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Lanik v. Smith, 1/27/17
April 20, 2017

Debtor was insolvent at the time of all the allegedly preferential transfers for purposes of 11 U.S.C.S. § 547(b)(3). Although debtor’s assets should properly be valued as a going concern, rather than at liquidation, debtor’s tax return tended to show that debtor was in serious financial difficulty and insolvent on the date of the first transfer. Although loans made by defendant during the preference period constituted “new value”, pursuant to § 547(c)(4), the “new value” amounts could not be used to offset any preferential payments made after the new value was advanced. Although defendant’s conduct was sanctionable under Fed. R. Civ. P. 37, the court declined to impose sanctions because the trustee failed to offer any evidence of the damages directly caused by defendant’s conduct. The judgment was entered in favor of the trustee.