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Article List for for Motions Practice in Transfer Avoidance Bankruptcy Proceedings

Lehman Brothers Holdings Inc. et al v. JPMorgan Chase Bank, N.A. – JPMorgans Submission in Response to Case Management Order

09/26/2011 – JPMorgans Submission in Response to Case Management Order filed in the Lehman Brothers Holdings Inc. Adversary Proceedings by JPMorgan Chase Bank, N.A. before U.S. Bankruptcy Judge James M. Peck in the Southern District of New York (Manhattan) filed by Wachtell, Lipton, Rosen & Katz (New York, NY) attorney Paul Vizcarrondo, Jr., Of Counsel: Harold S. Novikoff; Amy R. Wolf; Douglas K. Mayer; Emil A. Kleinhaus; Alexander B. Lees.

On August 15, 2011, U.S. Bankruptcy Judge James M. Peck issued a Case Management Order in Relation to the Impact of Stern v. Marshall (the “Stern Order”). Both the Plaintiffs, Lehman Brothers Holdings Inc. and Official Committee of Unsecured Creditors of Lehman Brothers Holdings Inc. (“Lehman”) and Defendant JPMorgan Chase Bank, N.A. (“JPMorgan”) each were directed, inter alia, to address each count of the 49 count amended complaint separately in stating whether such court was susceptible to: a ruling by the Bankruptcy Court on the pending motion to dismiss; either final adjudication by the Bankruptcy Court; or issuance of a report and recommendation by the Bankruptcy Court. JPMorgan’s response to this directive from Judge Peck is set forth below. Whether ultimately determined to be a correct or incorrect analysis of Stern, the issue analysis and presentation of JPMorgan is impressive. »»» Read rest of article . . .

More articles on: " , ". First Published September 28th, 2011.

Barclays Capital Inc. Opposition to Pirinate Consulting Group’s Motion to Amend it Avoidance Complaint

09/23/2011 – Defendants Brief in Opposition to Plaintiffs Motion for Leave to Amend Complaint filed in the Spansion, Inc. Adversary Proceedings by Barclays Capital Inc. before Chief, U.S. Bankruptcy Judge Kevin J. Carey in the District of Delaware filed by Richards, Layton & Finger, P.A. (Wilmington, Delaware) attorneys Robert J. Steam, Jr., Julie A. Finocchiaro, and Amanda R. Steele .

Defendant Barclays Capital Inc. (“Barclays” or “Defendant”) opposes the motion of the Pirinate Consulting Group, LLC (“Plaintiff’), Claims Agent for the Chapter 11 Estates of Spansion, Inc., et al. (the “Debtors”) to amend its avoidance complaint.  Barclay’s opposition is based on dual grounds – first, the amended complaint so drastically alters the original pleading that can not relate back; and second, the proposed amend complaint itself would be would be subject to Rule 12(b)(6) dismissal.  Barclays weaves together multiple limitations on avoidance actions, some common and some obscure, into a formidable effort to dismiss the Plaintiff’s avoidance complaint in its entirety.  »»» Read rest of article . . .

More articles on: " , ". First Published September 26th, 2011.

Marty Shoes Holdings, Inc. Bankruptcy: George L. Miller, Chapter 7 Trustee v. Brown Shoe Company, Inc. – Defendant’s Reply Brief in Support of Its Motion to Dismiss Complaint

08/29/2011 – Defendant’s Reply Brief in Support of Its Motion to Dismiss Complaint filed in the Marty Shoes Holdings, Inc. Adversary Proceedings by Brown Shoe Company, Inc. before U.S. Bankruptcy Judge Kevin J. Carey in the District of Delaware filed by Morris, Nichols, Arsht & Tunnell LLP (Wilmington, DE) attorneys Donna Culver and Andrew R. Remming; Bryan Cave LLP (St. Louis, MO) attorney Cullen K. Kuhn.

Defendant’s reply hammers home two basic points: a Chapter 7 trustee is not excused from complying with the established standards in Delaware Bankruptcy Court governing preference complaints; and discovery to get the facts needed to amend Plaintiff’s complaint is not permitted. Defendant’s discussion of the second point and citations of authority in support follow. »»» Read rest of article . . .

More articles on: " , ". First Published August 30th, 2011.

Marty Shoes Holdings, Inc. Bankruptcy: George L. Miller, Chapter 7 Trustee v. Brown Shoe Company, Inc. – Plaintiff’s Answering Brief to Motion to Dismiss Complaint

08/22/2011 – Plaintiff’s Answering Brief to Motion to Dismiss Complaint filed in the Marty Shoes Holdings, Inc. Adversary Proceedings by Brown Shoe Company, Inc. before Chief, U.S. Bankruptcy Judge Kevin J. Carey in the District of Delaware filed by Ciardi Ciardi & Astin attorneys John D. McLauglin, Jr., Albert A. Ciardi, III, and Holly E. Smith.  Emphasizing that he simply could not get from the Debtor further records regarding the purported preferential transfers, Chapter 7 Trustee Miller responds to Defendant’s motion to dismiss with a three pronged argument:  general relationship allegations are enough; Valley Media goes too far; give me a break, I am a trustee. »»» Read rest of article . . .

More articles on: " ". First Published August 23rd, 2011.

Coudert Brothers LLP Bankruptcy: Development Specialists, Inc. v. Orrick Herrington & Sutcliffe LLP – Defendant’s Memorandum of Law Concerning the Bankruptcy Courts Jurisdiction

08/19/2011 – Defendant’s Memorandum of Law Concerning the Bankruptcy Courts Jurisdiction to Hear and Determine this Adversary Proceeding filed in the Coudert Brothers LLP Adversary Proceedings by Orrick Herrington & Sutcliffe LLP before U.S. Bankruptcy Judge Robert D. Drain in the Southern District of New York (Manhattan) filed by Holland & Knight LLP attorneys H. Barry Vasios and Barbra R. Parlin.

This memorandum is Defendant’s submission in response to the June 27, 2011 request from U.S. Bankruptcy Judge Robert D. Drain that the parties submit additional briefing on certain jurisdictional issues raised by the Supreme Court’s decision in Stern v. Marshall. Defendant provides a concise, three part formulation of the inquiry that a bankruptcy court must perform under Stern v. Marshall. Additionally, the Defendant addresses the impact of Stern in the context of the existing general order of reference. The Defendant concludes that Judge Drain is not authorized to finally determine any of the Plaintiff’s claims against Defendant. »»» Read rest of article . . .

More articles on: " ". First Published August 25th, 2011.

WL Homes Bankruptcy: George L. Miller, Chapter 7 Trustee v. Time Warner Cable – Memorandum of Law in Support of Defendant’s Motion to Dismiss

08/19/2011 – Memorandum of Law in Support of Defendant’s Motion to Dismiss filed in the WL Homes Adversary Proceedings by Time Warner Cable before U.S. Bankruptcy Judge Brendan L. Shannon in the District of Delaware filed by Saul Ewing LLP attorney Lucian B. Murley and Wargi & French LLP attorney Julie C. Jared.   Defendant Time Warner Cable Inc. files this motion to dismiss and for sanctions under 28 U.S.C. § 1927 based on Plaintiff’s continued prosecution of a preference action less than the 11 U.S.C. § 547(c)(9) jurisdictional limit. Nothing new in terms of law but the facts alleged are extreme even for mass preference actions. »»» Read rest of article . . .

More articles on: " ". First Published August 20th, 2011.

Spansion, Inc. Bankruptcy: Pirinate Consulting Group, LLC, as Claims Agent fo v. Barclays Capital Inc. – Defendant’s Reply in Support of Motion to Dismiss

08/19/2011 – Defendant’s Reply in Support of Motion to Dismiss filed in the Spansion, Inc. Adversary Proceedings by Barclays Capital Inc. before Chief, U.S. Bankruptcy Judge Kevin J. Carey in the District of Delaware filed by Richards, Layton & Finger, P.A. (Wilmington, DE) attorneys Robert J. Stearn, Jr. and Amanda R. Steele.

Defendant had nothing to rebut in this reply brief. The sole objective of the reply was to assure that the focus remained on the gross deficiencies of the fraudulent transfer claim in the existing complaint.  »»» Read rest of article . . .

More articles on: " ". First Published August 20th, 2011.

B&W Remodeling, Inc. v. Cofield et al (In re Sharon Vernell Cofield ), Adv. Proc. No. 10-00070 (Bankr. E.D.S.C. August 18, 2011)

08/18/2011 – Order filed in the Sharon Vernell Cofield Adversary Proceedings by Cofield et al before U.S. Bankruptcy Judge Randy D. Doub in the United States Bankruptcy Court for the Eastern District of North Carolina. Eastern District of South Carolina, U.S. Bankruptcy Judge Randy D. Doub holds that under Stern v. Marshall, 564 U.S.—, 131 S. Ct. 2594, 252011 WL 2472792 (June 23, 2011), the Court has authority to render a final judgment in the pending adversary proceeding.  Judge Doub found that, in determining the amount and dischargeability of Plaintiffs claim, “[t]he alleged breach of contract defense is so intertwined with the Plaintiff’s claim, that consideration of the facts and circumstances of the breach of contract defense is necessary to determine the outcome of this proceeding.” »»» Read rest of article . . .

More articles on: " ". First Published August 19th, 2011.

Spansion, Inc. Bankruptcy: Pirinate Consulting Group, LLC, as Claims Agent for Spansion, Inc. v. Barclays Capital Inc. – Plaintiff’s Memorandum of Law in Opposition to Motion to Dismiss

08/12/2011 – Plaintiff’s Memorandum of Law in Opposition to Motion to Dismiss filed in the Spansion, Inc. Adversary Proceedings by Barclays Capital Inc. before Chief, U.S. Bankruptcy Judge Kevin J. Carey in the District of Delaware filed by Eckert Seamans Cherin & Mellott LLC (Wilmington, DE) attorney Ronald S. Gellert; ASK Financial LLP (St. Paul, MN) attorneys Joseph L. Steinfeld, Jr. and Karen M. Scheibe .

Pirinate Consulting Group, LLC, Claims Agent (the “Plaintiff”) for the Chapter 11 Estates of Spansion, Inc., et al. (the “Debtors”), filed this opposition to the Motion to Dismiss (the “Motion to Dismiss”) filed by defendant, Barclays Capital Inc. (the “Defendant”). Plaintiff is in the awkward position of requesting leave to amend its complaint to preserve its fraudulent conveyance count by alleging that the $1.5 million “preferential payment” to the Defendant was actually a retainer that was not fully earned. With no effort made to support a contention that the original complaint adequately alleged a constructive fraudulent transfer, practically the entire brief is premised on a proposed amended complaint. The real question presented by this brief is whether Chief, U.S. Bankruptcy Judge Kevin J. Carey will grant leave to amend. While the Plaintiff is unapologetic as to the deficiencies in the original complaint, the Plaintiff forcefully argues that it has a good fraudulent conveyance case … if the amended complaint is allowed. »»» Read rest of article . . .

More articles on: " ". First Published August 14th, 2011.

Spansion, Inc. Bankruptcy: Pirinate Consulting Group, LLC, as Claims Agent for Spansion, Inc. v. Barclays Capital Inc. – Defendant’s Motion to Dismiss

Defendant’s Motion to Dismiss filed in the Spansion, Inc. Adversary Proceedings by Barclays Capital Inc. before Chief, U.S. Bankruptcy Judge Kevin J. Carey in the District of Delaware filed by Richards, Layton & Finger, P.A. (Wilmington, DE) attorneys Robert J. Stearn, Jr. and Julie A. Finocchiaro.

Defendant Barclays Capital Inc. (“Defendant”), filed this motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) seeking dismissal of only the counts of the complaint based on claims of constructive fraudulent transfer pursuant to 11 U.S.C. § 548(a)(1)(B), authorized post-petition transfer under 11 U.S.C. § 549, and disallowance of claims pursuant to 11 U.S.C. § 502(d) and (j). The preferential transfer count pursuant to to 11 U.S.C. § 547 is left alone. The complaint was filed by plaintiff Pirinate Consulting Group, LLC (“Plaintiff”), Claims Agent for the bankruptcy estates of Spansion, Inc., et al. (the “Debtors”). This brief was filed back in April, 2011, and on its face, this simple, seven page brief is unimpressive.  Its tactical brilliance was only revealed by Plaintiff’s August 12, 2011 response. »»» Read rest of article . . .

More articles on: " ". First Published August 14th, 2011.

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