court ordered restitution

[caquestion]

What is the name of your state? ca The court ordered the defendant (a convicted burglar-felon) to make restitution as part of his sentence..Can this court order be discharged in BK? Can I assign the judgment to someone else to collect for me? thxWhat is the name of your state? CA

[seniorjudge]

Originally Posted by caquestion

What is the name of your state? ca The court ordered the defendant (a convicted burglar-felon) to make restitution as part of his sentence..Can this court order be discharged in BK? Can I assign the judgment to someone else to collect for me? thxWhat is the name of your state? CA

Q: Can this court order be discharged in BK?

A: No.


Q: Can I assign the judgment to someone else to collect for me?

A: What judgment?

[Who's Liable?]

If the amount arised from a felony act, it cannot be discharged...

[caquestion]

I accepted a $1600 settlement amount as payment in full of a small claims $3000 judgment in Jan '06.I've been told by a non lawyer that if my judgment debtor now files BK that I might have to return this payment. If this is so, what is the statute of limitations? At what point am I fully out of the woods with this jerk? Thank you. California

[Who's Liable?]

Was the person covicted on a felony count? What was he/she charged with?

[caquestion]

He is a convicted felon UNrelated to this case. (this is a different case from my first post). This was a judgment awarded to me due to the judgment debtor not paying a promissary note...I settled for a low amount because I thought he was going back to the slammer and my chances would have been 50/50.of getting anything.

[SkankCheese]

He's already paid you?

I've never heard of them being able to make you pay the money back.

Wouldn't that be the same thing as debtors going to the CC companies and demanding their payemnts back?

[caquestion]

Yes, It makes no sense to me either but then many things in the law are puzzling to me. I was told that a BK has X amount of time (30 -90 days?) from filing to retroactively reclaim payments made to creditors to become part of his BK claim. .....Would appreciate an "in the know" person responding. If indeed this seemingly absurd rule is correct, what is the maximum amount of time before all retroactive claims have run? Thanks.

[bigun]

[url]http://assembler.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000547----000-.html[/url]

Section C. may be your salvation since, you did sue him and win. I'd argue that it was a formal business transaction properly filed and documented.

(b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
(c) The trustee may not avoid under this section a transfer—
(1) to the extent that such transfer was—
(A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and
(B) in fact a substantially contemporaneous exchange;
(2) to the extent that such transfer was—
(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee;
(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(C) made according to ordinary business terms;

Most of the time trustees are interested in payments made to family members where there is not a clear contractual obligation to pay.

[azatty]

Let's clarify something: the TRUSTEE has the right to avoid a preference, NOT the debtor. While the debtor can't tell the credit card company to return payments made within 90 days before bankruptcy, the trustee CAN (and DOES) make such demands.

The settlement payment is a straight-up preference. Lots of people have tried to raise the "contemporaneous exchange for new value" defense of 547(c) in the context of a settlement payment and release from pending litigation, and they get stomped every time. The mere release from litigation is not the "new value" required by §547 to shield the transfer.

I have a standard four-page letter that I send to clients when they get sued by a trustee to recover a preference to explain the dilemma and their options. The defenses are strictly construed, even to the point that mere days between the transfer and the creation of the debt can eliminate a defense. For that reason, we usually end up settling the suit.

That said, my other advice to clients dealing with potential debtors is: if offered a preferential payment, take it. We can settle the preference claim for pennies on the dollar. They're better off turning over half of the preferential payment than they are if they don't take the payment and get zero.

[caquestion]

Thank you for all your thoughtful replies......