CONCLUSION Based on the foregoing, Defendants/Creditor request this Court grant its Motion to Dismiss and deny Plaintiff’s/Debtor’s request for relief under Sections 547 and 522.

In re Standard Stores, Inc., 124 B.R. 318, 324 (Bankr. C.D. Cal. 1991) (quotations omitted). With respect to a preference under section 547, a plaintiff “is not required to prove that the transferee knew or should have known: (1) that the transfer was preferential; (2) that the debtor was insolvent at the time of the transfer; or (3) any other pertinent factor.” Id. (citation omitted).

Pursuant to 11 U.S.C. § 547, a transfer occurring within 90 days of filing the bankruptcy petition may be avoided as preferential by the trustee upon the filing of a motion with the court. 11 U.S.C. § 547. However, no such motion has been filed, thereby muddying the issue of whether the ’044 patent is actually part of CDx’s bankruptcy estate.

As a result, the 90-day preference period (and not the one year look-back period) should apply. See 11 U.S.C. § 547(b)(4). Case 2:10-cv-00198-MHT-DHW Document 45 Filed 02/24/11 Page 29 of 35 24 CONCLUSION For all of the foregoing reasons, the FDIC-Receiver respectfully requests that all of the claims relating to allegedly avoidable transfers asserted in the amended complaint be dismissed and that the Court grant the FDIC-Receiver such other and further relief as it may deem just and proper.

Under section 547(b)(5) of the Bankruptcy Code, to succeed on a preference claim, the Trustee must establish that the challenged transfers enabled JPMorgan “to receive more than [it] would receive” in a chapter 7 liquidation if the transfer had not been made. 11 U.S.C. § 547(b)(5). Since secured lenders receive 100 cents on the dollar in a chapter 7 liquidation, the repayment of a secured debt can have no “preferential effect” under Section 547(b)(5).

Where all creditors are paid in full notwithstanding the alleged preferential transfer, no creditor is injured within the scope of the law, and as a result no party has standing to assert claims thereunder. 11 U.S.C. § 547(b)(5) (2006) (explaining that a trustee can pursue a preference action against a creditor only when a preferential payment allowed the creditor to receive more than it would have in a chapter 7 liquidation, thus precluding preference actions in bankruptcy cases where all creditors are paid in full). Under this well-developed body of law, Plaintiffs do not have standing to maintain their preference claim on behalf of Parnassos’ creditors.

Vintero Corp. v. Corporacion Venezolana de Fomento (Matter of Vintero Corp.), 735 F.2d 740, 742 (2d Cir. 1984), cert. denied, 469 U.S. 1087 (1984) (holding that the debtor in possession had the right to avoid in order to protect its other creditors but “not to create a windfall” for the debtor itself); 11 U.S.C. § 547(b)(5) (2006) (a trustee can pursue a preference action against a creditor only when a preferential payment allowed the creditor to receive more than it would have in a Chapter 7 liquidation, thus precluding preference actions in bankruptcy cases where all creditors are paid in full); Whiteford Plastics Co. v. Chase Nat’l Bank of N.Y. City, 179 F.2d 582, 584 (2d Cir. 1950) (holding that the debtor could not avoid the lien of a creditor where creditors would obtain no benefit from avoidance); Official Comm. of Asbestos Claimants of G-I Holding, Inc. v. Heyman, 277 B.R. 20, 29 (S.D.N.Y. 2002) (recognizing that a trustee is “powerless to act under section 544(b)” unless there are “creditors against whom the transfer is voidable under applicable law” that would benefit from the avoidance) (quoting 5 Lawrence King, Collier on Bankruptcy ¶ 544.09 (15th ed.

The Actual and Constructive Fraudulent Transfer Claims are Matters of Private Right. The Trustee also asserts claims to avoid and recover actual fraudulent conveyances (11 U.S.C. §§ 548(a)(1)(A), 550), constructive fraudulent conveyances (11 U.S.C. §§ 548(a)(1)(B), 550), and insider preferences (11 U.S.C. §§ 547, 550). See Am. Compl.

B. The evidence establishes that Colonial Bank was solvent at the time of each of those alleged transfers, precluding these claims because BancGroup received reasonably equivalent value in return.24 See 11 U.S.C. § 548(a)(1) (debtor can avoid transfer for which it received less than a reasonably equivalent value and that 24 BancGroup includes generic allegations regarding preferences in this section of its amended complaint, but there is no reasonable reading of that pleading under which the 2008 capital contributions could be construed to be “preferences,” which are by definition transfers made by a debtor to a creditor “for or on account of an antecedent debt.” See 11 U.S.C. § 547(b). No capital contribution can be construed to be a transfer on account of an “antecedent debt,” nor has BancGroup made any creditable allegation that any of the 2008 capital contributions was made on that basis.

See In re Se. R.R. Contractors, Inc., 235 B.R. 619, 622 (Bankr. E.D. Tenn. 1996) (citing 11 U.S.C. § 547(b)(5)). As a corollary to this rule, any preference recovery must be distributed to the unpaid creditors of the debtor; it cannot be distributed to the debtor itself or to its equity holders (and their separate estates), as the ART seeks to do here.