QUESTION

How can I protect my real estate assets if my business partner files bankruptcy?

Asked on Jan 04th, 2011 on Bankruptcy - California
More details to this question:
I co-own a house in WA as rental property with a friend with no mortgages. The title is clear under both of our names, and my proportion is 21%. Now all my friend’s houses in CA went into foreclosure. (She hasn't filed bankruptcy yet) We didn't form any business entity, but she agrees to write a partnership agreement, and she wants to transfer her title under someone else's name in order to protect our house. Would the creditor still be able to claim the house even if it is paid already? If so, how would this affect our co-ownership? How can I protect my asset? What needs be included in our contract? Would it be any different if I am an alien?
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3 ANSWERS

Chapter 7 Bankruptcy Attorney serving Lisle, IL at Mankus & Marchan, Ltd.
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If your friend attempts to transfer her interest in your jointly owned property to someone else for less than full value in order to put it out of reach of her creditors, it could be construed as a fraudulent transfer and would not be legally advisable. Your 21% interest in the property should remain, even if the property is sold or transferred - provided that you have no creditors pursuing collection against you. Seek advice from an attorney or attorneys.
Answered on Jan 09th, 2011 at 8:58 AM

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Bankruptcy Attorney serving Victorville, CA at Law Offices of Lady Justice
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It sounds like you gave quit a few issues that would be very difficult to advise on without in depth detail. Additionally,the transfer of property to hide it from the bankruptcy trustee is violating federal law especially with the enactment of the new bankruptcy abuse prevention laws. I can not give advice on an issue that is fraudulent or a willful violation of the bankruptcy code or intent to deceive a bankruptcy trustee.
Answered on Jan 06th, 2011 at 12:13 PM

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Bankruptcy Attorney serving Hayward, CA at Carballo Law Offices
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If you own 21% of the house that will not be part of the bankruptcy estate. Just your partner's share go into the bankruptcy estate. If she cannot exempt her share of the house then the bankruptcy estate will take the house and the trustee will sell it and you will receive 21% of the proceeds of the sale. Your share is not at risk so long as you can prove that you own that share of the property. Transferring the property will do her no good and will probably do her a lot of harm including being accused of bankruptcy fraud and the transfer can be set aside by the trustee anyway. She could be denied a discharge and even face criminal charges. She will have to declare the transfer of the property in the bankruptcy petition and if she doesn't then she could be committing perjury also. There is nothing really you can do and probably nothing that you need to do so long as it is clear that you own 21% of the property. If not, then start getting your evidence together such as the source of the downpayment documents, etc. You might be able to buy your friend's share of the house from the trustee if you want to keep the house and can afford to do that. The trustee can sell the house even without your permission with a court order but you will be entitled to your share of the sale proceeds if you can prove you own 21% of the house. Whether or not you are an alien does not matter. Tell your friend to make sure she consults with a local bankruptcy attorney before doing anything. What she is planning to do as far as transferring the property before filing is very dangerous and you should stay out of it completely. If you are found to be involved in a conspiracy to commit bankruptcy fraud you will also have serious problems.
Answered on Jan 04th, 2011 at 5:43 PM

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