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Appendix II NEW VALUE CIRCUIT COMPARISON
Jurisdiction | United States |
Appendix II NEW VALUE CIRCUIT COMPARISON
CIRCUIT | HOLDING | CASE | COMMENT |
FIRST (Maine, Massachusetts, Rhode Island, New Hampshire) | New value must be unpaid to be used as a defense. __________ The First Circuit adopted the "emerging trend" among other courts that "new value defense is available despite payment if the payment was an avoidable transfer." | In re Keydata Corp., 37 B.R. 324 (Bankr. D. Mass. 1983); In re Columbia Packing, 44 B.R. 613 (Bankr. D. Mass. 1984). __________ In re PMC Mktg. Corp., 518 B.R. 150, 158 (B.A.P. 1st Cir. 2014). | |
SECOND (New York, Connecticut, Vermont) | __________ Rejected majority rule and opined that there exists in the statute no requirement that new value remain unpaid so long as payment is by an otherwise avoidable transfer. | __________ In reMusicl and Holding Corp., 462 B.R. 66, 70 (Bankr. S.D.N.Y. 2001); In re Van Dyck/Columbia Printing, 289 B.R. 304 (D. Conn. 2003); In re Maxwell Newspapers, 192 B.R. 633 (Bankr. S.D.N.Y. 1996). | No circuit court cases. |
Other bankruptcy courts, however, have stated that the new value must remain unpaid. | In re Teligent, 315 B.R. 308 (Bankr. S.D.N.Y. 2004); In re Pameco Corp., 356 B.R. 327 (Bankr. S.D.N.Y. 2006); In re Enron Corp., 357 B.R. 32 (Bankr. S.D.N.Y. 2006). | In re Teligent suggests in dicta that new value must remain unpaid. Two bankruptcy court cases also state that new value must remain unpaid, one citing In re Teligent. | |
THIRD (Delaware, New Jersey, Maryland, Pennsylvania) | New value must be unpaid as of petition date to be used as a defense. __________ New value paid post-petition does not affect a creditor's new value defense. | In re New York City Shoes, 880 F.2d 679 (3d Cir. 1989) (dicta states new value must remain unpaid); In re Winstar Commc'n Inc., 554 F.3d 382 (3d Cir. 2009) (same). __________ In re Friedman S Inc., 738 F. 3d 547 (3d Cir. 2013). | Recent Delaware Bankruptcy Court cases distinguish In re New York City Shoes. See Jon Wahoshi v. American & Efrid Inc. (In re Pillowtex Corp.), 416 B.R. 123 (Bankr. D. Del. 2009) (payment must not be from otherwise-unavoidable transfer and whether new value is unpaid is not required); In re Proliance Int'l Inc., 514 B.R. 426, 438 (Bankr. D. Del. 2014) (subsequent new value need not remain unpaid). However, Third Circuit recently confirmed that the new value must remain unpaid. |
FOURTH (Virginia, North Carolina, South Carolina, West Virginia) | No requirement that new... |
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- Preference Defense Handbook: The Circuits Compared
- Front Matter
- About the Authors
- Acknowledgments
- Table of Contents
- Chapter 1 INTRODUCTION
- Chapter 2 GENERAL OBSERVATIONS
- Chapter 3 THE "ORDINARY COURSE OF BUSINESS" DEFENSE UNDER § 547(c)(2)
- Chapter 4 CONTEMPORANEOUS EXCHANGE
- Chapter 5 NEW VALUE
- Chapter 6 NON-STATUTORY DEFENSES
- Appendix I ORDINARY COURSE CIRCUIT COMPARISON
- Appendix II NEW VALUE CIRCUIT COMPARISON
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