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Use Extreme Caution When Allowing Family or Friends to Access Your Accounts

Posted By admin || 10-Sep-2009

In the bankruptcy case of Raeder, Nathaniel F.; In re (Harrold v. Raeder), the bankruptcy court ruled that the plaintiff's claim was not excepted from bankruptcy discharge.

The details of the bankruptcy case:

In 2003, due to a broken shoulder and the inability to move around or write, the debtor's mother (the plaintiff) had delegated to her son (the debtor) the responsibility of writing checks from her investment account to pay for her household and personal expenses.  But it was only in 2007 that she discovered that her son (the debtor) had withdrawn an unauthorized $264,193 from her account.  When the debtor filed for bankruptcy, the plaintiff requested that the debt be excepted from discharge, the bankruptcy court denied her request.

The bankruptcy court said:

"The court said Section 523(a)(2) did not apply because the debtor did not use false representations to gain access to the money. The court also found that Section 523(a)(4) did not apply. First, even if the debtor engaged in acts of de­falcation he did not do so in a fiduciary capacity. While the plaintiff trusted her son with check writing authority, there was no express or technical trust established. Next, the debtor did not commit larceny because he had com­plete legal access to the money. Finally, the court found that the record did not establish embezzlement because the plaintiff intended to provide some gifts to the debtor and allowed him to use money from the account for his business. Finally, the court ruled that the claim was not excepted from discharge by Section 523(a)(6) because the evidence fell short of proving that the debtor intended to harm his mother. The court said the debtor appeared to be "acting within his ostensible rights to gift the money in her account to himself and his sister." The court added that the unauthorized withdrawals came only from inter­est earned. He never diminished the principal amount of the plaintiff's investment account."


Although this debtor benefited in this bankruptcy case, his relationship with his mother probably did not.  It is important that debtors use extreme caution when allowing others access to their bank accounts, investments or other assets.  Make sure that there are clear written instructions about what each party's responsibilities are and what will happen when those responsibilities or agreements are breached.

Source:

Consumer Bankruptcy News, Volume 19, Issue 18, page 16

Categories: Bankruptcy
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