In this Introduction to the VIDEO series, we will discuss the the basics of bankruptcy preference actions. This section also outlines the remaining 6 parts of the VIDEO series and what you can expect to learn in each part.
From the perspective of the preference claimant1 , the identification of a bankruptcy preference payment follows a fixed routine. The starting point is simply an identification of payments that cleared the debtor’s bank account during a period starting on the 90th day prior to the bankruptcy filing.
In a rare motion practice loss for a Chapter 7 Trustee, District of Delaware Bankruptcy Judge Brendan Linehan Shannon grants the motion of Defendant International Securities Exchange (“ISE”) to dismiss a bankruptcy preference avoidance complaint for failure to state a claim for relief. Judge Shannon holds that the Chapter 7 trustee’s Section 547 preferential transfer count in its amended complaint fails to sufficiently identify the nature of the antecedent debt. Giuliano v. International Securities Exchange, Adv. Proc. No. 12-50921 Dkt No. 48 (Bankr.D. Del. May 1, 2013). Unfortunately, procedural posture and factual context dispel any comfort preference defendants might find in the holding.
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.
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
District of Delaware Bankruptcy Judge Mary F. Walrath grants motion of Mitsubishi Digital Electronics America, Inc (“Mitsubishi”) to dismiss a bankruptcy preference avoidance complaint for failure to state a claim for relief. In her May 1, 2012 opinion, Judge Walrath holds that the Chapter 7 trustee’s Section 547 preferential transfer count fails to sufficiently identify which of the two associated debtors was the transferor. Judge Walrath further concludes that the Trustee can not maintain a Section 502(d) count for disallowance of Mitsubishi’s claims until the trustee has obtained “any judicial determination of Mitsubishi’s liability”. Giuliano v. Mitsubishi Digital Electronics America, Inc., Adv. Proc. No. 11-52663 Dkt No. 24 (Bankr.D. Del. May 1, 2012)
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.