Recently, an Irvine-based bankruptcy attorney was disbarred after being convicted of conspiracy to commit bankruptcy fraud. The disbarment makes it clear that actual or attempted bankruptcy fraud can result in dire consequences – but you do not have to be a lawyer to receive harsh penalties. If the trustee suspects that a filer has committed or tried to commit bankruptcy fraud in Chapter 7 or Chapter 13 case in California, not only can there be negative ramifications for the bankruptcy, but the filer can even be criminally prosecuted.
Bankruptcy fraud comes in many flavors. Some filers will intentionally hide assets or fail to disclosure income. Others will misunderstand a legal requirement or simply forget to tell their attorney about an asset or old transaction. No matter your intention, it could constitute fraud if you fail to notify the court of your error. The best way to avoid the suspicion of fraudulent behavior is to have an experienced attorney by your side.
Our Roseville Chapter 7 lawyers explain what bankruptcy fraud is and examine some of the consequences of committing bankruptcy fraud. If you have questions regarding bankruptcy fraud or the process, call our law offices at (800) 920-5351.
How is Bankruptcy Fraud Legally Defined?
Bankruptcy fraud is a type of “white-collar crime,” or financial crime, which is defined by federal law under 18 U.S. Code § 157. Under the legal definition established by this statute, a person commits bankruptcy fraud when they file a bankruptcy petition, or another bankruptcy-related document, as part of a scheme to defraud another party, including having intent to devise such a scheme.
It is also bankruptcy fraud to make “a false or fraudulent representation, claim, or promise concerning or in relation to a proceeding under title 11, at any time before or after the filing of the petition, or in relation to a proceeding falsely asserted to be pending under such title.” In other words, it is bankruptcy fraud to make false statements, or to supply false or misleading information, before or after filing, in connection with any bankruptcy proceedings, which is what is meant by “a proceeding under title 11.” (Not to be confused with Chapter 11 bankruptcy, Title 11 of the U.S. Code pertains to bankruptcy generally, including Chapter 7 bankruptcy, or “liquidation,” and Chapter 13 bankruptcy, or “reorganization.”)
Bankruptcy fraud can take several forms under these fairly broad definitions, such as filing multiple claims. One of the most common examples is the concealment of the debtor’s assets, which must be listed using accurate, complete, and up-to-date information when the debtor files for bankruptcy. For example, a document called Form 106A/B (Schedule A/B: Property) requires debtors to list any buildings, land, or other pieces of property they own or have an interest in.
Bankruptcy Fraud Penalties and Consequences
For a Sacramento bankruptcy attorney, committing or attempting to commit bankruptcy fraud can result in disbarment. But what if you aren’t an attorney? Other than potentially losing your job, what other types of consequences can arise from engaging in bankruptcy fraud?
In fact, this is really a two-part question: what are the consequences of bankruptcy fraud for your bankruptcy case, and additionally, what are the criminal consequences of bankruptcy fraud?
Let’s start by answering the first question. If you intentionally hide or attempt to hide assets, or if you are suspected by the trustee to have engaged in other forms of bankruptcy fraud, the bankruptcy court could potentially deny your discharge or even dismiss your case altogether, which means not only will you remain liable for your debts, you will also lose the invaluable protection afforded by the automatic stay, which normally freezes debt collection actions while a bankruptcy case is ongoing.
In addition to losing out on the substantial financial benefits of bankruptcy, you could have an even bigger worry: criminal prosecution. Though non-violent in nature, bankruptcy fraud is still considered to be a serious offense – and a conviction can result in serious criminal penalties to match. Not only does 18 U.S. Code § 157 permit convicted offenders to be heavily fined, further exacerbating any financial difficulties, it also establishes a prison sentence of up to five years, which may be imposed in place of or in addition to the fine.
Because these penalties are rooted in federal law, they apply not only in California but to filers throughout the United States.
Examples of Bankruptcy Fraud in California
From the penalties discussed above, it should be clear that bankruptcy fraud is a serious matter. Attorneys could lose their licenses and filers face hefty fines and incarceration. But what constitutes bankruptcy fraud? When someone files for bankruptcy, the amount of paperwork one must complete and the sheer volume of documents could feel overwhelming. Honest mistakes could occur that might resemble fraud. However, fraud is intentional conduct. Errors are a part of the bankruptcy process. For instance, a debtor might honestly forget certain assets when completing a questionnaire or not realize that a contribution from a family should have been disclosed. Mistakes are not fraud – if you bring them to the court’s attention and address the situation. This could be as easy as having our Huntington Beach bankruptcy attorney amend the incorrect information on your filings or forwarding the accurate documents to the trustee.
Below, we look at three of the most common forms of fraud in a consumer bankruptcy case. In many cases, a filer will be guilty of one of these three behaviors without the intention of committing fraud. Depending on the conduct, intention might not matter. Once you are aware of the problem, you must address it or face civil and criminal penalties.
Not Including All Your Assets or Undervaluing Them
When you file for bankruptcy, you are required to list every asset and account in which you have a legal interest. It does not matter how you acquired the property. If the bankruptcy court or trustee discovers you failed to include all of your assets, you could be accused of intending to commit fraud.
If you undervalue your property, you have effectively attempted to hide it from the court. While you are not required to provide an exact dollar amount for everything you own, you are expected to provide a good faith estimate. If you have a painting worth $25,000 but list it as $2,000, it could constitute bankruptcy fraud.
Some filers fail to list certain items because they are afraid the bankruptcy trustee will sell them. You should talk with our Orange County bankruptcy lawyers if this is the case. Many people are surprised at how generous the state exemptions are at allowing you to keep your property. However, even if you must lose some assets, it is better than facing the criminal and civil consequences.
If you have simply forgotten to list a piece of property, a personal item, or an old account, you should inform your attorney as soon as possible. It is completely legal to amend your bankruptcy schedules once they have been filed.
Some filers will try to protect their property by giving it to a friend or relative. By transferring legal ownership or title, they might believe it would not be included in the bankruptcy estate. Other people simply transfer property before they even had the notion of filing for bankruptcy. However, no matter the intent, the court would still consider the transfer of property fraudulent if any of the following occurred.
- You sold the property for less than fair market value
- The transfer or gift was made to a family member or close friend
- You kept possession of the property despite the transfer or sale
- The transfer was not disclosed on your bankruptcy paperwork
- You filed for bankruptcy immediately following the transfer
The trustee has the right to void these transfers, take possession of the property, and sell it to satisfy your creditors. It is also important to understand that a fraudulent transfer does not have to occur immediately before you file for bankruptcy. Under California law, any property transfer within four years of the filing date could be considered a fraudulent transfer. Therefore, it is critical to inform your Folsom bankruptcy attorneys of any transfers you made during the previous four years.
Purposefully Accumulating Debt Before Filing for Bankruptcy
Once someone has decided that they will file for bankruptcy, they mistakenly believe they could max out their credit cards or take a personal loan. However, this is not accurate. Accumulating debt with the intention of not paying it back is fraudulent behavior. Any major purchases made 90 days before filing could be deemed non-dischargeable or you could be required to return the property you purchased.
How to Avoid Committing Bankruptcy Fraud in California
Bankruptcy fraud is a serious matter. If you are considering filing for bankruptcy or believe your creditors could sue you, there are some things you should avoid doing.
The bankruptcy court expects you to act in good faith when you file for bankruptcy. Therefore, you should not take any actions that look suspicious. For example, do not transfer your car to your child or close a bank account to gain access to cash. You should also keep accurate and complete financial records to provide evidence of your financial state.
Many people struggling with debt rely on their credit cards for everyday purchases. The bankruptcy court understands this dilemma. However, if you are thinking about filing for bankruptcy, you should limit any credit card purchases to necessary items. For example, buying basic groceries might not constitute fraud while taking your neighbors out for a lavish meal could.
One of the best things you could do to avoid any actual or accidental fraudulent conduct is to hire our experienced California bankruptcy lawyers. However, our office is limited by the information you provide. Therefore, it is vital that you are honest, candid, and provide our office with every document requested. Our goal is to assist you in obtaining a fresh financial start. If you purposefully withhold information or documents, you will only hurt yourself.
CA Bankruptcy Lawyers Serving Roseville, Sacramento, and Folsom
If you are looking for a skilled, experienced, and trustworthy attorney who can help you file bankruptcy individually, file jointly with your spouse, or assist with your business bankruptcy, you do not need to look any further. Serving the Roseville, Sacramento, and Folsom area, the California bankruptcy lawyers of The Bankruptcy Group have established a reputation for providing friendly, focused, and efficient representation to help make bankruptcy work for you. Whether you are a small business owner or simply an individual who is seeking a solution to make your debt more manageable, The Bankruptcy Group can assess your options, answer your questions, and help you plan your case strategically while protecting your rights as a debtor.
Our accomplished legal team includes Sacramento Chapter 13 attorneys, Sacramento Chapter 7 lawyers, Folsom Chapter 13 attorneys, Folsom Chapter 7 lawyers, and more. To learn more about how we can assist you in a free and completely confidential consultation, contact The Bankruptcy Group at (800) 920-5351 today.