When a debtor gives away property or sells it for far less than it is worth before filing bankruptcy, the trustee can undo the transfer and recover the property for creditors. Section 548 provides two paths: actual fraud (intent to cheat creditors) and constructive fraud (bad deal while insolvent).
11 U.S.C. Section 548 gives the bankruptcy trustee the power to avoid (undo) certain transfers of the debtor's property made within two years before the bankruptcy filing. There are two distinct theories:
The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily -- (A) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted...
Proving actual intent is difficult because debtors rarely admit to trying to defraud creditors. Courts therefore rely on circumstantial evidence called "badges of fraud" -- recurring fact patterns that tend to indicate fraudulent intent:
Courts look at the totality of the circumstances. The presence of several badges of fraud creates a strong inference of fraudulent intent, but no single badge alone establishes actual fraud. Conversely, the absence of one or two badges does not defeat the claim if the remaining evidence is compelling.
Constructive fraud does not require proving intent. The trustee must show two things:
"Reasonably equivalent value" does not require dollar-for-dollar equivalence. Courts apply a flexible standard that considers the totality of the circumstances, including whether the debtor received economic benefit from the transaction. However, a sale at 50% of market value is almost certainly not reasonably equivalent, while a sale at 90% of market value usually is.
Section 548 applies to transfers made within two years before the filing date. This is the federal lookback period and applies in every jurisdiction.
The trustee can also use Section 544(b) to invoke applicable state fraudulent transfer laws. Most states have adopted the Uniform Voidable Transactions Act (UVTA, formerly the Uniform Fraudulent Transfer Act), which typically provides a four-year lookback period for constructive fraud and four years from discovery (or one year after the transfer could reasonably have been discovered) for actual fraud. Some states have even longer periods.
| Legal Basis | Lookback Period | Scope |
|---|---|---|
| Section 548 (federal) | 2 years before filing | All bankruptcy cases |
| Section 544(b) + state law | Typically 4-6 years (varies by state) | Depends on state statute |
A transferee who took the property in good faith and gave value in return has a lien on the property to the extent of the value given. This protects innocent purchasers who paid fair value. The burden is on the transferee to prove good faith and value.
A transferee of a transfer voidable under this section that takes for value and in good faith has a lien on, or may retain, any interest transferred... to the extent that such transferee gave value to the debtor in exchange for such transfer.
The Supreme Court held that the price received at a regularly conducted, non-collusive mortgage foreclosure sale constitutes "reasonably equivalent value" for purposes of Section 548. The trustee cannot avoid a foreclosure sale merely because the property sold for less than its fair market value, as long as the foreclosure complied with state law procedures.
While primarily a Section 523(a)(2)(A) dischargeability case, the Supreme Court clarified that a debtor's transfer of assets to evade payment can constitute "actual fraud" even without a false representation. This reasoning reinforces the breadth of "actual intent to hinder, delay, or defraud" under Section 548.
These are distinct avoidance powers that serve different purposes. See our Section 547 preference explainer for a side-by-side comparison. The key distinction: preferences are about unequal treatment of creditors, while fraudulent transfers are about removing property from the reach of creditors altogether.
| Section | Subject | Relevance |
|---|---|---|
| 548(a)(1)(A) | Actual fraud | Intent to hinder, delay, or defraud |
| 548(a)(1)(B) | Constructive fraud | Less than reasonably equivalent value while insolvent |
| 548(c) | Good faith defense | Transferee who gave value in good faith |
| 544(b) | State law avoidance | Extends lookback via state fraudulent transfer laws |
| 547 | Preferences | Distinct avoidance power for pre-filing payments to creditors |
| 550 | Liability of transferee | Recovery from initial and subsequent transferees |
| 546 | Statute of limitations | Time limit for bringing avoidance actions |
Check whether a prior filing bars your discharge under Section 1328(f), 727(a)(8), or 727(a)(9).
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