A thorough recitation of the facts underlying this case, and of its procedural history, is set forth in this Court's and the Bankruptcy Court's previous opinions, familiarity with which is assumed. See, e.g., Pereira v. Dow Chemical Co. (In re Trace Int'l Holdings, Inc.), 287 B.R. 98 (Bankr. S.D.N.Y. 2002) ("Dow I"); Pereira v. Dow Chem. Co. (In re Trace Int'l Holdings, Inc.), 301 B.R. 801 (Bankr. S.D.N.Y. 2003) ("Dow II"); Order, Sept. 12, 2006 (the "2006 Order") (Dkt. No. 20).
Trace II follows an earlier decision dealing with this same subject matter, in part. See Pereira v. Dow Chem. Co. ( In re Trace Int'l Holdings, Inc.), 287 B.R. 98, 110 (Bankr. S.D.N.Y. 2002) (Bernstein, C.J.) (" Trace I"). B.
See alsoIn re PHP Healthcare Corp. , 128 Fed. Appx. 839, 847 (3d Cir. 2005) ("We need not discuss the provisions of the Delaware Fraudulent Transfer Act ... because they are substantially the same as the relevant parts of the Bankruptcy Code"). DUFTA is "virtually a carbon copy of the fraudulent transfer law under the Bankruptcy Code" and "the result under Delaware law should be the same as the outcome under the Bankruptcy Code." In re Trace Int'l Holdings, Inc. v. Dow Chemical Co. , 287 B.R. 98, 105 n.5 (Bankr. S.D.N.Y. 2002). Just as the Chancery Court has found that a non-debtor transferor is not liable under the Bankruptcy Code, a non-debtor transferor is not liable under DUFTA.Here, Crystallex has failed to allege that PDVH is a debtor or that PDVH would otherwise be liable to Crystallex for any judgment against Venezuela. The Dissent notes that no Delaware case has specifically "held that non-debtor transferors are immune from liability under the Act."
, In re Trace Intern. Holdings, Inc., 287 B.R. 98, 106 (S.D.N.Y. 2002); see also In re Ogden, 314 F.3d 1190, 1202-05 (10th Cir. 2002). Plaintiff advances two arguments why the mere conduit rule should not hold here.
Caselaw makes clear that transfers may not be avoided under § 548 merely because the consideration consists of secured antecedent debt. See Pereira v. Dow Chem. Co. (In re Trace Int'l Holdings, Inc.), 287 B.R. 98, 110 (Bankr. S.D.N. Y. 2002) ("Trace I") ("Payment of antecedent debt . . . constitute[s] sufficient consideration . . . ."); Anand v. National Republic Bank of Chicago (In re Anand), 239 B.R. 511, 517 (N.D. I11. 1999) ("There is no dispute that collateralization of an antecedent debt confers value on the debtor, since the bankruptcy statute's definition of 'value' includes 'securing of a present or antecedent debt of the debtor.'"); In re Countdown of Connecticut, Inc., 115 B.R. 18, 21 (Bankr. Conn. 1990) (stating that under "Code § 548(d)(2)(A) an antecedent debt constitutes value for the granting of a security interest" and that "the transfer of the security interest by [a] debtor [does] not have to be contemporaneous with the defendant's loan to the debtor").
They are summarized here only to the extent that they are relevant. See, e.g., Pereira v. Dow Chemical Co. (In re Trace Int'l Holdings, Inc.), 287 B.R. 98 (Bankr. S.D.N.Y. 2002) ("Dow I");Pereira v. Dow Chem. Co. (In re Trace Int'l Holdings, Inc.), 301 B.R. 801 (Bankr. S.D.N.Y. 2003) ("Dow II"); Order, Sept. 12, 2006 (the "2006 Order"); Order, June 25, 2009.I. The Payments
The case law makes it clear that transfers may not be avoided under §548(a)(1)(B) merely because the consideration consists of securing antecedent debt. See, Pereira v. Dow Chem. Co. (In re Trace Int'l Holdings, Inc.), 287 B.R. 98, 110 (Bankr. S.D.N.Y. 2002)("Payment of antecedent debt ... constitute[s] sufficient consideration...."); Anand v. National Republic Bank of Chicago (In re Anand), 239 B.R. 511, 517 (N.D.Ill.1999)("There is no dispute that collateralization of an antecedent debt confers value on the debtor, since the bankruptcy statute's definition of 'value' includes 'securing of a present or antecedent debt of the debtor.'"); In re Countdown of Connecticut, Inc., 115 B.R. 18, 21 (Bankr. D. Conn.1990)(pursuant to "Code §548(d)(2)(A) an antecedent debt constitutes value for the granting of a security interest" and "the transfer of the security interest by [a] debtor [does] not have to be contemporaneous with the defendant's loan to the debtor"); see also, In re Trace Int'l Holdings, Inc., 301 B.R. 801, 805 (Bankr. S.D.N.Y. 2003)("Past consideration is good consideration.").
Similarly, under § 544, the trustee may use state fraudulent transfer laws to recover transfers made without fair consideration. Pereira v. Dow Chem. Co. (In re Trace Int'l Holdings, Inc.), 287 B.R. 98, 105 (Bankr. S.D.N.Y. 2002). Section 544(b) states:
"Rule 9011 parallels Fed. R. Civ. P. 11, and the jurisprudence under Rule 11 informs the interpretation and application of Bankruptcy Rule 9011." Pereira v. Dow Chem. Co. (In re Trace Int'l Holdings, Inc.), 287 B.R. 98, 111 (Bankr. S.D.N.Y. 2002). "The imposition of sanctions is discretionary, and should only be imposed if it is patently clear that a claim has absolutely no chance of success, and all doubts should be resolved in favor of the signing attorney."
Therefore, the Court grants summary judgment in favor of Defendant as to 548(a)(1)(A).See In re Ameri P.O.S. Inc., 355 B.R. 876, 885 (Bankr. S.D. Fla. 2006); In re Trace Intern. Holdings, Inc., 287 B.R. 98, 106 (Bankr. S.D.N.Y. 2002); see also In re Main Poly, Inc., 317 B.R. 1 (Bankr. D. Me. 2004). In connection with this summary judgment motion, HSH offered sworn statements and documents that demonstrate the following: HSH, prior to June 2003, was an established law firm specializing in labor law, with a long-standing client known as Maintech; Maintech was in serious financial trouble; the Spitkos were guarantors on certain loans; a confessed judgment had been entered against both Maintech and the Spitkos; the Spitkos engaged a workout attorney to represent them and to negotiate on their behalf; that attorney recommended that they continue to employ HSH for certain matters as it would be less expensive and to pay them via retainer; and the Spitkos then used a portion of a tax refund to tender five payments over a ten-month period, which payments were used to pay for legal services billed to Maintech and to another debtor-owned corporation known as Sentek. HSH argues that it was not fraudulent for the debtors to