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.
Motions Practice in Transfer Avoidance Bankruptcy Proceedings
Notes on Significant Filings of Motions to Dismiss, Summary Judgment and other Pre-Trial Matters
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.
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.”
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.
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.
Linens n Things Bankruptcy: Forman v. Liberty Mutual Insurance Company – Defendant’s Motion to Dismiss
08/12/2011 – Memorandum of Law in Support of Defendant’s Motion to Dismiss filed in the Linens n Things Adversary Proceedings by Liberty Mutual Insurance Company before U.S. Bankruptcy Judge Christoper S. Sontchi in the District of Delaware filed by Seitz, Van Ogtrop & Green, P.A. (Wilmington, DE) attorney R. Karl Hill; and Choate Hall & Stewart LLP (Boston, MA) attorneys Douglas R. Gooding and Mark A. DeFeo.
Defendant, Liberty Mutual Insurance Company (“Liberty”) seeks dismissal of a preferential transfer recovery action filed by Charles M. Forman, the Chapter 7 Trustee (the “Trustee”) of the substantively-consolidated estate of Linens Holding Co., et. al. (the “Debtors”). The Trustee seeks to avoid and recover two transfers totaling $419,318. Liberty argues that the Trustee has failed to make the required factual averments with respect to the 547(b)(5) element of an avoidance claim – i.e. that the Defendant received more than it would have received in a Chapter 7 liquidation had the pre-petition transfer not been made. In fact, the Defendant asserts that it was a fully secured creditor. Defendant’s implication is that the complaint would not have been filed if the Trustee had done the investigation necessary to meet the Iqbal/Twombley pleading standards. Registered users click here to see a copy of this brief.
McAuley Galassini v. Galassini – Defendant’s Memorandum in Support of Motion to Dismiss Adversary Proceeding
08/12/2011 – Defendant’s Memorandum in Support of Motion to Dismiss Adversary Proceeding filed in the Adversary Proceedings by Galassini before U.S. Bankruptcy Judge Pamela S. Hollis in the Northern District of Illinois (Eastern) filed by O’Rourke & Moody (Chicago, IL) attorney Michael C. Moody .
Defendant, Timothy Galassini (“Defendant” or “Mr. Galassini”) seeks dismissal of a Section 547 – preference – and a Section 548 – fraudulent conveyance – complaint filed by his former wife as debtor-in-possession (“Plaintiff” or “Debtor”). Pursuant to a Dissolution of Marriage, the Defendant received $174,025 for marital assets, $100,000 toward Mr. Galassini’s attorneys fees in the divorce action and $360,000 connection with the Debtor’s receipt of sole title to the marital residence. The motion to dismiss is based on the domestic support defense in Section 547(c)(7) and the Debtor’s solvency during the preference period. Registered users click here to see a copy of this brief.
Lehman Brothers Bankruptcy: Defendant JPMorgan’s Supplemental Memorandum of Law in Support of Motion to Dismiss
08/05/2011 – Defendant’s Supplemental Memorandum of Law in Support of Motion to Dismiss filed in the Lehman Commercial Paper 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) by attorney Paul Vizcarrondo, Jr.; Of counsel: Harold S. Novikoff, Amy R. Wolf, Douglas K. Mayer, David C. Bryan, Emil A. Kleinhaus and Alexander B. Lees .
JPMorgan Chase Bank, N.A. (“JPMorgan” or “Defendant”) argues that, in view of Stern v. Marshall, 131 S. Ct. 2594 (2011) (“Stern”), the Bankruptcy Court lacks authority to determine any of the 49 claims in the Amended Complaint of Lehman Brothers Holdings Inc. (“LBHI”) and Official Committee of Unsecured Creditors of Lehman Brothers Holdings Inc. (collectively with LBHI, “Plaintiff”). Registered users click here to see a copy of this brief.
Lehman Commercial Paper Inc. Bankruptcy: Lehman Brothers Holdings Inc. et al v. JPMorgan Chase Bank, N.A. – Plaintiffs Memorandum Addressing the Effect of Stern v. Marshall
Plaintiffs Memorandum Addressing the Effect of the Supreme Courts Decision in Stern v. Marshall on the Bankruptcy Courts Ability to Render Final Judgment on the Common Law Claims filed in the Lehman Commercial Paper 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 Curtis Mallet-Prevost Colt & Mosle LLP (New York, NY) attorneys Joseph D. Pizzurro; L. P. Harrison 3rd; Michael J. Moscato; Nancy E. Delaney; Peter J. Behmke; and Cindi Eilbott Giglio; and Quinn Emanuel Urquhart & Sullivan LLP attorneys John B. Quinn and Erica Taggart as Special Counsel to Plaintiff Intervenor, the Official Committee of Unsecured Creditors of Lehman Brothers Holdings Inc., et al.
Lehman Brothers Holdings Inc. and Official Committee of Unsecured Creditors of Lehman Brothers Holdings Inc. (“Plaintiff”) argues that, despite the United States Supreme Court holding in Stern v. Marshall, 131 S. Ct. 2594 (2011), the Court has the power to enter final orders with respect to the 49 counts asserted in the First Amended Complaint (the “Amended Complaint”) — including the common law counts — and the eight counts asserted in JPMorgan Chase Bank, N.A.’s (“JPMorgan”) counterclaim. This brief is Plaintiff’s half of a duet of briefing requested by U.S. Bankruptcy Judge James M. Peck. Reading the 2 briefs side by side, two things are clear: the meaning of Stern is subject to broad and conflicting interpretation; and the U.S. Bankruptcy Courts are left with an task of conducting an initial evaluation of the issues that will entail much of the legal issue analysis that formerly could wait until a motion for summary judgment or even trial. Registered users click here to see a copy of this brief.
Qimonda Richmond, LLC Bankruptcy: Qimonda Richmond, LLC v. Citibank Memorandum of Law in Support of Motion to Dismiss
08/03/2011 – Memorandum of Law in Support of Motion to Dismiss filed in the Qimonda Richmond, LLC Adversary Proceedings by Citibank, National Association et al before U.S. Bankruptcy Judge Mary F. Walrath in the District of Delaware filed by Morris, Nichols, Arsht & Tunnell LLP (Wilmington, DE) attorneys Gregory W. Werkheiser and Andrew R. Remming; and Milbank, Tweed, Hadley & McCloy LLP (New York, NY) attorneys Scott A. Edelman and Sander Bak .
Citibank, National Association seeks dismissal of a complaint for recovery of an allegedly preferential and fraudulent transfer of approximately $34 million. Citibank makes arguments based on Citibank’s status as a secured creditor, the presence of “reasonably equivalent” value; and its exercise of a right of setoff, but the first and primary argument is based on the Section 546(e) safe harbor.