Category Archives: Contemporaneous Exchange for New Value (11 U.S.C. § 547(c)(1))

Are Invoice Terms Alone Sufficient to Establish Contemporaneous Exchange for New Value or Ordinary Course of Business Defenses? In Cousins Fish Market, Second Circuit Offers Guidance

By Evan T. Miller, Esq.

The United States Court of Appeals for the Second Circuit (the “Second Circuit”) recently affirmed the judgment of the United States District Court for the Northern District of New York (the “District Court”) in John Nagle Co. v. McCarthy (In re The Cousins Fish Market, Inc.), 2016 WL 3854277 (2d Cir. July 12, 2016), which in turn had affirmed a decision of the district’s bankruptcy court (together with the District Court, the “Lower Courts”), finding the Lower Courts properly ruled that the defendant (“Defendant”) had not established its affirmative section 547(c) defenses. Continue reading

Judge Sontchi Rules Preferential Transactions Were Made in the Ordinary Course of Business Notwithstanding Earlier Ruling Adverse to Defendant at Summary Judgment Stage

By Evan T. Miller, Esq.

On July 16, 2015, Judge Christopher S. Sontchi, of the United States Bankruptcy Court for the District of Delaware, issued an opinion in Burtch v. Revchem Composites, Inc. (In re Sierra Concrete Design, Inc.), No. 10-52667 (CSS), finding that Revchem Composites, Inc. (“Defendant”) established a complete defense to a preference action, utilizing the subjective “ordinary course of business” transactions exception in Bankruptcy Code section 547(c)(2) (the “OCOB Defense”). Continue reading