Start Liquidating trustee

Liquidating trustee

As a result, businesses must remain mindful that all pre-petition transactions with a potentially insolvent party are likely to be evaluated as a source of potential claims.

Among other things, the Liquidation Trustee is authorized to prosecute and resolve Causes of Action (as defined in the Plan) on behalf of and in the name of the Debtors. The Preference Period is identified as between January 11, 2014 and April 10, 2014 (the “Preference Period”).

The Liquidating Trustee does assert fraudulent conveyance claims under Section 548 (and under state fraudulent transfer statutes through Section 544(b),) relying solely on the recitation of the statutory language, and seeks the disallowance of claims pursuant to Section 502(d) and (j). Prime Clerk, LLC is the claims agent for ASK LLP and The Rosner Law Group LLP are acting as Counsel to the Liquidating Trustee.

The plaintiff alleged that BMW did not deliver engines or other products to Fisker under the agreements.

On November 22, 2013, Fisker filed its Chapter 11 bankruptcy petition.[2] Under the plan, a liquidating trust was formed, which, among other things, initiated an adversary proceeding against BMW attempting to recover the Payments as alleged fraudulent transfers under § 544 and § 548 of the Bankruptcy Code and the allegedly applicable California or Delaware law.

While the Court recognized that the existence of the agreements between the parties might preclude a recovery under the theory of unjust enrichment at a later stage in the proceedings, the Court allowed the claim to proceed past the motion to dismiss stage as an alternative claim with the understanding that the trust’s other “claims may fail and leave [the trustee] without a remedy at law.”[7] Court expressly concluded that the trustee’s avoidance powers under § 548 extend to extraterritorial transfers.

In doing so, the Court significantly expanded the ability of debtors in possession and trustees to pursue defendants under § 548 for transactions occurring outside the United States.

In addition to the specific Debtor that made the alleged transfers, the Liquidating Trustee’s Exhibit A attempts to identify check numbers, check amounts, and the clear date, as well as the specific invoice information. General case information can be found at: https://cases.primeclerk.com/coldwater/Home-Index and the official ECF docket can be found on Bankruptcy Court’s website at:

Liquidating a trustee company gives rise to an added layer of complexity in liquidations, with the liquidator obliged to follow not only the statutory regime, but to also comply with the equitable principles of trusts and potentially the trust deed itself.

The complaint also asserted a claim for unjust enrichment.

BMW opposed the trustee’s motion and argued that the Payments were not subject to § 548 because (i) the Payments were extraterritorial, occurring in Germany, not in the US, (ii) most of the Payments occurred more than two years prior to the debtor’s petition date, and (iii) the complaint failed to adequately allege Fisker’s insolvency.

The answer to this question dictates the path that must be followed.