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payment of the same debt); In re Howes, 165 B.R. 270 (Bankr. E.D. Mo. 1994) (same).
The defense is an "all or nothing" proposition; that is, if it applies, it will shield an entire transfer, but it cannot be used to protect up to $599.99 of a transfer greater than $600, even though the transfer was made by an individual debtor with primarily consumer debts. E.g., In re Via, 107 B.R. 91 (Bankr. W.D. Va. 1989). The defense applies whether the subject transfer was voluntary - i.e., a payment by the debtor - or involuntary - i.e., a garnishment.
Section 547(c)(9), added by BAPCPA, is oriented toward protection for small transfers relating to payments primarily on nonconsumer debts, within the preference period, whether or not the transfers are made in the ordinary course. Section 547(c)(9) provides that a transfer may not be avoided if "in a case filed by a debtor whose debts are not primarily consumer debts, the aggregate value of all property that constitutes or is affected by such transfer is less than $5,000." This exception applies in nonconsumer cases such that the trustee cannot seek to avoid a transfer if the aggregate property at issue is less than $5,000. Similar issues relating to the aggregating of transfers discussed above relating to consumer debts may arise in the nonconsumer context. Presumably, Courts will aggregate multiple transfers to the same creditor in payment of business and consumer debts to remove the transfers from the exception. As yet, there are no cases addressing the issue of aggregate vs. individual "transfers" for the purposes of Section 547(c)(9). One could see a defendant arguing that a number of small transfers adding up to several hundred thousand dollars should each be exempted by Section 547(c)(9) as the word "transfer" may be read to comprehend each individual transfer for purposes of avoidance. In addition, practitioners should also be aware of the new venue provision in 28 U.S.C. S 1409(b) which sets forth a floor for litigation in the district where the case is pending for cases involving less than $10,000.
BAPCPA adds a prohibition on a trustee recovering certain payments made by a debtor as part of an alternative repayment schedule. Under section 547(h), the trustee "may not avoid a transfer if such transfer was made as a part of an alternative repayment schedule between the debtor and any creditor of the debtor created by an approved nonprofit budget and credit counseling agency." This provision creates an absolute prohibition against the avoidance of any transfers made in accordance with such an alternative repayment schedule. BAPCPA introduces the concept of a nonprofit budget and credit counseling agency and requires certain requirements be met for an agency to fall within such characterization. If an agency meets the standards set forth in section 111, and said agency assists a debtor with the implementation of an alternative repayment schedule, any payments made under the repayment schedule are not subject to avoidance under section 547(h).
