I see this issue frequently.
Debtor has a Bank Account at Bank A. Debtor also has a debt owed to Bank A, say for a credit card, personal loan, or overdraft.
Any money in the bank account on the date of filing is vulnerable, as Bank A has the right of setoff against that account, to pay off the debt to Bank A.
They say “Possession is nine tenths of the law.” Bank A has possession of the money in the account, a security interest if you will, and can take those funds to pay the debt.
Now, it may be possible to force the creditor to return the funds to the bankruptcy estate if the amount in the account was exempted and it violated one of the preference transfer rules. But there is case law that lets them hold those funds too.
This is most frequently done by credit unions, I see it often.
The solution? Open up a bank account at Bank B where the debtor owes no money. Bank A can only get money in an account with Bank A, they can’t cross over into Bank B to get those funds after the filing of Bankruptcy.
Here is the Bankruptcy code section that addresses this situation.
http://www.law.cornell.edu/uscode/text/11/553
Here is the Bankruptcy code section that addresses this situation.
http://www.law.cornell.edu/uscode/text/11/553
11 USC 553 Setoff
(a) Except as otherwise provided in this section and in sections 362 and 363 of this title, this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case, except to the extent that—
(b)
(1) Except with respect to a setoff of a kind described in section 362 (b)(6), 362 (b)(7),362 (b)(17), 362 (b)(27), 555, 556, 559, 560, 561, 365 (h), 546 (h), or 365 (i)(2) of this title, if a creditor offsets a mutual debt owing to the debtor against a claim against the debtor on or within 90 days before the date of the filing of the petition, then the trustee may recover from such creditor the amount so offset to the extent that any insufficiency on the date of such setoff is less than the insufficiency on the later of—
(c) For the purposes of this section, the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition.
Contact me today if you have this situation and are looking for an attorney to represent you in bankruptcy and want to protect the assets and money you have in the bank. Call me at 312-346-7400 or visit my website at www.leederslaw.com.
Happy Friday.
Terry Leeders
