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filed simultaneously with the petition, because they must necessarily be filed after the petition that defines the trustee's powers. Court fails to note that the "without regard to any knowledge of the trustee" language was added to the Code based on the recommendation of a Vern Countryman article precisely to preclude this argument, and that even before that the weight of authority, including a Fifth Circuit decision, rejected just this argument. The court also denies Chase's argument based on equitable subrogation to the prior lien, because that lien had been released and equities do not support its revival, and subrogation is an equitable doctrine that will not be used to the injury of those with legal title and equal equity. In any event, California law gives a bona fide purchaser priority over one claiming equitable subrogation.
USAA Federal Savings Bank v. Thacker (In re Taylor), 2010 WL 669248 (9th Cir. Feb. 26, 2010, amended March 22, 2010). Under § 550 court has discretion to award either the property transferred or its value. But when late-perfected lien on car is avoided and the value of the lien is not readily determinable, proper remedy is to avoid the lien and retain it for the benefit of the estate rather than to estimate the value of the lien and require cash payment of that amount.
Bank of America v. Mukamai (In re Egidi), 571 F.3d 1156 (11th Cir. 2009). Use of credit card to pay off another credit card in order to consolidate credit card debts was avoidable as a preference; earmarking defense did not apply because new lender did not designate recipient of funds so debtor had full control over use of funds. Accord, Yoppolo v. MBNA Am. Bank, NA (In re Dilworth), 560 F.3d 562 (6th Cir. 2009).
Midwest Holding #7 LLC v. Anderson (In re Tanner Family LLC), 556 F.3d 1194 (11th Cir. 2009). Lease termination payment was avoidable preference because liability under lease was incurred upon signing, making it antecedent to payment.
United Rentals v. Angell, 592 F.3d 525 (4th Cir. Jan. 2010). When subcontractor was paid the effective release of the claim against the surety bond, which would have had a subrogation claim against proceeds due debtor from owner, did not constitute contemporaneous exchange for new value since subcontractor never made a claim against the bond, and same analysis applies to subcontractors' potential mechanics' lien. Opinion fails to consider whether surety bond was secured and payment would have provided contemporaneous new value by releasing collateral to the debtor, e.g., O'Rourke v. Seaboard Surety Co. (In re Fegert, Inc.), 887 F.2d 955 (9th Cir. 1989).
Wells Fargo Home Mortgage, Inc. v. Lindquist, 592 F.3d 838 (8th Cir. Jan. 11, 2010).
©2010 Randolph J. Haines
