One question we often encounter is related to the topic of asset protection after lawsuit is filed. We’ve all heard and understand the adage of timing being everything, and this certainly applies to the matter of asset protection after lawsuit is filed. In some cases, asset protection can be managed even when a creditor has already filed against you, but then you have to watch out for issues related to fraudulent transfers.
Asset Protection after Lawsuit is Filed Can be a Success
The whole idea behind how to protect assets from lawsuits is based on establishing legal structures that make it difficult, if not impossible, for creditors, plaintiffs, gold diggers, and assorted opportunists to come after your assets. These uncompromising legal strategies don’t eliminate the risk of fraudulent transfers even when you seek asset protection after lawsuit is filed. These strategies become even more effective when in place for at least four years. If you feel that a lawsuit could be brewing because there is already friction and conflict with creditors, individuals, or business entities that could become plaintiffs, the time to act is now. Solid asset protection instruments need to be structured, written, executed, funded, and managed correctly in order to be effective.
In the highly litigious and adversarial American legal system, it is too easy for just about anyone to file a lawsuit to claw at your assets these days. You can say many things to highlight the shortcomings of the legal system in the United States, but you cannot accuse it of being unfriendly to prospective plaintiffs; this is why it is important to learn how to protect assets from lawsuits. As to whether it is possible to establish asset protection after lawsuit is filed, the answer is yes, but that is full of caveats.
The Problem With Asset Protection After Lawsuit is Filed: The Anderson Case
You may have heard about legal strategies that involve setting up trusts in offshore jurisdictions for the purpose of safeguarding assets. Law firms that offer these services often mention jurisdictional advantages such as privacy, flexibility, and a conservative judicial system that favors offshore trusts; all this is true, but it will not necessarily provide asset protection after lawsuit is filed. Let’s explain why. If you have been served with lawsuit papers and attempt to set up an offshore trust, you may be entering the treacherous territory of fraudulent transfers. You cannot just give away your assets without getting paid market value for them and expect to be protected – even if you give it to an offshore entity.
Attorneys whose advice to set up offshore trusts in a late-stage situation after a lawsuit has been filed are doing their clients a disservice by putting them at high risk if they don’t include a solution for fraudulent transfers. What these lawyers fail to mention is: beyond the fact that offshore trusts are expensive to create, you must rely on a trustee you will never meet in person, and are expensive to maintain (costs average $5-10,000 to maintain every year due to the new patriot act and subsequent banking acts requirements to help the IRS get those tax evaders), there are bigger problems with going offshore and most attorneys miss the big issues right here in the United States: Fraudulent Transfers.
For example, Federal Trade Commission v. Affordable Media, LLC 179 F.3d 1228 (9th Cir. 1999), which in legal circles is known as the Anderson case. Denyse and Michael Anderson were determined to be in contempt of civil court in a case whereby U.S. prosecutors sought to repatriate assets stashed in a trust in the Cook Islands that were given away without full payment (fraudulent conveyance). Due to these fraudulent transfers, Mr. and Mrs. Anderson were thrown in jail and were only released after they agreed to cooperate with the FTC for the purpose of unveiling the offshore trust. The FTC argued that the couple had engaged in fraudulent transfer practices, thus the court found them to be in contempt, resulting in jail time.
When formulating how to protect assets from lawsuits, the issue of fraudulent transfers cannot be ignored or glossed over; 80% of the time asset protection strategies get unwound due to the fraudulent transfers issue. Under certain conditions, fraudulent transfers can even make a civil lawsuit turn into a criminal investigation. Conveying your assets to an offshore trust is not an illegal action by itself per se; however, it does not do much in terms of absolving you from a potential determination that fraudulent transfers may have taken place as part of your asset protection efforts.
Let’s say you own California real estate that you want to pass onto an offshore trust. If a creditor files a lawsuit that mentions the California properties were transferred without proper consideration (i.e. payment at market value), the court will very likely consider this to be a textbook example of fraudulent transfers. A California judge will, in fact, have jurisdiction over the properties in California and if you didn’t get a fair price within 4 years of the lawsuit, will unwind the gift to the offshore trust.
Giving gifts to a Trust are fraudulent transfers
You have to admit that conveying a California home into a trust formed in the Cayman Islands makes no sense when you give it away for free and are facing legal action, and this is part of the complexity related to asset protection after lawsuit is filed. Don’t let the geographic location of the trust trick you into a false sense of security; while the trustee’s office may be in a tropical paradise, the property remains in California and the transaction can still get clawed back (unwound) by the court if you did not receive fair market value for the property and 4 years did not pass.
What the Law Says About Fraudulent Transfers: The Fink Bridge Trust Case
You may think that fraudulent transfers can only be detected when trying to achieve asset protection after lawsuit is filed, but this is not the case. When evaluating fraudulent transfers, American judges refer to the Uniform Fraudulent Transfer Act, which establishes what can be considered a fraudulent conveyance.
Fraudulent transfers can happen before or after creditors take legal action. If the court determines intent to defraud, delay, hinder, a potential judgment, you could be facing more than just civil liability. As previously mentioned, there is even a risk of having to deal with criminal liability because some fraudulent transfers may qualify as misdemeanor or felony offenses.
Some law firms have attempted to get creative with so-called “bridge trusts” that begin with establishing a domestic trust in American jurisdiction followed by a transfer of assets to an offshore trust. Such was the case in Indiana Investors v. Victor Fink, No. 12-CH-02253, where the domestic trust was formed in Illinois and its offshore counterpart was in the Cook Islands, the same jurisdiction in the Anderson case. In this particular case, the plaintiffs prevailed to the point of freezing Fink’s bank accounts, and they even convinced the court to block asset transfers to the offshore entity because such an action would be tantamount to fraud.
When you attempt to establish asset protection after lawsuit is filed, you will typically find a hard time trying to retain a law firm to represent you. Attorneys who are familiar with how to protect assets from lawsuits will rarely take on clients whose cases look like they are headed towards negative outcomes such as judgments. We are talking about scrupulous attorneys who think about raising defenses against fraudulent conveyance claims; they know that courts look at the “badges of fraud” legal doctrine, which is comprised of the circumstances surrounding suspicious transactions.
Even though jail time was not ordered in the Fink case, it stands as a solid defeat of the bridge or passage trust mostly due to fraudulent transfers. You can find offshore trust defeats by the dozen in U.S. case law; some examples involve high-profile respondent such as corporate raider Paul Bilzerian, whose life reads like the script of the 1987 film “Wall Street” directed by Oliver Stone. In SEC v. Bilzerian, 131 F. Supp. 2d 10 (D.C. 2001), the debtor refused to cooperate with the government’s motion to repatriate assets held in a trust also formed in the Cook Islands. Bilzerian’s status changed from civil case respondent to criminal defendant, and he was ultimately ordered to spend 48 months in a federal prison.
Once again, if you walk into the offices of a law firm that promises asset protection after lawsuit is filed, there is a good chance that they will try to steer you towards offshore trusts. As previously explained, this does little to avoid falling into fraudulent transfers problems. Such law firms may just bill you for their lectures about offshore trusts and will draw the line at actually handling the process for you because they do not want to break the law with the actual transfers.
How to protect assets from lawsuits doesn’t mean electronically transferring to the Cook Islands
Filing for bankruptcy may appear to grant some level of asset protection after lawsuit is filed, but not too much; the only advantage is that bankruptcies are perfectly legal court proceedings that unfold in the public eye, and they do not fall into the badges of fraud category. While bankruptcies are one option to consider when asset protection after lawsuit is filed, they are also harsh remedies; they are not a good example of how to protect assets from lawsuits, and they are subject to court approval. You also have to be careful with bankruptcy proceedings as lawsuit remedies. In SEC v. Brennan, 230 F.3d 65, 2000, a case involving an offshore trust in Gibraltar, the debtor was ultimately convicted of bankruptcy fraud.
Offshore trusts are not looking good for other reasons. In recent years, the Panama Papers and Paradise Papers document leaks have cast a negative shadow on the use of tax havens for asset protection. There is also the fact the Trump administration has effectively pressured American technology giants such as Apple and Google to stop using offshore jurisdictions in order to reduce taxation.
Before we get into discussing how to protect assets from lawsuits, let’s get some perspective from a couple of high-profile civil cases currently unfolding in court:
Phil Collins v. Orianne Cevey
Pop music superstar Phil Collins is known for his numerous Billboard hits as well as for his drumming prowess with the legendary British rock band Genesis. Fans of Collins also know about his tumultuous relationship with Orianne Cevey, to whom he ended up ceding nearly $47 million as part of an acrimonious divorce finalized in 2008. In recent years Cevey and Collins after she divorced a Miami-based investment banker, and they moved into Collins’ opulent South Florida mansion.
In the midst of the coronavirus pandemic of 2020, Collins was busy arranging a Genesis reunion concert tour when he started going through serious relationship problems with Cevey. Things got really ugly when she told Collins that she was going on an August business trip to Las Vegas, when in reality she left to marry another man. It is not clear whether Cevey actually spent her honeymoon at Collins’ mansion; what has been reported, however, is that he ordered her to get out.
Instead of leaving, Cevey entrenched herself in the mansion and changed the security codes to lock Collins out. She threatened to leak salacious information about Collins to the tabloids, but the cherry on top was that she warned him a lawsuit was forthcoming. As of late October, Collins was going through the motions of an eviction complaint against Cevey.
While the above is certainly an unpleasantly scandalous ordeal for Collins, he does not have to worry about Cevey going after financial assets destined to his two children because they are the beneficiaries of an irrevocable trust dating back to the 1980s. Through this trust, Collins enjoys asset protection after lawsuit is filed, thus Cevey cannot touch any of the funds going to his children. Collins learned how to protect assets from lawsuits when he was living in Canada at a time when his multi-platinum solo albums were selling all over the world; he has faced a string of lawsuits ever since, but none of them have been able to claw at the benefits his children are entitled to through the irrevocable trust.
The Piet Mondrian Paintings
Pieter Cornelis Mondrian is considered to be one of the most influential artists of the 20th century. During World War II, the Third Reich went after Mondrian because they wanted to get their hands on his extremely valuable abstract paintings; this was part of a Nazi strategy to pillage masterpieces they could later sell or trade for substantial cash and influence through fraudulent transfers. Mondrian had a very good friend in Harry Holtzman, an American abstract painter who helped him collect as much of his work as possible and escape to New York City, where Mondrian passed away before the war came to an end.
Mondrian left his entire estate to his friend Holtzman, who in turn bequeathed everything to his children. Under the advice of attorneys who specialize in how to protect assets from lawsuits, the Elizabeth McManus Holtzman Irrevocable Trust was established, and this is where all of Mondrian’s paintings were legally transferred.
Fast-forward to October 2020: Four Mondrian paintings worth millions of dollars are part of the Kunstmuseen Krefeld collection, but the Holtzman heirs want them back, and they have filed a lawsuit to this effect. Mondrian loaned the four paintings in question to the German museum in 1929, four years before Hitler seized power. The paintings were supposed to be returned after a few exhibitions, but the museum director passed away. With the Nazis running Germany and making their nefarious plans, the paintings went through a series of fraudulent transfers, but clumsy SS officers lost track of them.
The Holtzman Irrevocable Trust has established ownership of the paintings and is now suing for the return because of wrongful possession. Legal analyst who follow the art world think that the Holtzman heirs have a pretty solid case because it is clear that the paintings were passed around through fraudulent transfers; moreover, they also believe that frivolous plaintiffs and legal predators will have no chance of trying to claim ownership of the paintings once they are returned. This is a perfect example of how to protect assets from lawsuits; in fact, depending how the Holtzan Trust is structured, we may never know what other masterpieces it holds. We will explain how this works towards the end of this article.
Irrevocable trusts are the common denominator in the two aforementioned cases; if you want to learn how to protect assets from lawsuits, this is where you should start, and it is always better to do it sooner than later. We can now discuss the matter of asset protection after lawsuit is filed, but this is a situation that you really want to avoid. Even the best attempts at securing asset protection after lawsuit is filed routinely fall into the issue of fraudulent transfers and their inherent problems.
How to Protect Assets From Lawsuits: The Right Way to Do It
There is more than just avoiding badges of fraud when talking about how to protect assets from lawsuits. Shielding your assets from legal predators, scammers, overzealous creditors, and other unpleasant characters is the ultimate goal. Similar to the actions taken by Phil Collins in the late 1980s, you should not wait to achieve asset protection after lawsuit is filed. The time to do it is always now. In the dysfunctional legal system of the U.S., lawsuits are always on the horizon, which is why you should protect your assets now instead of later when plaintiffs start coming out of the woodwork.
A solid derivative financial instrument combined with Ultra Trust® Irrevocable Trust accomplishes is the way to go when thinking about how to protect assets from lawsuits. You do not have to park your assets in the Caribbean and rely on someone you’re never going to see in person, nor pay $5000-$10,000 annually to maintain it. Ideally, you want to establish this structure as early as possible prior to being served with lawsuit papers, this is the smart approach on how to protect assets from lawsuits because you will have the benefit of running out the clock on the statute of limitations.
The burden of ownership is often mentioned when figuring out how to protect assets from lawsuits. Creditors and plaintiffs can only come after assets that you legally own; an irrevocable grantor trust provides relief against this burden, but only if it is structured properly. The Ultra Trust provides superb asset protection thanks to the fiduciary duty it creates, which in turn protects you from falling into a fraudulent transfers trap. When it comes to wealth protection and estate planning that remains effective through generations, what you really want is the peace of mind that only Ultra Trust Irrevocable Trust can provide.
Whereas offshore trusts have been defeated time and again in U.S. courts, a properly structured, managed, and funded irrevocable trusts enjoy a solid record of asset protection that spans 150 years, and this can be achieved through a three-stage process even after a lawsuit has been filed:
1 – The trust is properly written.
2 – An independent trustee is appointed.
3 – Assets are transferred into the trust in a manner that avoids fraudulent transfers altogether.
Finally, here’s one more thing to know about asset protection after lawsuit is filed: If a creditor is going after a tiny fraction of your assets, reaching a settlement agreement after putting yourself into a position to negotiate, could be your best bet.
If you find yourself in a difficult situation, and would like to consult an expert to see if your situation can be helped and if we can address all of the issues to keep your head above water, call now (508) 429-0011.
Fraudulent Transfers, Civil Conspiracy, Uniform Fraudulent Transfer Act
What are Fraudulent Transfers? What is Civil Conspiracy? What is the Uniform Fraudulent Act state regarding LLC and creditor claims? Discuss the Single Member LLC within the context of owning public shares in a stock and its role in asset protection.
Under the Uniform Transfer Act you would be committing a crime, see Section 19.40.041
“…(a) a transfer made or obligation incurred by a debtor is fraudulent as to a creditor whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation: (1) with actual intent to hinder, delay, or defraud any creditor of the debtor…”
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Fraudulent conveyance has to do with transferring assets at less than the “fair cash value” thereby defrauding a potential creditor or the intentional divesting of assets which become unavailable for satisfaction of the creditor’s claims. Fair cash value means cash or near cash value at the time of transfer, not the price you paid for the asset.
For example, you transfer your portion of your equity in your home to your wife for $200.00 and the fair cash value of your portion of the equity was $250,000 (total value of the home was $500,000) or you transfer title to your Mercedes to your brother for $100.00. Additionally the IRS would claim that such a transfer is a gift subject to a gift tax return and assess a penalty for the non-filing of Form 709 (PDF) United States Gift (and Generation-Skipping Transfer) Tax Return.
What is Civil Conspiracy?
The “civil conspiracy theory” has been defined by the courts as (1) an agreement (2) by two or more persons (3) to perform overt act(s) (4) in furtherance of the agreement or conspiracy (5) to accomplish an unlawful purpose or a lawful purpose by unlawful means (6) causing injury to another.
To be convincing, the creditor must allege not only the conspirators committed the act but also the act was tortious in nature. The conspiracy alone is not enough to trigger a claim for civil conspiracy without the underlying tort. Lately, however, advisors have been dragged into the creditor claims as co-conspirators for suggesting and implementing everyday common asset protection strategies. This has made me more cautious, making sure that I don’t get dragged in to my own legal nightmare.
Example of Single Member LLC Membership Units and Shares in a Public Stock
SINGLE MEMBER LLCs should be avoided. The example I can use is this: If you own 1,000 shares of General Motors it’s considered a personal asset subject to a creditor claim. If the claim is perfected by litigation in favor of the creditor the owner of the 1,000 shares of General Motors will have to transfer those shares to the creditor in satisfaction of his claim. Owning single member units of an LLC is not any different. The Owner of the LLC membership units is equivalent to owning the 1,000 shares of General Motors and therefore subject to a perfected creditor claim.
Asset Protection: Placing Title of Assets in Another Legal Entity
THE CONCEPT OF ASSET PROTECTION includes the possibility of placing title in certain assets in the name of a less vulnerable spouse or other family members, or a legal entity. One should be very attentive in transferring title without an open invitation to a “incorrect transfer” claim against the asset transferred or the possibility of death by the spouse or family member, or possible dissolution of the marriage, or a court judgment.
The most common methods of holding assets by INDIVIDUALS:
Joint Tenancy with right of survivorship
Tenants in Common
Tenancy by the Entirety
LEGAL ENTITIES (Artificial person created by application of law):
Limited Liability Company
Corporation under Chapter “C”
Corporation under Sub Chapter “S”
Revocable Trust (There are many Revocable Trust variations, since a Trust is nothing more than a Contract)
Irrevocable Trust (There are many Irrevocable Trust variations, since a Trust is nothing more than a Contract)
To learn more about avoiding conveyance rules and how to avoid civil conspiracy theories when repositioning assets and implementation of precise asset protection systems speak with an experienced and knowledgeable financial planner and advisor in these matters such as Estate Street Partners offering free initial consultations.
I always caution against simply speaking with only an attorney and only an accountant in complex financial planning with regards to single member LLC scenarios, partnerships in Limited Liability Company formations, regulations surrounding conveyance and civil conspiracy and asset protection. It’s best to develop or consult with a group or team consisting of an attorney, accountant and financial planner or advisor to offer you the best, well-rounded protection. You will gain a more thorough understanding of the nature of asset protection from LLC formations to avoid incorrect conveyance and civil conspiracy judgments.