Answer to Question 1
A debtor may, unbeknownst to him or her, make a voidable transfer. They may innocently transfer a piece of property that they own to the transferee before or shortly after filing for bankruptcy, completely unaware of how this violates the bankruptcy code. A debtor may transfer real or personal property that either has or will become part of the bankruptcy estate, subject to the trustee's discretion and control.
On a more negative note, the debtor may also make a transfer with the intent to defraud his or her creditors. The trustee, in an action to reverse such a transfer, may offer the following as proof of actual fraud:
Answer to Question 2
11 U.S.C. Sections 547, 548, and 549 authorize the trustee to bring an adversary proceeding against a debtor for preference, fraudulent conveyance, and postpetition transfer actions, respectively. By filing an adversary proceeding against the debtor, the trustee may obtain the transferred property if the trustee can prove to the court that the transfer was made fraudulently. The burden of proof will fall on the trustee as the entity attempting to reverse a transfer or prevent the debtor from receiving his or her discharge. An adversary proceeding in a bankruptcy case is treated much like a civil lawsuit. The party bringing the action is known as the plaintiff, and the party against whom the complaint is brought is referred to as the defendant. The plaintiff files a formal complaint with the court and has that complaint served on the defendant. The bankruptcy court maintains the case under its own separate docket number known as an adversary number. This unique adversary number will be listed just below the docket number for the main bankruptcy case in any pleading concerning the adversary proceeding. The adversary proceeding requires a significant amount of preparation by the attorney and paralegal prior to the hearing. Discovery, including interrogatories and depositions of both the debtor and other expert and fact witnesses, must be dealt with prior to the hearing.
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