If you make a payment to a creditor who is an insider, the rules are strict. The trustee can avoid insider payments made within one year of the bankruptcy. Insiders include more than your relatives but extend to:
- your general partner
- the relatives of your general partner
- partnerships in which you are a general partner, and
- corporations of which you are an officer, director, or person in control.
If you pay back a loan from your family within one year before filing your case, the trustee can avoid the transfer and get that money back if all other preference requirements are satisfied.
Making Payments to Other Creditors 90 Days Before Filing
The rules are different for other creditors. If most of your debt is consumer debt—that is, it isn't a business debt—a payment or transfer to a creditor is a preference when it's:
- over $600 in aggregate,
- paid within the 90 days before your bankruptcy filing
- made while you were insolvent (meaning you had more debt than assets and property), and
- more than the creditor would be entitled to in a Chapter 7 bankruptcy.
If the payment meets all of these elements, it qualifies as a preference. The trustee can avoid the transfer and get the money back for the benefit of all creditors. Be aware that bankruptcy law presumes debtors are insolvent during the 90 days before filing for bankruptcy.