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(f) AVOIDING POWER The Bankruptcy Code grants to the trustee or debtor in possession (DIP) the right to avoid certain transfers and obligations incurred For example, Section 544 allows the trustee to avoid unperfected security interest and other interests in the debtor s property Thus if the creditor fails to perfect a real estate mortgage, the trustee may be able to avoid that security interest and force the claim to be classi ed as unsecured rather than secured The trustee needs these powers and rights to ensure that actions by the debtor or by creditors in the prepetition period do not interfere with the objective of the bankruptcy laws, to provide for a fair and equal distribution of the debtor s assets through liquidation or rehabilitation, if this would be better for other creditors involved In addition the trustee has the power to avoid preferences, fraudulent transfers, and postpetition transfers (g) PREFERENCES A preferential payment as de ned in Section 547 of the Bankruptcy Code is a transfer of any of the property of a debtor to or for the bene t of a creditor, for or on account of an antecedent debt made or suffered by the debtor while insolvent and within 90 days before the ling of a petition initiating bankruptcy proceedings, when such transfer enables the creditor to receive a greater percentage of payment than it would receive if the debtor were liquidated under 7 Insolvency is presumed during the 90-day period A transfer of property to an insider between 90 days and one year before the ling of the petition is also considered a preferential payment An of cer, director, or person in control of the corporation would be considered an insider Action to recover a preferential payment received by a third party that bene ted an of cer or other insider may only be taken against the of cer or other insider and not against the third party For example, if a president paid off a loan that he personally guaranteed six months before the petition was led, the payment would be recoverable as a preference from the president, but not from the bank Preferences include the payment of money, a transfer of property, assignment of receivables, or the giving of a mortgage on real or personal property A preferential payment is not a fraud but rather a legitimate and proper payment of a valid antecedent debt The voidability of preferences is created by law to effect equality of distribution among all the creditors The 90-day period (one year for transactions with insiders) prior to ling the bankruptcy petition has been arbitrarily selected by Congress as the time period during which distributions to the debtor s creditors may be redistributed to all the creditors ratably During this period, a creditor who accepts a payment is said to have been preferred and may be required to return the amount received and later participate in the enlarged estate to the pro rata extent of its unreduced claim (i) Exceptions to Preferential Transfers Section 547(c) contains eight exceptions to the power the trustee has to avoid preferential transfers Five of the assumptions are discussed below 1 Contemporaneous exchange A transfer intended by the debtor and creditor to have a contemporaneous exchange for new value given to the debtor and that is in fact a substantially contemporaneous exchange is exempted The purchase of goods or services with a check would not be a preferential payment, provided the check is presented for payment in the normal course of business 2 Ordinary course of business and ordinary business terms The second exemption protects payments of debts that were incurred in the ordinary course of business or nancial affairs of both the debtor and the transferee when the payment is made in the ordinary course of business according to ordinary business terms 3 Purchase money security interest The third exception exempts security interests granted in exchange for enabling loans when the proceeds are used to nance the purchase of speci c personal property For example, a debtor borrowed $75,000 from a bank to nance a computer system and subsequently purchased the system The transfer of this system as collateral to the bank would not be a preference provided the proceeds were given after the signing of the security agreement, the proceeds were used to purchase the system, and the
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