Introduction

In July of 2011, the Chapter 7 Trustee (the "Trustee") in the Ultimate Acquisition Partners (formerly "Ultimate Electronics") bankruptcy began filing complaints to avoid and recover payments which the Trustee alleged were avoidable transfers under section 547 of the United States Bankruptcy Code.  Earlier this month, the Trustee filed another round of preference complaints seeking to recover what he contends are preferential transfers.  This post will look briefly at the Ultimate’s business, why the company filed for bankruptcy and provide some general information regarding defenses to a preference action.

Reasons Ultimate Electronics Filed for Bankruptcy

Prior to going in to bankruptcy, Ultimate Electronics sold high-end home entertainment and consumer electronics throughout the western and mid-western United States.  Based in Thornton, Colorado, Ultimate Electronics employed approximately 1,500 employees before it filed for bankruptcy.  According to pleadings filed with the Delaware Bankruptcy Court, Ultimate attributed its bankruptcy filing to a "significant downturn in business at certain of the Debtors’ locations, coupled with refusal by certain of Debtors’ vendors to ship goods to the Debtors on open credit."  By filing for bankruptcy, Ultimate was hoping to close under performing stores, re-negotiate its leases and improve its profitability.

Conversion from Chapter 11 to Chapter 7

Plans quickly changed for Ultimate after the company filed for bankruptcy.  Nine days after filing for bankruptcy, on February 4, 2011, the company filed a motion with the Bankruptcy Court seeking approval of going out of business sales.  Within two months of filing the going out of business motions, Ultimate had sold substantially all of its assets.

On April 25, 2011, Ultimate Electronic’s DIP lender issued a "Termination Event" under Ultimate’s Final Cash Collateral Order (the "DIP Order").  Under the DIP Order, if the lenders’ termination notice is not contested within five business days, the automatic stay is lifted in favor of Ultimate’s DIP lender.  Ultimate filed its Motion to Convert to Chapter 7 one day after receiving the Termination Event.  The Bankruptcy Court converted Ultimate’s bankruptcy to a Chapter 7 liquidation on May 3, 2011.  The following day, Alfred T. Giuliano was appointed the Chapter 7 Trustee for Ultimate Electronic’s bankruptcy proceeding.

The Preference Actions

The Trustee in the Ultimate Electronics bankruptcy is represented by the law firm Pachulski Stang Ziehl & Jones LLP.  The bankruptcy proceeding, along with the preference actions filed by the Trustee, are before the Honorable Mary F. Walrath.  Judge Walrath is a former Chief Judge of the Delaware Bankruptcy Court. 

For reader’s looking for more information concerning preference litigation, attached is a booklet I prepared on the subject:  "A Preference Reference:  Common Issues that Arise in Delaware Preference Litigation."

Jason Cornell is a partner and bankruptcy attorney with the law firm Fox Rothschild LLP.  Jason is admitted and practices before the United States Bankruptcy Court for the District of Delaware.  You can reach Jason at 302 427 5512 or jcornell@foxrothschild.com.

Introduction

A couple of weeks ago, the Chapter 7 Trustee (the "Trustee"), in the Ultimate Acquisition Partners bankruptcy, began filing complaints to avoid and recover payments the Trustee alleges constitute preferential transfers under section 547 of the Bankruptcy Code.  Ultimate Acquisition filed chapter 11 petitions for bankruptcy in the Delaware Bankruptcy Court on January 26, 2011 (the "Petition Date").  At the time it filed for bankruptcy, the company operated retail stores under the name "Ultimate Electronics."  This post will look at why Ultimate Acquisitions filed for bankruptcy, why the case converted to a Chapter 7 liquidation, as well as address some issues that often arise in preference litigation.

Reasons for Bankruptcy

Prior to filing for bankruptcy, Ultimate sold "high-end home entertainment and consumer electronics" in over 40 stores throughout the mid-west and western United States.  See Declaration of Ultimate’s CEO in Support of Chapter 11 Petitions (the "Declaration"), at p. 2, a copy of which is available here for review.  Based in Thornton, Colorado, at the time of the company’s Petition Date, Ultimate employed 1,500 employees.  As stated in its Declaration, Ultimate attributed its bankruptcy filing to "a significant downturn in business at certain of the Debtors’ locations, coupled with the refusal by certain of the Debtors’ vendors to ship goods to the Debtors on open credit."  Decl. at p. 2.  By filing for bankruptcy, Ultimate hoped to close poor performing stores, re-negotiate leases and improve profitability.  Id.

Continue Reading A Closer Look at the Ultimate Acquisition Partners’ Bankruptcy

Background

Last month, the Chapter 7 Trustee in the Sunset Aviation bankruptcy began filing preference actions against various defendants seeking the recovery of alleged avoidable transfers.  The Sunset Aviation bankruptcy proceeding includes the consolidated bankruptcies of Sunset Aviation, Inc., JetDirect Aviation and Regal Jets, LLC.  The first bankruptcy commenced on February 25, 2009, when Regal Jets filed a petition for chapter 11 bankruptcy protection with the United States Bankruptcy Court for the District of Delaware.  On March 6, 2009, Sunset Aviation filed a petition for bankruptcy under chapter 7 of the Bankruptcy Code.  JetDirect filed its chapter 7 petition on May 1, 2009.  On June 10, 2009, the Regal bankruptcy proceeding was converted from a chapter 11 reorganization to a chapter 7 liquidation.  Soon after, the Office of the United States Trustee appointed the Chapter 7 Trustee.

Debtors’ Operations

Prior to filing for bankruptcy, Debtors provided a range of services for the private aviation industry.  These services included brokering the sales and rentals of private jets, in-flight catering, records management and aircraft utilization.  According to court filings by the Chapter 7 Trustee, although the Debtors were separate legal entities, the companies operated from the same headquarters, co-mingled assets and were generally viewed by their creditors as a single entity.  Based on these findings, the Trustee filed a motion to substantively consolidate the bankruptcy proceedings in July of 2010.  The Court granted the Trustee’s consolidation motion the following month.

The Preference Actions

As is common in avoidance actions, the Chapter 7 Trustee in Sunset Aviation seeks to recover pursuant to several different causes of action.  Pursuant to section 547 of the Bankruptcy Code, the Trustee seeks to avoid and recover transfers for the ninety days prior to the Debtors’ petition date – November 27, 2008 to February 25, 2009.  According to the complaints, the "preference period" is calculated based on the earliest bankruptcy petition date for the consolidated Debtors. 

Conclusion

The Sunset Aviation bankruptcy is before the Honorable Peter J. Walsh.  Judge Walsh previously served as the Chief Judge of the Delaware Bankruptcy Court.  Cozen O’Connor and ASK Financial LLP serve as Plaintiff’s counsel for the Trustee. 

For more information regarding Delaware preference litigation, below are prior posts I have written on the subject:  

Decision in Archway Cookies Grants Summary Judgment Based on Ordinary Course of Business Defense

Using the Solvency Defense in a Preference Action: In re Bernard Technologies

Recent Decision in Pillowtex Addresses Elements of the Ordinary Course of Business Defense in a Preference Action

Defending Avoidance Actions: The "Settlement Payment" Safe Harbor Receives Broad Interpretation Under In re Elrod Holdings

Jason Cornell practices with the law firm Fox Rothschild LLP in Wilmington, Delaware.  You can reach Jason at 302 427 5512, or jcornell@foxrothschild.com.