CLAWBACK PERIODS
Fraudulent Transfer if USA is creditor
Fair Debt Collections Practices Act
(AFDCPA@)
Actual Intent
6 years or 2 years
from reasonable
discovery
546(a)(1)/ 544
28 USC ' 3304(b)(1)(A)
28 USC ' 3306(b)(1)
Fraudulent Transfer if USA is creditor
2 years
546(a)(1)/ 544
Fair Debt Collections Practices Act
(AFDCPA@)
28 USC ' 3306(b)(3)
28 USC ' 3304(b)(2
Fraudulent Transfer if USA is creditor
B specifically IRS
10 years
546(a)(1)/ 544(b)
26 USC ' 650214
26 USC ' 6501
Action for CERCLA damages
3 years for most
546(a)(1)/ 544
42 USC ' 9601 et seq
42 USC ' 9613(g)
To Insider
FDCPA
The Federal Debt Collection Practices Act (AFDCPA@) is defined under 28 U.S.C. ‘ 3304. Trustees
have read the FDCPA and discovered that it has a six-year Areach back@ or clawback period.15 Under
the Bankruptcy Code, trustees incorporate the FDCPA with the Bankruptcy Codes ‘ 544(b) provision so
that they may avoid transfers Aunder applicable [federal] law@ which includes the FDCPA=s 28 U.S.C.
3306; and, then avoid transfers occurring six years prior to the petition date.
When receiving an action utilizing the FDCPA=s six-year clawback period, the courts are split. Section
330616 of title 28 provides that, A . . . the United States . . . may obtain (1) avoidance of the transfer
obligation to the extent necessary to satisfy the debt to the United States . . .@17 When reviewing that
language, one court wrote, AThe FDCPA does not contain a private right of action . . .[and] is a remedy
for the exclusive use of the United States.@18
Another Argument Prohibiting Trustees to Use FDCPA
Interestingly, when the FDCPA was enacted, it did include a provision that stated that the chapter A. .
. should not be construed to supersede or modify the operation of (1) title XI19 . . .@20 No one can find
legislative history to guide what it means not to Asupersede or modify@ bankruptcy. But, some courts
conclude that the incorporation of the FDCPA into bankruptcy avoidance actions is A