Ries v. Calandrillo, No. 13-6003 (8th Cir. 2013)
Annotate this CaseTrustee filed an adversary complaint against Scarlett & Gucciardo to avoid as a preferential transfer under 11 U.S.C. 547, and recover under 11 U.S.C. 550, the $65,000 payment Scarlett & Gucciardo had received from Debtor. Scarlett & Gucciardo received the payment on behalf of defendant in connection with the settlement of a lawsuit. Trustee then filed a motion to amend the complaint to join defendant and to have the amended complaint "relate back" to the date of the original complaint. The bankruptcy appellate panel (BAP) concluded that the district court did not abuse its discretion in allowing Trustee to amend his complaint and to allow Trustee's amended complaint to relate back to the date of Trustee's original complaint; the $65,000 payment was not a contemporaneous exchange within the meaning of section 547(c)(1); and the payment was not made in the ordinary course of business within the meaning of section 547(c)(2)(A). Accordingly, the BAP affirmed the judgment.
Court Description: Bankruptcy Appellate Panel. Bankruptcy court did not err in allowing trustee's amended complaint to relate back to the date of the original complaint as the original complaint was timely and Calandrillo was aware of the adversary proceeding; further, Calandrillo knew or should have known that he would have been named as defendant but for a mistake as to the proper party; $65,000 payment made to defendant's lawyers in trust for plaintiff was not a contemporaneous exchange within the meaning of 11 U.S.C. Sec. 547(c)(1), or a payment made in the ordinary course of business within the meaning of 11 U.S.C. Sec. 547(c)(2)(A), and the court did not err in ordering Calandrillo to return the funds to the trustee under 11 U.S.C. Sec. 547(b). Home | Contact Us | Employment | Glossary of Legal Terms | Site Map | RSS Privacy Policy|BrowseAloud
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