Publications

There Are Options to Reduce or Eliminate a Preference Exposure
MICHIGAN LAWYERS WEEKLY— August 15, 2011
By Scott A. Wolfson
Trade vendors sued by Chapter 11 or Chapter 7 debtors to recover preferential transfers have a number of options available to them to reduce or perhaps eliminate their exposure.  Preference defenses include the ordinary course of business (subjective and objective), contemporaneous exchanges for new value, purchase money security interests, or “enabling loans,” and preferences subsequently offset by unsecured credit or “new value.” read more.. 

Defending Against Preferential Transfers Post-BAPCPA: Understanding The 'Ordinary Business Terms' Defense
THE MICHIGAN BUSINESS LAW JOURNAL— Spring 2010
By Anthony J. Kochis
After a business debtor has filed for bankruptcy protection, creditors have a number of concerns, the primary ones being whether they will be paid for goods and services owing from the debtor or whether the debtor will continue to operate. A concern that creditors sometimes overlook is whether the debtor will sue the creditor to recover transfers made by the debtor prior to bankruptcy. read more..

A Road Map For Bankruptcy Litigation
THE MICHIGAN BUSINESS LAW JOURNAL— Spring 2008
By Scott A. Wolfson
A litigator's fundamental skill set is portable from state and federal district courts to the bankruptcy court. However, successfully litigating bankruptcy-related matters also requires knowledge of the jurisdictional and procedural nuances unique to bankruptcy litigation. read more..

"And" to "Or" Means Preference No More: The Expansion of the "Ordinary Course" Bankruptcy Preference Defense
THE MICHIGAN BUSINESS LAW JOURNAL— Spring 2006
By Scott A. Wolfson
Being sued to recover a preference can drive home the financial impact of bankruptcy to a creditor client. In addition to the claim the creditor will likely sustain on the amounts owed by the debtor when the debtor filed for bankruptcy, the creditor may be forced to return any preferential payments it received before the bankruptcy. read more..

Ordinary-Course Preference Defense
The Bankruptcy Strategist—Volume 23, Number 10 • August 2006
By Scott A. Wolfson
Congress’ one-word change to the ordinary course of business preference defense will make this already common preference defense even more prevalent. The Bankruptcy Abuse Prevention and Consumer Protection Act’s (“BAPCPA”) substitution of an “and” for an “or” to the defense’s elements should significantly assist the typical unsecured creditor in defending a preference claim, and, in most cases, enable the creditor to defend the claim without an expert witness.
read more..

Commentary: A Road Map For Bankruptcy Litigation
Andrews Litigation Reporter—Volume 5, Issue 16 / December 2008
By Scott A. Wolfson
The consequences of being unfamiliar with concepts like “bankruptcy counting” can be severe—from inadvertent waiver of jury trial rights to missing a response deadline. The goals of this article are to provide practitioners with an overview of important bankruptcy litigation statutes and rules and to highlight potential pitfalls. read more..

Deciphering the Damage Cap: Filing the Landlord's Claim in Bankruptcy
The Michigan Bar Journal—December 2002
By Scott A. Wolfson
The recent wave of retail bankruptcies, and the store closings they have left in their wake, has many landlords on unfamiliar turf: the bankruptcy court. Not only is the turf unfamiliar, it is unfriendly. read more..