Fraudulent Conveyance Actions

A creditor or bankruptcy trustee may set aside, or avoid, a debtor’s transfers of property as actually or constructively fraudulent if the transfers were made to place the debtor’s assets beyond the reach of creditors or they had that effect in violation of bankruptcy or other applicable law. Such claims often arise where there is an intent to defraud, intent to hinder, or otherwise hinder, delay or defraud creditors, or where the transfer constitutes constructive fraud based on the financial condition and intentions of the debtor. These transfers are known as fraudulent transfers or fraudulent conveyances and are brought against the transferees, usually the debtor’s insider family members or entities. Under Bankruptcy Code section 550(a), a trustee may recover the fraudulently transferred property or its value from the initial transferee of the fraudulent transfer or the recipient of any subsequent transfer, subject to defenses that may be available to bona fide purchasers acting in good faith and in the ordinary course of business. The Uniform Fraudulent Transfer Act as adopted in various states or its equivalent provides a trustee or creditor with equivalent rights and remedies in state and federal courts or if bootstrapped in bankruptcy avoidance actions.

Thomas H. Curran Associates’s lawyers have extensive experience investigating and prosecuting fraudulent transfers involving domestic and cross-border money transfers, real estate conveyances and other assets. Since proving actual fraud and an intent to defraud creditors is seldom straightforward, a thorough factual investigation of the circumstances surrounding a transfer or conveyance is critical to succeeding on such claims. Thomas H. Curran Associates works with accounting, financial, real estate, forensic and other industry specific professionals to obtain the valuation, solvency, tracing and other data required to succeed on an actual or constructive fraudulent conveyance claim. Moreover, the Firm’s deep litigation and trial expertise enables it to discover comprehensive and critical relevant information in the face of zealous opposition and regardless of where that information is located or who maintains custody of it. The Firm’s bankruptcy trustee and creditor clients can feel confident that Thomas H. Curran Associates will leave no stone unturned in investigating suspected fraudulent conveyances inside or outside of bankruptcy and bringing those claims to trial successfully.

Thomas H. Curran Associates’s attorneys have successfully litigated and tried fraudulent conveyance cases in bankruptcy, state and federal courts located in New York, Florida, Connecticut, Massachusetts, Rhode Island and elsewhere.

Foreclosure of residential and commercial real property varies by state because each one has its own laws governing the process and addressing such issues as the property owner’s options for bringing the loan current and the process for selling the property. Generally, foreclosures fall into two categories: (i) by judicial process or (ii) by statutory power of sale contained in the mortgage. Thomas H. Curran Associates mortgage foreclosure lawyers have conducted foreclosures under both methods in various states. The Firm has also served as foreclosure defense attorneys in certain cases. In many cases, Thomas H. Curran Associates’s lawyers also represent lenders and servicers in bankruptcy courts in cases that arise in connection with foreclosure proceedings. Individuals and businesses facing foreclosure should seek experienced legal counsel as early as possible to understand their rights, evaluate available options, and determine whether negotiation, litigation, or other legal remedies may help protect their interests.

In states that require judicial foreclosure, mortgagees must commence a foreclosure lawsuit asking the court for the right to sell the property in satisfaction of the underlying debt. Throughout the litigation, both lenders and borrowers may face complex procedural and evidentiary issues that require experienced legal representation. Judicial foreclosure is the primary method of foreclosure used in 22 states, including Florida, Illinois, New Jersey, New York, and Pennsylvania. When the state allows for it, the lender’s attorneys may ask the court to grant it a deficiency judgment if selling the property is not expected to fully pay off the borrower’s debt. If granted, the borrower will remain responsible for any unpaid debt following the foreclosure sale. Alternatively, there are 28 states that allow for non-judicial foreclosures, including Massachusetts, California, Texas, and Georgia. In those states, the mortgage foreclosure process is typically faster because it does not originate through the courts unless the borrower chooses to sue the lender.

The last significant U.S. economic downtown that began in or around 2008 stemmed in large part from the excesses of the home mortgage sector of our economy and related substandard lending practices. The resulting nationwide wave of foreclosures spawned years of litigation challenging mortgagees and lenders and servicers’ right to foreclose mortgages. This foreclosure litigation resulted in many novel legal theories to prevent foreclosure. Thomas H. Curran Associates’s lawyers have years of experience successfully litigating an array of mortgage foreclosure cases that raised numerous complex and novel defenses across multiple jurisdictions in both state courts and bankruptcy courts, with some cases resulting in complex appellate proceedings. The Firm also has deep expertise in ancillary relief such as receiverships and injunction proceedings that are sometimes required to secure the property during the foreclosure process.

By virtue of their broad and deep foreclosure and bankruptcy expertise, the attorneys at Thomas H. Curran Associates are uniquely positioned to advise and represent mortgage lenders and servicers, as well as borrowers in some cases, with their foreclosure proceedings. Our lawyers seek to utilize their experience advocating on behalf of clients to provide them with quality representation while assisting them in prosecuting or defending their foreclosure proceedings in the fastest, most efficient manner.