Conveyances By Non-Debtor Co-Owner May Be Fraudulent Transfers

Jon Alper Fraudulent Transfers

Consider a debtor who jointly owns a non-exempt asset with a non-debtor. The non-debtor is not his spouse so there is no tenants by entireties exemption. The non-debtor owner is able to transfer the asset without the debtor’s signature. The debtor suggest that he would not be making a fraudulent transfer if the non-debtor co-owner transferred title to 100% of the asset to either himself or another non-debtor third party.

Does the debtor have a reasonable argument that he did not make a fraudulent conveyance when he, the debtor, did not formally initiate the conveyance or consent in writing to the conveyance. I did some preliminary research and found more than one case that contradicted the debtors position. Courts interpret fraudulent transfers broadly to include any mode of disposing an asset. See this Florida case for example. I recall other decisions that held that a non-debtor spouse causes a fraudulent transfer when they initiate a transfer of an asset jointly owned with the debtor spouse.

Having a business partner or spouse initiate transfer of non-exempt assets does not insulate the co-owner debtor from fraudulent transfer actions that would undo the conveyance and leave the asset subject to judgment creditors.

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