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relating to the valuation of inventory.
The 90-day requirement in section 547(b)(4)(A) is a substantive element of a cause of action and, therefore where the 90th day falls on a Saturday, Sunday or legal holiday, Bankruptcy Rule 9006 may not be used to extend the preference period beyond that day. Research Group 80-21 v. Kendall (In re Bergel), 185 B.R. 338 (B.A.P. 9th Cir. 1995); accord MBNA Am. v. Locke (In re Greene), 223 F.3d 1064 (9th Cir. 2000). Contra Nelson Co. v. Counsel for the Official Comm. of Unsecured Creditors (In re Nelson Co.), 959 F.2d 1260 (3d Cir. 1992), and other cases cited in Greene, 223 F.3d at 1069 (majority opinion) and 223 F.3d at 1073 (dissenting opinion).
There is an interesting line of cases involving wage assignment cases. Under these cases, courts have found that a transfer to a garnishee under a garnishment transpires only when the debtor becomes entitled to her wages by earning them. That is the crucial date not the date of the garnishment lien. Morehead v. State Farm Mut. Auto. Ins. Co. (In re Morehead), 249 F.3d 445, 449 (6th Cir. 2001); Freedom Group, Inc. v. Lapham-Hickey Steel Corp. (In re Freedom Group, Inc.), 50 F.3d 408, 412 (7th Cir. 1995); Wade v. Midwest Acceptance Corp. (In re Wade), 219 B.R. 815 (B.A.P. 8th Cir. 1998). The Third Circuit recently declined to extend the wage assignment cases into other transactions. Biase v. Congress Fin. Corp. (In re Tops Appliance City, Inc.), 372 F.3d 510, 515 (3d Cir. 2004). In Tops the transfer of proceeds from the sale of three of debtor's store leases occurred outside the 90-day preference period. Upon the closing, however, the debtor continued to have obligations to purchase through liquidation of inventory. As a result, some payments were not turned over to lender until some days after closing, which fell within the preference period. The Trustee argued that the defendant, like a wage earner, did not "receive" its money on the closing date with the security interest attached, but only when the debtor bought the store and "earned it" under the purchase agreement. The court distinguished the wage earner cases and found that once the debtor sold the lease, turned over the keys, blue prints and financial documents, the debtor had for all interests and purposes "earned its money" regardless that it still had a duty to vacate. As a result, the transaction occurred outside the 90-day preference period.
When the person to whom the transfer was made is an insider of the Debtor, section 547(b)(4)(B) extends the applicable time period to one year. Bankruptcy Code section 101(31) contains a list of persons considered insiders for the purposes of the Code. See 11 U.S.C. S 101(31). Courts, however, have interpreted the list as non-exclusive and have created a category of persons who, though they are not specifically listed, are deemed to be "non-statutory insiders" whose transfers fall under the extended 547(b)(4)(B) time period. See Anstein v. Carl Zeiss Meditec AG (In re U.S. Medical, Inc.), 531 F.3d 1272, 1276-77 (10th Cir. 2008). A court will find that a person is a non-statutory insider where
