Tag Archives: Employment

Property Transferring No No’s, Before Filing Bankruptcy

Money in an envelope

Property Transferring No No’s, Before Filing Bankruptcy

by Attorney Ginger B. Kelly, February 23, 2018

There are a few types of transfers that will definitely not help if you want to file for bankruptcy to get a fresh start. One of those is types of transfers is called a prepetition transfer or (in other words) a fraudulent or irregular transfer.

Essentially, a prepetition transfer is a transfer of property (money or other things, including real estate) given to a person or creditor within 90 days from the date you file your petition. A prepetition transfer may also be a transfer of any property (money or other things, including real estate) to any insider, like a business partner, family or friend, within one year of your bankruptcy filing. Prepetition transfers are one of the biggest reasons why it is important to consult with a qualified, experienced, bankruptcy attorney, before you file. The prepetition transfer follows something called the 90 day rule.

Basically, the 90 day rule relates to debts that a debtor has paid, while insolvent, within the past 90 days of filing their bankruptcy petition and is set forth in section 547(b) of the Bankruptcy Code. The 90 day rule generally means that the US bankruptcy trustee has permission to avoid, (which means unwind or undo), any transfer made to a creditor or an insider if the transfer had an aggregate value of $600 or more provided that the transfer was made within 90 days from the date of the bankruptcy filing, and for any transfers made up to one year, if the person who received the transfer was an insider.

Here are a couple of examples of a fraudulent or irregular transfer:

Jane wanted to settle a debt before filing. She saved around $3,000 and was successful in negotiating with creditors to pay off one of her credit cards. Jane negotiated a settlement with blue credit company for $700 on October 30, 2017. She negotiated another settlement and paid red credit company $1,000 on November 1, 2017. After Jane negotiated successfully, with blue and red credit companies, she tried to negotiate with orange and green credit companies. She was unsuccessful. So Jane filed her bankruptcy without an attorney. Since she paid $700 to blue and $1,000 to red, her US Trustee avoided these transfers to get the money back. The trustee will allow all of Jane’s creditors to receive an equal share of the $1700 and prevent one particular creditor from benefiting more than the others. This is just one example. There are more.

The second section of the 90 day rule allows bankruptcy trustee to avoid any transfers of property made to any creditor that is also an insider (i.e., business partner, relative or friend) made between 90 days and one year of your bankruptcy filing date and exceeds and aggregate value of $600 or more.

In the next example, Steven bought his daughter Karen, a $15,000 car for graduating college. Steven paid $5,000 from funds he kept in his savings account and made the remainder of the purchase from a $10,000 line of credit on his credit card. On June 30, 2017, Steven transferred the title, over to his daughter.  In September of 2017, Steven lost his job. He was no longer able to make the remainder of Karen’s car payments. After four months without a job, Steven’s debt was piling up. So, in January 2018, Steven decided that he wanted to file chapter 7 bankruptcy to get a fresh financial start. If Steven were to file for bankruptcy before June 30, of 2018, there may be a good chance that the trustee would be able to avoid the car title transfer he made to his daughter, Karen. This would put the vehicle Steven just purchased for his daughter at risk. If Steven’s bankruptcy attorney knew of this transfer, the attorney would have warned Steven of the issues involving the purchase of Karen’s car prior to filing.

The fraudulent transfer rule involves all property, not just cash, and also applies to both chapters 7 and 13 bankruptcies. There are only a few exceptions. One, for example, is the exception for transfers made in the ordinary course of business, in other words, the property was sold to another (not an insider) for a fair and accurate value. But even so, bankruptcy can get complicated and for most folks, an attorney is usually needed to help out. Some people can’t imagine how to pay for a bankruptcy when they have no money. I’ll talk about that more, in my next article.

For now, if you’d like to set up an appointment to talk about affordability and your available options, call me. We can talk, face-to-face, and explore your options over a nice cup of coffee or tea.

The other day, a new client couple asked whether or not they should she use their tax return tax refund to pay down their credit card bills or use their tax refund to replace the roof on their home. Their roof needed repairing badly. Their credit card debt was very old. I cannot make that final decision for any of my clients, but I can advise them of their options. If you are in a position where you need to make important decisions like paying your credit card bills or paying for something extremely important, like a roof on your home, it may be a great idea to talk to a good attorney. Most give free first consultations.

If you are contemplating bankruptcy, and have some questions about a transfer you may have made or the 90 day rule, The Law Offices of Ginger B. Kelly is now accepting clients in the Sturbridge, Southbridge, Dudley, Webster, Oxford, Charlton, Auburn, Spencer, Brookfield, Warren and all of the Worcester County Area. We can explore whether or not bankruptcy is the easy way out or not.  We have a comfortable place to talk and a free pot of coffee waiting for you.

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ABOUT ME: Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture. To find out more, visit, http://www.attorneykelly.com or call us at (508) 784-1444.

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NOTICE: This is an Advertisement. This post is not legal advice. Consult your attorney. Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet. Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other. We cannot stress enough, if you need personal legal advice, always see your attorney. Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice. Seek legal advice and representation from your own personal attorney.

Copyright © 2018 by Ginger B. Kelly, Esq., all rights reserved.

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Nervous about your new job? How to Ace Your Criminal Background Check, Even With a CWOF or a Filing!

The Job Interview

So you live in Rhode Island or Massachusetts and you’ve got a CWOF or a Filing, just like a lot of other people.  You want that new job.  You apply for the job and passed the interview process with flying colors.  Then, the interviewer or your future boss asks you for a routine criminal background check. This is the point where you get a little nervous.

When you apply for a job, some employers hinge an offer for employment based on passing certain phases of the employment process.  One of those phases, or steps to getting a new job, is a criminal background check.  A criminal background check is a snapshot of your criminal record.  In Massachusetts, a criminal records check is called a Massachusetts CORI (Criminal Offender Record Inquiry).  The equivalent, in Rhode Island, would be a Bureau of Criminal Identification check (“BCI”).  A BCI can be obtained, in person, from the State Attorney General’s Office, in Providence.  A CORI can be acquired, online, under certain terms and conditions.  Both require a consent form, signed by you.  This is the routine, in many instances.

In Rhode Island, there are a growing number of laws requiring individuals to have not only a state background check, but a fingerprint-based national background check.  The same is true for Massachusetts.  Alarm company workers and private security employees, bank workers, nursery school and daycare employees, nurses and adult day care facility workers are examples of the types of jobs that require extensive criminal background checks.  There are more.

No wonder why so many people worry about the background check stage of the employment process.  It’s the critical moment when a person must be concerned that someone will find out about their past.  Many of us have had a blemish on our record at one time or another. In some cases, a person may have been arrested for a criminal offense such as a DWI/OUI, but never convicted of the crime. Your case was not officially dismissed but you were not found guilty.  It’s a strange state limbo to be in, in Massachusetts and Rhode Island.

In Massachusetts, the deferred sentence form of alternative disposition is called a CWOF, which means that the case was “continued without a finding”.  In Rhode Island, deferred sentencing is often called, a “Filing.”  Both alternative dispositions are just about the same. Both result in the defendant making the request, the prosecutor (typically, the district attorney) agrees to a conditional guilty plea.  The defendant agrees, (or stipulates) that there was enough evidence for a reasonable jury to find the defendant guilty of the alleged crime, with a catch.

That catch is the condition.  The plea is conditioned upon the deferred sentence, which means the defendant will not fight the charges, but agree to be placed on probation in exchange for the prosecutor’s agreement not to prosecute unless something happens to revive the matter in the future, for example the defendant is charged with another crime or misdemeanor.  The defendant then must fulfill the probation agreement for the period of time the judge assigns.  At the end, the judge may then throw out the sentence and guilty plea and the incident is cleared from the defendant’s record.  Usually a CWOF or a Filing is continued for one year, but two years is not out of the question.  The deal is, as long as the defendant gets no more criminal charges, the underlying matter will be dismissed in a point and time in the future. With no charges, the record will be wiped clean.  In the future, the defendant will appear to have never committed the crime or the misdemeanor.  Looks like a great deal, and it is.

This is a great disposition for the future, especially when the facts are not good, or favorable for the defendant, but what about now?  What will show up with a deferred sentencing agreement, like a CWOF or a Filing?  What will my employer see when they run a background check?  This is something you’ll certainly want to know about, before they ask you to sign a consent form.

Rhode Island, as a general rule a criminal or misdemeanor Filing “may” not show up on BCI report, but sometimes blemishes like this will show up in other places.  In Rhode Island it is easy to see, online, basic facts about a person’s criminal history.  This is what your new boss won’t tell you.  Employers tend to look at everything carefully, even a Google search of your name and former names and online public records.  In Massachusetts, it’s a little bit different.

In Massachusetts, a CWOF will very likely appear when the person’s criminal record is exposed for an employer to who made the request.  On the other hand, without a CWOF, it is not quite as easy to discover a person’s Massachusetts arrest or conviction record, online or in other places, like a Google search.  But your new boss will know everything. They will find out you have a deferred sentence or alternative disposition.

The issue is, for both Rhode Island and Massachusetts, like many other states, potential employees may face negative consequences on job applications when a blemish like a deferred sentence shows up on their record.  Even a simple arrest without a conviction, in many instances, will prompt an employer to revoke a job offer.  There are no laws against this.

There is little that can be done about this, but there is something that can lessen the effects of an unfavorable background check.  In some instances, this one thing can take a bad situation and flip flop it into good.  Here’s how.

There is nothing better than a new employee who is unafraid to face the truth.  There is nothing wrong with point blank, no excuses, pure and genuine honesty.  So, the best way to protect yourself from this kind of situation is to be upfront with your employer.  Explain your situation, very briefly.  You need not go into great detail.  Simply tell them that you were not convicted, but something may show up on your criminal record.  It’s quite simple.

In the job interview process, honesty is always the best policy.  Being honest may prompt an employer to think more favorably about you.  You will show your interviewer or potential employer that you are an honest person.  You will show that you are unafraid to take ownership and responsibility of your past mistakes. These are great character traits no one can see in a resume or cover letter.  These things may also indicate that you could become a trustworthy employee.  When this happens, the deferred sentence (CWOF or Filing), with potential for being a bad thing, is turned into good. The opportunity to be honest and open about your past is an open door opportunity to show you take ownership of your past, you are brave and honest with you new boss.  In the worst case scenario, your CWOF or Filing will become a non-issue.  In this instance, your new boss may never bring this up again.

On the other hand, if you decide to take your chances with your employer, by not mentioning a current criminal mark or a blemish, the result will likely not be good.  Omitting facts, important to your employer, tends to show that a person has something to hide.  Omitting facts, by not disclosing things about your past that may be important, isn’t going to help you, it will only hurt you.  However, the moment you are open, unafraid and upfront, your job interview and background check should go just fine.

If not, and you in the worst possible scenario, you lose the interview or the job, simply move on and know that you did your very best.  When all’s said and done, no one can buy that good feeling you will have knowing that you did the right thing. Jobs will come and jobs will go, but personal integrity, which includes being open and honest, is simply one of those good things in life money can’t buy.

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ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.

To find out more, visit, www.attorneykelly.squarespace.com or www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

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NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015 by Ginger B. Kelly, Esq., all rights reserved.

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July 17, 2015 · 7:30 am