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Understand the recent changes to the Bankruptcy Code that impact preference actions.Gain an understanding of the best bankruptcy preference that correlates with specific client needs and learn about the changes to due diligence requirements for preference actions mandated by Subchapter V of the Bankruptcy Code. Preference law is controversial because it is designed to punish creditors which are paid in advance of a bankruptcy filing by that creditor's debtor. This topic will explain strategies for creditors to proactively avoid a preference challenge, outline defenses, many of which are oftentimes overlooked, and educate debtors as to when preference recoveries can work to their benefit.
AuthorsRandy Nussbaum, Sacks Tierney P.A.
The Broad Concept of the Term Transfer Under § 101 of the Bankruptcy Code
• Elements of a Transfer in a Preference Analysis
• Controlling Law in a Preference Analysis
• Changes Under Subchapter V
Elements of Preferential Transfers Under 11 U.S.C. § 547
• Who Is a Creditor for Purposes of a Preference?
• What Is a Claim for Purposes of a Preference?
• What Is an Antecedent Debt for Purposes of a Preference?
• Determination of Insolvency for Purposes of a Preference
• When Does a Transfer Occur for Purposes of a Preference?
• Who Is an Insider for Purposes of a Preference?
• What Transfers Do and Don't Enable a Creditor to Receive More Under a Chapter 7 Liquidation?
Defenses to Preference Actions
• Contemporaneous Exchange for New Value
• Ordinary Course Transfers
• Safe Harbor Provisions for Secured Claims
• New Value Defense
• Floating Liens
• Statutory Liens
• Domestic Support Payments
• Transfers Below Certain Minimum Levels
• Payments Made Pursuant to Alternative Repayment Programs
Practice and Procedure in Preference Litigation
• Statute of Limitations
• Standing to Pursue Preference Claims
• Burden of Proof
• Adversary Proceedings to Recover Preferences
• Subchapter V and Reasonable Due Diligence
Recovery of Preferential Transfers Under § 550