I acquired a residential property from my dad. The property is now under and LLC owned by me.
Yonkers, NY |
Now someone is claiming that my dad owes them money and wants to place a lien. Can this be done although it has nothing to do with me nor the now LLC. This is between my dad and this person. Please advise
That depends on how the transfer from your dad to your llc was done and how long ago it was done. If it was a transfer that was done without consideration and was done to avoid the debt or in anticipation of litigation concerning the debt, then the transfer can be set aside as a fraudulent transfer and a lien can be attached if there is a judgment. If it was a legitimate transfer or a sale for value, or done prior to the debt obligation then they will not be able to attach any lien.
This e-mail may contain confidential or privileged information. If you are
not the intended recipient, please notify the sender immediately by return
e-mail and delete this e-mail and all copies and attachments. If you are not
the intended recipient, or the employee or agent responsible for delivering
the message to the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly
IRS Circular 230 Notice: Unless specifically stated otherwise, any tax
advice contained in this communication (including any attachments) is not
intended or written to be used, and cannot be used, for the purpose of (i)
avoiding penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any transaction or matter
Unless specifically stated otherwise, this communication shall not be deemed
to be legal or tax advice, and no attorney-client relationship shall be
deemed to have been created.
Whether or not the transfer from your father to you and your LLC can be set aside depends on facts which are not presented.
The creditor may assert that the transfer was a "fraudulent conveyance". A fraudulent conveyance is one made with the intent to avoid the claims of creditors. Factors which indicate that a transfer was fraudulent include that the transfer was made to a family member and was not made for fair market value.
If this answer was helpful, please mark it as helpful or as a best answer. This answer is for general education purposes only. It neither creates an attorney-client relationship nor provides legal guidance or advice. The answer is based on the limited information provided and the answer might be different had additional information been provided. You should consult an attorney.
Attys Millar and Chertock give good advice. I would add that the lien law provides very good recourse in the event someone files an improper lien. For example if it is determined that the lienor "exagerated" the amount of the lien you could recover from them the amount that was exagerated. so if the whole lien was improperly filed the lienor could be liable to you for the whole amount. Good luck n
When responding to questions posted on Avvo, I provide a general purpose response based on NY law as I am licensed in NY. In reviewing my response, you are specifically advised that your use of, or reliance upon any response I provide is not advisable. I do not have all relevant background details or facts related to your issue / matter, thus I am not in a position to give you legal advice. Further, your review, use of, or reliance upon my response does not establish an attorney-client relationship between us nor does it qualify as a legal consultation for any purpose. For specific advice regarding your particular circumstances, you should consult and retain local counsel.
i AGREE WITH THE FIRST TWO ANSWERS. THE ONLY THING i WOULD ADD IS THAT TO PUT A LIEN ON Your LLC's PROPERTY, the LLC would have to be sued as well as your father. Willful exaggeration of the lien would only apply if the lien resulted from construction on the property, and the lien was exaggerated.
If the LLC is threatened with litigation, you should put your LLC's insurance carrier on notice. The insurance carrier might have an obligation to defend the lawsuit.
My answer to your question is for general purposes only and does not establish an attorney-client relationship,
If your dad transferred the property to you for less than full consideration (value) and at the time this creditor was out there, the transfer could be considered a "fraudulent transfer" under New York's Debtor/Creditor Law. Even if the transfer was done without intent to frustrate a potential judgment, the property could be in jeopardy. You need to speak to an attorney familiar with debtor/creditor law.
My firm is a second generation family firm successfully handling personal injury and medical malpractice cases for over 35 years. "Let Our Family Help Your Family" www.kileylawfirm.com 516 466-7900