Materials listing for Defenses and Limitations

$12,475 (Pre-April 1, 2013 $11,725) Threshold for Bankruptcy Preference Venue Impediment to Claims

[Last updated:  April 5, 2013]  At the same time as Congress established a jurisdictional threshold requirement for bringing a preference claim, it also restricted the location of the court – i.e. venue – for a proceeding on a commercial debt against a non-insider.  This small claim venue limitation is contained in Subsection 1409(b) of Title [...]

Guiliano v. Almond Investment Company – Vendor’s Rejection of Critical Vendor Status No Estoppel to Kiwi Defense

Guiliano v. Almond Investment Company (In re Fluid Routing Solutions Intermediate Holding Corp), Adv. Proc. No. 11-50393 (Bankr. D. Del.  March 14, 2012)  – Opinion Granting Defendants Motion for Summary Judgment in the District of Delaware by U.S. Bankruptcy Judge Christopher S. Sontchi  -  District of Delaware Bankruptcy Judge Christopher S. Sontchi grants the defendant’s motion [...]

Kimball Hill, Inc. Bankruptcy: KHI Liquidation Trust v. Wisenbaker Builder Services, Inc. et al – Memorandum Opinion re Defendant’s Motion to Dismiss

06/02/2011 – Memorandum Opinion re Defendant’s Motion to Dismiss filed in the Kimball Hill, Inc. Bankruptcy – Adv. Proc. No.: 10-00824 - Defendant Wisenbaker Builder Services, Inc. et al.  Denied the Defendants’ Request to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) for the Litigation Trust’s Lack of Standing;  Granted Defendants’ Request to Dismiss [...]

Applying Iqbal, Delaware Bankruptcy Judge Sontchi Dismisses Bankruptcy Fraudulent Conveyance Counts

The January 5, 2011 Delaware Bankruptcy Court decision in Burtch v. Huston, Adv. No. 09-50469 (In re USDigital, Inc. Del. Case No. 09-10374) provides welcome relief for avoidable transfer defendants facing claims under Bankruptcy Code Sections 544, 547 and 548. Judge Christopher S. Sontchi applied the recent Supreme Court decision in Ashcroft v. Iqbal and [...]

Small Commercial Preference Defense to a Bankruptcy Preference Claim – The Dollar Threshold for a Bankruptcy Preference

In 2005, the Bankruptcy Code was amended to limit by dollar amount the transfers that could be avoided in a commercial case. This commonly is called the “Small Commercial Preference Defense.” Originally, a transfer could not be avoided if the amount paid or other value transferred was less than $5,000. That amount was increased to [...]

The Section 365 Contract Assumption Defense aka KIWI Defense to a Bankruptcy Preference Claim

One of the less frequently seen defenses to a bankruptcy preference is based on Section 365 of the Bankruptcy Code.  We believe that there are many more opportunities to use the defense for suppliers who are aware of it and understand it.

Earmarking, Conduit and Agency Bankruptcy Preference Defenses

Three lesser known defenses to bankruptcy preference claims are: the earmarking defense, the conduit defense and the agency defense. The defenses have different and distinct elements. Recognizing the potential availability of one of these defenses requires a clear understanding of these elements and the situations these elements might exist.

Bankruptcy Preference Claims Timing – Other Factors

Last updated March 20, 2012.   The timing of preference claims is affected by 3 major factors: the statute of limitations; the desire of the debtor to re-establish goodwill (and trade credit) with the supply base; and the discontinuation of the debtor’s business operations.   The statute of limitations is addressed in a separate article that can [...]

Bankruptcy Preference Claims Timing – The Statute of Limitations

Last updated June 11, 2013.  The timing of preference claims is affected by 3 major factors:  the statute of limitations; the desire of the debtor to re-establish goodwill (and trade credit) with the supply base; and the discontinuation of the debtor’s business operations.  This article addresses the statute of limitations.  The two other major factors [...]

BANKRUPTCY PREFERENCE BASIC CONCEPTS, DEFENSES

If yours is a business facing a bankruptcy preference claim for the first time, we have developed a set of educational material, which  include a video series on the basics of bankruptcy preference defense. This video series, “BANKRUPTCY PREFERENCES – THE BASICS”, is posted on this website and is presented in parts in order to [...]

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