Introduction

Introduction

In January of this year, George L Miller, the chapter 7 trustee (the "Trustee") in the WL Homes bankruptcy, began filing avoidance actions against various creditors. As alleged in the complaints, the Trustee seeks the recovery of what he deems are "preferential transfers" pursuant to 11 U.S.C. section 547(b) of the Bankruptcy Code. This post will look briefly at the WL Homes bankruptcy, as well as provide information on common issues that arise in preference litigation.

Background on the Bankruptcy Proceeding

Introduction

Those not familiar with the Federal Rules of Bankruptcy Procedure are often surprised to learn that service by mail is sufficient in a bankruptcy proceeding. Federal Rule of Bankruptcy Procedure 7004(b)(3) authorizes service on a corporation (foreign or domestic) within the United States by first class mail as follows:

Last month, Jeoffrey Burtch (the "Trustee"), as Chapter 7 Trustee for the Opus South Bankruptcy, began filing preference complaints seeking to recover what the Trustee alleges are avoidable transfers under the Bankruptcy Code.  For those unfamiliar with the Opus South bankruptcy, the company filed petitions for bankruptcy in the Delaware Bankruptcy Court on April 22, 2009.  The Opus South bankruptcy began as a chapter 11 reorganization.  However,  on August 27, 2010, the Bankruptcy Court entered an order converting the case to a chapter 7 liquidation.  The Trustee w

In November, Jeoffrey Burtch, the Chapter 7 Trustee in the AE Liquidation bankruptcy (formerly "Eclipse Aviation"), began filing preference actions against various creditors of Eclipse. Eclipse Aviation began as a New Mexico manufacturer of small jet aircraft. The company filed for bankruptcy in the United States Bankruptcy Court for the District of Delaware on November 25, 2008.

Introduction

Introduction

Summary

In a 23 page decision signed July 15, 2011, Judge Walsh of the Delaware Bankruptcy Court denied a motion to allow a plaintiff to file an amended complaint, holding that the amended complaint was too deficient to survive a motion to dismiss and therefore would not be allowed. Judge Walsh’s opinion is available here (the “Opinion”).

Background

In August, the Chapter 7 Trustee in the National Wholesale Liquidators ("NWL") bankruptcy filing approximately 90 preference actions. Just recently, the Trustee filed over 100 more preference actions in NWL. In November of 2008, I wrote about the commencement of NWL bankruptcy (read my prior post concerning the NWL bankruptcy here).