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AS Wind Down, LLC et al.

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History of the Case

On August 16, 2019 (the “Petition Date”), Avenue Stores, LLC and 3 affiliated debtors (collectively, the “Debtors”) each filed voluntary petitions for bankruptcy relief under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (“the “Court”). Bankruptcy Judge Laurie Selber Silverstein was assigned as a judge in the bankruptcy case.

On August 16, 2019, the Debtors filed a Motion for the Joint Administration of Debtors’ individual bankruptcy cases. On August 20, 2019, the Court granted the Debtors’ Motion and approved joint administration of the Debtors’ bankruptcy cases for procedural purposes only.

Each of the Debtors’ cases was converted to chapter 7 on November 22, 2019. On the same date, David W. Carickhoff was appointed as trustee for the estates of the Debtors.

Trustee David W. Carickhoff (the “Plaintiff”) is pursuing avoidance actions in the bankruptcy case.

Between May 11, 2021, and May 17, 2021, the Plaintiff filed adversary proceedings against 35 defendants seeking the avoidance and/or recovery of transfers as alleged preferential transfers and post-petition transfers among other claims. The amounts at stake in these adversary cases range from $60,123.29 to $3,205,206.39.

The law firm, Pachulski Stang Ziehl & Jones LLP, is representing as the counsel of the Plaintiff with respect to these adversary cases.

Allegations in the Complaints

The Plaintiff alleges that the Defendants have received transfers that are allegedly avoidable and/or recoverable as preferential transfers under §547(b) and §550 of the Bankruptcy Code.

As to the preference transfer claim in the complaints, the Plaintiff specifically alleges that the alleged transfers were made for the benefit of the defendants, for or on account of an antecedent debt owed by the Debtors, the Debtors were insolvent at the time of the transfers, the transfers were made within 90 days before the Petition Date (the “Preference Period”) and that the defendants received more than they would have received if the defendants were paid in a hypothetical Chapter 7 liquidation. These allegations constitute the basic elements of a preferential claim pursuant to §547(b) of the Bankruptcy Code. As a result of the transfers, the Plaintiff is alleging that the defendants were preferred over other similarly situated creditors of the Debtors.

The Plaintiff also alleges in the complaints that the transfers may be avoidable as post-petition transfers made without the authorization of the Court.

Possible Defenses to a Plaintiff’s Allegations

The defenses available to a defendant are two-fold. First, the defendant may challenge the plaintiff’s allegations as described above. For example, by challenging that the transfers were not the property of the debtor or by challenging the insolvency status of the debtor. Alternatively, a defendant may assert the following “affirmative defenses”, among other defenses:

  1. Contemporaneous Exchange for New Value Defense pursuant to §547(c)(1) of the Bankruptcy Code – For this defense to apply to a preference claim, the payment must be made substantially contemporaneous in exchange for the alleged transfers and there must have been an intent to make the contemporaneous exchange. Typically, this occurs when a vendor does not render an invoice and the understanding of the parties is that the payment will be made immediately upon delivery of the product or services to the debtor.
  2. Ordinary Course of Business Defense pursuant to §547(c)(2)(A) of the Bankruptcy Code – For this defense to apply to a preference claim, the payments during the historical period which typically occurs during the 2 years before the preference period, and during the preference period must be shown as consistent. The consistency in the pattern and timing of payments determines that the transfers were made in the ordinary course of business of the parties and as such, no preferential treatment was given to the defendant over other creditors of the debtor.
  3. Industry Standard Defense pursuant to §547(c)(2)(B) of the Bankruptcy Code – This defense typically protects the payments that are ordinary for a particular industry. For this defense to apply to a preference claim, a defendant may be required to establish standard terms concerning the pattern and timing of payment in its industry.
  4. New Value Defense pursuant to §547(c)(4) of the Bankruptcy Code – For this defense to apply to a preference claim, a defendant must have provided new value in the form of products or services to the debtor after an alleged preferential transfer and the new value should not be secured by a security interest which the plaintiff cannot avoid. The new value may or may not have remained unpaid depending on the applicable law in the applicable Circuit.
  5. Safe Harbor Defense pursuant to §546(e) of the Bankruptcy Code – This defense, also known as the “financial institution safe harbor” defense, may apply to certain transactions which may qualify as transactions “by or to” financial institutions pursuant to §546(e) of the Bankruptcy Code.

Jones & Associates

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