This daily APScans report covers all recent docket entries in the adversary proceedings brought by George L. Miller, Chapter 7 Trustee for the estates of Marty Shoes Holdings, Inc. for recovery of avoidable transfers under Chapter 5 of the Bankruptcy Code, including preferential transfers under Section 547 (bankruptcy preferences).
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Pre-Applied Filters: The following filings are not included in the current "7 Day" APScan: certificates or affidavits of service, receipts for filing fees and other clerical matters.
This APScans is updated daily to cover filings made as of midnight on the previous day. This APScans covers filings ENTERED during the period from August 01, 2015 through September 29, 2015. .
Adversary Proceedings Overview
Lead Bankruptcy Case Name (Case Number): Marty Shoes Holdings, Inc. (08-12129)
Petition Date: The Debtors each filed for relief under chapter 11, on September 12, 2008. On February 2, 2010, the cases were convertedd to cases under chapter 7 of the Bankruptcy Code. On February 3, 2010, George L. Miller was appointed as chapter 7 trustee. On March 18, 2010, the Trustee held a meeting of creditors pursuant to section 341 of the Bankruptcy Code.
Filed in: United States Bankruptcy Court for the District of Delaware
Associated Cases: The Associated Debtors are: Marty Shoe Holdings, Inc., Marty Shoes, Inc. and E Shoe Sales, Inc.
Plaintiff: George L. Miller, Chapter 7 Trustee for the estates of Marty Shoes Holdings, Inc.
Number of Proceedings: 98
When Filed: March 16, 2011
Adversary Proceeding Judge: Kevin J. Carey
Ciardi Ciardi & Astin (Wilmington, DE), Lead Attorney John D. McLaughlin, Jr.
Avoidance Period: The complaint identifies the preference period as the period "on or within 90 days prior to the Petition Date ... ."
The Statute of Limitations
The statute of limitations for bringing preference actions is in Section 546(a) of the Bankruptcy Code. Under that section, the statute of limitations is "the later of– (A) 2 years after the entry of the order for relief; or (B) 1 year after the appointment or election of the first trustee under section 702, 1104, 1163, 1202, or 1302 of this title if such appointment or such election occurs before the expiration of the period specified in subparagraph (A)... ."
In Marty Shoes, the debtors filed Chapter 11 petitions on September 12, 2008, the cases were converted to Chapter 7 on February 2, 2010, and George Miller was appointed by the US Trustee as interim trustee on February 3, 2010. If February 3, 2010, the date of appointment of the interim trustee, were the controlling date for calculating the statute of limitations, the complaints would have been time barred. However, that is not the law in Delaware.
In the Third Circuit (which includes Delaware), the date of appointment of the permanent trustee under Section 702 is the controlling date for purposes of the statute of limitations. Singer v. Franklin Boxboard Co. (In re American Pad & Paper ), 478 F.3d 546 (3rd Cir. 2007) Under Section 702, the interim trustee appointed by the US Trustee on or about the date of the conversion of a case to Chapter 7, automatically becomes the permanent trustee at the Section 341 meeting of creditors if creditors do not elect a trustee under Section 702.
Seeming to anticipate the statute of limitations defense, the Marty Shoes preference complaints include the allegations that:
8. On March 18, 2010, the Trustee conducted and concluded a meeting of creditors pursuant to section 341 of the Bankruptcy Code (the "341 Meeting").
9. Pursuant to section 702(d) of the Bankruptcy Code, the Trustee's appointment in these cases was finalized with the conclusion of the 341 Meeting without the election of another trustee.