Preference action before RN
Posted: Sat Sep 20, 2014 3:05 pm
I'll leave the rest up to you. I think your argument has merit,
particularly if you don't meet much resistance. Here are two California
cases on the subject:
Helps your argument:
In re Carlsen, 63 BR 706 - Bankr. Court, CD California 1986.
Hurts your argument:
In re Momentum Computer Systems Intern., 66 BR 512 - Dist. Court, ND
California 1986.
I feel like there is a case that I missed which will straighten this issue
up but only so much I can do on my free time!
At a recent CLE, one of the panelists said he will file a preference action
if he can make a prima facie showing of a preference -- even if he is
fairly certain the action will fail. Why? First of all, it's not improper
to do so because the burden is on the defense if he can make his showing,
second, he is able to obtain settlements that are beneficial to his client
and third, he has economies of scale on his side, meaning per action, it's
pretty cheap because he is filing 100+ actions at a time. I am not tell you
to take this course but that at least one panelist does.
Sincerely,
Michael Avanesian
On Sat, Sep 20, 2014 at 11:30 AM, sam@southbaybk.com [cdcbaa] wrote:
>
>
> Why can't I do an action under 522(h) and 547 - assuming the trustee does
> not bring it? I don't read 706.029 so broadly as to continue to apply to
> funds in the possession of the creditor. Also there was a prior posting on
> this list by Nick where he filed (and, I believe, recovered) a preference
> for garnished wages under 522(h) by motion in front of RK.
>
>
I'll leave the rest up to you. I think your argument has merit, particularly if you don't meet much resistance. Here are two California cases on the subject:Helps your argument:In re Carlsen, 63 BR 706 - Bankr. Court, CD California 1986.Hurts your argument:In re Momentum Computer Systems Intern., 66 BR 512 - Dist. Court, ND California 1986.I feel like there is a case that I missed which will straighten this issue up but only so much I can do on my free time!At a recent CLE, one of the panelists said he will file a preference action if he can make a prima facie showing of a preference -- even if he is fairly certain the action will fail. Why? First of all, it's not improper to do so because the burden is on the defense if he can make his showing, second, he is able to obtain settlements that are beneficial to his client and third, he has economies of scale on his side, meaning per action, it's pretty cheap because he is filing 100+ actions at a time. I am not tell you to take this course but that at least one panelist does.Sincerely, Michael AvanesianOn Sat, Sep 20, 2014 at 11:30 AM, sam@southbaybk.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
The post was migrated from Yahoo.