The Defendant admitted receipt of preferential transfers under 11 U.S.C. § 547(b) and raised the ordinary course of business defense of § 547(c)(2). The payments were later than 88% of the payments in the prepreference period, but not as late as a few. Under the pre-BAPCPA law that applies in this proceeding, the Defendant must show that the transfers were in the ordinary course of business as between the debtor and the transferee, § 547(c)(2)(B), and that the transfers were made according to ordinary business terms, § 547(c)(2)(C). The Court found that the payments at issue were made according to ordinary business terms in the industry and thus met the (c)(2)(C) requirement. With regard to the (c)(2)(B) requirement, the Court determined that preferential payments within the historical range that vary significantly from the typical payment pattern during the historical period are ordinary for purposes of § 547(c)(2)(B) only if the reasons for the variation in both the historical and preference periods are similar. Because the defendant had not shown the reasons for the variations from the typical pattern, the Court determined that the defendant could not invoke the ordinary course defense. The Court exercised its discretion to deny prejudgment interest requested by the trustee based on the defendant’s credible, good faith affirmative defense that, although not successful, nevertheless presented a close and difficult question for resolution.
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Honorable Paul W. Bonapfel
(Alleging fraud with particularity in complaint to determine dischargeability not required; Plaintiff's state court default judgment in case in which Plaintiff did not allege fraud does not collaterally estop Plaintiff from seeking a nondischargeability determination based on §523(a)(2));
(where Defendant had signed the settlement agreement but refused to sign consent motion or consent order to approve the settlement, Plaintiff's motion to enforce settlement granted);
(In defalcation AP, Debtors cannot set off prior contributions to fund against the defalcated amount);
Denial of Plaintiff's Motion for Summary Judgment; Plaintiff sought statutory damages pursuant to 15 U.S.C. 1640(a)(2)(A)(i) under the Truth In Lending Act, and its implementing regulation, 12 C.F.R. 226, for Defendant's alleged failure to comply with disclosure requirements. Defendant's disclosures were sufficiently "clear and conspicuous" and no violation under 15 U.S.C. 1638(a), 12 C.F.R. 226.17(a)(1) and 226.4(d)(3) was found.
(In this Truth-in-Lending-Act ( TILA) action, notice of right of rescission was not misleading);
(Pawned property that remains unsold on the petition date gains benefit of §108 to extend deadline to redeem, but when the §108 period expires, the property is no longer property of the estate or subject to turnover).
Honorable Mary Grace Diehl (Recall)
Order Granting Defendants’ Motions for Summary Judgment. Debtor, a practicing attorney, failed to satisfy any prong of the Brunner test; Debtor failed to produce any evidence to support her claims that she would be unable to maintain a minimal standard of living if she were required to repay her student loans or that she made a good faith effort to repay her student loans.
Order Overruling Drive Financial Services’s Objection to a Post-Confirmation Modification of Debtor’s Chapter 13 Plan. Finding that a change in circumstances existed to justify modification of Debtor’s Chapter 13 Plan, the Court allowed Debtor to modify her plan to change the treatment of Drive’s unsecured claim.
Judge Joyce Bihary (Retired)
(11 U.S.C. §§ 1308, 1325(a)(9); Confirmation of Debtor’s Chapter 13 plan was denied. A condition for confirmation is that debtor file all applicable Federal, State, and local tax returns for all taxable periods ending during the four year period ending on the date of the filing of the petition which Debtor had failed to do)