Summary
In Enron, the bankruptcy court was confronted with a situation where it was impossible and impractical for the trustee to obtain a judgment of avoidance against the initial transferee, CLO Holdings, “because there was no CLO Holdings and there was no CLO trustee.
Summary of this case from Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLCOpinion
Bankruptcy No. 01-16034 (AJG), Adversary No. 03-93370 (AJG), No. 07 Civ. 6597(AKH).
April 16, 2008
Daniel J. Bussel, David Max Stern, Klee, Tuchin, Bogdanoff Stern LLP, Los Angeles, CA, for Reorganized Debtors.
ORDER REVERSING AND REMANDING JUDGMENT OF THE BANKRUPTCY COURT
Appellants Enron Creditors Recovery Corp. ("Enron") filed an appeal from the final judgment of the Bankruptcy Court for the Southern District of New York. In the lower court's opinion, dated May 18, 2006, Judge Gonzalez granted appellees' Caisse de Depot ("Caisse") and National Australia Bank's ("NAB") motion to dismiss the counts against these defendants, Counts II and III of the Complaint. On April 16, 2008, the parties appeared before me for oral argument of the appeal. For the reasons stated on the record, the judgment of the bankruptcy court is reversed and remanded. The bankruptcy court is instructed to grant appellants leave to amend the Complaint to show 1) the commercial context of the underlying transactions that are part of the lawsuit; 2) why, given the circumstances of those transactions, appellants have no practical ability to effect a recovery under 11 U.S.C. § 550(a)(2), unless a declaration of avoidance against the initial transferee can be made simultaneously, or prior to, with a declaration authorizing a recovery against a subsequent transferee. The Clerk shall mark the case as closed.
SO ORDERED.