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According to data released by the Administrative Office of the U.S. Courts, the total number of bankruptcies filed during the first three months of 2008 increased 26.9 percent over the same period in 2007. The majority of participants in a bankruptcy, the debtors, creditors, trustees, and professionals, are honest. However, given the number of bankruptcy cases filed and administered each year, there is certain to be a small percentage of bankruptcy crimes committed.
Desperate people often do things without fully understanding the consequences of their actions. Debtors should be counseled as to the consequences of fraudulently concealing assets, making a false oath, or to committing any of the other bankruptcy crimes. In order to do this, practitioners should understand the various types of bankruptcy crimes, the elements that make up the crimes, the requisite mental state for each crime, the relevant evidence, and the penalties involved.
The most commonly prosecuted bankruptcy crime is the knowing and fraudulent concealment of assets under 18 USCS § 152(1). The first line of defense against this crime is the attorney for the debtor. See Mary Jo Heston, Bankruptcy Fraud Introduction, 6 Am. Bankr. Inst. L. Rev. 271, Winter 1998. Other types of bankruptcy crimes listed under § 152 are: making a false oath or account, making a false declaration under penalty of perjury, presenting a false claim, receiving property with the intent to defeat the provisions of Title 11, bribery, transferring or concealing property, destroying or tampering with recorded information affecting the debtor, and postpetition withholding of recorded information. While there are several federal criminal statutes that could be used to charge actors involved in bankruptcy-related criminal conduct, general bankruptcy crimes listed in § 152 are also broad enough to address the conduct of any person connected to the bankruptcy, including those who do not have special duties imposed on them under the Bankruptcy Code. Mary Jo Heston, Bankruptcy Fraud: Article: The United States Trustee: The Missing Link of Bankruptcy Crime Prosecutions, 6 Am. Bankr. Inst. L. Rev. 359, Winter 1998. The specific intent requirement distinguishes criminal bankruptcy fraud from civil abuses of the bankruptcy system.
This commentary will provide an overview of each of the bankruptcy crimes listed in § 152 along with embezzlement against the estate, 18 USCS § 153, adverse interest and conduct of officer, 18 USCS § 154, fee agreements, 18 USCS § 155, knowing disregard of bankruptcy laws and rules, 18 USCS § 156, and bankruptcy fraud under 18 USCS § 157. The elements of each crime, the relevant and sufficient evidence necessary, and the penalties involved will be discussed. Also discussed is the designation of individuals to address abusive reaffirmations and fraudulent statements in bankruptcy schedules under 18 USCS § 158.