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25-Oct-2017 22:35

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After these transfers, but before the bankruptcy petition was filed, the staffing company provided services to the debtor valued at 0,660.88 for which the staffing company had not been paid as of the petition date.

In the debtor’s chapter 11 case, the bankruptcy court entered a wage order, which allowed the debtor to pay employees and independent contractors for prepetition services, and the debtor paid ,412.71 to the staffing company.

The Third Circuit affirmed, focusing its analysis on an examination of section 547 within the statutory context of the Bankruptcy Code and the policies motivating the preference provisions of the Bankruptcy Code.

The Third Circuit determined that the new value test outlined in New York City Shoes was dicta and therefore, it needed to consider whether the plain language of section 547(c)(4)(B) is ambiguous.

Purchases include assets of Beth Israel Hospital Association of Passaic, Eagle Food Centers Inc. Click here for a listing of Oak Point owned estates.

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The 2005 Amendments to the Bankruptcy Code ushered in section 503(b)(9) of the Bankruptcy Code, which grants trade creditors an administrative expense for goods sold to the debtor in the ordinary course of the debtor’s business and that the debtor received within 20 days prior to the commencement date.

Trade creditors also may face preference litigation for payments they received prior to the petition date, but may be able to reduce or eliminate their preference exposure by asserting a “new value” defense under section 547(c)(4) of the Bankruptcy Code (one of the more frequently raised defenses to preference liability). Demmy, Esquire (Argued), Maria Aprile Sawczuk, Esquire, Wilmington, DE, Nicholas F. OPINIONThis appeal presents an issue of first impression in our Court: can a post-petition payment to a creditor pursuant to a Wage Order entered at a debtor's request reduce the creditor's new value defense—and thereby increase preference liability—the same as it would if the payment had been made pre-petition? The money owed for these services remained unpaid as of the date the bankruptcy petition was filed. It argued that this would “substantially and adversely impact [its] businesses and result in immediate and irreparable harm to the creditors and estates.” Id. The Debtor asked the Court to invoke its power under § 105(a) of the Bankruptcy Code to enable the Trustee to make the payments to Employees pursuant to § 363(b)(1). Pursuant to the Wage Order, and after filing its bankruptcy petition, the Debtor paid ,412.71 to Roth Staffing on account of pre-petition staffing services. In its answer to FLT's complaint, Roth Staffing asserted the affirmative defense of new value, pursuant to § 547(c)(4) of the Code, which reads: The trustee may not avoid under this section a transfer—(4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor—(A) not secured by an otherwise unavoidable security interest; and(B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor ․Id. Roth Staffing claimed that because it had provided subsequent new value to the Debtor in an amount (0,660.88) exceeding the preferential transfers made (,997.57), FLT could not avoid these transfers. Ill.2003) [hereinafter Login Bros.] (“[B]oth the plain language and policy behind the statute indicate that the timing of a repayment of new value is irrelevant.”); In re MMR Holding Corp., 203 B. Rather than focusing, as the parties do, on the presence or absence of individual words and phrases within § 547(c)(4)(B), we take a broader approach to our analysis, examining the provision in the context of the Bankruptcy Code as a whole.1. This provision provides a defense from preference liability for a creditor with a floating lien on a debtor's inventory and receivables, so long as the creditor did not improve its position during the preference period.



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