Preferences or Why You Don’t Pay Back Friends or Relatives Just Before Filing

In bankruptcy, there is a concept known as preferences. The Bankruptcy Court wants to treat all creditors of the same class equally so if any creditor improved their position in the 90 days before your bankruptcy, the Bankruptcy Court may undo the payment.

The justification preferences in bankruptcy is to prevent creditors from racing to seize assets when the debtor starts slipping into insolvency. For example, lets say you have 10 creditors and the only asset is $5000 of cash in the bank. If creditor 1 was paid (or garnished) that $5000 from the bank just before the debtor files their bankruptcy, creditor 1 would get $5000 and creditors 2-10 would get $0. To prevent this preference (creditor 1 getting everything and creditors 2-10 getting) the Bankruptcy Court can demand the Creditor 1 return the $5000 for distribution to all creditors instead of just creditor 1.

This can be beneficial for the Debtor because it allows the Debtor in most cases to demand back pre-petition garnishments. But this rule also applies to friends and family members. If you decide to pay back a family member and not other creditors, the Bankruptcy Court can demand that money back from your family member in order to redistribute the money among all creditors.

How do you avoid this? Mainly by not making the repayments and holding onto it as cash. After the case is filed, if your attorney okays it, you can then make the payment. There are many rules and twists when analyzing preferences, so make sure to tell your attorney if you have been making payments to or otherwise had money taken from you to pay creditors, including friends and family.

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