05/17/2011 – Defendant’s Motion to Dismiss filed in the WCI Communities, Inc. Adversary Proceedings by Landscape Forms, Inc. before Judge Carey in the District of Delaware. A rare (with reason) motion to dismiss based on the ordinary course of business defense. Rarer still, a motion to dismiss on ordinary course of business grounds where the business relationship between the Debtor and the Defendant is only a single transaction. The chances of Judge Carey granting this motion to dismiss are slim but the briefing and ultimate decision are worthy of attention.
Motions Practice in Transfer Avoidance Bankruptcy Proceedings
Notes on Significant Filings of Motions to Dismiss, Summary Judgment and other Pre-Trial Matters
Vardan Ayrapetyan v. BNC Mortgage, Inc et al – Motion to Dismiss
05/13/2011 – Motion to Dismiss filed in the Adversary Proceedings by BNC Mortgage, Inc et al before Judge Kaufman in the Central District of California (San Fernando Valley). Lender moves to dismiss multiple claims made by the Debtor arising out of a real estate loan and foreclosure. A generally unremarkable motion except for the argument that “Plaintiff failed to identify any of his purported claims against Defendants in his sworn bankruptcy schedules and/or statements. Based upon the foregoing, Plaintiff is judicially estopped from pursuing all of the claims alleged in the Complaint. ”
Alfred T. Giuliano, Chapter 7 Trustee for the Bank v. Duquesne Aviation, Inc – Defendant’s Motion to Dismiss
05/12/2011 – Defendant’s Motion to Dismiss filed in the Sunset Aviation, Inc. Adversary Proceedings by Duquesne Aviation, Inc before Judge Peter J. Walsh in the District of Delaware. Essentially the same motion to dismiss was filed on behalf of two defendants, Duquesne Aviation, Inc and Egret Management, LLC.
Sunset Aviation Bankruptcy: Alfred T. Giuliano, Chapter 7 Trustee v. Shorenstein Company LLC – Defendant’s Motion to Dismiss
05/11/2011 – Defendant’s Motion to Dismiss filed in the Sunset Aviation, Inc. Adversary Proceedings by Shorenstein Company LLC before Judge Walsh in the District of Delaware. One more in an ever growing list of motions to dismiss based on the failure of the Substantive Consolidation Order to be issued nunc pro tunc Registered users, click this link to see the filing.*
Irving H. Picard, Trustee v. L.H. Rich Companies et al – Defendants’ Motion to Dismiss
05/10/2011 – Motion to Dismiss filed in the Madoff Adversary Proceedings by L.H. Rich Companies et al before Judge Lifland in the Southern District of New York (Manhattan). The Defendants seek dismissal of the avoidance claims of Trustee Picard pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient service of process and Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. The latter grounds are based on “conclusory allegations as to subsequent transferees.” Dismissal of the proceedings, however, is only one of the options available to the Court to address the challenges. The courts holding on the “substantive” issues will be less instructive to other defendants than the steps ordered by the Court to redress the deficiencies in service and pleading. Registered users, click this link to see the filing.*
The LB Litigation Trust v. Thermon Heat Tracing Services Inc. – Defendants’ Motion to Dismiss
05/10/2011 – Motion to Dismiss filed in the Lyondell Chemical Company Adversary Proceedings by Thermon Heat Tracing Services Inc. before Judge Gerber in the Southern District of New York (Manhattan). Fed. R. Civ. P. 12(b)(1) challenge to the standing of the Trustee of the LB Litigation Trust to pursue the preference claim. Estoppel, res judicata and due process challenges also are significant. A tour de force, must read with significance for most pending and “in the pipeline” preference claims. Registered Users, click this link to see the filing.*