GCK On Law
Conflict as to Whether New Value Under Section 547(c)(4) Must Remain Unpaid
Actions to avoid preferential transfers under Bankruptcy Code 547(b) are subject to certain defenses and limitations, including the ‘new value’ defense of Section 547(c)(4) which provides as follows: The trustee may not avoid under this section a transfer - to or for...
Courts Divided Whether Decision to Forgo Filing Mechanics Lien is a Contemporaneous Exchange
The courts are split on whether the “contemporaneous exchange for new value” defense of Section 547(c)(1) of the Bankruptcy Code applies when a creditor foregoes perfecting a mechanic’s lien in exchange for payment. The identical issue exists in the context of...
Courts Divided in Effect of Termination of Stay Under Bankruptcy Code Section 362(c)
Section 362(c) of the Bankruptcy Code governs termination of the automatic stay. Under Section 362(c)(3)(A) of the Bankruptcy Code if a debtor has had a case pending within the preceding one-year that was dismissed, then "[t]he stay under Section (a) with respect to...
Courts conflicted whether installment land sales contracts are subject to Bankruptcy Code Section 365(a)
Courts have struggled with the specific issue of whether installment land sales contracts are executory contracts. Some consider installment land sales contracts to be executory, finding that performance remains on both sides, but the majority categorize them as...
Courts Split as to Whether the Automatic Stay Can Prevent Removal of State Court Actions
Removal of claims related to a bankruptcy case is governed by 28 U.S.C. §1452, which provides, in relevant part: A party may remove any claim or cause of action in a civil action * * * to the district court for the district where such civil action is pending, if such...