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  1. #1
    Join Date
    May 2016
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    6

    Default Can a Transfer of Funds by a Spouse be a Fraudulent Transfer

    My question involves court procedures for the state of: Florida

    A lawsuit has been hanging on my head for the last 2 years about land and trees dispute with my neighbor. I am the defendant. My neighbor spent a lot of money on this case and it is worth several times more than the actual cost of the disputed land and trees. I almost lost the case and the final hearing is setup for August.

    I have two bank accounts: one is a joint checking account with my wife (Joint with right of Survivorship) and another one is a savings account on my name alone. My wages and all other earnings are deposited in the joint account. For the last 7 years, I moved a lot of money from the joint account into my personal savings account, promising her that I will pay back but I did not. Recently, my wife is facing some health issues and anxiety and she is upset with the lawsuit. She stopped going to her job and, without my knowledge, she created her own bank account (a savings account on her name alone) and suddenly moved all the money from our joint checking account into her newly created savings account (in fact, a few days prior to that incident, I moved a large portion of my savings account into the joint checking account, in an attempt to buy some property. But she moved all that money into her savings account).

    I have a bunch of questions in the event I lose the case:

    (i). The bank records for the last several years clearly show that I did in fact owe a lot of money to my wife. Did I commit any fraudulent transfer because the money is transferred to my wife?

    (ii). In fact, I did not transfer the money from our joint checking to my wife’s savings but she did it without my knowledge or permission. She is refusing to send that money back, arguing that I have been transferring money to my personal account for the last several years therefore, she took the money that she deserves. Will I be responsible for any fraudulent transfer charges related to this transaction? This is because all the statutes (726.105 and 726.1060) say as follows: “A transfer made or obligation incurred by a debtor is fraudulent…”

    FYI, until now, I am not insolvent.

  2. #2
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Is It Fraudulent Transfer

    Would the amount moved be somewhere $30k?

    I see your other "facts" you posted here differ from your thread on another site. Are you fishing for answers you want to hear?

  3. #3
    Join Date
    May 2016
    Posts
    6

    Default Re: Is It Fraudulent Transfer

    Thanks. the amount is around 100K. I did not post in any other site. I am really looking for some feedback.

  4. #4
    Join Date
    Sep 2005
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    Default Re: Is It Fraudulent Transfer

    If you ask your wife to return your money so that you can pay your creditor, it's not going to be an issue. If you try to convince a creditor or court that your wife took $100,000 of joint assets from your account without your knowledge, and put the money into an account in her own name such that you can no longer afford to pay your debts, you should anticipate that neither the court nor the creditor will believe that your wife acted independently, and very well could treat it as a fraudulent transfer if you don't produce the money. One consequence of a fraudulent transfer is that the transferee can lose her exemptions to the claim for the funds -- meaning that this shell game could result in the creditor's obtaining money that your spouse might otherwise have been able to claim to be exempt from a collection against you.

  5. #5
    Join Date
    May 2016
    Posts
    6

    Default Re: Is It Fraudulent Transfer

    Thanks.

    The bank records for the last several years clearly show that I am the person who has been transferring money from the joint account to my personal account. Therefore, I owe her money. That is why, I did not file any complaint on her despite the fact that she took all that money into her account (the amount of money I owe her, due to the transfers I have been making for the last several years to my account, is more than $100,000 that she transferred to her account). We are planning to divorce once this lawsuit is over (just to explain the relations between me and my wife).

    What about the money I owe her then?

    Could you give me some reference on your statement "One consequence of a fraudulent transfer is that the transferee can lose her exemptions to the claim for the funds..."?

    I just read: "Upon withdrawal by one party, the withdrawing joint tenant is liable to the joint owner for that person's share of the withdrawn funds. Wiggins v. Parson, 446 So.2d 169, 172 (Fla. 5th DCA 1984). Where a joint tenant withdraws more than his or her share, such a withdrawal is wrongful as between the parties to the account. In re Guardianship of Medley, 573 So.2d 892, 898 n. 4 (Fla. 2d DCA 1991)." Therefore, I am liable to my wife for the last several years. Therefore, my wife did not do anything wrong: she simply transferred her money to her account.

  6. #6
    Join Date
    Sep 2005
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    98,846

    Default Re: Is It Fraudulent Transfer

    Quote Quoting gomez
    View Post
    The bank records for the last several years clearly show that I am the person who has been transferring money from the joint account to my personal account. Therefore, I owe her money.... That is why, I did not file any complaint on her despite the fact that she took all that money into her account....
    The more details you add to your story, the less credible you seem.

    You go right ahead and try to sell that story to a court, and see what happens.

  7. #7
    Join Date
    May 2016
    Posts
    6

    Default Re: Is It Fraudulent Transfer

    Thanks. Now I understand the consequences I may face, although my wife made this transfer.
    I read that the judgment creditor can either file a separate lawsuit (in a federal court) or may open a proceeding supplementary in the same court where the final judgment (on the initial case) will be delivered. If the judgment creditor wins the fraudulent transfer claim, I have few questions:
    (i). In either court (i.e., federal lawsuit or proceedings supplementary), can the court ask my wife to pay MORE THAN what was transferred to her account?
    (ii). Who should pay the attorney fee and any other expenses (related to this federal lawsuit or proceedings supplementary)?
    (iii). Can the judgment creditor go after the tenancy by entirety assets that I have with my wife (which were created long before this lawsuit was filed)?

  8. #8
    Join Date
    Jul 2010
    Posts
    7,858

    Default Re: Is It Fraudulent Transfer

    Quote Quoting gomez
    View Post
    Thanks. the amount is around 100K. I did not post in any other site. I am really looking for some feedback.
    So someone else posted on a site down the street incredibly similar circumstances/facts with the same writing style and it's just a coincidence? Uh-huh.

  9. #9
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Is It Fraudulent Transfer

    Quote Quoting gomez
    View Post
    Thanks. the amount is around 100K. I did not post in any other site. I am really looking for some feedback.
    Ok but something sure sounds familiar;

    http://forum.freeadvice.com/debt-col...ty-624459.html

  10. #10
    Join Date
    May 2016
    Posts
    6

    Default Re: Is It Fraudulent Transfer

    Thanks. It was not me although I found some similarities.

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