IN RE: CALUMET FARM, INC. CASE NO. 91-51414

UNITED STATES BANKRUPTCY COURT 

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

IN RE:

CALUMET FARM, INC. CASE NO. 91-51414

DEBTOR

PHOENIX CORPORATION, formerly known

as CALUMET FARM, INC. PLAINTIFF

v. ADV. NO. 93-5037

CRAIG B. SINGER, d/b/a Singer Ranch DEFENDANT

MEMORANDUM OPINION

This matter is before the court on motions of the plaintiff debtor in possession, Phoenix Corporation, formerly known as Calumet Farm, Inc. ("Phoenix Corporation") for summary judgment against the defendant Craig B. Singer, d/b/a Singer Ranch ("Singer").

. . . .

The motion also requests summary judgment determining that the debtor in possession is entitled to avoid as preferential and to recover from Singer a payment in the amount of $400,000 made by the debtor to Singer by wire transfer on or about March 7, 1991.

Count I of the complaint alleges this payment is avoidable by the debtor in possession as a preferential transfer under section 547 of the Bankruptcy Code, 11 U.S.C. § 547. Count II of the complaint alleges the payment is avoidable by the debtor in possession as a preferential conveyance under state law, KRS 378.060, et seq. The debtor in possession may rely on these provisions of state law under 11 U.S.C. § 544(b).

. . . .

At a hearing on January 20, 1995, the court announced from the bench that it should and hereby does overrule both of the foregoing motions of the debtor in possession for summary judgment without prejudice to the right of the debtor in possession to renew the motions with more comprehensive supporting affidavits and exhibits bearing on the questions of (1) the solvency of the debtor on the date of the $400,000 payment, (2) whether Singer's claim was undersecured by $400,000 on the date of the payment, (3) whether the payment enabled Sisnger to receive more than he would have received if this case were a case under chapter 7 if the transfer had not been made, and (4) for purpose of the Kentucky statute whether the payment was made with intent to prefer Singer.

Dated: January 31, 1995.

By the court -

Joe Lee, Chief Judge

Copies to:

Phil Hanrahan

Will Shier

Ashley Ward

Donald A. Tarkington

Robert W. Wilmott, Jr.