Section 6.45 Postpetition Transfers Under 11 U.S.C. § 549

• Library: Bankruptcy Practice (2007 Ed. + 2015 Cum Supp)

V. (§6.45) Postpetition Transfers Under 11 U.S.C. § 549

The statutory rights granted to a trustee are not all retroactive to the date of filing. Some of these rights are prospective. The Bankruptcy Code, 11 U.S.C. §§ 101 et seq., grants to the trustee, the estate fiduciary, or the debtor-in-possession the right to review certain transfers postpetition. This authority is granted under the provisions of 11 U.S.C. § 549. That section allows the trustee to avoid a transfer of property of the estate that occurs after the commencement of the case and that is not otherwise authorized by the Bankruptcy Code or an order of the bankruptcy court. The bankruptcy trustee can avoid postpetition transfers of estate property when the transfer of the property violates the automatic stay. See In re Rose, 113 B.R. 534, 537 (W.D. Mo. 1990). In In re Mahendra, 131 F.3d 750 (8^th Cir. 1997), the court found that the attempts of a Chapter 7 debtor and his attorney to continue to draw on a future advance clause in a note and deed of trust were unauthorized postpetition transfers.

“[T]ransfer” is construed broadly and is defined as including every method of disposing of or parting with property of the estate or that is in the estate’s possession. See In re Rose, 25 B.R. 744, 746 (E.D. Mo. 1982). Such a transfer could include the taking of a security interest in real estate, In re Auxano, Inc., 96 B.R. 957 (Bankr. W.D. Mo. 1989) (Koger, B.J.), and the taking of a security interest in an automobile, In re Davis, 240 B.R. 372 (Bankr. W.D. Mo. 1999) (Federman...