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Fraudulent (Voidable) Transfers

Thomas Salerno discusses the concept of voidable transfers. Focusing on five areas: fraudulent transfers, charitable contributions, unperfected security interests, unrecorded mortgages, and avoidance procedures. Fraudulent transfers can be actual or constructive, with lookback periods varying from two to ten years. Charitable contributions can be recovered if they exceed 15% of income or if the debtor is not a natural person. The trustee can avoid unperfected security interests and unrecorded mortgages. Avoidance actions are brought as adversary proceedings, and various entities can initiate them.

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Keywords:

fraudulent transfers, charitable contributions, unperfected security interests, unrecorded mortgages, avoidance, bankruptcy estate, strong arm powers, chapter 5 powers, actual fraud, constructive fraud, badges of fraud, reasonably equivalent value

Duration:

23 minutes 29 seconds

Thomas J. Salerno is a partner in the Bankruptcy and Creditors’ Rights practice at Stinson LLP in Phoenix, where he helps private and publicly traded companies in a broad range of industries continue operations as they negotiate restructuring plans. Mr. Salerno has advised lenders, distressed companies, committees and asset-acquirers in bankruptcies and out-of-court settlements. He works with a global roster of clients from an array of industries, including casinos, hotels, real estate, sports, tech, power-generation, agribusiness, construction, health care, manufacturing, airlines and franchising. He also is an adjunct professor and prolific author and lecturer, writing for both practitioners and corporate executives. Mr. Salerno has represented parties in insolvency proceedings in 30 states and five countries. He has been involved in restructurings in the U.S., U.K., Germany, France, Switzerland, and the Czech and Slovak Republics. In addition, Mr. Salerno taught comparative international insolvency at the University of Salzburg and Gray’s Inn School of Law in London, and he has been a guest lecturer at the Eller MBA Program for the University of Arizona. Mr. Salerno has served as an expert witness on U.S. insolvency law in litigation in Germany, and represented Coyote Hockey LLC, the owners of the Phoenix Coyotes of the National Hockey League (NHL), in historic bankruptcy proceedings that resulted in an unprecedented solution: the NHL purchasing one of its own teams for the first time in the league’s 90-year history. He also has served as restructuring counsel for a national drug store chain, a nationwide operator of nursing homes and assisted-living facilities, a publicly traded owner/operator of fire and ambulance services, and Industrias Nucleares do Brasil S/A, the Brazilian nuclear regulatory agency in the bankruptcies of Nuexco Exchange (U.S. and Switzerland). In addition to serving as an expert witness on U.S. insolvency law in litigation in Germany, Mr. Salerno has advised numerous foreign governments on revamping their laws, and he has taught comparative international insolvency at the University of Salzburg. A frequent writer, lecturer and presenter, he is active in ABI leadership and is a past chair of the Bankruptcy Section of the State Bar of Arizona. Mr. Salerno received his B.A. summa cum laude from Rutgers University and his J.D. cum laude from Notre Dame Law School, where he served as an editor of the Notre Dame Law Review.

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