QUESTION
How does one determine the statute of limitations on amending the complaint to include the Derivative causes of action?
Asked on May 07th, 2015 on Bankruptcy - Michigan
More details to this question:
Our three former partners in our 5 member LLC did a fraudulent conveyance of the company assets in November of 2008. In State Court, we filed for a receiver, which we received. We sued for damages directly in State Court. About a year later, our main former partner and I filed for Chapter 7 personal bankruptcy before the case concluded so it got moved to Federal Bankruptcy court. Our Bankruptcy Trustee returned to us our matter. We filed in Federal Bankruptcy court under US Code § 523. We have our trial this August 2015. We made a motion for summary judgment and the Judge ruled the majority of our claims are Derivative. He gave us the opportunity to amend the complaint without any additional discovery. Did we blow the statute of limitation on the fraudulent conveyance?Did the moving from State to Federal bankruptcy court toll the statute of limitations? I have seen two dates listed on fraudulent conveyances of 4 years within 7 years regardless of discovery rule, § 3439.09.
2 ANSWERS
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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I would certainly hope that you have engaged an attorney and, without specific knowledge, would not dare to guess the correct answer on the facts presented.
Answered on May 11th, 2015 at 12:13 PM
Bankruptcy Attorney serving Madison, WI
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Richard B. Jacobson & Associates, LLC
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First things first: you must retain an experienced bankruptcy lawyer. A layperson, no matter how well informed, will be way over his or her head at this point. This site is education, and intended to answer questions of a general nature, and definitely not to substitute for your personal lawyer when you need one. You find out what the statute of limitations is by checking the applicable statute, keeping in mind that a Ch. 7 Trustee may use a state statute as well as the federal one for recovering a fraudulent transfer. And keep in mind that usually the clock stops running when you file a Complaintwhether in Wisconsin or federal court. You urgently need to retain a lawyer.
Answered on May 11th, 2015 at 12:13 PM