District of Delaware, United States Bankruptcy Judge Peter J. Walsh issues his opinion in Giuliano v. Shorenstein Company LLC (In re Sunset Aviation, Inc. ), Adv. Proc. No. 11-50965 (Bankr. D. Del. September 7, 2011) holding that an order for substantive consolidation is not retroactively effective when it fails to expressly provide that it is nunc pro tunc. Based on this holding, Judge Walsh dismisses, with prejudice, the bankruptcy preference count of the complaint by Alfred T. Giuliano, Chapter 7 Trustee for the Bankruptcy Estates of Sunset Aviation (the “Trustee”). Fundamentally, Judge Walsh rejected the Trustee’s urging for the Court to perfunctorily use a substantive consolidation order to rewrite Section 547 of the Bankruptcy Code.
Articles tagged with: Sunset Aviation Inc.
Sunset Aviation, Inc. Bankruptcy: Shorenstein Company LLC’s Reply in Support of Motion to Dismiss with Prejudice
07/27/2011 – Defendant’s Reply in Further Support of Its Motion to Dismiss with Prejudice filed in the Sunset Aviation, Inc. Adversary Proceedings by Shorenstein Company LLC before Judge Walsh in the District of Delaware filed by Cross & Simon LLC (Wilmington, Delaware) attorney Michael J. Joyce; and Morrison & Foerster LLP (New York, New York) attorneys Melissa A. Hager John A. Pintarelli. Defendant Shorenstein Company LLC’s reply takes apart every aspect of the Chapter 7 Trustee’s position that substantive consolidation order shifted the date for calculating the preference period to the earliest debtor petition date. However, what makes this reply especially noteworthy is (1) its retort to the Trustee’s “equity of creditors” rhetoric; (2) its discussion of the Third Circuit’s approach to substantive consolidation; and (3) its argument that, if the Court is inclined to give nunc pro tunc effect, it should be to the petition date of the last filing debtor.
Sunset Aviation, Inc. Bankruptcy: Giuliano v. Shorenstein Company LLC – Plaintiff’s Memorandum of Law in Opposition to Motion to Dismiss
07/11/2011 – Plaintiff’s Memorandum of Law in Opposition to Shorenstein Company LLCs Motion to Dismiss filed in the Sunset Aviation, Inc. Adversary Proceedings by Shorenstein Company LLC before Judge Walsh in the District of Delaware. Plaintiff Alfred T. Giuliano, Chapter 7 Trustee, opposes the Defendant’s motion to dismiss a bankruptcy preference complaint seeking recovery of a single wire transfer made on December 2, 2008 in amount of $443,690.00 (the “Transfer”). The Defendant’s argument– the Transfer was made by a co-debtor who did not file its petition until May 1, 2009. The December 2 transfer date is outside of the preference period. Although the co-debtor cases were substantively consolidated, the Substantive Consolidation Order was not retroactive to the earliest petition date – i.e. nunc pro tunc. Plaintiff starts its opposition with the observation that the Third Circuit has not addressed the proper calculation of the preference period following the entry of a substantive consolidation order that is “silent” as to its effect on avoidance actions. Registered users click here to see a copy of this brief.
Sunset Aviation, Inc. Bankruptcy: Alfred T. Giuliano v. Bay Jet LLC – Defendant’s Motion to Dismiss
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:
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.*
Chapter 7 Trustee for the Bankruptcy Estates of Sunset Aviation, Inc., et al. Starts Preference Adversary Proceedings
On February 24, 2011, Alfred T. Giuliano, Chapter 7 Trustee for the Bankruptcy Estates of Sunset Aviation, Inc., et al. commenced Chapter 5 preferential transfer recovery litigation with the filing of 200 complaints in the United States Bankruptcy Court for the District of Delaware. By order entered on August 19, 2010 the estates of Regal Jets, LLC, Sunset Aviation, Inc, and JetDirect Aviation, Inc. were substantively consolidated. Each of the 3 debtors filed its respective bankruptcy petition on different dates, with the third filing occurring more than 60 days after the first filing. The Trustee seeks to use the same petition date for all three debtors, but the substantive consolidation order does not provide for retroactive consolidation – i.e. it is not nun pro tunc. The question: Will the retroactive petition dates still fly?