05/26/2011 – Memorandum of Law in Support of Motion for Summary Judgment, filed in the Interep National Radio Sales, Inc. Adversary Proceedings by Burst Media Corp. before Judge Drain in the Southern District of New York (Manhattan). Defendant presents 3 grounds for its motion for summary judgment: (1) an ordinary course of business defense; (2) a subsequent new value defense based on unpaid pre-petition invoices; and (3) a subseqent new value defense based on services the defendant provided after petition date and prior to the appointment of Trustee and for which the debtor fail make payment. Defendant’s argument on post petition unpaid services qualifying as subsequent new value is concentrated in one paragraph:

Further, subsequent to the Petition Date but prior to the appointment of Trustee, Burst provided services to Winstar at Winstar’s request, with an aggregate value of $64,938.00, for which Burst was paid only $13,504.00. Klein Declaration at ¶ 14. As such, the remaining value of those services, $51,434.00, also constitutes subsequent new value for purposes of Bankruptcy Code section 547(c)(4)(B). See Hall v. Chrysler Credit Corp. (In re JKJChevrolet, Inc.), 412 F.3d 545, 553 n.6 (4th Cir. 2005) (“[P]ost-petition transfers may be considered under section 547(c)(4)(B). “); Moglia v. Am. Psych. Ass ‘n (In re Login Bros. Book Co.), 294 B.R. 207, 300 (Bankr. N.D. Ill. 2003 (“[B]oth the plain language and policy behind the statute indicate that the timing of a repayment of new value is irrelevant.”); KDT Indus., Inc. v. C&C Umbrella (In re KDT Indus., Inc.), 57 B.R. 416, 417 (Bankr. S.D.N.Y. 1985) (“Although initially skeptical, this court has concluded that Code § 547(c)(4) probably permits assertion of the new value defense for transfers made to the debtor in possession.”); accord In re Circuit City Stores, Inc., 2010 Bankr. LEXIS 4398, at *29 n. 18 (Bankr. E.D. Va. Dec. 1, 2010).

Registered users click here to see a copy of this brief.