January 28, 2022, Middle District of Florida – Defendant Electronic Merchant Systems, LLC (‘EMS’), moves to dismiss a complaint brought by Trustee Douglas N. Menchise in the bankruptcy case of Procom America, LLC for failure to state a claim upon which relief can be granted. The Trustee sought to avoid and recover $1,274,581.46, as alleged 90-days and insider preferential transfers. EMS claims that the Trustee failed to adequately allege an essential element of the complaint under 11 USC § 547(b)(4)(A), i.e., that EMS actually received transfers in the amount alleged. Defendant further argues that the Trustee’s factual allegations in the complaint regarding the relationship between EMS and the Debtor allegedly reveal nothing more than an arms-length, third-party relationship that included limited ability to compel payment according to the terms of an arm’s-length contract.
Accordingly, EMS requests that Court should dismiss the Trustee’s complaint with direction to amend to allege only those transfers that EMS actually received and that are not subject to obvious affirmative defenses.
In re PROCOM AMERICA, LLC , Case 8:21-ap-00420-MGW