- Wiscovitch-Rentas v. Santa Rosa Mall, LLC (In re PMC Mktg. Corp.), BAP No. PR 15-024, slip op. (B.A.P. 1st Cir. Jan. 19, 2016).
- In a decision not for publication, the BAP reversed the bankruptcy court's order granting Defendant Santa Rosa Mall, LLC's motion for summary judgment on the Trustee's preference claim based upon an ordinary course of business defense and remanded the matter for entry of judgment in favor of the Trustee. The BAP found Defendant had not established an ordinary course of business defense based upon the BAP's previous ruling in Wiscovitch-Rentas v. Villa Blanca VB Plaza LLC (In re PMC Mktg. Corp.), BAP No. PR 15-022, slip op. (BAP 1st Cir. Jan. 19, 2016) and was not entitled to summary judgment. The BAP further found that because Defendant failed to oppose the Trustee's cross-motion for summary judgment, the bankruptcy court should have entered judgment in favor of the Trustee. The BAP noted that although the bankruptcy court did not enter a ruling on the Trustee's cross-motion, it did state in its opinion that it was considering Defendant's and the Trustee's motions at the same time.
- Procedural context:
- Plaintiff Trustee filed a complaint against Defendant Santa Rosa Mall, LLC under Section 547 alleging a preferential transfer. Defendant filed a motion for summary judgment claiming the transfer was not a preference and was made in the ordinary course of business. The Trustee opposed the motion, filed a cross-motion for summary judgment, and later filed an amended cross-motion for summary judgment. Defendant did not oppose the Trustee's cross-motion or amended cross-motion. The bankruptcy court found the payments were in the ordinary course and granted Defendant's motion for summary judgment. No mention was made of the Trustee's amended cross-motion, though the court stated it was considering Defendant's and the Trustee's motions. The Trustee appealed.
- The Debtor leased commercial space from Defendant Santa Rosa Mall, LLC. Within the 90-day preference period, the Debtor had transferred $22,789.21 to Defendant for past due rent payments. The Trustee sought to recover the payments. Defendant alleged the payments were made in the ordinary course of business because the Debtor was consistently behind on its rent payments and made regular payments in an attempt to bring the account current and avoid eviction. Defendant alleged the pattern of late rental payments qualified as "ordinary" because that was how Defendant had always paid its rent.
- Feeney, Deasy, Cary
Victor Kearney v. Unsecured Creditors Committee
Summarizing by Amir Shachmurove
3217 in the system
1 Being Processed