If you are considering either a Chapter 7 (liquidation) bankruptcy or a Chapter 13 (restructuring) bankruptcy, you should be aware of the impact of lookback periods. Bankruptcies are federal actions but they are governed by both federal and state law. A bankruptcy lookback period in Florida is no different.
A lookback period is a range of time in which the bankruptcy court or trustee can look back over your finances and transactions in order to make decisions that will impact your bankruptcy. During the lookback period, the bankruptcy system examines the debtor’s financial transactions to identify any fraudulent or preferential transfers. They vary in time according to the situation and factors involved.
If you performed a transaction that is against the rules during a bankruptcy lookback period, it could derail your bankruptcy petition. To avoid trouble, it is crucial to understand the lookback period and ensure all your financial dealings are transparent and compliant with the law.
Introduction to Bankruptcy
Bankruptcy is a legal process that allows individuals or businesses to reorganize or eliminate debts when they are no longer able to pay them. Governed by the U.S. Bankruptcy Code, the bankruptcy process is designed to provide a fresh start for debtors while ensuring that creditors receive a fair share of the debtor’s assets. One of the key components of the bankruptcy process is the bankruptcy lookback period. This period refers to the time before the bankruptcy filing date that the court will review to determine eligibility and case terms. Understanding the bankruptcy lookback period is crucial for individuals and businesses considering filing for bankruptcy, as it can significantly impact the outcome of the case. By examining financial transactions during this period, the court can identify any preferential or fraudulent transfers that may affect the bankruptcy filing.
What is the Lookback Period for Bankruptcy in Florida?
The lookback period for most Florida bankruptcy cases is two years. This means that the trustee can scrutinize your financial transactions (for the two years leading up to bankruptcy), including but not limited to:
- Income
- Expenses
- Asset transfers
Certain creditors may be scrutinized more closely during this period.
The court determines whether these transactions were made in bad faith or intended to defraud creditors.
It’s important to note that the lookback period varies depending on the type of bankruptcy filing and the specific financial transactions being examined. That’s especially true for cases involving fraudulent or improper transfers of assets, concealment of property, other prohibited activities, and bankruptcies involving federal government agencies. Actual fraud pertains to transfers made with the intent to hinder, delay, or defraud creditors, and demonstrating the debtor’s insolvency at the time of the transfer is crucial.
Continue reading to learn about the lookback period for Florida bankruptcy cases. Actual intent to hinder, delay, or defraud creditors is a critical factor for trustees when recovering assets transferred prior to a bankruptcy petition.
Understanding the Laws and Regulations
The U.S. Bankruptcy Code is the primary source of law governing bankruptcy cases. This code provides a comprehensive framework for the bankruptcy process, including the rules and procedures for filing, the types of debts that can be discharged, and the rights and responsibilities of debtors and creditors. In addition to the Bankruptcy Code, state laws and regulations also play a crucial role in the bankruptcy process. For example, state laws may govern the exemption of certain assets from the bankruptcy estate, while federal laws may dictate the taxation of bankruptcy debt discharge. Understanding these laws and regulations is essential for successfully navigating the bankruptcy process. An experienced bankruptcy attorney can help individuals and businesses understand the complexities of these laws and ensure that their rights are protected throughout the process.
Avoid Lookback Period Mistakes in Florida Bankruptcy
Mistakes with Florida’s lookback period could jeopardize your bankruptcy filing. To avoid trouble, it is crucial to understand the lookback period and disclose all financial transactions accurately. Our knowledgeable attorneys can help you navigate these rules and avoid costly errors. In addition to bankruptcy help, we also offer guidance on foreclosure defense in Florida. Contact us for a free consultation to ensure a successful bankruptcy process.
All consultations are confidential and pressure-free. Let us assist you in making the best choice for your future.
Purposes of Florida Bankruptcy Lookback Periods
There are basically three purposes for a lookback period. The lookback period serves to prevent debtors from transferring debtor’s assets or concealing funds to avoid paying creditors. Transactions made by the debtor before filing for bankruptcy can be deemed fraudulent if they are intended to evade creditors. Determining the specifics of these transactions is crucial for the court to assess eligibility for bankruptcy. The trustee can recover assets or their equivalent value if they were transferred to defraud creditors. Payments made to a family member can also be scrutinized during this period. Once the bankruptcy case is filed, the lookback period becomes essential for examining prior transactions. A fraudulent transfer claim can be initiated if the debtor’s actions are found to hinder, delay, or defraud creditors. Establishing the debtor’s intent to hinder delay is necessary for proving fraudulent transfers. The Internal Revenue Service may extend the lookback period up to ten years in certain cases. Non-insider creditors are also subject to clawback provisions within a 90-day window before the filing. A preference action allows trustees to recover payments made to creditors within this period. The concept of reasonably equivalent value is used to determine if a transfer was fair. Any assets transferred before filing are closely examined. Trustees play a vital role in managing these proceedings and recovering assets.
Means Test
The means test is used to determine whether or not you are eligible to file for bankruptcy. Consumers filing for bankruptcy case must complete Form 22A-1 if they are filing a Chapter 7 or Form 22C-1 if they are filing for Chapter 13. Both are really a means test that measures your income and your expenses in order to calculate how much money you have available to repay creditors.
Expect the court to require information about wages and income including any commissions or bonuses you may have earned, large loans or gifts even if they are from your family, receipt of any trust assets or inheritance, cash received from contemporaneous exchanges, dividend or interest income, any distributions from your retirement fund and yes, even tax refunds.
The lookback period for a means test in Florida is six months.
Of course, this is the short version. Your Florida bankruptcy lawyer can explain exceptions and details relevant to your specific case.
Avoidable Preferences
The bankruptcy court also has a lookback period, commonly referred to as the ‘clawback period’, to consider avoidable preferences. You make an avoidable preference if before petitioning for bankruptcy you pay one creditor over another even though they are similar.
Now something to consider is that this payment may not even have been voluntary. Perhaps a creditor garnished your wages. If it’s within the lookback period, that may still be considered an avoidable preference. In such cases, creditors who received payments may be required to return funds for distribution among all creditors if the court deems the transfer preferential.
The lookback period in Florida for an avoidable preference is usually 90 days. The preferential transfer period is 90 days prior to the bankruptcy filing date for ordinary creditors and one year prior for insiders. If the bankruptcy trustee thinks there has been an avoidable preference, they can sue to recover the payments.
Once again, there are exceptions, and your attorney can discuss them if they are relevant to your situation.
Fraudulent Transfers
Finally, there is a lookback period for fraudulent transfers.
A fraudulent transfer could be transferring property to family members with the intent to defraud creditors. It could also be selling property for grossly inadequate consideration such as selling your recent model car to your best friend for $100. For fraudulent transfers, the court will scrutinize transactions made to hide assets from creditors during the lookback period.
Under the Bankruptcy Code, the look back period is two years for fraudulent transfers filed. However, under Florida’s Statute of Frauds, Fraudulent Transfers and General Assessments (specifically Fla. Stat. § 726.110), the bankruptcy lookback period in Florida is four. The fraudulent transfer period can extend back four years and possibly longer if there are IRS debts.
Government Exception
There are exceptions to the general rules outlined here, and one of them is a lookback period that involves the federal government which is usually not bound by state statures of limitations.
For example, the Internal Revenue Code says actions to collect tax must be brought within 10 years after assessment. This means that the trustee is likely to look back 10 years for federal tax information.
Bear in mind that other federal agencies beyond the IRS are also not bound by state laws.
Defenses to Claims
Defenses to claims in bankruptcy cases can be complex and varied. One common defense is the contemporaneous exchange for value defense, which applies when an allegedly preferential transfer was intended to be a contemporaneous exchange for new value given to the debtor. Another defense is the subsequent new value defense, which allows a creditor to offset the amount of an alleged preferential transfer by the value of any new goods or services provided to the debtor after receiving the preferential payment. The ordinary course of business defense applies when an allegedly preferential transfer was made in the ordinary course of business dealings between the debtor and creditor. Finally, the good faith defense allows for a defense against the avoidance of a fraudulent transfer if the transferee took the transfer in good faith and for value. Understanding these available defenses is crucial for creditors and debtors alike, as they can significantly impact the outcome of a bankruptcy case.
Don’t Trip Up Your Own Bankruptcy
Before you file for a Chapter 7 or Chapter 13 bankruptcy, you need to know what you are getting into. If you are even considering bankruptcy, it would be wise to speak with an experienced Florida bankruptcy lawyer before you make a misstep that will put your bankruptcy in jeopardy. This will help you avoid trouble by ensuring all your financial dealings are properly disclosed and managed.
Of course, there are many options short of bankruptcy. If you would like to discuss your other options or the details of the bankruptcy process including the Florida bankruptcy lookback period, contact us at Ziegler Diamond Law: Debt Fighters for a free consultation by submitting this form. Or just call us directly at (727) 538-4188 in Clearwater, (813) 225-3c111 in Tampa or (352) 600-1326 in Mt. Dora.
Michael Ziegler
Ziegler Diamond Law: Debt Fighters, provides effective legal services to consumers in Clearwater, Florida, and throughout the Tampa Bay area who are facing home foreclosure, unmanageable debts, debt collector harassment, or other debt-related problems.
