5 Collier on Bankruptcy ¶ 547.03[5] at 547-38 (Bender 2006); see alsoIn re K R Mining, Inc., 103 B.R. 136, 140 (Bankr.N.D. Ohio 1988) (same). "[T]he debt that was to be extinguished by such transfer is also to be included in determining the debtor's liabilities."
Unlike property transferred with actual intent to defraud, hinder or delay the debtor's creditors, property transferred as payment or security for a valid, although antecedent, debt is to be considered as part of the debtor's assets in determining the debtor's solvency at that time. 5 Collier on Bankruptcy, ¶547.03[5] at 547-32 (16th ed. 2013); see also, In re K & R Mining, Inc., 103 B.R. 136, 140 (Bankr.N.D.Ohio 1988)("[T]he debt that was to be extinguished by such transfer is also to be included in determining the debtor's liabilities."); In re Emergency Monitoring Technologies, Inc., 366 B.R. 476, 491 (Bankr. W.D. Pa. 2007).
D.N.M. 1988). Courts have focused on "operating control," Badger Freightways, Inc. v. Continental Ill. Nat'l Bank Trust Co. of Ill. (In re Badger Freightways, Inc.), 106 B.R. 971, 982 (Bankr. N.D. Ill. 1989), rather than "financial influence," Johnson v. NBD Park Ridge Bank (In re Octagon Roofing), 124 B.R. 522, 530 (Bankr. N.D. Ill. 1991). To be an insider of the debtor, a person need not have "legal or absolute" control of the debtor, K R Mining, Inc. v. Keffler Constr. Co. (In re K R Mining, Inc.), 103 B.R. 136, 139 (Bankr. N.D. Ohio 1988), but "must exercise sufficient authority" to "dictate corporate policy and the disposition of corporate assets," Badger Freightways, 106 B.R. at 982 (internal quotation omitted). "Actual management of a debtor is control."
An insider is said to be an entity with a sufficiently close relationship to the debtor that its conduct is made subject to closer scrutiny than those dealing at arm's length with debtor.In re Controlled Power Corp. of Ohio, 351 B.R. 470, 475 (Bankr. N.D. Ohio 2006). A creditor not dealing at arm's length with debtor, and whose special relationship with debtor enables it to compel payment of its claim, has sufficient control over debtor to be deemed an insider (id. at 475, citing K R Mining, Inc. v. Keffler Construction Co. (In re K R Mining, Inc.), 103 B.R. 136 (Bankr. N.D. Ohio 1988)). Huron Capital Partners and Huron Fund, LP are statutory insiders of HOLDINGS and RiversideWorld, Inc. Beauregard and Demkowicz are statutory insiders of HOLDINGS and RiversideWorld, Inc.
"A creditor who does not deal at arms length with the debtor, but who has a special relationship with the debtor through which it can compel payment of its debt, has sufficient control over the debtor to be deemed an insider."K R Mining, Inc. v. Keffler Construction Co. (In re K R. Mining, Inc.), 103 B.R. 136 (Bankr. N.D. Ohio 1988) (citing In re F S Central Manufacturing Corp., 53 B.R. 842, 848 (Bankr. E.D.N.Y. 1985) (citations omitted)). The focus of the analysis is the degree to which another party has the ability to influence the exercise of financial and other business decisions within the debtor.
(Emphasis added.) The question of who or what qualifies as an insider is a question of fact. See, Matter of K and R Mining, Inc., 103 B.R. 136, 139-140 (Bankr.N.D.Ohio 1988); In re Hydraulic Industrial Products Co., 101 B.R. 107, 109 (Bankr.E.D.Mo. 1989); In re Ribcke, 64 B.R. 663 (Bankr.D.Md. 1986); and In re Brayman, 51 B.R. 139, 141 (Bankr.D.Mass. 1985).