time.  A court of appeals held that the payment was a fraudulent conveyance, because the parents were insolvent when they paid the college.  

These situations are why I ask if you have transferred something to a relative or friend in the past.  If I know about the transfer before you file bankruptcy, we can evaluate the situation.

As always, if I can help you deal with your debts, call me at 320-252-4473.

This email will save you $149 per year!

I periodically hear on the radio or see advertisements offering to "prevent home title fraud".  For instance, Newt Gingrich endorses a company called Home Title Lock which for "only" $14.99 a month or $149.00 a year will guard you against title fraud, which that company defines as:  

"Title Fraud:

When someone steals the title or deed of your home for financial gain.

Thieves simply change ownership of your home from YOU to THEM. Then they TAKE OUT LOANS on your home and just disappear - leaving YOU with the payments and a mountain of legal bills."

Well, there is such a thing as title fraud, although if you are a victim of that type of fraud, call me and it should be fixable.  

However, at least Stearns County will let you sign up for a similar service for free!  Here is a clip from their website:

"Real estate and mortgage fraud are growing crimes in America today. Land Notification alerts help property owners prevent fraud by providing them with information about documents being recorded against their name, business, or property. Each time there is recording activity on a specific property or name, an email is generated, notifying the appropriate person of this activity.

This service is a great opportunity for property owners of Stearns County to use. It is a free service that allows you to monitor and protect your most valuable assets.

How It Works....
The Land Notification System gives you the ability to monitor personal or business names on records related to your property. You can create one or more alerts that are triggered when real estate records are recorded with Stearns County for names identified in the alert.

When an alert is generated, an electronic notice will be sent to the email address you provided at the time you registered for the service. This email will contain more information about the activity and will include contact information for Stearns County Recording Services. Once you have registered, the system will perform a search on your name after a real estate document has been verified and recorded by this department. Please understand, when subscribing for this service, common names like "John Smith" may produce many results.

Things to Know....

What do I need to sign up for this free service?
You will need an email account with Google or Yahoo to sign up for Land Notification alerts.

Will I receive unwanted emails?
You will receive an email only when a document with the name you provided is recorded in the official real estate records. You can unsubscribe to the service at any time."

Don't make let collectors pressure you into bad decisions about debt

When you are in financial trouble, take a deep breath and step back and think about your overall situation.

I often meet with people who have let "important debt" go unpaid because of pressure from collectors.  What is "important debt"?  It is debt which can hurt you if you don't pay it.

If you don't pay your rent, your landlord can evict you.

If you don't pay your mortgage, your mortgage lender can foreclose on you and evict you.

(At present, there are rules about eviction and foreclosures, due to Covid, but eventually we will get back to normal).

If you don't pay your car loan, your car lender can repossess your car.

If you don't pay your utility company, it can turn off your heat or lights.  (And yes, there is the cold-weather rule, but spring eventually comes!)

So, these are important debts.

Debts that are much less important include credit cards.

The reason that these credit cards are less important is that they can do much less to you.  

Yes, they can sue you and get a perfectly valid judgment against you.  But what can they do with the judgment?  They can take your non-exempt assets.

Well, what are your non-exempt assets?  

Your home is protected, generally up to $420,000.00 of equity and 160 acres in size.

One car is protected, up to $5,000.00 of equity.

Your household goods and clothing are protected, up to about $11,000.00.

Your IRA is protected up to at least $75,000.00 (much, much more in bankruptcy).

Now, it is true that a creditor with a judgment can try to take a portion of your paycheck -- one-fourth or the amount over $403.20 per week, whichever is less for the creditor and more for you)  

But a credit card judgment cannot take your exempt home, your exempt car, your exempt household goods, your exempt IRA.

A collector may threaten suit, but threats don't mean that the suit will invariably happen.  And even when suit does happen, we have time to respond to the claim.  But if the collector can pressure you into not paying an important bill in order to avoid a suit that may never come, and if use the money to pay his credit card claim instead of an important bill, the collector may put you onto the slippery slope to losing your house.

Yes, it's good to keep a good credit score.  But it's better to have a place to live.

If you are having to choose which bills to pay, give me a call at 320-252-4473 to talk about some of your options.

Sam Calvert

Things to avoid

Over the years I have seen some people do some lots of things to try to avoid bankruptcy.  Some of the things they try are, I think, really bad decisions.

For instance, sometimes people borrow against, or withdraw from, their 401(k) account or other retirement account in order to keep up payments on their credit cards.  The cash keeps them afloat for a while, but then it runs out and they wind up filing bankruptcy anyway.  The sad part is that a 401(k) or other retirement account is protected from creditors, so they have "wasted" money that was protected.  (As with lots of legal issues, there are some exceptions to the protection.), 

Sometimes people give stuff away to a friend to try to protect it.  This is a terrible idea.  If you give something valuable to a friend you have created a "fraudulent transfer" or a "voidable transfer".  The trustee can go to the person to whom you gave it and get it back from them.  And because it was a voluntary transfer, you can no longer exempt it.

Many of the things that people own can be protected in bankruptcy.  So, just like tapping your 401(k) plan, giving something away means it cannot be protected any longer.

This does not mean that you cannot sell surplus items.  If you sell to a third party, no one will think that you made a gift.  The trustee may well ask you what you did with the money.  It is a bad idea to say "I don't remember!"  On the other hand, if you sell to your brother, a trustee may wonder if you sold something for much less than it was worth -- in effect, making a gift.  And if so, the trustee will try to reverse the gift.

There are a lot of nuances -- that's why I will do a no-charge meeting with you to gather facts and try to figure out your next step(s).   Call me at 320-252-4473 to set up a time to meet, by Zoom, by phone, or in person.

2021 Federal Stimulus Payments at Risk

 The Congress just passed a bill, known as the American Rescue Plan, giving Americans up to $1400.00 in "stimulus money".

You may know that the stimulus money that was paid in late 2020 was off-limits to creditors.  However, that protection was not included in the 2021 law due to the rules under which the bill had to be passed.

Therefore, I understand that the 2021 stimulus money is NOT protected from creditors.

I haven't read through the legislation yet, but if the money is not protected from creditors it is presumably not protected from bankruptcy trustees either.  If you have unused wild card exemption you should be able to use that to protect the stimulus money from a bankruptcy trustee, but if you are using the state exemptions, or if you have used up your wildcard exemption, the trustee may be able to demand the money if you still have it when you file bankruptcy.

This is a developing story, so things may change, but I thought I should give you a heads up about this issue.

As always, if you have questions about bankruptcy, please call me at 320-252-4473.

Sam Calvert

Trap for the unwary in Transfer on Death Deeds

 The Eighth Circuit Court of Appeals issued an opinion on February 5, 2021 that should be of concern to anyone who has put into place a transfer on death deed. 

The name of the case is "Strope-Robinson v. State Farm Fire & Cas. Co." and is case number 20-1147.

Briefly, David Strope owned a house.  He signed and recorded a transfer on death deed to his house on August 11, 2017.  The transfer on death deed said that upon his death that the house would automatically go to his niece, Dawn Strope-Robinson.  A few days after David Strope died, his ex-wife burned down the house!  (Apparently there were some hard feelings between David Strope and his ex-wife.  Just guessing there.)

Dawn Strope-Robinson was appointed as special administrator of David Strope's estate (equivalant to an "executor") and made a claim against State Farm for the value of the house.

State Farm turned her down and refused to pay.

Their legal argument was that ownership of the house passed to Dawn Strope-Robinson at the instant that David Strope died, and therefore the estate did not have an "insurable interest" in the house.

This is a scary case.  Who knows how many transfer on death deeds have been issued over the years and no thought at all about adding the grantee beneficiary to the insurance policy?

If you have a transfer on death deed in force, please check with your own insurance to see if your grantee beneficiary would be covered.

As always, if I can be of help, call me at 320-252-4473.

Two myths about wills

 There are several myths about wills.

One common myth is that you can write out a will in your own handwriting.   This is usually called a "holographic will", (not to be confused with the holodeck on the Starship Enterprise).

A holographic will may be valid in some states, but is NOT VALID in Minnesota.  So, don't try it!

In Minnesota a will must be signed by the person who makes the will (the "testator") and must be witnessed by two witnesses. We often add a notarized section to a will.  This is not because of the will itself, but because of something called a "self-proved affidavit".  A "self-proved affidavit" is intended to help in the probate process because at the time you have the court approve the petition for probate and appoint the personal representative, you do not need to find the witnesses and have them testify to the court that they saw the will being executed. In effect, the witnesses to a self-proved will testify in advance. Finding the witnesses could be hard, or perhaps impossible, so this can be a very valuable add-on to a will.  The statutory cite is Minn. Stat. 524.2-504.  I should add that due to the Covid-19 pandemic, the legislature has temporarily allowed some wills which are technically defective to be probated anyway.  However, I think it is much better to comply with the statutory requirements than try to convince a judge that it is "close enough".

A second common myth is that a person who benefits under a will cannot be a witness.  Minn. Stat. 524.2-505 says:  "(b) The signing of a will by an interested witness does not invalidate the will or any provision of it."

Frankly, I think it is better practice to have someone other than a beneficiary witness your will, but in a technical sense it is okay.

Let me know if I can help you with a will and other estate planning issues by calling me at 320-252-4473.