Post Petition Transfer

POST-PETITION TRANSFERS – §549

In re AVI, Inc., 389 B.R. 721, 724 (9th Cir. BAP 2008)

Court did not abuse discretion in vacating an order dismissing a chapter 11 case, and then

avoiding a transfer to a law firm that occurred while the case was dismissed.

In re Straightline Investments, Inc,. 525 F.3d 870 (9th Cir. 2008)

Postpetition transfer by debtor of accounts receivable to a factor without bankruptcy court

approval were avoidable under § 549(a). This is true regardless of whether they diminished the

estate, the court declining to extend the diminution of the estate doctrine of § § 547 and 548 to §

549. They were not sales in the ordinary course of business, since they failed to meet both the

vertical and horizontal dimension tests of § 363(c).The earmarking doctrine did not apply, because

the money received by the debtor was not designated for a specific creditor. Recoupment did not

apply, because it is an equitable doctrine, and the factor engaged in inequitable conduct.

In re Stanton, 303 F.3d 939 (9th Cir. 2002)

Debtors were guarantors on a factoring arrangement for their business. As additional

security for payment, they pledged their house as security. The debtors subsequently filed a

chapter 7 case. They continued their business’s factoring arrangement, and incurred additional

indebtedness that was not covered by the business’s assets. The chapter 7 trustee sold their house,

but the factor asserted its security interest in the proceeds in the amount of over $244,000 for

postpetition indebtedness incurred by the nondebtor business.

Held: The factor’s lien on the house was not avoidable under § 549, and the debtors were not

required to seek court approval as to the postpetition encumbrances on their house under § 364.

In re Mitchell, 279 B.R. 839 (9th Cir. B.A.P. 2002)

The bona fide purchaser defense of § 549 (c) to a trustee’s action to avoid a postpetition

transfer does not provide an exception to the automatic stay. Purchaser out of a foreclosure that

occurred a day after bankruptcy filed violated § 362.

In re Home America T.V.-Appliance Audio, Inc., 232 F.3d 1046 (9th Cir. 2000), cert. denied, 534

U.S. 814 (2001)

“We hold that the bankruptcy trustee’s action is barred by the statute of limitations

applicable to her avoidance powers under § 549, notwithstanding that she seeks to exercise that

authority in the context of a § 7422 tax refund suit.”

In re Mora, 218 B.R. 71 (9th Cir. B.A.P. 1998), aff’d 199 F.3d 1024 (9th Cir. 1999)

Debtors made avoidable post-petition transfer of bankruptcy estate property by mailing

pre-petition cashier’s check for mortgage reduction which bank did not receive until after

bankruptcy proceedings began

In re Geothermal Resources International, Inc., 93 F.3d 648 (9th Cir. 1996), aff’d, 182 F.3d 925

(9th Cir. 1999)

Postpetition long-term employment contract not avoidable under 549 to extent employee

conferred value on company prior to entry of order for involuntary bankruptcy relief

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In re McConville, 84 F.3d 340 (9th Cir. 1996), amended and superseded by 97 F.3d 316 (9th Cir.

1996), withdrawn and superseded by 110 F.3d 47 (9th Cir. 1997), cert. denied, 522 U.S. 966

(1997)

Person who receives a deed of trust is not a “purchaser” under §549(c)

In re Shaw, 157 B.R. 151 (9th Cir. B.A.P. 1993)

A regularly conducted non-collusive tax sale is presumptively reasonable equivalent value

under §548 but not “present fair equivalent value” under §549(c) which tolerates little deviation

from fair market value

In re KF Dairies, Inc., 143 B.R. 734 (9th Cir. B.A.P. 1992)

Even if time limits have run on 549 action, creditor’s claim can still be reduced under

502(d)

In re Wolverton Associates, 909 F.2d 1286 (9th Cir. 1990)

Where no evidence debtor family-held corporation surrendered leasehold interest in

property prior to filing bankruptcy petition family owner’s transfer of proceeds from property sale

after filing is voidable postpetition transfer.

In re Shamblin, 890 F.2d 123 (9th Cir. 1989)

Tax sale not a transfer of property of the estate since it merely created a lien. Thus 549

does not apply.

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