Ordinary Course of Business Bankruptcy Preference Defense

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.

Documentation Makes Contemporaneous Exchange Preference Defense a Winner

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.

DESA LLC Bankruptcy Filing May Give International Spin to Bankruptcy Preference Claims

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.

Cadence Innovation LLC – Decision to Liquidate Means Preference Claims are Coming

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.

Allied Bankruptcy Preference Claim Status

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.