A fraudulent transfer is a transfer wherein the debtor rearranges or moves assets to a different account or owner in order to hide them from creditors. Such acts are usually done in connection with bankruptcy proceedings, debt discharge attempts, and debt collection efforts. Also known as "concealment of property," fraudulent transfers are considered illegal.
Some types of acts that can be considered fraudulent transfers include: falsifying documents or record books, failing to explain discrepancies in credit statements, and transferring property without notifying an interested creditor.
In order for a person to be liable for fraudulent transfer, it must be proven that they acted with fraudulent intent. That is, their act must be motivated by the intent to deceive, hinder, delay, or defraud the creditor who is trying to obtain a proper statement of their assets.
For example, if a person accidentally fails to record a certain transfer, they probably cannot be held liable for fraudulent transfer, since they didn’t act intentionally.
On the other hand, if a person demonstrates an intent to hinder or frustrate the efforts of a creditor, they might be held liable for fraudulent transfer, even if the act was not necessarily fraudulent by itself. An example of this is when a person purposefully avoids responding to collection communications.
When proving fraudulent transfer, a court can use a variety of means to prove that the person acted with fraudulent intent. For example, a judge may look to circumstantial evidence as well as evidence based on the person’s conduct.
In most fraud cases, the defendant will not likely testify that their intent was fraudulent. Thus, the court may have to look to the following as evidence of fraudulent intent:
- A history or continuing pattern of fraud when dealing with creditors
- Transfers made within one year of a lawsuit, bankruptcy hearing, or debt collection proceeding
- Transfers of all or a majority of the debtor’s assets
- Situations where the debtor transferred property to another person yet retained the possession, use, or benefit of the property
- Transfers made to a spouse, other close relatives, or friends
- Shifting of property to a corporation or other business that is wholly owned by the debtor
- Transfers that are unequal in nature and result in lopsided benefits in favor of the debtor
All of these different circumstances may provide evidence in support of fraudulent intent. While they may not necessarily prove fraudulent transfer by themselves, they can definitely imply intent enough to be damaging for the debtor’s defense. This is especially true if it can be shown that the debtor engaged in several of the acts listed above.
Yes. The most common defense in a fraudulent transfer case is lack of intent. That is, if the debtor did not act purposefully or intend to defraud their creditor, they cannot be held liable for fraudulent transfer. In most jurisdictions, the burden of proof is on the debtor to show that they lacked the required intent.
Another common defense that is raised in response to fraudulent transfer is that of mistake. That is, if the creditor made an error or mistake in any of their communications, it might be used as a defense in court. A common mistake is for creditors to confuse the identity of their clients, especially those who have a very common name (such as John Smith).
If you are being accused of a fraudulent charges, you may wish to contact a bankruptcy lawyer immediately. Your lawyer will be able to assist you with your case and can determine if you have any defenses available in your favor. In any fraudulent transfer case, it needs to be proven that you acted with fraudulent intent. If you lacked the required intent when you acted, you cannot be held liable for fraudulent transfer.