The ordinary course of business defense requires that either (1) the payment have been made in the ordinary course of business of both the supplier and the customer; OR (2) the payment was made under “ordinary business terms.” Please note this is an either/or test. Prior to 2006 the test was an “AND” test and both elements had to be proven. This was very difficult to do.
The contemporaneous exchange defense is one of the most often disputed defenses. It should not be that way. The focus of the defense is very narrow. The focus is on the time when the potential preference payment was received. The payment must be made at or about the same time as the delivery of goods or services for which payment is made. So the “information zone” is very short.
The reason the contemporaneous exchange defense is often litigated is because the supplier has failed to get the proper documentation in place to establish the defense.
In what has aready been a very active case for Adversary Proceedings for recovery of bankruptcy preferences, the plan trustee for 99 Cent Stuff, Inc. filed 13 more banrkuptcy preference actions this week, including 7 today.
DESA LLC filed for Chapter 11 Bankruptcy Protection on Decemter 29, 2009. DESA is leading manufacturer of heating products and power tools.
The bankruptcy is in its earliest stages. It has yet to been seen what reclaimation actions will be filed.
The list of DESA’s 35 largest unsecured claims, identifies companies in China(3), Hong Kong(2) and Taiwan. Three of the five top unsecured creditors are Asian.
Trustee in Pike Family Nurseries Bankruptcy Liquidation Case Estimates Net Preference Claim Recoveries of $500,000 Will be Realized by 12/31/2009.
The case of:
In Re: Pike Nursery Holding LLC, d/b/a Pike Family Nurseries
d/b/a Pike Nurseries (“Pike”), Case No. 07-79129 in the United States Bankruptcy Court for the Northern District of Georgia
Original Post 12/28/2008; See Updates At End of this Post
For a supplier confronted with a customer bankruptcy, nothing changes bad to worse like the failure of the customer to successfully reorganize. This means that a filing under Chapter 11, which creates the possibility that the customer will continue operations, now becomes a liquidation under Chapter 7. Worse still, the supplier who has received payments on open account during the bankruptcy preference period will likely face a bankruptcy preference claim and faces the real prospect of receiving a demand for repayment of those amounts.
Yes it is currently a mystery. Where are the Allied Bankruptcy Preference Claims?
Despite all our efforts — calls, emails, docket searches – we can not figure it out. The 2 year statute of limitations appears to have run.
We will continue to probe and let you know.