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Marshack v. Orange Commercial Credit (In re Nat'l Lumber & Supply, Inc.), 184 B.R. 74 (B.A.P. 9th Cir. 1995). The section 547(c) defenses are affirmative defenses which may be waived. Waiver is an issue to be determined by the trial court. In this case, the bankruptcy court held that the defendant did not waive its defenses by raising them for the first time in its response to the trustee's motion for summary judgment. The trustee argued that he was prejudiced by the defendant's inadequate pleading because the discovery cutoff date lapsed over two months before the defenses were first raised. The court rejected this argument stating that the trustee should have requested an extension of the discovery cutoff date. See also Whittaker v. Citra Trading Corp. (In re Int'l Diamond Exch. Jewelers, Inc.), 177 B.R. 265 (Bankr. S.D. Ohio 1995) (court stated that where defendant failed to raise defenses in answer or in response summary judgment pleadings, the defendant was precluded from raising the defenses at a later date). The limitation periods of section 546(a) and section 549(d) are statutes of limitation rather than jurisdictional limitations on the court and accordingly can be waived. Pugh v. Brook (In re Pugh), 158 F.3d 530 (11th Cir. 1998).
The trustee bears the burden of establishing that a preference exists. 11 U.S.C. S 547(b); 11 U.S.C. S 547(g); see also Union Bank v. Wolas, 502 U.S. 151, 112 S. Ct. 527, 116 L. Ed. 2d 514 (1991); Alfa Mut. Fire Ins. Co. v. Memory (In re Martin), 184 B.R. 985
(M.D. Ala. 1995) aff'd, 101 F.3d 708 (11th Cir. 1996); Hall v. Ford Motor Credit Co. (In re JKJ Chevrolet, Inc.), 412 F.3d 545 (4th Cir. 2005); Bryant v. JCOR Mech., Inc. (In re Electron Corp.), 336 B.R. 809 (B.A.P. 10th Cir. 2006). If the trustee puts forward sufficient evidence to make out a prima facie case on section 547(b), the burden shifts to the transferee to present sufficient evidence to call into question whether the trustee has sustained his or her burden of proof.
A preference defendant is limited to the statutory affirmative defenses under section 547(c) and threshold defenses such as lack of jurisdiction, service of process, standing and the like. Kmart Corp. v. Uniden Am. Corp. (In re K-Mart Corp.), No. 04 C 4978, 2004 U.S. Dist. LEXIS 19829 (N.D. Ill. Sept. 30, 2004; Raleigh v. Mid Am. Nat'l Bank & Trust Co. (In re Stoecker), 131 B.R. 979, 983 (Bankr. N.D. Ill. 1991). The threshold defenses, however, are not defenses on the subject transfers involved in the preference litigation. As a result, it is "well established" that the exceptions under S 547(c) are the exclusive substantive defenses to liability under S 547(b). Id.; see also Official Unsecured Creditors Comm. of Intrastate Elec. Servs., Inc. v. Intrastate Sheet Metal, Inc. (In re Intrastate Elec. Servs., Inc.), No. 95 B 20173, 2000 WL 1346696 (Bankr. N.D. Ill. Sept. 8, 2000).
