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Ellen, Attorney
Category: Bankruptcy Law
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Experience:  Bankruptcy Lawyer. Experienced.
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I worked as a contractor for a company that filed ...

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I worked as a contractor for a company that filed bankruptcy in october 1997, they owed me approximately 19,000.00 for work done for them. the paid me 10,000 in april 2008 now yesterday I get a letter stating I must pay back 9000. as it was paid to me in the 90 days prior to bankruptcy being filed and they said I missed my filing date to put in a claim for money still owed to me. What can I do about the money they owe me and the money the say I have to pay back that they paid me?? Thank you Shelly
Submitted: 8 years ago.
Category: Bankruptcy Law
Expert:  Ellen replied 8 years ago.


Thank you for your question. I am happy to assist you.

The trustee's power to bring the action tto void the transfer may be time barred by the statute of limitations. You will want to retain a bankruptcy attorney to raise this defense.

The trustee in bankruptcy court has the power to void certain transaction made by the debtor prior to filing bankruptcy. One such transaction subject to the trustee's voiding power is called a "preferential transfer".

Section 547 of the Bankruptcy Code provides that the trustee may avoid transfers of the debtor's interest in property:

  1. to or for the benefit of a creditor;
  2. for or on account of an antecedent debt owed by the debtor before such transfer was made;
  3. made while the debtor was insolvent;
  4. made - (A) on or within 90 days before the date the petition was filed; or (B) if the creditor was an insider, on or within one year before the date the petition was filed; and
  5. that enabled the creditor to receive more than the creditor would have received if - (A) the case were a case under Chapter 7 of the Bankruptcy Code; (B) the transfer had not been made; and (C) the creditor received payment of such debt to the extent provided by the provisions of Chapter 7

However, Section 546 of the Bankruptcy Code limits the time in which an action to void a preferential transfer may be brought as follows:

(a) An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be commenced after the earlier of--

(1) the later of--

(A) 2 years after the entry of the order for relief; or

(B) 1 year after the appointment or election of the first trustee under section 702, 1104, 1163, 1202, or 1302 of this title if such appointment or such election occurs before the expiration of the period specified in subparagraph (A); or

(2) the time the case is closed or dismissed.

In summary, the trustee cannot bring an action to void a preference if it is barred by the statute of limitations. You will want to retain a bankruptcy attorney to raise this defense

I hope that the information which I provided was helpful to you.

Best wishes for a successful outcome. If you have additional questions, please do not hesitate to submit them to me directly.

Thank you,

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