Bankruptcy Law Questions? Ask a Bankruptcy Lawyer Now.
no i didnt file bankruptcy, brother did. lets start over. my brotherrrr and i enter into a lease agreement one that he is not license to do. but however we both signed it. aug 2008 brother file bankrupcty, now i cant make payments. i move in damon home in 2009 and became the onl income person in the home. paying all the bills buying all the food etc. what evr the house need i bought. brother told me he could not find no info on trailer. told me guess i got myself a free trailer. 2011 damon amend his bankruptcy. add the house and other person stuff. 2012 we started getting along bad didnt see eye to eye on anything. so i moved now he suing me for the trailer and 53k. claims is none payment fraud, and even state that he has not seen trailer since i pick it up. non of which is true. but he got a attorney to type this up and file in a court. judge gives me 21 days to defend this or he awrad damon the trailer and 21k. is this right
Optional Information: State/Country relating to question: VirginiaAlready Tried: alot of things
Well my last question is just more detailed information sorry i was just throwing a can you question out there, but the more detail is my problem i face. loosing everything behind his bankruptcy. i need your advice please help me.
You REALLY, REALLY, REALLY need an attorney to assist with preparing a defense in this case. It doesn't sound like your brother's claims of non-payment fraud, etc. are very strong, but you need a local attorney to draft an Answer for you within the 21 day period. If you try to do this yourself, you could potentially hurt your case, as your Answer will need to assert a number of particular and highly nuanced affirmative defenses, all of which must be raised in your Answer.
From my perspective as a Bankruptcy practitioner, assuming you hire an attorney to handle the state court lawsuit, an even bigger problem could be a preferential and/or fraudulent transfer action by the Trustee in your brother's bankruptcy case.
Your brother purchased/financed the trailer in November 2007 with only your name on the title. Your brother then filed bankruptcy in August 2008 (without disclosing the trailer in his Schedules), less than one year from the date he purchased the trailer and (arguably) transferred the title over to you. However, the secured LOAN was in your brother's name, so the LOAN should have been disclosed in the bankruptcy (which likely wasn't done, or you would have likely been dragged into your brother's bankruptcy proceeding back in 2009 - you might have won on the merits, but this issue certainly would have come up and been litigated had your brother disclosed everything he was supposed to at the time he filed).
Under Section 547(b)(4)(B) of the Bankruptcy Code, a "transfer to an insider between ninety days and one year before the date of the filing of the petition" may be considered a preferential transfer, and the Bankruptcy Trustee can "clawback" (i.e. take) the property from you, even if your legal title to the property is completely legitimate under state law and you own the trailer free and clear of all liens. A fraudulent transfer under Section 548 is similar, except it allows the Trustee to "clawback" property transferred within TWO years of the date the bankruptcy was filed.
You need to be aware of this Bankruptcy issue, as the Trustee will likely come after you to recover the trailer if you win in state court. You should discuss all of this with your attorney and plan accordingly.
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