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Bank already has personal judgement against me. Apartment building

is held in an LLC...
Bank already has personal judgement against me. Apartment building is held in an LLC with my personal guarantee. Bank will foreclose in 2 days. Can I do a transfer of title from LLC to personal and file a Chap 11 for my personal. I don't qualify for Chap 13 bcos of amount of secured debt. Can one attorney file Chap 11 for LLC and my personal at same time or right after each other? Or is there an automatic conflict of interest for the attorney?
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4/8/2013
socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 39,498
Experience: Attorney and Real Estate Broker -- Retired
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Can I do a transfer of title from LLC to personal and file a Chap 11 for my personal. I don't qualify for Chap 13 bcos of amount of secured debt.

A: Yes, you can do this. Ordinarily, the bankruptcy court could find that the transfer is fraudulent and order title transferred back to the LLC. But, if you're the sole owner of the LLC, and none of your unsecured creditors would be damaged by your transferring the property into your name, then there would be no legal impediment to the transfer.

Can one attorney file Chap 11 for LLC and my personal at same time or right after each other?

A: Once again, if you're the sole owner of the LLC, then there's no conflict of interest, because each party's interests are in alignment -- to eliminate all liability for any debts.

Or is there an automatic conflict of interest for the attorney?

A: I don't see anything obvious -- as long as you are the only owner of the LLC

Hope this helps.
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Customer reply replied 4 years ago

Tuesday morning is foreclosure date. I have an offer from bank to deed 2 other properties including property about to be foreclosed on. All 3 will be held - in event of default within days I loose all 3. I can take that or 1. File Chap 11 on LLC to delay foreclosure, and soon after file chap 11 on personal. Bank already has personal judgement, and bank accounts have already been zeroed out by garnishment. 2. Can spend early morning getting title company to transfer title to personal from LLC and on same day filing chap 11 on personal. I have another property held in another LLC that is perhaps a month or two away from being foreclosed upon as well.

Once again, I see no problem with what you're proposing. The only difficulty would arise if there are unsecured creditors of the LLC would be deprived estate property by your transfer of the properties to yourself.

Hope this helps.
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Customer reply replied 4 years ago

Being that they have a judgement against my person are there any moves they can make against me within the next 48 hours once they know the foreclosure can't happen because I have 1. Filed a Chap 11 on the LLC or 2. transferred title to my personal and filed chap 11 on my personal. In other words, can they within the next 48 hours repossess my car, lay hands on other property and foreclose immediately or any further action they may take in response would require days and or submission to the courts by which time I may have then filed a chap 11 on my personal assuming I filed the 11 tomorrow on LLC and delay the 11 on my personal for a few days.

Customer reply replied 4 years ago
Relist: Other.
I'd like further clarification on the topic
Hello again. Sorry for the delay, but sometimes I have to sleep.Cool You asked:

Being that they have a judgment against my person are there any moves they can make against me within the next 48 hours once they know the foreclosure can't happen because I have 1. Filed a Chap 11 on the LLC or 2. transferred title to my personal and filed chap 11 on my personal. In other words, can they within the next 48 hours repossess my car, lay hands on other property and foreclose immediately or any further action they may take in response would require days and or submission to the courts by which time I may have then filed a chap 11 on my personal assuming I filed the 11 tomorrow on LLC and delay the 11 on my personal for a few days.

A: If you have real property in your personal name, then they can record an abstract of judgment with the county clerk-recorder office, and that would create a lien that can survive bankruptcy -- except in cases where you can show that the amount of your homestead exemption and other encumbrances on the property is sufficient to provide that the lien is actually unsecured, in whole or part, due to the lack of available equity in the property. Bankr. Code 522(f).

 

Re your motor vehicle, you have a $2,725 exemption outside of bankruptcy. If the equity value of the vehicle is greater than the exempt amount, then the creditor can have the sheriff seize and sell the vehicle. Generally, this is not done, because the creditor must post a bond for the value of the vehicle, in case the sheriff's execution is wrongful. The cost of the bond frequently exceeds the amount to be recovered (unless you have a collectible vehicle with no auto loan).

 

And, the creditor can try to reach non-retirement account assets at banks and investment institutions. But, this almost never happens until after the creditor sets a judgment debtor examination and has an opportunity to try to locate your assets and their amounts. And, that would require at least 16 court days to set the hearing (typically 21 calendar days from the date of service of the debtor exam order).

 

So, your risks here are pretty low.

 

Hope this helps.

socrateaser
socrateaser, Attorney
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Experience: Attorney and Real Estate Broker -- Retired
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