In issuing its decision in Jubber v. SMC Electrical Products, Inc. (In re C.W. Mining Company), 2015 WL 4717709 (10th Cir. 2015), the Tenth Circuit joined the Sixth, Seventh and Ninth Circuits in holding that a first-time transaction between the debtor and a creditor may qualify for the ordinary course defense of § 547(c).1 In C.W.
We recently blogged about Weinman v. Walker (In re Adam Aircraft Industries, Inc.), a decision from the U.S.
For those readers who have a sophisticated understanding of bankruptcy law, the holdings of Jester v. Wells Fargo Bank, N.A. (In re Jester) will not be surprising.
A terminated officer of a corporate debtor, who bargained for “18 months of severance ( … $375,000 … ) to ensure that his firing not disrupt [the debtor’s] negotiations for $80 million” of financing gave the debtor “reasonably equivalent value,” held the U.S. Court of Appeals for the Tenth Circuit on Oct. 15, 2015. In re Adam Aircraft Industries, Inc., 2015 U.S. App. LEXIS 17930, at *27 (10th Cir. Oct. 15, 2015).
Recently, the Tenth Circuit considered a case involving the question of whether the U.S. Supreme Court’s decisions in Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co., 549 U.S. 443 (2007) and in Law v. Siegel, 134 S. Ct. 1188 (2014) affected established Tenth Circuit precedent that a bankruptcy court’s authority to recharacterize debt as equity arises under 11 U.S.C. § 105(a). In its decision inRedmond v. Jenkins, et al (In re Alternate Fuels, Inc.), 789 F.3d 1139 (10th Cir.
In Jubber v. SMC Electrical Products, Inc. et al. (In re C.W. Mining Co.), Case No. 13-4175 (Aug. 10, 2015), the Tenth Circuit Court of Appeals confirmed that a single payment made by a debtor within the 90-day preference period to a seller, with whom the debtor had never done business, may satisfy the elements to be a payment in the “ordinary course” and, thus, not subject to a preference claim by the trustee.
Payments made by a debtor within 90 days of a bankruptcy petition are generally avoidable as preferences under section 547 of the Bankruptcy Code. Many exceptions and defenses exist, however, to ensure that creditors are not discouraged from conducting business with companies that may be at risk of filing
A “first-time transaction can qualify” for the ordinary course of business exception to the preference recovery provision of the Bankruptcy Code (“Code”), held the U.S. Court of Appeals for the Tenth Circuit on Aug. 10, 2015. In re C.W. Mining Co., 2015 WL 4717709 (10th Cir. Aug. 10, 2015).
Recharacterization: an overview
Although almost all of an individual debtor’s assets become property of the estate upon a bankruptcy filing, certain exceptions exist to the rule at both the federal and state level. In some jurisdictions, funds held for a debtor in retirement plans are exempt assets. An open question, however, is whether payments distributed from such plans prior to the petition date are also exempt assets. The United States Court of Appeals for the Tenth Circuit recently held in