AbitibiBowater Inc. Bankruptcy: The Claims Agent v. GL & V Beloit-Lenox Inc. et al – Plaintiff’s Brief in Opposition to Motion to Dismiss

Date: June 10, 2011 Author: burbageweddell

06/06/2011 – Plaintiff’s Brief in Opposition to Motion to Dismiss filed in the AbitibiBowater~Inc. Adversary Proceedings by GL &V Beloit-Lenox Inc. et al before Judge Kevin J. Carey in the District of Delaware.

The Claims Agent for AbitibiBowater, Inc., et al., (the “Plaintiff”) urges Judge Kevin J. Carey to apply In re Valley Media, Inc., 288 B.R. 189, 192 (Bankr. D. Del. 2003) in light of the original complaint’s allegation regarding the relationship between the Debtors and the Defendants. If the original complaint actually had included allegations regarding this relationship, the Court might have had to address this new battle line question. In fact, the original complaint barely contains any allegation regarding the business relationship. Also, the Plaintiff already has filed an amended complaint meeting even the most stringent requirement for pleading the payment of antecedent debts. However, the response provides a fairly comprehensive summary of the authority in Delaware and in other jurisdictions supporting a lower pleading standard for bankruptcy preference complaints and for that reason the response is noteworthy.

Bernard L. Madoff Bankruptcy: Irving H. Picard v. Weithorn/Casper Associates for Selected Holdings, LLC – Defendants Memorandum of Law in Support of Motion to Dismiss Complaint

Date: June 5, 2011 Author: burbageweddell

The Defendants acknowledge that they are swimming upstream with this motion that both seeks dismissal based on an affirmative defense and is based on an interpretation of Section 546(e) that seemingly has been consistently rejected in prior court decisions. It is the Defendants’ arguments to distinguish the prior, adverse decisions on the applicability of Section 546(e) that especially make this decision noteworthy. In particular, the Defendants attempt to distinguish existing authority because here the Defendants are “not alleged to have any knowledge or participation in the fraudulent activities of Madoff; nor are they alleged to have received any of the transfers in bad faith.”

Bernard L. Madoff Bankruptcy: Irving H. Picard v. Wiener et al – Defendant’s Memorandum of Law in Support of Motion to Dismiss

Date: June 3, 2011 Author: burbageweddell

06/01/2011 – Defendant’s Memorandum of Law in Support of Motion to Dismiss filed in the Bernard L. Madoff Bankruptcy Adversary Proceedings brought by Irving H. Picard against Weiner et al before Judge Lifland in the Southern District of New York (Manhattan).

This is a probing, broad based motion to dismiss, challenging every count of the Trustee’s 7 count complaint. The motion to dismiss initially attacks the Trustee pleading of actual fraudulent transfers and in particular the element of actual fraudulent intent. However, the focus of the motion to dismiss is heavily weighted toward Picard’s claims based on the transfers being constructive fraudulent conveyances under the New York Debtor and Creditor Law (“NYDCL”). It is this aspect of the motion that most makes it noteworthy.

VeraSun Energy Corporation Bankruptcy: Verasun Energy Corporation, et al v. Reinauer Transportation – Plaintiff’s Response in Opposition to Motion to Dismiss

Author: burbageweddell

The heightened preference complaint pleading standards based on Iqbal/Twombly as interepreted in Delaware certainly have increased the numbers of motions to dismiss preference claims. However, a steamline procedures motion can render motions to dismiss based on 12(b)(6) a frustrating, costly and ineffective “catch me if you can” exercise.

Lehman Brothers Inc. Liquidation: Giddens v. Citibank, N.A. et al – Defendant’s Memorandum of Law in Support of Motion for Partial Dismissal

Date: May 28, 2011 Author: burbageweddell

05/26/2011 – Defendant’s Memorandum of Law in Support of Motion for Partial Dismissal filed in the Lehman Brothers Inc. Adversary Proceedings by Citibank, N.A. et al before Judge James M. Peck in the Southern District of New York (Manhattan).

Lehman Brothers, Inc. (“LBI”) liquidation Trustee seeks recovery of this $1 billion under almost every avoidance theory provided by the Bankruptcy Code. This 60 page motion to dismiss seeks to narrow the Trustee’s lines of attack by asserting multiple, independent grounds for dismissal of various counts of the complaint.

Interep National Radio Sales, Inc. Bankruptcy: Silverman v. Burst Media Corp. – Memorandum of Law in Support of Motion for Summary Judgment

Date: May 27, 2011 Author: burbageweddell

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.

Kean Chuan Goh Bankruptcy: Sam S. Leslie, Chapter 7 Trustee v. John Hancock Life Insurance Company (U.S.A.) – Defendant’s Motion to Dismiss

Date: May 26, 2011 Author: burbageweddell

05/25/2011 – Defendant’s Motion to Dismiss filed in the Kean Chuan Goh Adversary Proceedings by John Hancock Life Insurance Company (U.S.A.) before Judge Russell in the Central District of California (Los Angeles). The transfers involved pre-petition payments made by the debtor to his 401(k) account credited against a loan made to the debtor by the 401(k) plan. John Hancock provided investment and administrative services for accounts maintained pursuant to the 401(k) plan. Defendant John Hancock argues that the trustee’s recovery powers are limited by Section 550(a) and in order to recover from John Hancock, the Trustee must establish that John Hancock is a “transferee” under that Section.

AbitibiBowater Inc. Bankruptcy: Claims Agent v. Intellitrans, LLC – Defendant’s Motion to Dismiss

Date: May 25, 2011 Author: burbageweddell

05/24/2011 – Defendant’s Motion to Dismiss filed in the AbitibiBowater Inc. Adversary Proceedings by Intellitrans, LLC before Judge Carey in the District of Delaware. This is the third motion to dismiss filed in Abitibibowater, Inc. bankruptcy preference adversary proceedings on based on Fed R. Civ. P. 12(b)(6) . While not plowing any new ground as to Iqbal/Twombly, this defendant also moves the Court to dismiss the complaint with prejudice pursuant to Fed R. Civ. P. 41(b) on the grounds that the plaintiff has failed to prosecute the preference action. Chances of getting a dismissal on these grounds are slim, but the plaintiff effectively uses the argument to frame the 12(b)(6) basis for the motion to dismiss. Defendant’s point – it tried to get the information required to be included in the complaint, and the plaintiff refused to provide it.

National Sports Attraction, LLC Bankruptcy: Jil Mazer-Marino, Chapter 7 Trustee v. Heisman Trophy Trust – Defendant’s Motion to Dismiss

Date: May 21, 2011 Author: burbageweddell

05/20/2011 – Defendant’s Motion to Dismiss filed in the National Sports Attraction, LLC Adversary Proceedings by Heisman Trophy Trust before Judge Drain in the Southern District of New York (Manhattan). On March 11, 2011, the Chapter 7 Trustee National Sports Attraction, LLC d/b/a Sports Museum of America d/b/a National Sports Museum and National Sports Museum Management, LLC (collectively, the “Debtor”) filed the Complaint seeking various forms of relief in connection with the Heisman Trust’s draw against a $750,000 letter of credit obtained by the Debtor and issued in favor of the Heisman Trust (the “LC”). The draw occurred on February 25, 2009 and approximatey 2 weeks later the Debtor’s filed Chapter 7.

Sunset Aviation, Inc. Bankruptcy: Alfred T. Giuliano v. Bay Jet LLC – Defendant’s Motion to Dismiss

Date: May 20, 2011 Author: burbageweddell

05/19/2011 – Defendant’s Motion to Dismiss filed in the Sunset Aviation, Inc. Adversary Proceedings by Bay Jet LLC before Judge Walsh in the District of Delaware. With one exception, this is a motion very similar to that filed in 14 other proceedings seeking to dismiss the complaint under 12(b)(6). This defendant also adds a 12(f) motion to strike stating:

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AbitibiBowater Inc. Bankruptcy: The Claims Agent v. GL & V Beloit-Lenox Inc. et al – Plaintiff’s Brief in Opposition to Motion to Dismiss

Bernard L. Madoff Bankruptcy: Irving H. Picard v. Weithorn/Casper Associates for Selected Holdings, LLC – Defendants Memorandum of Law in Support of Motion to Dismiss Complaint

Bernard L. Madoff Bankruptcy: Irving H. Picard v. Wiener et al – Defendant’s Memorandum of Law in Support of Motion to Dismiss

VeraSun Energy Corporation Bankruptcy: Verasun Energy Corporation, et al v. Reinauer Transportation – Plaintiff’s Response in Opposition to Motion to Dismiss

Lehman Brothers Inc. Liquidation: Giddens v. Citibank, N.A. et al – Defendant’s Memorandum of Law in Support of Motion for Partial Dismissal

Interep National Radio Sales, Inc. Bankruptcy: Silverman v. Burst Media Corp. – Memorandum of Law in Support of Motion for Summary Judgment

Kean Chuan Goh Bankruptcy: Sam S. Leslie, Chapter 7 Trustee v. John Hancock Life Insurance Company (U.S.A.) – Defendant’s Motion to Dismiss

AbitibiBowater Inc. Bankruptcy: Claims Agent v. Intellitrans, LLC – Defendant’s Motion to Dismiss

National Sports Attraction, LLC Bankruptcy: Jil Mazer-Marino, Chapter 7 Trustee v. Heisman Trophy Trust – Defendant’s Motion to Dismiss

Sunset Aviation, Inc. Bankruptcy: Alfred T. Giuliano v. Bay Jet LLC – Defendant’s Motion to Dismiss