Bankruptcy Law Questions? Ask a Bankruptcy Lawyer Now.
Hello and thank you for allowing me to address your legal question. Before I can answer you, I need a little more information.
What do you mean that you are about to be served with a bankruptcy petition? Do you mean that somebody who is going bankrupt owes you money, and that you will be forced into bankruptcy if you don’t get paid?
What kind of debt did your ex owe and when did he/she get this debt (i.e. while married to you, before being married)? Also, what is your state?
Are you in the US? I ask because you didn’t mention where you are located, and you use the word “solicitor” rather than attorney or lawyer. I have little knowledge about British law, so my answer is limited to US law.
In the US an asset may be considered to have been fraudulently conveyed within two years prior to the filing of a bankruptcy petition according to the following:
11 USC § 548. Fraudulent transfers and obligations
(1) The trustee may avoid any transfer (including any transfer to or for the benefit of an insider under an employment contract) of an interest of the debtor in property, or any obligation (including any obligation to or for the benefit of an insider under an employment contract) incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily--
(A) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or
(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation;
(II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital;
(III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay as such debts matured ; or
(IV) made such transfer to or for the benefit of an insider, or incurred such obligation to or for the benefit of an insider, under an employment contract and not in the ordinary course of business.
It sounds like you may have a problem since you did not keep records of what you loaned your friend. To the trustee, it appears that your friend gave you a bunch of money for nothing in return, and then filed for bankruptcy. You say that this is not your debt…if you can prove that to the judge, then you may not have to repay it. I suggest that you gather whatever documents you do have that proves what the friend owed you, and then try to convince the judge that she did receive adequate value in exchange (for example, you bought her a car so you must have some record of it…a sales agreement perhaps, and the documentation that shows that it was registered in her name). If you are not successful in proving to the judge that there was no fraudulent conveyance, then you will have to repay the trustee. Since you cannot do so in a lump sum, the trustee will have no choice except to take what he can get from you (as the old saying goes, you can’t squeeze water from a rock). I do not think a debt management company will be able to help, nor do I think filing for bankruptcy yourself will help (debts obtained fraudulently cannot be discharged in bankruptcy).
I know that’s not what you wanted to read, but I hope I answered your legal question. If so, then please remember to ACCEPT my post as that is the only way I will receive credit and compensation for my answer. However, please understand that my answer is meant for informational purposes only and is limited by the facts presented. Therefore, it should not be construed as “legal advice” and is not an adequate substitute for the retention of legal counsel. Thank you and good luck!
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