The Real Estate Blender of Investment and Bankrupcy

Straight from the files of a Houston real estate attorney focusing on bankruptcy, and investment, we want to share an interesting personal story about a recent undertaking that blended all three of these areas. Our hope in sharing this story is that it will shed some light on the process for others aspiring to have similar endeavors. The process is not without risk, but if done right, the payoff can be big.

Finding the Property

Late last year, we were contacted by a bankruptcy lawyer who was representing a bank trying to foreclose on a specific piece of property where the borrower was in default. The borrower had gone through several bankruptcy tactics and was now delaying foreclosure. Our acquaintance was about to have the stay lifted so they could foreclose on behalf of her small out of town bank. The bank had asked the attorney to find someone who would buy the note and just take over the foreclosure and repossession process for the property.

Getting the Property

In the end, there was an arrangement put in place for a company we owned to buy the note from the bank and take over the bankruptcy process. Although the process was complicated and at times drawn out, we got the automatic stay in bankruptcy which then prevents foreclosures from occurring while someone is in bankruptcy. The automatic stay prevents foreclosures until such a time as the judge allows it. We went through the process, got the judge to approve it, and then received the right to foreclose.

Although the debtor did try to do several things to stop the foreclosure, they were unable to do so. We then got the order to lift the stay and then posted the property for foreclosure. We then conducted a foreclosure sale, where as the holder of the note, we were allowed to credit bids. This enabled us to bid up to the amount of the debt including:

  • Unpaid interest
  • Attorney’s fees
  • Related costs

By that time, with the attorney’s fees, because of the bankruptcy and interest running at a default rate, the balance owed was enough that nobody else bid and we were able to bid and eventually became owners of the property.

Property Evictions

As new owners of the property, we had to go through the process of evicting the occupant. The next step was to hire eviction counsel, file the papers and serve them on the property. By having a process server tape the papers to the wall and also send letters to the debtor and the property, it then triggered a thirty-day clock where the occupant had thirty days to leave the property. Fortunately, the occupant called us on the thirtieth day and said they were turning over the property.

Had the occupants not turned over the property within the thirty-day time period, we would have had to go to court and either have them evicted or get a judgement saying the occupant had no right to be on the property. Then, if necessary, a constable would have gone out to the property and physically removed the occupant. Luckily it did not come to that.

Renovating and Selling the Property for Profit

The property was not horrible, but it was definitely not clean either, so we spent several days hauling out trash and then began painting and cleaning and getting ready to put in new floors so the property could go on the market soon.

The project became a family affair as my wife is a real estate agent and helped take on many of the responsibilities of improving the property and staging it in a way that makes it more marketable.

The property is now awaiting a few final touches and inspections before it goes on the market. The endeavor has been a mixture of bankruptcy, real estate law, real estate investment, and real estate marketing. It is an adventure that we are glad we signed on for because although we have helped with legalities of situations like this before, going through it personally has given us a firsthand perspective that will only add to us successfully representing similar cases in the future.

How To Handle Property Damage and Taxes

How To Handle Property Damage and Taxes

If you own a business and it suffered from damage due to a flood, fire, or an accident, it is wise to visit with a tax attorney about property damage and taxes and the possible correlation between the two. Depending on the value of an item and the insurance coverage for it, it may be possible for a business to experience a gain for a casualty loss. This gain is then taxable, but by enlisting the help of a knowledgeable attorney who has an intimate understanding of business and tax law, there may be opportunities to minimize that taxable income.

Claiming Business Property Damage

One of the first steps in claiming property damage is to file the IRS Form 4684 regarding casualties and thefts. In terms of federal income tax purposes, casualties are typically defined as an unexpected or sudden damage or loss of property. This generally covers natural disasters such as hurricanes, floods, tornadoes and earthquakes, but may also cover other specific scenarios as well.

As for determining what business property is worth, it comes down to estimating its adjusted tax basis immediately before the loss, minus its salvage value. In other words, calculate what the cost of acquiring and improving the item was and then subtract depreciation deductions. Then subtract the amount the property is worth post-casualty.

If casualties caused business property to be destroyed, the business may want to see about claiming a deduction for it. This, however, requires the claiming party to prove:

  • Ownership of the property
  • Amount of basis in the property
  • Pre-casualty value of the property
  • Reduction of value caused by casualty
  • Inability of reimbursement to cover costs

These safeguards have been put in place to better prevent abuse of the system.

Deducting Casualty Losses

According to the Internal Revenue Service, casualty losses may be deductible, but only in the year of the event that caused the loss. It is worth noting that something is not considered a loss if it could potentially be recovered through a reimbursement claim.

If a casualty loss is the result of a federally declared disaster, this situation can come with more specific guidelines about when to deduct that property on your taxes.

Property Damage and Taxes: Losses Could Result in Taxable Gains

What some business owners may not realize is that with insurance reimbursements, it could be possible to receive more than the adjusted basis of damaged property, and that can result in a taxable gain.

However, some gains are eligible to be deferred only if certain replacement property is purchased. For this to work, replacement property must generally be purchased within two years of the tax year that the gain occurred.

In a situation where a loss deduction exceeds your income, it may result in an NOL, or net operating loss, for that year. Essentially NOLs may help minimize taxes for a previous tax year which could in turn yield a tax refund. In order for a business to see if this is a scenario that is applicable to them, it is wise to first seek the counsel of an attorney that has a business and tax background. They can assist with determining eligibility.

Minimizing Taxable Income from Casualty Loss Insurance Recoveries

When it comes to the loss of business property, considering the fact that a business might get a taxable gain back can be the furthest thing from an owner’s mind. Still, if not strategic about handling that gain, it may end up being taxable instead, which can be like adding insult to injury.

A reputable tax attorney should be familiar with ways to potentially minimize or eliminate taxable gains as the result of casualty losses. One of the most frequently utilized options has to do with reinvesting. Federal tax rules may allow businesses with a taxable gain to minimize or reduce it by reinvesting the insurance money in what is commonly defined as “similar use” property.

Consider the two following scenarios:

  1. A company purchases a vehicle for a certain price. Some years later said vehicle is totaled and is assigned a depreciated tax basis. If the insurance company reimburses the company at a rate higher than the depreciated tax basis, that amount is considered taxable.
  2. In the same situation, if the company decides to reinvest that taxable amount into a replacement vehicle, it is not necessarily required to report the taxable gain as long as certain conditions are met.

Most businesses would prefer to be in the second situation so that they are able to replace what they lost and are not being taxed for a gain, but for this to work it can take a skilled tax attorney to ensure that it is marked correctly on the business’ tax return. The process can be quite complex with a number of guidelines and specifications that must be met.

For example, in general, the replacement property for reinvestments is two years. It may not be valid after the fact, although there may be some limited exceptions offered by the Internal Revenue Service in certain situations.

What to Look for in a Tax Attorney for Your Business

Tax attorneys should have a background in working with businesses on matters like the above, but it is equally important to make sure that the attorney you hire meets several qualifications, such as:

  • Experience. It is critical to hire an attorney who has specific knowledge and understanding of business tax matters. Verify how many business tax cases they have taken, what they involved, and the outcomes of each.
  • Knowledge. In addition to being certified to practice law in Texas, an attorney should have extensive knowledge of federal and state tax laws. It is also important that legal counsel stay up to date on these mandates as they can change periodically and may significantly impact a business’ bottom line.
  • Representation. In the event that a dispute arises, it is necessary that the attorney hired can represent your business in a court of law.

Don’t let ill-managed property damage and taxes unnecessarily cost your business. Enlist the help of a trusted tax attorney today and determine your options on properly handling a loss.

Fraudulent Conveyance or Fraudulent Transfers Suicide

Suicide is never an easy topic to discuss, especially as it relates to legal matters such as fraudulent conveyance. Taking one’s own life is a decidedly tragic event that adversely impacts the deceased’s family, friends, and even community. In addition to the heartache of losing someone to suicide, those survived by the individual often do not realize that the legal consequences related to the act can go on long after.

Learning more about a fraudulent transfer and how it relates to the Uniform Fraudulent Transfer Act may help survivors better understand the legal processes that can follow a suicide.

Understanding Fraudulent Transfers

A fraudulent transfer happens when an individual that has money or property and is about to lose that property due to some sort of judgment or creditor then transfers said property to another party. This may be done so that if a judgment or creditor tries to collect from the transferor, there is no property left to collect on.

The law recognizes this act as unjust and generally allows a creditor to proceed against the recipient of a fraudulent transfer to recover one of two things:

  1. The property that was transferred
  2. Judgment for the value of the property

Uniform Fraudulent Transfer Act

As many other states do, the state of Texas follows the Uniform Fraudulent Transfer Act. This act sets forth the circumstances and establishes the rules to be followed when analyzing if a transfer of money or property is subject to it.

There are two prongs to the Uniform Fraudulent Transfer Act including:

  1. Actual Intent
  2. Constructive Fraud

Breaking Down Actual Intent as It Relates to the Uniform Fraudulent Transfer Act

For the actual intent prong of the act, if a transferor transfers property to another individual with the express intent to hinder, delay, or defraud the transferor’s creditors it is typically considered to be a fraudulent transfer.

Actual intent may be hard for a creditor to prove as the circumstances might or might not permit a jury or judge to determine that the transferor had such intent. Factors that can be taken into consideration in determining intent are:

  • A transfer was made to an insider or related party
  • The debtor or transferor retains possession or control of the property after the transfer
  • A transfer or obligation was concealed in what is viewed as a secret manner
  • An obligation by the transferor was incurred or the transferor had been sued or threatened with a lawsuit before a transfer was made
  • The transfer was substantially all of the debtor or transferor’s assets
  • The debtor or transferor removed or concealed assets
  • The amount of consideration received by the transferor was not of reasonable equivalent value
  • The transferor was insolvent or became insolvent as a result of the transfer

Constructive Fraud and the Uniform Fraudulent Transfer Act

In the event that a creditor cannot establish the actual intent prong of the act, the constructive fraud prong of the act comes into play. Of the two prongs, constructive fraud is usually easier to prove as all that is necessary is to show the following:

  • There was a transfer
  • The transfer was made at the time that the debtor or transferor was insolvent
  • The transfer was for less than an equivalent value in exchange for the transfer

Fraudulent Transfer Act and Suicide Case Study #1

With the knowledge of what a fraudulent transfer is and how the Fraudulent Transfer Act would come into play, it may be easier to understand how the unfortunate incident of suicide might invoke the act.

The following case study may help the reader to make better sense of this connection, however, please be forewarned that the following is tragic and somewhat gruesome and may not be appropriate for all audiences.

In this example, a husband and wife are going through an intensely contentious divorce. Amidst the divorce, the husband returns to his marital home to gather some of his belongings. In doing so, he gets into a confrontation with the wife and violence ensues, ending with the husband shooting and killing his wife before turning the gun on himself in an act of suicide.

The husband had a long-standing relationship with a girlfriend. After the separation from his wife, he and his girlfriend opened a joint bank account that had a balance of approximately half of a million dollars at the time of his death. The husband did have some credit card debt and other small creditors and essentially his entire fortune consisted of half a million dollars in the joint bank account with his girlfriend. That bank account was considered to be a joint tenancy with right of survivorship meaning that if the man died, his girlfriend and co-bank account holder would receive the money.

However, when the husband took his wife’s life, he became indebted to the wife’s estate for wrongful death. Now, at that time, there had been no transfer yet as the money was still in the account the husband and girlfriend jointly controlled.

Yet, when the husband decided to take his own life, his interests in that bank account would have transferred to the girlfriend due to the survivorship nature of the account.

In this case, a lawsuit was quickly filed and the court froze the bank account with an injunction against the distribution of the money. At a later date, a compromise was eventually reached by splitting the money between the estate of the wife and the girlfriend.

In this specific example, it is fairly clear that the suicide was in fact a fraudulent conveyance.

Fraudulent Transfer Act and Suicide Case Study #2

As with the above, the following case study may not be appropriate for all readers. It should however help the reader to better understand the connection of the Fraudulent Transfer Act to suicide.

In this second case study, a man who admittedly had many mental problems transferred the entire contents of his bank account, which was one million dollars, to his sister on Wednesday. On Thursday, the sister discovers the funds and is confused, so she tries to get in touch with her brother. She is unable to reach him and since she lives in a different city than the brother, she cannot go immediately to check on him.

In the meantime, a neighbor goes to check on the brother. At the moment the neighbor knocks on the door, the brother had just completed writing his suicide note. After hearing the knocking, the brother shoots three bullets through the door injuring the neighbor. The brother then takes his own life by suicide.

The neighbor eventually sues the sister alleging she is the recipient of a fraudulent conveyance or transfer. The brother had no debts and still owned some property even after he transferred the money to his sister, making him decidedly not insolvent. Therefore, this lack of insolvency does not satisfy the constructive fraud prong of the Fraudulent Conveyance Act.

At the time the brother transferred the money, it preceded the actual injury to the neighbor. The transfer happened before the liability or intentional and negligent act which injured the neighbor occurred. Therefore, the neighbor tried to invoke the actual intent prong of the act to force the sister to return the one million dollars.

The invocation of the prong was not successful because the neighbor needed to prove the brother had the actual intent to occur debt. While there was sufficient evidence the brother planned to commit suicide when he made the monetary transfer to his sister, there was little evidence to suggest he intended to incur any other debt including the injury to the neighbor, which seemed to be more of a consequence of unfortunate timing.

In the end, the neighbor accepted a settlement for a relatively token amount of money, the case was resolved, and the sister managed to keep most of the money her brother transferred to her.

Suicide is a delicate subject that is seldom easy to discuss, but it does create real legal issues that can cause conflict between the recipient of a transfer and those who might try to collect a judgment or claim against the deceased party who made the transfer.