California Laws re "Fraudulent Conveyance"
Penal Code 154 & 531 PC
Explained by California Defense Lawyers

You may have heard of debtors' prisons...the grim places where people used to be sent when they were unable to pay their debts. Debtors' prison has been officially outlawed in the United States since the 1830s.1 But that doesn't mean we don't still send people to jail for trying to avoid paying their debts.

The California crime of fraudulent conveyance is a case in point. California law makes it a crime to sell or give away your property in order to avoid having to use that property to pay back a debt.2 Debtors who break these laws, or people who help them break these laws, may face jail time.3

Sometimes the same concept is referred to as "concealing assets from creditors."

These days, people need to be especially careful about violating fraudulent conveyance laws. Thanks in part to unethical behavior by mortgage lenders, payday lenders, etc.,4 countless Americans have more debt than they can handle.5

If someone owes more money than they can pay, lenders may come after their most prized possessions-houses, cars, wedding rings, family heirlooms. It can be awfully tempting for people in that situation to try to hide their possessions, give them to relatives, or otherwise keep them out of the hands of greedy lenders. But by doing so, they risk adding a criminal record to their problems.

In this article, our California criminal defense attorneys6 explain the California and federal crimes of fraudulent conveyance by addressing the following:

1. What is a "fraudulent conveyance"?
2. Penal Code 154 PC - fraudulent conveyance by
a debtor

2.1. Elements of Penal Code 154 PC
fraudulent conveyance

2.2. Penalties

2.3. Penal Code 155 PC - fraudulent conveyance by a
judgment debtor

3. Penal Code 531 PC - other ways to be involved in a fraudulent conveyance

3.1. Actions that violate Penal Code 531 PC

3.2. Penalties

4. Federal law on fraudulent conveyances
and bankruptcy
5. Uniform Fraudulent Transfer Act
(Civil Code 3439)
6. Legal defenses - lack of intent

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on White Collar Crime in California; Legal Definition of a Misdemeanor in California Law; Legal Definition of a Felony in California Law; Federal Criminal Charges; and Common Legal Defenses to California Crimes.

1. What is a "fraudulent conveyance"?

Fraudulent conveyance is what is known as a "white collar crime." This means that it is usually committed through a business or property transaction rather than through a physical act. But unlike many white collar crimes, which are often committed by professionals or executives in a workplace setting, fraudulent conveyance is a crime that anyone can commit in their personal lives...whether they have a white-collar job or not.

A "fraudulent conveyance" is simpler than it sounds. Basically, in California a fraudulent conveyance is what happens when someone sells, gives away, or otherwise transfers any kind of property, with the goal of preventing their creditors (that is, people to whom they owe money) from getting at that property and using it to pay off the debt.7

Here's how it works:

Example: Dave owes money to Cathy (this makes Dave a "debtor" and Cathy a "creditor"). Dave doesn't have the money to pay Cathy back. He does own a very expensive watch that he inherited from his father, who has died, and that he never intended to sell...Dave's plan is to give it to his own son someday.

Dave is afraid that if he keeps the watch, Cathy will find a way to make him sell it so he can pay back his debt to her. So he gives the watch to his sister, Sandra. Sandra and Dave have secretly agreed that she will give it back to Dave once the Cathy business blows over.

Dave may have just committed the crime of fraudulent conveyance.

Example: Harry is divorced from his ex-wife, Ellen. In the divorce proceedings, Ellen had a much better lawyer than Harry did. As a result, he now owes her a huge percentage of his paycheck for child support every month. The amount remaining isn't enough for Harry to live on.

Harry knows that if he stops making the child support payments, the state will take the money straight out of the bank account of the small business he owns. So he arranges for all profits from his business to go instead to the bank account of his girlfriend, Gail.

Because Harry is sending his profits to Gail's account in order to prevent the money from going to Ellen, he may be guilty of fraudulent conveyance.

Of course, it's not a crime for anyone who's having trouble paying their debts to give something away. You can't be convicted of the crime of fraudulent conveyance in California unless you actually intended to keep your creditor from being paid.8

Example: Ethel is a retiree living on Social Security. She has had to use credit cards to pay her daily living expenses and now is having trouble paying her credit card bills. Ethel is considering filing for bankruptcy.

Ethel has an old car that she rarely uses. Her daughter Darlene's car breaks down, and Darlene does not have enough money to buy a new one. Ethel knows that Darlene needs a car to get to work. So Ethel gives her car to Darlene for free.

Ethel didn't give her car to Darlene to keep it away from the credit card companies...she did it because she wanted to help Darlene. So she probably did not commit the California crime of fraudulent conveyance.
Img-fraud-conveyance-creditcard
2. Penal Code 154 PC - fraudulent conveyance by
a debtor

For a debtor who transfers property to someone else to avoid having to use it to pay a debt, the most relevant California law is Penal Code 154 PC.9

2.1. Elements of Penal Code 154 PC fraudulent conveyance

You may violate Penal Code 154 PC if all of the following (the "elements" of the crime) are true:

  1. You are a "debtor."10

    This means that you are responsible for paying money to someone else (the "creditor"), usually because you borrowed money from them.11

  2. You do any of the following:
    a. Sell your property to someone else,

    b. Give your property to someone else for free,

    c. Hide or conceal your property, or

    d. Move your property out of the state.12

    AND
  3. You do so because you intend to prevent your creditors from getting paid, or to make it more difficult for them to get paid, or to delay them getting paid.13

2.2. Penalties

In most cases, a debtor who fraudulently conveys their property is guilty of a misdemeanor in California.14 The maximum potential penalties are up to one (1) year in county jail, a fine of not more than one thousand dollars, or both.15

BUT the crime of fraudulent conveyance under Penal Code 154 PC becomes
a felony if the following statements are both true:

  1. The property that is fraudulently conveyed is what is known as "stock in trade"-that is, merchandise that the debtor might sell in his or her business,

    AND

  2. The stock in trade that is fraudulently conveyed is worth more than two hundred fifty dollars ($250).16

In these cases, the possible penalties are much steeper. A defendant may be sentenced to sixteen (16) months, two (2) years, or three (3) years in California state prison.17 However, at the judge's discretion, s/he also may be sentenced instead to up to one year in county jail, a fine, or both.18

Why is fraudulent conveyance punished more harshly if the property conveyed is stock in trade? The reason is that small retail businesses typically get most of their inventory on credit. Then they pay their suppliers only after they sell the merchandise.

The California legislature was concerned about the problem of people opening stores, stocking them with merchandise purchased on credit, selling the merchandise at rock-bottom prices, pocketing the money from the sales, and then leaving town without paying their suppliers. So it enacted harsher felony penalties for this kind of fraudulent conveyance.19

Img-fraud-conveyance-go

2.3. Penal Code 155 PC - fraudulent conveyance by a judgment debtor

It's not only people who have borrowed money who can be convicted of fraudulent conveyance. Under Penal Code 155 PC, the same penalties apply to people who are defendants or losing parties in a court case.20 This law makes it illegal to conceal or transfer property, or to move property to a different county, in order to avoid paying damages owed as a result of a lawsuit.21

You can violate Penal Code 155 PC by transferring property after you have already been ordered to pay money in a court case. But you can also violate it by transferring property while the lawsuit is still going on, before you have even been ordered to pay anything.22

Here's an example showing what this means:

Example: Doug's dog escapes from Doug's yard and attacks Peggy. Peggy sues Doug, who is wealthy, for her medical bills and emotional distress. While the lawsuit is going on, Doug takes most of his money and puts it in overseas trusts for the benefit of his children, which he and his creditors can't touch.

Because Doug transferred his personal property in order to avoid having to pay Peggy if she wins on her lawsuit, he may be guilty of fraudulent conveyance under Penal Code 155 PC.
3. Penal Code 531 PC - other ways to be involved in a fraudulent conveyance

3.1. Actions that violate Penal Code 531 PC

You can be penalized for a fraudulent conveyance even if you are not the person who owes money. Specifically, you may be guilty of participation in a fraudulent conveyance if you do any of the following:

  1. Are a party to a fraudulent conveyance (most often, this means the person to whom the property is transferred),
  2. Willingly and knowingly defend the conveyance as not being fraudulent, or
  3. Give away or sell any of the property that has already been fraudulently conveyed.23
Example: In our earlier example, Harry arranged to have the profits from his business go to the bank account of his girlfriend, Gail. He did this so that the state would not take the money directly from his account in order to make extremely high child support payments to his ex-wife, Ellen.24

Gail (the girlfriend) knew what Harry was doing and signed papers to enable him to direct his profits to her account. Because she was a party to the fraudulent conveyance and intended to help Harry keep his money away from Ellen,  she may face criminal penalties too.

According to Palm Springs criminal defense lawyer Michael Scafiddi25:

"Remember that it's not a fraudulent conveyance unless the transaction was designed with the specific goal of preventing creditors from getting paid. That said, the fact that the law punishes everyone involved in the transaction, even the people who never owed money to begin with, shows how committed the law is to protecting creditors...and punishing anyone who helps keep debts from being paid!"

3.2. Penalties

Participating in a fraudulent conveyance is a misdemeanor under Penal Code 531 PC.26 The maximum penalties are up to six (6) months in county jail, a fine of up to one thousand dollars ($1,000), or both.27

4. Federal law on fraudulent conveyances
and bankruptcy

California state charges aren't the only thing you need to worry about if you engage in a fraudulent conveyance. Being involved in a fraudulent conveyance can also lead to federal criminal charges. However, this will only happen if the conveyance takes place after, or shortly before, a debtor files for bankruptcy.28

The bankruptcy process allows someone who owes more debts than they can pay to get a fresh start.29 What happens in bankruptcy is this: a court takes stock of what the debtor owns and can pay, decides how much of that will go to each creditor, and then wipes out the debt. But the problem with this process is that it requires the debtor to use all of his/her assets to pay off as much of the debt as possible.

If a debtor decides to transfer some of his/her property to someone else before filing for bankruptcy, specifically intending to prevent that property from being included in the assets for paying his/her debts...or if s/he does so after the bankruptcy process has begun...s/he may face federal criminal penalties.30 Not only that, but the person to whom s/he transfers the property may be charged too, assuming that person also had the intent to keep the property out of the bankruptcy process.31

Penalties for federal fraudulent conveyance in bankruptcy are quite steep. If convicted, a defendant can be sentenced to up to five (5) years in federal prison, a fine, or both.32

Img-fraud-conveyance-prison
5. Uniform Fraudulent Transfer Act
(Civil Code 3439)

Criminal penalties aren't the only way in which California law tries to discourage fraudulent conveyances. Civil (that is, non-criminal law) in California-namely, a California law called the Uniform Fraudulent Transfer Act-also tries to prevent people from putting their property where creditors can't get at it.33

The law does this by providing that a creditor can sue in a civil lawsuit to claim the property that was fraudulently conveyed...even if the debtor no longer owns it.34 So the creditor may be able to take that property in payment of the debt anyway.

6. Legal defenses - lack of intent

Fraudulent conveyance laws are terribly harsh...in large part because they make it a crime to do something a lot of people probably have no idea is illegal.

Fortunately, there are legal defenses that can help if you are charged under California or federal fraudulent conveyance laws. The most important is probably "lack of intent."

As we discussed above, you can't be convicted of violating California or federal laws against fraudulent conveyances unless you specifically intended to make it harder for a creditor to get paid.35 So a prosecutor has to be able to prove what your intent was before you can be convicted.

Proving this can be pretty complicated, particularly with a white collar crime like a fraudulent conveyance. It's complicated enough that California law actually sets forth a list of factors that may help prove that you intended to defraud a creditor by participating in a fraudulent conveyance. These include:

  • Whether the person to whom the transfer was made was an "insider"-that is, someone with close business or personal ties to the debtor,
  • Whether the debtor continued to possess or control the property after transferring it (for example, by renting or borrowing it back from the person to whom it was transferred),
  • Whether the transfer was done openly or secretly, and
  • Whether the transfer happened right before or after the debtor become unable to pay his/her debts.36

But just because a court can consider these factors, that doesn't mean that any of them will necessarily determine whether the defendant is found guilty. An experienced California criminal defense attorney who understands the complexities of your personal or business financial transactions can help you sort through the factors that are relevant to your case...and that will best help you assert the legal defense of lack of intent.

Call us for help...

For questions about the California and federal crime of fraudulent conveyance, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, Long Beach, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, Sacramento, the San Francisco Bay area, and several nearby cities.

For information on Nevada fraudulent conveyance laws, see our article on Nevada fraudulent conveyance laws.

Legal References:

1 See Jill Lepore, I.O.U.: How we used to treat debtors (abstract), The New Yorker, Apr. 13, 2009.

2Penal Code 154 PC - Debtor fraudulently removing, conveying, or concealing property; punishment. ("(a) Every debtor who fraudulently removes his or her property or effects out of this state, or who fraudulently sells, conveys, assigns or conceals his or her property with intent to defraud, hinder or delay his or her creditors of their rights, claims, or demands, is punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment. (b) Where the property so removed, sold, conveyed, assigned, or concealed consists of a stock in trade, or a part thereof, of a value exceeding two hundred fifty dollars ($250), the offense shall be a felony and punishable as such.")

Penal Code 531 PC - Fraudulent conveyances; defense of conveyance by party; sale or assignment of property conveyed. ("Every person who is a party to any fraudulent conveyance of any lands, tenements, or hereditaments, goods or chattels, or any right or interest issuing out of the same, or to any bond, suit, judgment, or execution, contract or conveyance, had, made, or contrived with intent to deceive and defraud others, or to defeat, hinder, or delay creditors or others of their just debts, damages, or demands; or who, being a party as aforesaid, at any time wittingly and willingly puts in, uses, avows, maintains, justifies, or defends the same, or any of them, as true, and done, had, or made in good faith, or upon good consideration, or aliens, assigns, or sells any of the lands, tenements, hereditaments, goods, chattels, or other things before mentioned, to him or them conveyed as aforesaid, or any part thereof, is guilty of a misdemeanor.")

3 Same.

4 See, e.g., Trying to Stem Foreclosures, Virginia Legislators Crack Down on Unethical Mortgage Brokers, The Washington Post, March 5, 2009; Center for Responsible Lending, Payday Lending: How A Short-Term Loan Becomes Long-Term Debt.

5 See Americans buried under debt, CNNMoney, May 8, 2012.

6 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.

7 Black's Law Dictionary (9th ed. 2009), fraudulent conveyance. ("A transfer of property for little or no consideration, made for the purpose of hindering or delaying a creditor by putting the property beyond the creditor's reach; a transaction by which the owner of real or personal property seeks to place the property beyond the reach of creditors.")

8 Penal Code 154 PC - Debtor fraudulently removing, conveying, or concealing property; punishment. ("a) Every debtor who fraudulently removes his or her property or effects out of this state, or who fraudulently sells, conveys, assigns or conceals his or her property with intent to defraud, hinder or delay his or her creditors of their rights, claims, or demands, is punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment. (b) Where the property so removed, sold, conveyed, assigned, or concealed consists of a stock in trade, or a part thereof, of a value exceeding two hundred fifty dollars ($250), the offense shall be a felony and punishable as such.") (emphasis added)

See also Penal Code 531 PC - Fraudulent conveyances; defense of conveyance by party; sale or assignment of property conveyed. ("Every person who is a party to any fraudulent conveyance of any lands, tenements, or hereditaments, goods or chattels, or any right or interest issuing out of the same, or to any bond, suit, judgment, or execution, contract or conveyance, had, made, or contrived with intent to deceive and defraud others, or to defeat, hinder, or delay creditors or others of their just debts, damages, or demands; or who, being a party as aforesaid, at any time wittingly and willingly puts in, uses, avows, maintains, justifies, or defends the same, or any of them, as true, and done, had, or made in good faith, or upon good consideration, or aliens, assigns, or sells any of the lands, tenements, hereditaments, goods, chattels, or other things before mentioned, to him or them conveyed as aforesaid, or any part thereof, is guilty of a misdemeanor.") (emphasis added)

9 Penal Code 154 PC - Debtor fraudulently removing, conveying, or concealing property; punishment. ("a) Every debtor who fraudulently removes his or her property or effects out of this state, or who fraudulently sells, conveys, assigns or conceals his or her property with intent to defraud, hinder or delay his or her creditors of their rights, claims, or demands, is punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment. (b) Where the property so removed, sold, conveyed, assigned, or concealed consists of a stock in trade, or a part thereof, of a value exceeding two hundred fifty dollars ($250), the offense shall be a felony and punishable as such.")

10 Same.

11 See Civil Code 3439.01 - Definitions. ("(b) 'Claim' means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured. . . . (e) 'Debtor' means a person who is liable on a claim.")

12 Penal Code 154 PC - Debtor fraudulently removing, conveying, or concealing property; punishment.

13 Same.

14 Same.

15 Same.

16 Same. ("(b) Where the property so removed, sold, conveyed, assigned, or concealed consists of a stock in trade, or a part thereof, of a value exceeding two hundred fifty dollars ($250), the offense shall be a felony and punishable as such.")

17 Penal Code 18 PC - Punishment for felony not otherwise prescribed; alternate sentence to county jail. ("(a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.")

18 Same. ("(b) Every offense which is prescribed by any law of the state to be a felony punishable by imprisonment or by a fine, but without an alternate sentence to the county jail for a period not exceeding one year, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")

19 People v. Waller, (1923) 64 Cal.App.390, 397-98. ("The facility with which a part of a stock in trade may be removed or sold without attracting attention is a matter of common knowledge. The discovery of such removal or sale would generally require an inventory of the remaining stock. It is a common practice for retail merchants to purchase their stocks of goods on credit and from those engaged in the wholesale trade at places far distant from the retailers' places of business, thus enabling the unscrupulous retailer to defraud such creditors with a minimum likelihood of detection.")

20 Penal Code 155 PC - Defendant or judgment debtor fraudulently removing, concealing, or disposing of personal property sought to be recovered. ("(a) Every person against whom an action is pending, or against whom a judgment has been rendered for the recovery of any personal property, who fraudulently conceals, sells, or disposes of that property, with intent to hinder, delay, or defraud the person bringing the action or recovering the judgment, or with such intent removes that property beyond the limits of the county in which it may be at the time of the commencement of the action or the rendering of the judgment, is punishable by imprisonment in a county jail not exceeding one year, or by fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.")

21 Same.

22 Same.

23 Penal Code 531 PC - Fraudulent conveyances; defense of conveyance by party; sale or assignment of property conveyed. ("Every person who is a party to any fraudulent conveyance of any lands, tenements, or hereditaments, goods or chattels, or any right or interest issuing out of the same, or to any bond, suit, judgment, or execution, contract or conveyance, had, made, or contrived with intent to deceive and defraud others, or to defeat, hinder, or delay creditors or others of their just debts, damages, or demands; or who, being a party as aforesaid, at any time wittingly and willingly puts in, uses, avows, maintains, justifies, or defends the same, or any of them, as true, and done, had, or made in good faith, or upon good consideration, or aliens, assigns, or sells any of the lands, tenements, hereditaments, goods, chattels, or other things before mentioned, to him or them conveyed as aforesaid, or any part thereof, is guilty of a misdemeanor.")

24 Same.

25 Palm Springs criminal defense lawyer Michael Scafiddi is a former police officer and police sergeant. He is on a first-name basis with many of the judges, prosecutors, and probation officers in the San Bernardino County criminal courts and the Riverside County criminal courts.

26 Penal Code 531 PC - Fraudulent conveyances; defense of conveyance by party; sale or assignment of property conveyed.

27 Penal Code 19 PC- Punishment for misdemeanor; punishment not otherwise prescribed. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.")

2818 U.S.C. § 152 - Concealment of assets; false oaths and claims; bribery [Fraudulent conveyance in bankruptcy]. ("A person who- . . . (5) knowingly and fraudulently receives any material amount of property from a debtor after the filing of a case under title 11, with intent to defeat the provisions of title 11; . . . (7) in a personal capacity or as an agent or officer of any person or corporation, in contemplation of a case under title 11 by or against the person or any other person or corporation, or with intent to defeat the provisions of title 11, knowingly and fraudulently transfers or conceals any of his property or the property of such other person or corporation;  . . . shall be fined under this title, imprisoned not more than 5 years, or both.")

29 Local Loan Co. v. Hunt, (1934) 292 U.S. 234, 244. ("[Bankruptcy] gives to the honest but unfortunate debtor . . . a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.")

30 18 U.S.C. § 152 - Fraudulent conveyance in bankruptcy. ("A person who- . . . (5) knowingly and fraudulently receives any material amount of property from a debtor after the filing of a case under title 11, with intent to defeat the provisions of title 11; . . . (7) in a personal capacity or as an agent or officer of any person or corporation, in contemplation of a case under title 11 by or against the person or any other person or corporation, or with intent to defeat the provisions of title 11, knowingly and fraudulently transfers or conceals any of his property or the property of such other person or corporation;  . . . shall be fined under this title, imprisoned not more than 5 years, or both.")

31 Same.

32 Same.

33 Civil Code 3439 et seq.

34 Civil Code 3439.07 - Remedies of creditors [for fraudulent conveyances]. ("(a) In an action for relief against a transfer or obligation under this chapter, a creditor, subject to the limitations in Section 3439.08, may obtain: (1) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor's claim. . . .")

35 Penal Code 154 PC - Debtor fraudulently removing, conveying, or concealing property; punishment; Penal Code 531 PC - Fraudulent conveyances; defense of conveyance by party; sale or assignment of property conveyed; 18 U.S.C. § 152 - Fraudulent conveyance in bankruptcy.

36 Civil Code 3439.04 - Transfers fraudulent [fraudulent conveyances] as to present and future creditors; factors to determining intent. ("(b) In determining actual intent under paragraph (1) of subdivision (a), consideration may be given, among other factors, to any or all of the following: (1) Whether the transfer or obligation was to an insider. (2) Whether the debtor retained possession or control of the property transferred after the transfer. (3) Whether the transfer or obligation was disclosed or concealed. (4) Whether before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit. (5) Whether the transfer was of substantially all the debtor's assets. (6) Whether the debtor absconded. (7) Whether the debtor removed or concealed assets. (8) Whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred. (9) Whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred. (10) Whether the transfer occurred shortly before or shortly after a substantial debt was incurred. (11) Whether the debtor transferred the essential assets of the business to a lienholder who transferred the assets to an insider of the debtor.")

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