Fraudulent Conveyances in b/r.
1. §548 allows the trustee to avoid fraudulent transfers or obligations incurred that occurred 1 year b/4 filing, either voluntarily or involuntarily. For the TIB to bring an action to avoid a fraudulent conveyance, you need to have an unsecured who could avoid such a claim.
a. §548(a)(1)(A)—Actual intent to defraud: Can avoid a transfer that was made w/ actual intent to defraud the creditor.
b. §548(a)(1)(B)—less than REV: Can avoid a transfer if debtor received less than REV when (i)(I) balance sheet insolvent, or (II)when engaged in business where what is left is unreasonably small, or (III)when it was going to incur debts that would be beyond ability to pay.
(i) Note: If debtor hasn’t received item he paid for yet, this is clearly less than REV.
(ii) Note: Can’t show that debtor received less than REV when transferring an SI in prop worth much more than the debt that is secured. If the collateral has to be sold, the only amount that will be taken by the debtor is the amount of the debt. At some point though, the hostage value created in the creditor by virtue of the SI, may exceed the value received by the debtor.
c. Avoiding obligations incurred:
(i) Ex. Debtor buys 5 bil equip w/ 1 bil down and 4 bil obligation. Turns out that equipment was for inflated price and is now worth 1 bil. Could try to avoid the 4 bil obligation incurred as less than REV.
(ii) §550 fails to indicate the liability of transferee of avoided obligation. Drafters may have thought that you could just avoid obligation and that was enough.
2. §544(b): Avoiding transfers under State Law UFTA. TIB steps into shoes of unsecured creditor in this cases. In order for trustee to use this power, need to find an unsecured creditor in this case that could have brought such a case—can’t just bring action on behalf of hypothetical unsecured creditor as you could under 544(a) strong arm clause. (Note that this option may be more attractive b/c you may be able to look back for a longer period of time—model UFTA has a 4 year SOL).
3. Determining REV—
a. does it depend on what parties knew at the time? In example under G(5)(a), some would argue that this was REV at the time and that is all that counts. If selling party knew that price would drop, then others would argue that this is less than REV. Depends on the court.
b. BFP v. Resolution Trust Corp—REV should be conclusively deemed to have been given at any judicial foreclosure sale that was (1) noncollusive and (2) properly conducted under state law. In many cases, the biggest thing to insure compliance w/ state law procedures is making sure that parties got notice of the sale. (Note that the bigger the dif between value of prop and what is gotten at sale, the more the procedure will be scrutinized.)
We have located some similar legal questions and legal question categories. Check out these challenging questions that askquestions about Contract Law and are similar to What are the Fraudulent Conveyances in b/r?. Also, we have included a list of some of our more popular legal question categories. These categories are based on what everyone is asking and answering.