In my previous post on preference actions, I wrote about how I was able to help a previous client head off a preference action before it even began thanks to sound analysis of the situation, thorough preparation and effective presentation to opposing counsel.
That said, there are also situations where baring your teeth may not be any help at all.
Case in point: A short while ago, a client was very upset about a preference action and was ready to fight back. After reviewing his situation, it was clear to me that his case was not strong. He would not be helped by defenses such as the Ordinary Course of Business Defense, the Contemporaneous Exchange Defense or the New Value Defense.
To be frank, his situation fit the classic definition of a preference action.
Sure, I could advise my client to retain me as his attack dog in an effort to reduce the payment. But to do so would have required the client to expend more in legal fees than the claim was actually worth. Once we realized the cards we had in our hand versus the cards the trustee had in his hand, it was clear that the best strategy was to negotiate for the best offer possible and take it.
Of course, exploring settlement is good, but sometimes the best deal can come later in the process if you can hold out without running up costs. It’s a fine line and something that requires experience and good instincts on the part of your bankruptcy lawyer. Additionally, even if you do plan to negotiate a settlement, there’s no guarantee that the trustee will go along with it. So you still need to be in position to submit a response to the preference action.
Knowing how to navigate these situations isn’t something they teach in law school. It’s something you learn over many years of doing it yourself. You gotta know when to hold’em. Know when to fold’em. Know when to walk away. And know when to submit a detailed response. (Hopefully Kenny Rogers employed the same advice if he was involved with the bankruptcy of Kenny Rogers Roasters.)
As a New York bankruptcy lawyer who has extensive experience working on both the defense side as well as the trustee side of New York preference actions, I understand the preference action landscape better than most, and I can answer your questions and help you figure out the best and most cost-effective strategy for defending yourself.
Contact Bruce Weiner, Esq.
EMAIL Bruce Weiner
Phone
(718) 855-6840 (Local)
(866) 402-8476 (Toll Free)
Fax (718) 625-1966
Go to Bankruptcy Attorney Brooklyn NY to learn more about Rosenberg Musso & Weiner LLP and/or to set up a free consultation.
