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Bankruptcy Court for the District of Delaware recently granted in part and denied in part dismissal in favor of the defendant car manufacturer in a fraudulent transfer adversary proceeding brought by the Chapter 11 trustee in ).[1] In its order, thecourt concluded that transactions occurring predominately outside the United States may nonetheless be subject to the trustee’s power to avoid fraudulent transfers under the United States Bankruptcy Code (“Bankruptcy Code”). However, the court allowed the liquidating trust’s alternative unjust enrichment claim to proceed in the full amount of nearly .5 million. In 2011, Fisker contracted with BMW, a German corporation, for BMW to provide engines, powertrains, and chassis parts to be incorporated in its electric cars.Thereafter, the court allowed the plaintiff to proceed with its fraudulent transfer claim against BMW, but reduced the amount at issue from approximately .5 million to 3,761.87 because the majority of the transfers at issue occurred outside the two-year fraudulent transfer period under 11 U. As a result, Fisker made payments to BMW in June, July, and December of 2011 and April of 2012 totaling ,579,798.87 (the “Payments”).

Experience suggests that, particularly in smaller liquidations, insolvency practitioners frequently approach these liquidations without a full appreciation of the conceptual differences that apply to trustee companies, and without obtaining all the additional approvals or directions from the court that may be necessary for the liquidator to sell trust assets.The assets of the trust the assets of the retired corporate trustee.The Sixth Circuit Court of Appeals recently took up the controversial issue of whether a liquidating trustee’s lawsuit, alleging breach of fiduciary duty against a corporate debtor’s officers, falls within the “insured-versus-insured” exclusion of the debtor’s liability policy.Both Courts examined the policy noting that, had Capitol sued its officers for mismanagement, it would be a claim “by” the company (an insured) against its own officers (also insureds) whereby the exclusion would bar the claim. The Appellate Court rejected opposing arguments that “the Company” referred to Capitol in its pre-bankruptcy form, and that Capitol underwent a transformation when it filed for bankruptcy, becoming a debtor in possession and administering the estate for the benefit of its creditors – making the debtor in possession legally distinct from the pre-bankruptcy company and, thereby, making the insured versus insured exclusion inapplicable to Capitol or its assignee.The Courts went on to examine the facts one-step removed from the above example, observing that while the officers and theory of liability remain the same, the claimant is no longer the company – but instead the trustee of a liquidating trust who received its rights by assignment. The Court responded that this new-entity argument would not work before bankruptcy where Capitol could not dodge the exclusion by transferring a mismanagement claim to a new company, and held that the same conclusion applies after bankruptcy where no matter how legally distinct the new-entity might be, the claim would still be “by, on behalf of, or in the name or right of” Capitol.Capitol Bancorp LTD., (“Capitol”) filed for Chapter 11 reorganization and operated thereafter as debtor in possession.