06/21/2012 04:27:00 PM EST
Barkley v. West (In re West), 2012 Bankr. LEXIS 2561 (Bankr. N.D. Miss. June 5, 2012)
Collier on Bankruptcy was cited in this recent decision:
Collier on Bankruptcy section cited: Collier on Bankruptcy ¶ 502.05 (accessible by lexis.com subscribers).
Lexis.com subscribers can view the enhanced version of Barkley v. West (In re West).
LexisNexis Overview: The note was secured by a deed of trust, a security agreement, and an assignment of debtor's interest in the partnership, and evidence thereof was submitted with the mother's POC filed in debtor's Chapter 12 case, filed in March 2006. Starting in late 2006, the partnership made eight post-petition transfers to the mother on account of debtor's partnership interest. When plaintiff challenged the transfers as voidable or otherwise recoverable per 11 U.S.C.S. § 544 through 11 U.S.C.S. § 548, defendants moved to dismiss. The court granted relief. First, § 546 was not equitably tolled because plaintiff did not show that defendants tried to mislead plaintiff or to conceal the transfers. In fact, copies of the security agreements had been filed with the POC. Nor could plaintiff use § 502 to disallow the POC and recover payments already made. As the mother's security interest in debtor's partnership interest was still valid, § 546's statute of limitations foreclosed plaintiff's use of his 11 U.S.C.S. § 544 "strong arm" powers. Similarly, plaintiff could not use § 549 to avoid the post-petition transfers (except as to the latest transfer) because the claims were time-barred under § 549(d).
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