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Delaware Bankruptcy Court – Affirmative defenses are not grounds to dismiss the action under Fed. R. Civ. P. 12.

Delaware, September 21, 2017 – Before the Court was the Defendant’s motion to dismiss the complaint of Gavin Solmonese, LLC (the “Liquidating Trustee”) seeking the avoidance and recovery of a preferential transfer. The Defendant asserted the defenses found in sections 547(c)(2)(A) and 547(c)(2)(B) of the Bankruptcy Code as grounds for dismissal. The Trustee opposed that sections 547(c)(2)(A) and 547(c)(2)(B) are not the basis for dismissal. The Court agreed with the Trustee and found that the Trustee’s complaint gives a “short and plain statement” of facts which gave rise to a plausible claim, satisfying both Rule 8 and Rule 12. The Court stated that while deciding whether to dismiss a complaint, the Court does not consider affirmative defenses. Rather, the Court examines the complaint to determine if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Since, the Trustee’s complaint sufficiently alleged that the Debtors transferred a check to the Defendant on May 22, 2015, in the amount of $35,400 which was within the preference period for the Debtors’ case; the Court concluded that this allegation was sufficient to allege a preferential transfer. The Defendant’s motion to dismiss was denied.

Gavin Solmonese, LLC v. True Line Wire (In re Boomerang Sys.), Nos. 15-11729 (MFW), 17-50549 (MFW), 2017 Bankr. LEXIS 3201 (U.S. Bankr. D. Del. Sep. 21, 2017)


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