The contemporaneous exchange defense is one of the most often disputed defenses. It should not be that way. The focus of the defense is very narrow. The focus is on the time when the potential preference payment was received. The payment must be made at or about the same time as the delivery of goods or services for which payment is made.
One of the most critical but often overlooked opportunities to defend bankruptcy preference claims regards the ability to apply multiple defenses when there have been multiple payments. This ability to mix and match defenses means that the supplier’s exposure to bankruptcy preference claims can be reduced.
Bankruptcy preference law uses confusing and often counter-intuitive terminology. This article focuses on a few of the bankruptcy preference terms that seem to be most confusing.
By asking and answering three simple questions, a bankruptcy preference defendant can perform a rough cut, preliminary self-assessment of exposure to an avoidable transfer claim under Section 547 of the Bankruptcy Code. The three questions are:
From the U.S. Code Online via GPO Access *
[Laws in effect as of January 3, 2006 with Increase in threshold under Sec. 547(c)(9) from $5,000 to $5,475 on April 1, 2007 and from $5,475 to $5,850 on April 1, 2010 pursuant to 11 USC 104 to reflect the change in the Consumer Price Index for All Urban Consumers. Next adjustment is scheduled to occur on April 1, 2013]
Sec. 547. Preferences