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stimulus

How the Recent Stimulus Will Affect Furniture Retailers

One of the many measures used to counteract the effects of the COVID-19 pandemic has been direct economic stimulus payments to millions of Americans. While the amount received by each person or family depended on variables like income level and number of dependents, the vast majority of Americans received multiple payments during the pandemic.

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debt_collection_agency

Customary Business Practices for Turning a Debt over to a Collection Agency

When you offer credit to a customer, the last thing you want is to eventually turn that customer over to a collection agency. Unfortunately, collections are an inevitable part of the commercial credit game, and some of your accounts are going to reach this endpoint from time to time. Working with a good collection agency […]

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risk_management

Risk Management in 2021: How the World’s Volatility is Changing the Landscape

As we move into 2021, it’s safe to say that no one has a good handle on where the world’s economy is headed. Sure, there are plenty of opinions, and you may have your own theories, but 2020 taught us that we don’t know as much about the future as we previously believed. So, when […]

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money_lenders

A “Black Swan Event”: New York Federal Court Rules that Lenders are Entitled to Keep $500 Million Mistakenly Paid by Citibank

Written by David Conaway, Attorney at Law, Shumaker, dconaway@shumaker.com We are closely following Revlon on behalf of several creditor interests. In the context of a series of complex re-financings and roll-up transactions by Revlon in May, 2020, human error caused a $500 million loss for Citibank. On February 16, 2021, in the case of In […]

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delinquent_accounts_collections_fmca

What Information Should You Gather on Delinquent Accounts Before Collecting?

Collecting on delinquent accounts is a challenge. For home furnishings suppliers, it’s important to build and maintain positive relationships with retail partners – and collecting on an account is only going to serve to strain that relationship. Unfortunately, there will reach a point with some of your accounts where collecting is the only option. In […]

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good_furniture_credit

Top 5 Ways NOT to Make Dumb Furniture Credit Decisions

As a furniture manufacturer, offering furniture credit to your customers is a necessity. Retailers who want to sell your products are not always going to have the cash on hand to purchase inventory, so establishing credit terms can help all parties. Of course, this only works out when you make good credit decisions. If you […]

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chapter_11_filings_bankruptcy

Bankruptcy Code Temporarily Tilts in Favor of Supplier and Landlord Preference Defendants

Bankruptcy Code Temporarily Tilts in Favor of Supplier and Landlord Preference Defendants Written by Ronald D.P. Bruckmann of Shumaker, Associate. rbruckmann@shumaker.com For a limited time only, the “Consolidated Appropriations Act, 2021” (CCA) signed into law on December 27, 2020 amends Bankruptcy Code Section 547 to shield certain deferred supplier and rent payments from avoidance as […]

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Bankruptcy Code Temporarily Tilts in Favor of Supplier and Landlord Preference Defendants

Written by Ronald D.P. Bruckmann of Shumaker, Associate. rbruckmann@shumaker.com

For a limited time only, the “Consolidated Appropriations Act, 2021” (CCA) signed into law on December 27, 2020 amends Bankruptcy Code Section 547 to shield certain deferred supplier and rent payments from avoidance as preferential transfers.

During the COVID-19 pandemic, suppliers of goods and services and landlords have sup-ported and continue to support struggling customers and tenants by agreeing to postpone or defer payments. For these suppliers and land-lords, Congress has included in the CCA—the longest bill (5,593 pages) and one of the largest spending measures ever enacted, which combines $900 billion in stimulus relief with a $1.4 trillion omnibus spending bill—provisions de-signed to prevent a bankruptcy trustee or debt-or-in-possession from clawing-back certain deferred payments made during the 90-day pre-petition preference period.

Limitations on Protected Pandemic Payments:

  • Limited Duration. The amendments expire two years after enactment, but remain applicable to any bankruptcy case commenced before the December 27, 2022 sunset date.
  • Limited Scope. The protections only apply to payments of arrearages:
    • Made after March 13, 2020 in connection with an agreement entered into on or after March 13, 2020 to defer or postpone payments under an executory contract or lease of nonresidential real property;
    • That do not exceed the amount due under the pre-March 13, 2020 executory contract or lease terms; and
    • Does not include fees, penalties, or interest imposed by the post-March 13, 2020 payment deferral agreement or for payment defaults before March 13, 2020.

Thus, suppliers or landlords seeking to avail themselves of these new payment protections must have:

  • Entered into an executory contract or lease;
  • Amended the contract or lease after March 13, 2020; and
  • The amendment must have deferred or postponed payments otherwise due under the contract or lease.

While we hope that these amendments trans-late into a robust defense against the avoidance of payments that might otherwise fall outside the ordinary course of business defense, they also risk further complicating an already complicated analysis, and parties will likely argue different interpretations as to the scope of the protections.

Still, on the back of the Small Business Reorganization Act of 2019’s requirement that a trustee/debtor-in-possession now take into account a party’s defenses to preference liability before avoiding a transfer, the CCA’s amendments represent yet another score for preference defendants.

We hope you found this information useful and informative. Please contact us if you have any questions about this or any other matter. To receive the latest legal and legislative information straight to your inbox, subscribe here.

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