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Thursday, February 09, 2006
Freezing debtor's assets during litigation
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I've written many time about clients who underestimate their creditors zeal and underestimate the ability of courts to freeze assets during litigation. Most people incorrectly believe that courts can do nothing more in civil cases than issue money judgements, and that creditors have the task of finding and seizing non-exempt assets. Most people also understand that courts can freeze assets though injunctions and temporary restraining orders to stop debtors from transferring their assets after money judgments are entered which give creditors an interest in debtors property.

Recently, I learned of a civil case in federal court where the federal judge took more drastic action to the dismay of the defendant. The court and plaintiff were frustrated by repeated delays on the part of the defendant and his litigation attorney to comply with plaintiff's discovery orders. The court sanctioned the defendant by dismissing his pleadings and entering a default for an amount to be determined later. Even though no amount of damages had been determined and no final judgment against defendant entered, the court ordered the defendant and his controlled business entities not to transfer any assets. This order is not directed to any specific property, but is a restraint on the persons from taking any action to transfer any asset.

This example shows that debtors can be subject to court orders freezing their assets before the final adjudication of a civil case. The court does not have to know about the debtors assets or where the assets are located. Any transfer of any asset wherever located would subject the defendant to finding of civil contempt. Asset protection planning that relies on placing assets in other states or countries beyond court jurisdiction will not work well against this type of asset freeze so long as the defendant has some control over the asset and the defendant is within the court's jurisdiction. Some lessons from this case are (1) that people must complete asset protection planning early and prior to litigation, (2) don't underestimate the power of creditors or the powers of judges determined to grant relief to creditors, and (3) all else being equal, asset protection plans are less effective to the extent the debtor has control over assets or their disposition.


posted by Jonathan Alper, asset protection and estate planning attorney, Orlando, Florida
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