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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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Hi: My question is: Under section 544(b)(1) of the bankruptcy

Customer Question

Hi: My question is: Under section 544(b)(1) of the bankruptcy code, is a trustee entitled to seek avoidance of transfers constituting fraudulent transfers, regardless of the date of such transfers and regardless of any limitations periods or look back periods? If so, under what circumstances? Thank You
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 3 years ago.

cfortunato :

Hi - my name is Chris and I'm a Bankruptcy attorney here to assist you.

cfortunato :

Section 544 addresses all transfers of property. Fraudulent transfers are governed by section 548 of the Bankruptcy Code.

cfortunato :

Are you asking about section 548?

JACUSTOMER-phylsxhd- :

No, just 544. Can a Trustee go back further than any statute of limitations by using 544(b)(1) and saying that he is stepping into the shoes of a creditor.

JACUSTOMER-phylsxhd- :

Please advise. should I wait or check in tomorrow?

cfortunato :

Thank you for your response.

cfortunato :

Whether or not a trustee could avoid a fraudulent transfer based on - based on section 544(b)(1). will depend on state law. What state will or was a Bankruptcy case filed in?

cfortunato :

Also - I just want to be sure - are you asking about fraudulent transfers?

JACUSTOMER-phylsxhd- :

Washington state and yes it is fraudulent transfers

JACUSTOMER-phylsxhd- :

the trustee is relying on Washington state law RCW 19.40.091(a)

cfortunato :

Thank you again for your response.

cfortunato :

A trustee does not have the authority to make up his own rules. The avoidance of a fraudulent transfer must be done based on the Statute of Limitions set out in RCW 19.40.091 if the trustee is using 544

cfortunato :

(If the trustee were using section 548 instead, there would have been a 2-year limit to avoid a fraudulent transfer.)

cfortunato :

Based on section 544 and RCW 19.40.091, the trustee has 4 years from the occurrence, or one year from the discovery of the transfer, or from when the transfer could have been discovered - whichever is later.

JACUSTOMER-phylsxhd- :

OK, I have a follow up question, but I don';t know if I am suppose to pay for it first. My question is: If the Trustee is only allowed to go back 4 years or whatever law he chooses to go by, do you think the trustee will allow me to deduct my original investment that was made 13 years ago, and that I put in my proof of claim?) (He was going to if he could go back to 1997)

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