I co-own a house in WA as rental property with a friend with no mortgages. The title is clear under both of our names, and my proportion is 21%. Now all my friend’s houses in CA went into foreclosure. (She hasn't filed bankruptcy yet) We didn't form any business entity, but she agrees to write a partnership agreement, and she wants to transfer her title under someone else's name in order to protect our house. Would the creditor still be able to claim the house even if it is paid already? If so, how would this affect our co-ownership? How can I protect my asset? What needs be included in our contract? Would it be any different if I am an alien?
Chapter 7 Bankruptcy Attorney
Your percentage ownership is yours even if someone that you co-own property with files bankruptcy. Unfortunately any transfer like the one you describe that takes place in the 10 years before one of your partners files bankruptcy would be considered a fradulent transfer and would be oidable by the bankruptcy Trustee. If a partner files a 13 they have to repay the equity they have to keep the house to their creditors. In a chapter 7 the trustee can take the house, sell it and pay you back your 21%.
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Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.
Chapter 7 Bankruptcy Attorney
While I appreciate the fact that your friend may wish to protect you from consequences of her Bankruptcy, the strategy she is considering will not accomplish the results you both desire and will make matters far worse!
For more information, I recommend my short video called "5 Things Never to do Before You File Bankruptcy." Just click my photo to get to my profile & go to the section called Legal Guide to watch this important information.
What your friend is considering is called a "prefential transfer" - turning over property to someone to avoid listing it in a bankruptcy. While it can seem like a savy strategy, it crosses the line & is in fact, a criminal act.
Perhaps its time for your friend to consult with a friendly bankruptcy attorney in person to help her. We can suggest strategies to deal with the issues in her case that are savy & legal.
And you don't have to be up at 3 am worrying about them!
Hope this helps!