I. On Titles

Why must I resort to inexplicable titles (or blogs for that matter)? Thing is, today's title's perfectly explicable. Sometimes seemingly incongruous subjects do mesh or: I just like the conceit of using the conjunction "or" in a title. See Stanley Kubrick's "Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb;" also, J.R.R. Tolkien's, "The Hobbit or: There and Back Again." The latter title may not be an example of the finest writing (really, it's just a spoiler, isn't it?), but then neither is this... whatever this is you're reading. Still, hopefully, the title of this blog will make (some) sense in the end.

II. On Definitions

Sets of statutes start with painful litanies of key-word definitions, lest there be later misunderstanding of basic concepts. Since there invariably is later misunderstanding, there is the consequent need for the legal profession. This actually touches upon the premise of an anticipated work by Harvard Law School's own, Professor Plum.* While it's pending publication, the book will likely adhere to its present working title, The Advent of the Legal Profession or: Where do Lawyers Come From? The job of Lawyer came about--says Plum--from the composition of ambiguous statutes by lawyers, which necessitated the need for lawyers to interpret those statutes. There might be something wrong with that logic, but I don't want to think about it anymore.

III. On Bankruptcy Definitions or: Bankruptcy 101

United States Code Title 11, section (§) 101 defines about 90 indispensable terms that frequently populate the Bankruptcy Code. For instance, therein one learns that "commercial fishing operation" refers to "the catching or harvesting of fish, shrimp, lobsters, urchins, seaweed, shellfish, or other aquatic species or products of such species...." [See 11 USC §(7A)(A).] Such detail permits a professional to identify her role in the scheme of all things bankruptcy. It dispels the confusion of earlier Code drafts, such as whether Chapter 12 debt relief extends to strictly-urchin-based businesses. The catch-all "other aquatic species" is also helpful in precluding prior discriminatory treatment of the harvesting of mermaids, prehistoric sea creatures, or those aliens in James Cameron's The Abyss. Section 101 also defines the term "claim" as a "right to payment" [§101(5)(A)], "creditor:" as an "entity that has a claim against a debtor" [§101(10)(A)], and "bankruptcy blog" as "a shameless excuse for self-promotion under a pretext of promoting public knowledge and access to legal information" [§101(55A)].

IV. One's own Section

Certain concepts can't be confined to the spaces of section 101; they need more room to breathe, and they need sections unto themselves to incorporate sets and sub-sets of elements and conjunctions. The notion of "fraudulent transfer" needs its own section and it has it; it's numbered 11 USC §548. Therein fraudulent transfer is defined in the context of a trustee's ability to avoid it ("avoid" meaning void or undo, but with the "a" added for confusion).

Section 548 provides for a 2-year look-back period for transfers that can be undone. "Avoidable" transfers come in two basic forms (we'll gloss over certain details, because I have to do the dishes). The first is deliberate fraud in the sense of hiding assets. Section 548 incorporates the bankruptcy catch phrase "to hinder, delay, or defraud." You can't do those things to a creditor by transferring an asset with a culpable mind. There is also constructive or implicit fraudulent transfer, which applies even to an innocent mind. That occurs if you you give something away for less than its reasonable worth. Such transfer is fraudulent under certain conditions; for example, if it occurs when your liabilities exceed your total assets (i.e. you're insolvent) or when the transfer itself effects insolvency.

V. Ka-chow!

The 2-year rule is reflected in a portion of of the bankruptcy petition (petition being shorthand for the 50-60 pages we initially bless the docket with) titled Statement of Financial Affairs (or "SOFA" in brief: an unfortunate acronym in that it suggests couches and potatoes; due to the suggestion of sloth, debtors are often faulted for perfunctory completion of the SOFA). The SOFA asks many things, including whether you've transferred assets within 2 years prior to filing.

Say that you read that question, then recall making a fraud-qualifying transfer of a big, big asset nigh 2 years ago. So you wait it out. Once the 2 years have passed, you file your bankruptcy; you enter "None" in response to the above SOFA query and then grin a big grin. Until you get to your meeting of creditors a month after filing; there you're asked whether you'd transferred assets within 4 years. Yes, you heard right: the 2-year look-back period is really a 4-year look-back period.

This is because bankruptcy adopts both federal and state law, and CA has a 4-year look-back period for a constructive (implicit) type of fraud. See CA Code of Civil Procedure (which also addresses uncivil procedures) section 3439.09. So your more-than 2 year-old transfer can now be undone. On such occasion, a trustee uncovering this truth would necessarily say, Ka-chow! This is the well-known catch phrase of cocky race car, Lightning McQueen, star of that movie my son loves, the one about cars that's called, Cars. "Ka-chow!" is the new "Gotcha!"**

VI. Transfers to cats

Not often, but now and then, a client prepping to file bankruptcy will ask, "Should I transfer my car title to my cat?" Now, that's just an example; usually, it's a brother, or a mother, or a brother from another mother, but I suppose for our purposes, it could be a cat, because it's slightly more funny. Though not really. Now, how exactly does one answer that question straight and to the point and with oomph, but without reference to a rambling blog nobody reads?

VII. Mia Michaels: a Digression

Before choosing the correct snappy answer to a fraudulent proposal, let me explain about Mia Michaels. Now, when the kids are fed, bathed, brushed, and PJ'd, and a long day's work is done, my wife and I may be prone to commit obscene acts of indiscriminate TV watching. One show of indiscriminate appeal was So You Think You Can Dance or SYTYCD (a hard-to-say, truly terrible acronym along the lines of BAPCPA***). SYTYCD is a dance equivalent of singing contest, American Idol or AI: in countrywide auditions, a panel of judges winnows out thousands of wannabes to select a handful of future dance stars. Of note, when contestants pass the first audition round, they're each tasked with improvising a memorable Happy Dance--a signature feature of SYTYCD. Now, after the judges determine two-dozen finalists, they must then leave it to AMERICA to vote for its favorites. From episode to episode, the stakes are HIGHER THAN EVER.

ON SYTYCD, Mia Michaels is a featured choreographer; in behind-the-scenes practices, she's a taskmaster, relentless, demanding of the young contestants: one tires just to watch; watching, I'd be humbled and lose strength to lift chip to mouth, let alone lower chip to dip-bowl and scoop. I'd just kind of sink into the couch, and confess: I don't think I can dance. Anyway, Michaels would sometimes join the judges' panel and decide auditioners' fates.

On one occasion, a muscle-bound, yet graceful terpsichorean pulled a wildly impressive routine. Normally-grim Michaels was misty eyed; half-crying, half-smiling, grasping for words, she said, "...you're... just... stupid." You know, stupid in an amazing, fabulous, fantastic kind of way.

Since then, if something stupid enough is encountered, such that it merits Robin or I say, "that's stupid..." then we compulsively add, "and not in a Mia Michaels kind of way."

VIII. Saying No, Like You Mean It

Back to finding an expedient and emphatic answer to misguided fraudulent planning or: giving your car to your cat.

When sheer adamance is called for, is it really enough to say simply, no, non (French), nyet (Russian), lo (Hebrew), neich (German), NEH-gah- tiv (German-accented cyborg-killing-machine from the future)? I don't think so. You have to EXPLAIN it, say it like you mean it. Here we suggest dramatic delivery, incessant repetition, and convincing the other side by way of attrition. How is it done? 2 examples from pop culture come to mind.

IX. Inside the Actors Studio

Example 1 is an indelible exchange between Michael Scott and Toby Flenderson. This occurs in a pre-credits sequence from NBC's hit sitcom, The Office. Michael Scott (played by Golden Globe winner, Steve Carell) is the very lonely manager of a paper company. Thirsty for social acceptance, he overcompensates with a tireless drive to make the workplace a fun, familial environment, where rules of decorum don't apply. Through this process, he's seen as a delusional, needy, awkward, tactless, sexist, clueless, hyper, inappropriate imbecile. He is stupid, and not in a Mia Michaels Way. Still, this caricature endears himself; perhaps we are all lonely at one time and so we relate to poor Michael Scott.

Naturally the boisterous Michael's fated bête noire is the one office presence responsible for rules and regulations: Toby Flenderson, of human resources. Killjoy, Toby's phlegmatic, soft-spoken (yet innocuous and most reasonable) persona inspires in Michael an irrational, white-hot hatred. When Toby finally leaves the office to pursue greener pastures, Michael does a Happy Dance.

Many or several episodes down the road, the prodigal Toby returns. Employees announce this to Michael who's initially convinced it's an office prank, only to turn and find himself face to face with Toby, mere inches away.

Michael is speechless, appalled. When he finds his voice, he screams and his scream is the sound of dismay, and denial, and anguish, and horror, and all things that are terrible. The scream reads (verbatim from the teleplay, or at least the nerds who transcribe it online), ”NOO GOD! NO. GOD. PLEASE. NO. NO!!! NO!!! NOOOOOO!!!"

That’s one way to say no, like you mean it.

Example 2 is a nifty bit of scene chewing by versatile, Academy Award winner, Sir Ben Kingsley.

In the movie, Sexy Best, ca. 2000, Kingsley is Don Logan, a criminal bent on pulling a former partner out of retirement for one last job, an ambitious heist in London-town. Said partner, by the name of Garry 'Gal' Dove resists Logan's overture. He declines, he won't do it, he's happy basking poolside in a Spanish sun with his beautiful wife. Bliss. To this defiance, Logan answers (verbatim from the script or at least the nerds who transcribe it on imdb), "No. No no no no no no no no no! No! No no no no no no no no no no no no no! No!" Kingsley's acting is what film critics would characterize as a "bravura" or "powerhouse" performance, or the audience at home might call, "cool."

And that's another way to say no, like you mean it.

Now, with this perspective, how do I ultimately elect to answer the question, "Should I transfer my car title to my cat?"

I say simply, "No" and I give pause so it may sink in. And then I move on.

After positing the above theory of Emphasis by Excessive Repetition ("EER"), I've realized that succinctness works too. Plus, all those histrionics might be a bit off-putting. See, there's TV and movies, where we aspire to win Golden Globes and Oscars, and there's real life, where we aspire to be normal.

I had also attempted a variation on the whole brevity thing.

Client: "Should I transfer my car title to my cat?"

AA: "No. That's stupid. And not in a Mia Michaels kind of way."

However, I abandoned that tack upon observing the client was first offended, and then confused. I've come to realize not everyone speaks my marital language.

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*Plum confides the idea for the volume came suddenly, while he was peeling a plum, with a knife in the kitchen.

**Incidentally, Cars movie lore states that "Ka-chow" was simply ad-libbed by thespian, Owen Wilson, one of the Wilson brothers (see our blog on HOAs for further discussion of the Wilson brothers; I've been told it's important to carry over important themes in order to establish a unique blog voice--for better or worse), who voiced Lightning McQueen.

***BAPCPA is the Bankruptcy Abuse Prevention and Consumer Protection Act (or some kind of mouthful like that), a major reformation of the Bankruptcy Code in October 2005 that attorneys like to gripe about. I just don't like the way it sounds. Has no ring to it.

Disclaimer: this is not a treatise on fraudulent transfers. Don't try this at home.

The Law Office of Asaph Abrams is exclusively a bankruptcy law practice. To give peace of mind, we provide responsive and personable care for our clients.

For a free, half-hour attorney consultation, call 858-344-0500 or e-mail admin@abramslawsd.com. Please ask for Jodi or Mellanie to set an appointment.