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Posted by Darryl-CA on November 29, 2003 at 11:04:49:
In Reply to: Re: sherriff sale posted by Irwin Prince on November 29, 2003 at 07:29:42:
: This section only applies to asset cases where trustees try to recover property for the benefit of creditors. It doesn't apply to foreclosure sales generally, or the situation that Cosmo wrote about;
: : :Hello Irwin Prince. You are right---TITLE 11 > CHAPTER 5 > SUBCHAPTER III > Sec. 548. benefits creditors. But it also benefits debtors.Analyze Sections 548 (a)(1)(B)(i) and Sections 548 (a)(1)(B)(ii)((I), you will see that the code also protects debtors who received less than a reasonably equivalent value for their property however transferred,vonluntarily or involuntarily.
EXAMPLE: I once met a man named Mr. Jones that was in foreclosure. He owed about $200K on a property that was worth $350K. On the date of the sale the property sold to a third party bidder for $260K. Of course surplus funds in the amount of $60K were sent to Mr. Jones. Nine months later, under Title 11, section 548, Mr. Jones was able to file Chapter 13 bankruptcy along with an adversary proceeding motioning the court trustee to avoid the involuntary transfer(foreclosure sale). He was successful on the grounds that he did not receive a reasonably equivalent value for the property.The third party bidder was ordered to transfer title back to Mr. Jones, the lender who was paid off nine months earlier was ordered to refund the third party bidder $260K plus interest and Mr. Jones was not only ordered to return $60K to the lender,he was ordered to sale the property for a reasonably equivalent value.There are hundreds of cases in bankruptcy court which support what I am claiming. : : TITLE 11 of the UNITED STATES CODES(Bankruptcy Code) which says........TITLE 11 > CHAPTER 5 > SUBCHAPTER III > Sec. 548.
: :
: : Sec. 548. - Fraudulent transfers and obligations
: : (a)
: : (1)
: : [The trustee may avoid any transfer of an interest of the debtor in property,] or any obligation incurred by the debtor, [that was made] or incurred on or [within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily ]-
: : (A)
: : made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or
: : (B)
: : (i)
: : [received less than a reasonably equivalent value in exchange for such transfer] or obligation; and
: : (ii)
: : (I)
: : [was insolvent on the date that such transfer was made] or such obligation was incurred, [or became insolvent as a result of such transfer] or obligation;
: : It seems to suggest that if any interest in your property(home) was transferred either voluntarily or involuntarily(by forced sheriff sale)within one year before the date of the filing of a bankruptcy petition and you received less than a reasonably equal value,and was insolvent(broke)on the day the transfer(forced sheriff sale) was made, the Bankruptcy Court Trustee has the the ability to void the foreclosure.
: : Check with your Bankruptcy attorney.
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