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In re Bundles

decided: August 25, 1988.

IN THE MATTER OF DONALD EUGENE BUNDLES, DEBTOR-APPELLANT, IN RE DONALD EUGENE BUNDLES, APPELLANT,
v.
WILLIAM J. BAKER, INDIANA NATIONAL BANK AND JAMES C. WELLS, APPELLEES



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1P86-890C -- Sarah Evans Barker, Judge.

Wood Jr., Cudahy and Ripple, Circuit Judges.

Author: Ripple

RIPPLE, Circuit Judge.

In this appeal, we must decide whether a debtor in bankruptcy may set aside under section 548(a)(2) of the Bankruptcy Code (the Code), 11 U.S.C. § 548(a)(2) (Supp. IV 1986), the sale of his personal residence upon foreclosure of the mortgage. The bankruptcy court and the district court held that he could not. We reverse and remand for further proceedings.

I

Background

A. Statutory Background

Section 548 of the Code provides in pertinent part:

§ 548. Fraudulent transfers and obligations

(a) 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 one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily --

(2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and

(B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; . . . .

11 U.S.C. § 548(a)(2) (Supp. IV 1986).

This provision sets forth four elements that must be established before a debtor*fn1 may set aside a transfer of property. These are: (1) the debtor had an interest in the property transferred; (2) the debtor was insolvent at the time of the transfer or became insolvent as a result of the transfer; (3) the transfer occurred within one year of the filing of the bankruptcy petition; and (4) the transfer was for less than a "reasonably equivalent value." The parties agree that the debtor has established each of these elements except the last.*fn ...


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