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Gomez2 Those that deal with a troubled business on the verge of liquidation must be aware of the risks. But there are other options available to a liquidating business under California law.
Two of those non-bankruptcy options are Assignments for Benefit of Creditors and Receiverships. Does a business dealing with a troubled company have to be concerned about their own liability even if a bankruptcy is not filed?
This article explores those concerns. Preference Claims Bankruptcy trustees and assignees for the benefit of creditors are statutorily authorized to pursue preferences. The Ninth Circuit Court of Appeals has declared that the power of assignees to unwind preferences under state law is preempted Comm 488 assignment 4 the federal preference law contained in the Bankruptcy Code.
Despite Sherwood, two California appellate courts have upheld the California preference scheme. Charles and Dorothy Cummins Family Ltd. Countrywide Home Loans, Inc. Stevens Cabinets, F. Viz Media LLC v. February 6, involving the same assignment for the Comm 488 assignment 4 of creditors as Viz Media and following Haberbush and Countrywide over Sherwood Partners.
Overall, the ability of assignees to recover preferences is broader than that of trustees. Second, the ordinary course of business defense still requires that the transaction was in the ordinary course of the dealings between the parties and made on customary industry terms whereas after BAPCPA, the defense for bankruptcy purposes only requires one of the two to be proven.
Third, the preference defense for purchase money security interests applies to security interests perfected within twenty 20 days after the security interest attaches, not thirty 30 days under federal law; and transfers involving security interests are deemed made when perfected using shorter safe harbor periods.
Fourth, there are no specific defenses for Deprizio style transfers. Sixth, there is no express prohibition on assignees recovering preferences that involve a margin or settlement payment, a repurchase agreement, a swap agreement, or a master netting agreement. Seventh, the types of domestic support obligations that may be recovered includes voluntary assignments of domestic support obligations made for purposes of collection.
Finally, there are no threshold, minimum transaction limits for preference actions as there are under federal law. In certain respects, however, the ability of assignees to recover preferences is narrower than that of trustees.
For instance, transfers to or for the benefit of insiders may only be recovered if it can be proven that the insider had reasonable cause to believe that the debtor was insolvent at the time of the transfer.
Third, preferences cannot be recovered from subsequent transferees and assignees may only recover the property transferred, not the value of the property. Fourth, there is no right that allows assignees to preserve avoided liens for the benefit of creditors.
Hence, it may be fruitless to avoid a senior lien if junior liens are unavoidable. Lastly, the statute of limitations for assignees to pursue preference claims, which is one year, may be shorter than trustees in most instances. Additionally, there are other differences which may ultimately be more or less beneficial for assignees.
First, for preference actions initiated by assignees, there is no definition of when a tax debt is incurred. Similarly, the defense for creditors that hold security interests in inventory and receivables dealing with the improvement of their position is formulated slightly differently under bankruptcy law by referencing the new value defense.
For preferences pursued by assignees, there is also no express provision that allocates the burdens of proof as there is under bankruptcy law.
In situations where the assignor is an individual, the assignor may elect to use an exemption scheme unique to preferences sought to be recovered by assignees. This unique exemption scheme may impact the statutory insolvency determination. Separate from being subject to challenge as preferences, liens created by attachments or temporary protective orders that have not seasoned for ninety 90 days before a bankruptcy filing or an assignment for the benefit of creditors are expressly terminated under California law as to trustees and assignees.
These liens may be reinstated if the bankruptcy case is dismissed, the trustee abandons the property subject to the liens, or the assignment is set aside for reasons other than the filing of bankruptcy.
There are no similar preference rights for receivers. Fraudulent Transfers Statutorily, bankruptcy trustees and assignees may seek to unwind fraudulent transfers. Likewise, equity receivers may also seek to recover fraudulent transfers. Trustees may unwind transfers that took place up to two years before the bankruptcy filing.
Trustees may also avoid transfers that took place as far back as allowed by applicable state law, but only if they can identify a creditor that existed at the time of the transfer that holds a claim. Assignees are subject to the same restriction and may only seek relief for the benefit of creditors that are the beneficiaries of the assignment.
Aside from differences arising from standing and statute of limitation periods, recoveries and the types of transfers that can be avoided may vary depending on whether a bankruptcy trustee, a receiver, or an assignee is involved. For example, fraudulent transfer recoveries by receivers and assignees are limited to the lesser of the value of the property transferred or the amount necessary to satisfy the claims of creditors.
Bankruptcy trustees may therefore be entitled to capture any appreciation in a transferred asset.Thursday, February 26, AM Admiring the time and effort you put into your site and in depth info you present.
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