I was a creditor in a bankruptcy case. The debtor took $200,000 from me on the basis that he will be paying me interest on it. He did however send me $40,000 and now the trustee's lawyer is contacting me and asking me for $60,000 back or they will file a complaint. It doesn't make sense that they are asking a creditor for money, especially considering I only got $40,000 of the $200,000 that the debtor took. I showed be owed money not taken from. I am a 51 year old, I work as a cashier in a gas station and I have 2 kids in college. I don’t have that money and the trustees lawyer told me “I know you can’t pay with your current income so you should refinance your home” What can I do?
What can you do? You can consult BK counsel. It appears the payment was a preference. If so, the trustee has a right to claw it back. You need professional help.
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From the facts you presented, it appears that your recieved your payment during the preference period. The preference period is a period time before the debtor files for bankruptcy. Payments made by the debtor during the preference period are property of the bankruptcy estate and the banktuptcy trustee is obligated to recover those payments. Creditors who recieve payment during the do have some very complicated defenses. However you need to speak to a bankruptcy attorney to see if you have any defense.
The trustee will file an adversary complaint in Federal Bankruptcy court,obtain a judgement and then sell your house if necessary to recover the $60,000.
I have not researched this answer. Your should contact an attorney.
Limited information provided suggests you have received what BK defines as preference payments from debtor. An avoidable preference is a payment made before filing for bankruptcy that prefers one creditor to others similarly situated. The transactions can be voluntary (you wrote a check to the creditor) or involuntary (the creditor garnishes your bank account).
BK code allows trustee to claw back such payments. However, numerous exceptions to clawback rule.
I have negotiated successful resolutions and litigated on behalf of creditors in other similar BK cases.
Do not ignore rustee communications. You must respond or risk default judgment.
Much more case specific information needed to further advise.
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The power of a trustee in bankruptcy includes the ability to recover payments made to creditors by the Debtor within a specific period of time prior to the filing of the case. There are defenses to this that might apply in your case. I agree with my colleagues and urge you to immediately seek advice from an experienced bankruptcy attorney familiar with preference litigation. Also, if you have received a lawsuit (adversary proceeding in bankruptcy), you are required to file a timely answer to it - so see assistance as soon as possible to understand your options and potential defenses.
I agree with my colleagues above in that it sounds like you received a preference based on the very little information provided. However, there are several defenses to such a preference action and you need to seek legal counsel to respond to the complaint before you lose the right to do so and suffer a default judgment being entered against you. Be sure that the attorney you consult with/retain has had EXPERIENCE in bankruptcy litigation/defending preference actions and does not just advertise that they "litigate."
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