There is a widely held belief that if an asset isn’t titled to you that it does not have to be disclosed in a bankruptcy filing and the asset will be “safe” from the bankruptcy trustee and from creditors. Wrong, wrong, wrong.

Not only does putting your assets in the names of friends and family expose them to a lawsuit to recover the property, in extreme situations it puts the debtor’s discharge at risk. Actions taken to “hinder, delay or defraud” creditors are grounds for denial of discharge under 11 U.S.C. 727.

For well more than three hundred years, the law has contained prohibitions on fraudulent transfers. A transfer of an asset by one who has debts constitutes a fraud on creditors if 1) the transfer is for less that fair consideration; or 2) was made for the purpose of putting the asset beyond the reach of creditors; or 3) leaves the person transferring the asset with less capital than reasonably necessary to conduct their business.

The usual remedy against the person who gets the asset is generally an order requiring the return of the asset or a money judgment in the amount of its value.

In bankruptcy proceedings, the trustee has the rights of the debtor’s creditors to recovery any property that the debtor wrongfully transferred. The bankruptcy code has a statute empowering the recapture of transfers made within a year of filing and the trustee can use the state law fraudulent conveyance law which may have a longer statute of limitations. In California, that statute of limitations is four years.

So a really quick and effective way to screw up your bankruptcy is to put your assets in the name of your mother, your kids, or your buddy, and conceal the fact from your attorney. Sign the statement of affairs under penalty of perjury, hiding the transfer, and you are a long way toward making a real muck of things. Yet people again and again ask “what if I put it in someone else’s name?”.

As long as they ask me, they have a chance to get a discharge.

Cathy Moran