Business Credit Journal Business Credit Journal Business Credit Journal Business Credit Journal Business Credit Journal April 2007 Recent Case Law Development Under the 2005 Recent Case Law Development Under the 2005 Recent Case Law Development Under the 2005 Recent Case Law Development Under the 2005 Recent Case Law Development Under the 2005 Amendments to the Bankruptcy Code—Part 1 Amendments to the Bankruptcy Code—Part 1 Amendments to the Bankruptcy Code—Part 1 Amendments to the Bankruptcy Code—Part 1 Amendments to the Bankruptcy Code—Part 1 by Bruce S. Nathan and Scott Cargill by Bruce S. Nathan and Scott Cargill by Bruce S. Nathan and Scott Cargill by Bruce S. Nathan and Scott Cargill by Bruce S. Nathan and Scott Cargill The Bankruptcy Abuse Prevention and Consumer Protection goods shipped to a debtor within 20 days of the bankruptcy filing, Act of 2005 (“BAPCPA”) is applicable to bankruptcy cases as well as the development of new debtor management that were filed on or after October 17, 2005. The BAPCPA has compensation plans. Part two of the article, which will appear next provided additional rights to trade creditors that the courts are month, will discuss the BAPCPA’s new requirements that just now beginning to interpret. This is a two part article creditors’ committees provide certain information concerning a discussing recent decisions under the BAPCPA that may affect debtor’s bankruptcy case to creditors and solicit creditors’ the rights and obligations of trade creditors in bankruptcy comments, a creditor’s recourse if it is not appointed to a cases. Part one will discuss the BAPCPA’s impact on creditors’ committee, and how the BAPCPA has assisted trade reclamation claims, a new administrative priority claim for certain creditors in defending against preference claims. The BAPCPA modified the rights of reclamation claimholders under Section 546(c)(1) of the Bankruptcy Code by expanding the In This Issue In This Issue In This Issue In This Issue In This Issue time period from 10 days to 45 days for making a reclamation demand. A creditor can seek to reclaim goods sold in the ordinary Bankruptcy............................................ Cover course of the creditor’s business that the debtor had received while insolvent within 45 days of its bankruptcy filing by satisfying Chair's Message ..................................... p 2 certain requirements. The creditor must send a written demand President's Message .............................. p 2 for reclamation of its goods. The demand must identify which goods are subject to reclamation and must now be made within 45 NACM Annual Meeting ....................... p 3 days after the receipt of the goods, or if such time period expires Credit Congress..................................... p 3 after the date of the bankruptcy filing, then not later than 20 days from the date of the bankruptcy filing. The sole remedy, provided International Corner ............................. p 4 in Section 546(c)(1), for a successful reclamation creditor is return Legal Corner ......................................... p 5 of the goods. The BAPCPA, Section 546(c)(1), also expressly provides that a Downstream Corner ............................. p 6 creditor’s reclamation rights are subject to the prior rights of a New Members ....................................... p 7 holder of a security interest in the goods sought to be reclaimed. Recently, the Delaware bankruptcy court in In re Advanced Roaring 20's Scrapbook ....................... p 8-14 Marketing Services, Inc. denied a creditor’s motion for a Scholarships .......................................... p 15 temporary restraining order to preserve the creditor’s more than $5 million reclamation claim. The court denied the injunction, Education ............................................... p 16 holding that the creditor could not demonstrate a strong WRCC................................................... p 17 probability of success on the merits of its reclamation claim because the goods were subject to the floating lien of the debtor’s Credit Today's Salary Survey .............. p 17 secured lenders. Credit Manager's Index......................... p 18 Section 503(b)(9) of the Bankruptcy Code is a new provision added by the BAPCPA that grants the seller of goods (not CFDD Chapters .................................... p 19 services) an administrative expense claim for goods sold to a Contacts ................................................. p 21 debtor in the ordinary course of business during the 20 days prior to the bankruptcy filing. The provision is an alternative to a seller ...continue on page 20 1 7931 NE Halsey, Suite 200 • Portland, Oregon 97213 Tel: 503.257.0802 • Fax: 503.257.0247 www.nacmoregon.org
Business Credit Journal Business Credit Journal Business Credit Journal Business Credit Journal Business Credit Journal April 2007 Message from Chairman of the Board Message from Chairman of the Board Message from Chairman of the Board Message from Chairman of the Board Message from Chairman of the Board Message from the President Message from the President Message from the President Message from the President Message from the President Cheryl Wahlberg, CCE Cheryl Wahlberg, CCE Rod Wheeland, CCE CAE Rod Wheeland, CCE CAE Cheryl Wahlberg, CCE Cheryl Wahlberg, CCE Cheryl Wahlberg, CCE Rod Wheeland, CCE CAE Rod Wheeland, CCE CAE Rod Wheeland, CCE CAE It seems impossible that one year ago, I The “Roaring 20's Gala” was a roaring was installed as your Chairman. What do success, with many NACM Oregon members they say? "The older you get the faster the and suppliers enjoying a night of frivolity and time goes." And it really flew by! Yes, I am fund-raising at the MAC. Be sure to take a dating myself. My term as Chairman of the look at the pictures in this edition. Board will end on April 26 at our annual There’s a lot going on in Salem, and our meeting. I hope to see many of you there to support your lobbyist Cindy Robert is keeping here eyes and ears on the new Board of Directors and thank those Directors who are legislature and committees to be sure we get our bills through leaving the Board. They have devoted time, expertise, and and stop any inappropriate or unwarranted legislation lots of effort into serving the members over the last year. impacting NACM Oregon members. Cindy will give a status When I joined the Board more than 7 years ago, one of report at the Annual Meeting on April 26. Please plan to join the strengths mentioned at each planning session was the us! fact NACM Oregon was a leader in the industry. The NACM Oregon golf tournament will be held at Innovation and diversity of services has always been Persimmon Golf Club on August 20. Plan to field a team of discussed. In an effort to be fiscally responsible, we have colleagues and/or friends that will help you take home a prize! looked for ways to be less dependent on a single source of We always appreciate your comments and constructive revenue. criticism. These help us do a better job of being the premier A previous Board and affiliate President had the vision trade association for Oregon, southwest Washington, and and foresight to purchase the Banfield Plaza Building. This southwest Idaho credit and financial operations, and your best has proven to be a sound decision. The building represents a business credit resource. Please let us hear from you. large profitable asset of the corporation. In the last year, to maintain the quality of this asset, many upgrades have been made. One of Lisa Rogstad’s many hats is building management. She has done an excellent job negotiating and working with the contractors. Thank you, Lisa. In a further effort to invest in the future of NACM Oregon, an idea formed when Dave Erickson was chair was to expand the credit reporting sources and additionally, to create our own Pacific Northwest database. This was the number one goal requested of management and staff at NACM this last year. This goal has been accomplished and our membership has the option of selecting reports from Experian, Equifax, and ECredit. Along with 14 other affiliates, an alliance was formed with NACM Tampa to create our own NACM database. Kathy Linscott and her customer service team identified some beta sites and testing is being done. The negotiations for the Pacific Northwest report are almost completed. Rod and his staff have accomplished the goals and objectives requested at the beginning of the year. 2 7931 NE Halsey, Suite 200 • Portland, Oregon 97213 Tel: 503.257.0802 • Fax: 503.257.0247 www.nacmoregon.org
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