Preferential Transfers: Were you paid by a debtor within 90 days of their bankruptcy?

If a debtor made a payment to you within 90 days of their filing for bankruptcy, the payment may be deemed a “Preferential Transfer” and you may be liable for paying the money back to the trustee of the debtor’s estate.  

Have you received a Preferential Transfer?

Pursuant to 11 U.S.C. § 547(b), a preferential transfer is defined as a payment: (1) to or for the benefit of the creditor, (2) for or on account for an antecedent debt owed by the customer before the payment was made, (3) made while the customer was insolvent, (4) made on or within 90 days before the date of the Bankruptcy Petition, and (5) that such payment enabled the creditor to receive more than it would receive if there was a liquidation of the debtor’s bankruptcy estate under Chapter 7 of Bankruptcy Code.  The bankruptcy trustee must prove a prima facie case of the above elements. To determine if a prima facie case has been plead, the following offers a brief explanation of each element of a preferential transfer.

The payment can include a broad array of transfers, including (1) the payment of money; (2) giving a guaranty of certain obligations; (2) granting a security interest in the debtor’s property; or (2) transfer of a right the debtor may have to collect from another.  The first element includes, not only payments made directly to creditors, but also payments made to another for the benefit of a creditor. The second element means that the alleged preference must have been a payment or transfer in payment for a debt that was already due.  What is not included in the aforementioned element are prepayments or advance payments for goods or services. The third element requires that the alleged preference must have been made while the debtor is insolvent, which according to the Bankruptcy Code is presumed to be 90 days before filing for bankruptcy.  The fourth element requires that the challenged payment have been made in the 90 days prior to the bankruptcy filing for typical creditors, and one year for “insiders.” The 90 day period excludes the date the bankruptcy petition was filed, and begins on the prior day counting backwards 90 days. Insiders are defined in the code to includes relatives of the debtor, a general partner of the debtor, or, if the debtor is a corporation, payments to officers, directors or person in control of the company.  And, the fifth element attempts to ascertain whether the creditor received more from the alleged preference than it would have had the debtors assets been liquidated as of the date the debtor filed for bankruptcy.

Affirmative Defenses to a Preferential Transfer

There are several affirmative defenses to a preferential transfer claim that include:

  1. Contemporaneous Exchange for New Value Defense;
  2. Payments in the Ordinary Course;
  3. Enabling Loan Defense;
  4. Subsequent New Value;
  5. Perfected Security Interest;
  6. Floating Lien or Improvement in Position;
  7. Bona Fide Payment; and
  8. De Minimus Payments.

In addition, there is a statute of limitations defense that may be utilized to avoid repayment.  Section 546(a) of the Code currently provides that a preference action (among others) may not be commenced after the earlier of:

  1. the later of –
  1. 2 years after the entry of the order for relief; or
  2. 1 year after the appointment or election of the first trustee under section 702, 1104, 1163, 1202 or 1302 of this title if such appointment occurs before the expiration of the period specified in subparagraph (a); or
  1. the time the case is closed or dismissed.

Section 546(a) of the Code makes it clear that limitation of two years begins to run on the filing of the Chapter 7, 13, or 11. If a trustee is appointed, then it begins anew with the appointment of the first trustee under Section 702 (election of trustee by creditors in Chapter 7 cases) Section 1104 (appointment of trustee in Chapter 11 cases), Section 1163 (appointment of trustee in railroad reorganization), Section 1202 (appointment of trustee in Family Farmer Chapter 12 cases), or Section 1302 (appointment of trustee in Chapter 13 cases). § 546(a)(1)(b) The closing or dismissal of a bankruptcy case bars any preference adversary proceeding. § 546(a)(2)

As shown above, if you have received payment from a debtor within 90 days of their bankruptcy filing, you may be able to assert the above affirmative defenses to avoid repaying the money to the debtor’s estate.  You should consult a qualified attorney to help you navigate the nuances of the above affirmative defenses.

For more information, or if you need to speak with an attorney regarding a potential lawsuit, please contact us online or call our office for a free consultation, toll free: 1-855-TISH-LAW.

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