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Preferential Transfers in Bankruptcy
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Flashcards
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Intentionality of transfer
Preferential transfers do not require an intent to defraud; the effect of the transfer itself matters.
Floating Liens and Preferential Transfers
Floating liens (like a floating charge) can complicate the determination of what constitutes a preferential transfer.
Impact on unsecured creditors
Preferential payments to one unsecured creditor can unfairly disadvantage others by diminishing the debtor's estate.
The impact on reorganization plans
Recovery of preferential payments can affect the feasibility and structure of the debtor's reorganization plan in Chapter 11 cases.
Exceptions to preferential transfers
Certain payments, like those made in the ordinary course of business, may not be considered preferential.
Clawback Principle
The ability of a bankruptcy trustee to recover preferential transfers made to creditors and redistribute them equitably.
The role of secured creditors
Secured creditors are less likely to be involved in preferential transfers due to the nature of their secured interests.
Look-Back Period
The period prior to bankruptcy filing during which preferential transfers are scrutinized, typically 90 days for ordinary creditors and one year for insiders.
Insider status
A transfer made to an insider (such as a relative or business associate) can be subject to increased scrutiny.
Definition of a Preferential Transfer
A transfer made to a creditor before bankruptcy that gives the creditor more than they would receive in the debtor's bankruptcy case.
Bankruptcy Trustee's powers
The trustee has the authority to challenge and void preferential transfers during the bankruptcy process.
Defenses against preferential transfer claims
Creditors can invoke certain defenses, like subsequent new value and ordinary course of business, to counter preference claims.
Subsequent new value defense
A defense that allows a creditor to avoid a preference claim if they provided new value to the debtor after the alleged preferential transfer.
Creditor position improvement
A transfer that results in a creditor receiving more than they would under Chapter 7 liquidation rules.
Amount exceeding
Transfers of more than
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