# Opinion

> United States Bankruptcy Court, D. Puerto Rico · October 23, 2013

URL: https://www.frixlaw.com/law-library/cases/11358608

## Case

- **Full name:** Noreen Wiscovitch Rentas v. BPP Retail Properties LLC
- **Court:** United States Bankruptcy Court, D. Puerto Rico
- **Decided:** October 23, 2013
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

1 IN THE UNITED STATES BANKRUPTCY COURT FOR
THE DISTRICT OF PUERTO RICO
2

3

4
IN RE: CASE NO. 09-02048
5 Chapter 7
PMC MARKETING CORP
6
Adversary No. 12-00093
7

8 Debtor(s)

9
NOREEN WISCOVITCH RENTAS
10

11 Plaintiff
vs.
12

13 BPP RETAIL PROPERTIES LLC
14
Defendant(s) FILED & ENTERED ON 10/23/2013
15

16

17
OPINION AND ORDER
18
19 Before this Court is Defendant, BPP Retail Properties LLC's ["BPP"] Motion for Summary
20
Judgment [Dkt. No. 33] and Trustee/Plaintiff’s Opposition to Defendant’s Motion for Summary
21
Judgment and accompanying Counterstatement of Facts [Dkt. No. 43, 44]. For the reasons set forth
22
23 below, Defendant’s Motion for Summary Judgment is denied in part and granted in part.
24
I. Background
25
Debtor, PMC Marketing Corporation, filed a voluntary chapter 11 bankruptcy petition on

March 18, 2009. On February 4, 2010, Defendant filed a motion for payment of administrative
expense in the amount of $74,041.40. Subsequently, on April 15, 2010 this Court entered an order
1
1 granting BPP’s motion for payment of administrative expense in the amount of $74,041.40. On May
2
21, 2010, Debtor’s bankruptcy case was converted to a chapter 7. On March 2, 2012, Debtor’s
3
Chapter 7 Trustee and Plaintiff herein Noreen Wiscovitch Rentas ("Plaintiff") filed an adversary
4
5 proceeding to recover funds to the estate from the Defendant in the amount of $79,777.62.
6
Defendant's Motion for Summary Judgment and Plaintiff’s Opposition followed.
7
II. Summary Judgment Motion
8
9 The role of summary judgment is to look behind the facade of the pleadings and assay the
10
parties' proof in order to determine whether a trial is required. Under Federal Rules of Civil
11
Procedure, Rule 56(c), made applicable in bankruptcy by Federal Rules of Bankruptcy Procedure,
12
13 Rule 7056, a summary judgment is available if the pleadings, depositions, answers to interrogatories,
14
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
15
any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.
16
17 56(c); Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4 (1st Cir. 2010). As to issues on which
18
the movant, at trial, would be compelled to carry the burden of proof, it must identify those portions
19
of the pleadings which it believes demonstrates that there is no genuine issue of material fact. In re
20
21 Edgardo Ryan Rijos & Julia E. Cruz Nieves v. Banco Bilbao Vizcaya & Citibank, 263 B.R. 382, 388
22
(B.A.P. 1st Cir. 2001). A fact is deemed "material" if it potentially could affect the outcome of the
23
suit. Borges, 605 F.3d at 5. Moreover, there will only be a "genuine" or "trial worthy" issue as to
24
25 such a "material fact," "if a reasonable fact-finder, examining the evidence and drawing all

reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in
that party's favor." Id. at 4. The court must view the evidence in the light most favorable to the
2
1 nonmoving party. Alt. Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 26 (1st Cir. 2004).
2
Therefore, summary judgment is “inappropriate if inferences are necessary for the judgment and
3
those inferences are not mandated by the record.” Rijos, 263 B.R. at 388.
4
5 Although this perspective is favorable to the nonmoving party, she still must demonstrate,
6
“through submissions of evidentiary quality, that a trial worthy issue persists.” Iverson v. City of
7
Boston, 452 F.3d 94, 98 (1st Cir. 2006). Moreover, “[o]n issues where the nonmovant bears the
8
9 ultimate burden of proof, [she] must present definite, competent evidence to rebut the motion.”
10
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991).These showings may not rest upon
11
“conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Muñoz v.
12
13 R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). But, the evidence offered by the
14
nonmoving party “cannot be merely colorable, but must be sufficiently probative to show differing
15
versions of fact which justify a trial.” Id. See also Horta v. Sullivan, 4 F.3d 2, 7-8 (1st Cir. 1993) (the
16
17 materials attached to the motion for summary judgment must be admissible and usable at trial.) “The
18
mere existence of a scintilla of evidence” in the nonmoving party's favor is insufficient to defeat
19
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d
20
21 202 (1986); González-Pina v. Rodríguez, 407 F.3d 425, 431 (1st Cir. 2005).
22
In the Summary Judgment Motion presently before the court, Defendant argues that there are
23
no genuine issues as to any material facts and that therefore the moving party is entitled to judgment
24
25 as a matter of law. Defendant argues that discovery demonstrated that Defendant only received an

alleged preferential transfer of $52,543.04 and not $79,777.62. The Defendant provided deposited
checks in the following amount with their corresponding dates:
3
1 (1) Los Jardines Shopping Center (“Los Jardines Property”) total paid $13,977.42. Check no.
092745 dated December 31, 2008 for $4,659.14, cashed on February 18, 2009. Check no.
2
092948 dated February 10, 2009 for $9,318.28, cashed on February 18, 2009.
3
(2) Dorado del Mar Shopping Center (“Dorado del Mar Property”) total amount received
4
$19,783.30. Check no. 092748 dated December 31, 2008 for $6,524.76, cashed on February
5 18, 2009. Check no. 092979 dated February 12, 2009 for $13,258.54, cashed on February 18,
2009.
6

7 (3) Bayamon Oeste Shopping Center (“Bayamon Oeste Property”) total amount received
$18,782.32. Check no. 093139 dated March 4, 2009, cashed on March 9, 2009.
8

9 Defendant further contends that for the Los Jardines Property, the amount of $13,977.42 from
10
the payments on the executory contract lease may not be recovered by Plaintiff because Debtor
11
assumed its lease post-petition with BPP for Store #29 on January 14, 2010, for subsequent sale to
12
13 A+ HC Holding, Inc., with benefit to the estate. Thus, pre-petition payments to Defendant were
14
necessary for the assumption and sale of the lease. Pursuant to 11 U.S.C. § 365(b)(1)(A) and (B), a
15
trustee is entitled to “assume or reject” executory contracts with third parties. However, in order to
16
17 assume a contract, the trustee must cure any default under the contract and compensate the other
18
party for any losses resulting from the default. Further, under Section 547(b)(5) of the Bankruptcy
19
Code, in order to make out a preference case, the trustee must establish that the alleged preferential
20
21 transfer yielded the creditor a greater return on its debt than it would have received if the transfer had
22
not taken place and it had received a distribution in a chapter 7 liquidation. Therefore, because the
23
creditor would have been entitled to full payment even in a hypothetical chapter 7 case, the court
24
25 should find that a preference claim cannot succeed. In regards to the two other properties, the Dorado

del Mar Property and the Bayamon Oeste Property with executory contract payments totaling
$19,783.30 and $18,782.32 respectively, these payments cannot be recovered by Plaintiff either
4
1 because they qualify as new value pursuant to 11 U.S.C. § 547(c)(4). Defendant further contends that
2
it granted a total of $69,580.86 in new unsecured post-petition value for the Dorado del Mar
3
Property, and $20,000.18 for the Bayamon Oeste Property in new unsecured post-petition value to
4
5 the Debtor exceeding the executory contract payments totaling $19,783.30 and $18,782.32
6
respectively. Defendant argues that it has met the three requirements of Section 547(c)(4): (1) the
7
creditor must have extended new value after receiving the preference; (2) the new value must have
8
9 been unsecured; and, (3) the new value must remain unpaid.
10
In its Opposition, Plaintiff argues that (1) Debtor made payments to the Defendant during the
11
preference period and (2) Defendant failed to meet its burden for the new value exception because
12
13 the new value was paid for with unavoidable transfers. Even if the new value exception is applicable,
14
the new value does not set off the full amount of the payments made to Defendant. Plaintiff specifies
15
that in order for the new value defense to apply, Defendant must have supplied new value after the
16
17 preferential payments to which Defendant cannot have been compensated for the new value by an
18
otherwise unavoidable transfer. Plaintiff points out that for Debtor’s two properties in question, the
19
Dorado del Mar Property and the Bayamon Property, the following facts apply:
20
21 (1)Dorado del Mar Property: The preferential transfer made during the 90 days prior to the
filing of Debtor’s petition was made on February 18, 2009 in the amount of $19,783.30.
22
Therefore, Defendant’s possible new value provided through the February 18, 2009 payment
23 in the amount of $10,843.89 cannot cover the preferential payment in full. Therefore, even if
new value defense applies, Plaintiff is still entitled to the difference of $8,939.41.
24

25 (2)Bayamon Oeste Property: The preferential transfer made during the 90 days prior to the
filing of Debtor’s petition was made on February 18, 2009 in the amount of $18,782.32.

Therefore, Defendant’s possible new value provided through the March 9, 2009 payment in
the amount of $5,276.94 cannot cover the preferential payment in full. Therefore, even if the
new value defense applies, Plaintiff is still entitled to the difference of $13,505.38.

5
1 Summarily, Plaintiff requests this Court to find that the new value defense does not apply.
2
Alternatively, if the new value defense does apply, Plaintiff requests this Court to find that only the
3
new value provided prior to the filing of the petition can be used to offset preferential payments and
4
5 that Plaintiff is still entitled to the above difference of $8,939.41 for the Dorado del Mar Property
6
and $13,505.38 for the Bayamon Oeste Property.
7
A. Summary Judgment
8
9 After reviewing the Plaintiff’s arguments, and the relevant law, this Court concludes that
10
there are genuine issues as to material facts and that the moving party is not entitled to judgment as a
11
matter of law. In a motion for summary judgment, in order to carry its burden of production, the
12
13 moving party must either produce evidence negating an essential element of the nonmoving party's
14
claim or defense, or demonstrate that the nonmoving party does not have sufficient evidence of an
15
essential element to carry its ultimate burden of persuasion at trial. Lopez v. Corporacion Azucarera
16
17 de Puerto Rico, 938 F.2d 1510, 1516-17 (1st Cir. 1991); High Tech Gays v. Defense Indus. Sec.
18
Clearance Office, 895 F.2d 563, 574 (9th Cir.1990). In order to carry its ultimate burden of
19
persuasion on the motion, the moving party must persuade the court that there is no genuine issue of
20
21 material fact. Id.
22
Therefore, if a moving party fails to carry its initial burden of production, the nonmoving
23
party has no obligation to produce any evidence, even to the extent that the nonmoving party would
24
25 have the ultimate burden of persuasion at trial. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160,

90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); High Tech Gays, 895 F.2d at 574. With such scenario above,
the nonmoving party can then defeat a summary judgment motion without producing any evidence.
6
1 See High Tech Gays, 895 F.2d at 574; Clark v. Coats & Clark, Inc., 929 F.2d 604, 607 (11th
2
Cir.1991). On the contrary, if a moving party carries out its burden of production, the nonmoving
3
party must produce evidence to support its claim or defense. See High Tech Gays, 895 F.2d at 574;
4
5 Cline v. Industrial Maintenance Eng'g. & Contracting Co., 200 F.3d 1223, 1229 (9th Cir.2000).
6
Therefore, if the nonmoving party fails to produce sufficient evidence to create a genuine issue of
7
material fact, the moving party prevails in the motion for summary judgment. See Celotex Corp. v.
8
9 Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“Rule 56(c) mandates the entry
10
of summary judgment, after adequate time for discovery and upon motion, against a party who fails
11
to make a showing sufficient to establish the existence of an element essential to that party's case,
12
13 and on which that party will bear the burden of proof at trial.”) Alternatively, if the nonmoving party
14
produces sufficient evidence to establish a genuine issue of material fact, the nonmoving party
15
defeats the motion. See id.
16
17 Therefore, the primary inquiry this Court must decide first is whether the Defendant, as the
18
moving party, carried its initial burden of production and accordingly whether the Plaintiff, as the
19
nonmoving party, had an obligation to produce evidence in response. The Supreme Court provided
20
21 for such analytical framework in Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26
22
L.Ed.2d 142 (1970), and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265
23
(1986).
24
25 The Supreme Court, under Adickes and Celotex, offered guidance that a moving party

without the ultimate burden of persuasion at trial may regardless carry its
initial burden of production by either of two methods: the moving party may produce evidence
7
1 negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving
2
party may show that the nonmoving party does not have enough evidence of an essential element of
3
its claim or defense to carry its ultimate burden of persuasion at trial. In practice, the first method
4
5 mentioned above or the Adickes method, may be more commonly employed because the moving
6
party may find it easier to produce affirmative evidence negating an essential element of the
7
nonmoving party's claim or defense than it is to show that the nonmoving party has insufficient
8
9 evidence to carry its ultimate burden of persuasion at trial. Regardless the second or the Celotex
10
method, is equally favored legally, where in appropriate cases, a moving party can carry its
11
initial burden of production by demonstrating that the nonmoving party does not have enough
12
13 evidence to carry its ultimate burden of persuasion at trial.
14
B. Preferential Transfers
15
In this instant case, this Court takes judicial notice that the Debtor’s bankruptcy filing date is
16
17 March 18, 2009, per the date stated on the Case Docket. The question this Court must then answer is
18
whether Debtor’s two payments in the amount of $18,782.32, in relation to the Bayamon Oeste
19
Property, and $19,783.30 in relation to the Dorado del Mar Property made on February 18, 2009,
20
21 constitute avoidable transfers.
22
In order for payments to be recoverable as preferential transfers, payments must satisfy all of
23
the requirements of 11 U.S.C. § 547(b). The trustee bears the burden of proving the transfers were:
24
25 (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor

before such transfers were made; (3) made while the debtor was insolvent; (4) made on or within
ninety (90) days before the date of filing of the petition; and, (5) that enabled the benefited creditor to
8
1 receive more than such creditor would have received had the case been a chapter 7 liquidation and
2
the creditor not received the transfer. 11 U.S.C. § 547(b). This Court is satisfied per the evidence
3
provided by the Plaintiff that Debtor's payments to Defendant meet the criteria of § 547(b), and
4
5 therefore are preferences as defined by the Code.
6
i. New Value Exception
7
Although Section 547(b) of the Bankruptcy Code authorizes a trustee to avoid preferences,
8
9 Section 547(c) equips the transferee with certain defenses. These defenses “are designed to rescue
10
from attack in bankruptcy those kinds of transactions, otherwise fitting the definition of a preference,
11
that are essential to commercial reality and do not offend the purposes of preference law, or that
12
13 benefit the ongoing business by helping to keep the potential bankrupt afloat.” Epstein, Nickles &
14
White, Bankruptcy, Practitioner Treatise Series, Vol. 1, § 6–3, at 587 (1992). Pursuant to Section
15
547(c), the trustee may not avoid a transfer under Section 547(b) that (1) was “intended by the debtor
16
17 and the creditor ... to be a contemporaneous exchange for new value given to the debtor” and “in
18
fact” was a “substantially contemporaneous exchange” (“contemporaneous exchange defense”), 11
19
U.S.C. § 547(c)(1); (2) was “in payment of a debt incurred by the debtor in the ordinary course of
20
21 business” (“ordinary course of business defense”), 11 U.S.C. § 547(c)(2); or (3) was followed in time
22
by “new value” given by the creditor “to or for the value of the debtor” (“subsequent new value
23
defense”), 11 U.S.C. § 547(c)(4).
24
25 Section 547(c)(4), or the subsequent new value defense, takes a creditor off the hook for

preference liability when it provides new value after the debtor made a preference transfer to the
creditor. In re JKJ Chevrolet, Inc., 412 F.3d 545, 552 (4th Cir.2005). The reason for this provision is
9
1 because “the creditor's provision of the subsequent goods or services has replenished the estate.” In
2
re Bridge Info. Sys., Inc., 287 B.R. 258, 266 (E.D.Mo.2002). In other words, because the new value
3
effectively repays the earlier preference, such new value offsets the harm to the debtor's other
4
5 creditors. See Kroh Bros. Dev. Co. v. Cont'l Constr. Eng'rs, Inc. (In re Kroh Bros. Dev. Co.), 930
6
F.2d 648, 652 (8th Cir.1991); Laker v. Vallette (In re Toyota of Jefferson, Inc.), 14 F.3d 1088, 1091
7
(5th Cir.1994). Further, the philosophy for this provision is translucent, as the “new value” exception
8
9 encourages creditors to deal with troubled businesses to enhance the probability of avoiding
10
bankruptcy on both ends, In re IRFM, Inc., 52 F.3d 228, 232 (9th Cir.1995); Jones Truck Lines, Inc.
11
v. Central States, Southeast and Southwest Areas Pension Fund (In re Jones Truck Lines), 130 F.3d
12
13 323, 326 (8th Cir.1997); Southern Technical Coll., Inc. v. Hood, 89 F.3d 1381, 1384 (8th Cir.1996)
14
(quoting Kroh Bros., 930 F.2d at 651); Charisma Inv. Co., N.V. v. Airport Sys., Inc. (In re Jet Florida
15
Sys., Inc.), 841 F.2d 1082, 1083 (11th Cir.1988); see Toyota of Jefferson, Inc., 14 F.3d at 1091; see
16
17 generally 5 ALAN N. RESNICK & HENRY J. SOMMER, COLLIER ON BANKRUPTCY ¶
18
547.04[4][b], at 547–65 (16th ed. 2011), “promotes the continuation of revolving credit
19
relationships, whereby new value is continually being advanced to the debtor after payment of old
20
21 debt.” Bogdanov v. Avnet, Inc., 10-CV-543-SM, 2011 WL 4625698 (D.N.H. Sept. 30, 2011)
22
(quoting In re Pillowtex Corp., 416 B.R. 123, 131 (D.Del.2009)), and fulfills the promotion of equal
23
creditor treatments. Jet Florida Sys., Inc., 841 F.2d at 1083–84. Accordingly, the central question this
24
25 Court must decide is whether “the new value replenishes the estate.” Kroh Bros., 930 F.2d at 652;

Savage & Assocs., P.S. v. Level(3) Commc'ns (In re Teligent, Inc.), 315 B.R. 308, 315
(Bankr.S.D.N.Y.2004). The party relying on the new value defense has the burden to demonstrate
10
1 that it gave unsecured new value after the preferential transfer. Mosier v. Ever–Fresh Food Co. (In re
2
IRFM, Inc.), 52 F.3d 228, 231 (9th Cir.1995). In other words, the subsequent new value defense
3
cannot apply if a creditor, who has the burden of proof, cannot establish that “the debtor did not
4
5 make an otherwise unavoidable transfer” “on account of” the new value. 11 U.S.C. § 547(c)(4)(B).
6
Accordingly, the “majority rule” states that a creditor must establish that the debtor did not later pay
7
for the new value with an “otherwise unavoidable transfer.” Id; E.g., Mosier v. Ever–Fresh Food Co.,
8
9 52 F.3d at 231 (discussing the majority emerging trend). “That is, the creditor cannot both shield a
10
prior preference payment by offsetting it with subsequent new value, and also keep a subsequent
11
preferential payment for the new value under some other defense (e.g., contemporaneous exchange).”
12
13 Bogdanov v. Avnet, Inc., 10-CV-543-SM, 2011 WL 4625698 (D.N.H. Sept. 30, 2011). This majority
14
approach reasons that if the debtor pays for the new value, the estate has not been replenished and the
15
creditor receives the dual benefit of a new value defense and the payment for the new value. Kroh
16
17 Bros., 930 F.2d at 652 (“If the new value advanced has been paid for by the debtor, the estate is not
18
replenished and the preference unfairly benefits a creditor.”)
19
While the majority rule focuses on whether the new value remains unpaid, the minority rule
20
21 focuses on the avoidability of the debtor's subsequent payments. Either rule however, may be
22
followed by a bankruptcy or district court in this Circuit, absent First Circuit Court of Appeals
23
guidance. Bogdanov v. Avnet, Inc., 10-CV-543-SM, 2011 WL 4625698 (D.N.H. Sept. 30, 2011); see
24
25 also Newspapers v. Travelers Indemnity Co., (In re Maxwell Newspapers), 192 B.R. 633

(Bankr.S.D.N.Y.1996). The District Court in Bogdanov, explains that:
On its face, Section 547(c)(4) clearly, though conditionally, allows new value to be paid: the
statute anticipates transfers made “on account of ... new value,” and requires that any such
11
1 payment be “not ... otherwise unavoidable.” 11 U.S.C. § 547(c)(4). As the bankruptcy court
noted, “not ... otherwise unavoidable” generally means “otherwise avoidable.” Doc. No. 5–1
2
at 18 (quotation omitted). Given the words used in the statute, offsetting new value may be
3 paid so long as the payment is “otherwise avoidable” by the trustee. The double-negative
adds frustrating complexity to the condition's description, but the statute is unambiguous in
4
allowing new value to be paid so long as the “otherwise avoidable” condition is met. See
5 Matter of Toyota of Jefferson, Inc., 14 F.3d 1088, 1092 (5th Cir.1994) (“plain language” of
the statute allows new value to be “paid” under prescribed circumstances); In re IRFM, Inc.,
6
52 F.3d 228, 231 (9th Cir.1995) (same); see also 4 Norton Bankr.L. & Prac.3d § 66:36 & n.
7 25 (same, collecting cases) (“The focus of the inquiry is on the avoidability of the debtor's
subsequent payments, and not on whether the new value remains unpaid.”)
8

9 A bankruptcy in our sister circuit further explains that “[a] creditor should not be able to assert a new
10
value transfer as a defense to a preference if the transfer was paid for by the debtor because the estate
11
was not made whole by the new value transfer. But, ... by the same token, the trustee should not be
12
13 able to assert the new value was paid if the trustee is asserting that the paying transaction was in fact
14
a preference which the trustee can avoid.” In re Check Reporting Svcs., 140 B.R. 425, 434
15
(Bkrtcy.W.D.Mich.1992). In other words, “[t]here is no logical reason to distinguish between a
16
17 creditor that was paid by an avoidable transfer and one that was never paid at all. At the end of the
18
day, in both cases, the creditor has been wholly uncompensated for his new value.” In re Maxwell
19
Newspapers, 192 B.R. 633, 639 (S.D.N.Y.1996). Similarly, the court, in Travelers, points out several
20
21 flaws to the majority approach and rules in favor of the minority approach. Newspapers v. Travelers
22
Indemnity Co., 192 B.R. at 639. The Travelers Court identified that (1) most of these courts that
23
followed the majority rule ruled did so in dicta. (2) The majority rule ignores Section 547(c)(4)(B)
24
25 which states that the defense is available if the debtor “did not make an otherwise unavoidable

transfer to or for the benefit of such creditor” because this phrase implies some payments will not
deprive the transferee of the new value defense. Despite the double negative language found in the
12
1 statute, “the statute means that the new value defense is available, despite payment, if the payment
2
was an avoidable transfer, i.e., a preference or fraudulent transfer. Under those circumstances, the
3
creditor must return the second payment, and there is no logical reason to distinguish between a
4
5 creditor that was paid by an avoidable transfer and one that was never paid at all.” In re Musicland
6
Holding Corp., 462 B.R. 66, 70-71 (Bankr.S.D.N.Y. 2011) (internal quotations and citations
7
omitted). This minority interpretation is consistent with the policy reasoning of the subsequent new
8
9 value exception as to facilitate creditors to continue dealing with a financially shaky debtor and to
10
replenish an estate diminished by a preference. Accordingly, a creditor is entitled to only a one-time
11
credit benefit for goods and services it later supplied. Summarily, unlike the majority rule, the
12
13 minority yet emerging reading does not require that the subsequent new value remain unpaid, but
14
does require that the preference payment be avoidable (i.e., statutory language “not otherwise
15
unavoidable”).
16
17 In this instant case, Plaintiff admits that it claimed the incorrect amount in its initial
18
complaint. The alleged preferential transfer value is $52,543.04 and not $79,777.62 as demonstrated
19
by Defendant’s Motion for Summary Judgment. Cf., [Dkt. No.’s 1 and 43]. This Court adopts the
20
21 minority approach of Section 547(c)(4). As guided by the Supreme Court, “[w]here a statute is clear
22
on its face the plain meaning of its language should be applied.” United States v. Ron Pair Enters.,
23
Inc., 489 U.S. 235, 242 (1989). “While ‘[i]t is emphatically the province and duty of the judicial
24
25 department to say what the law is[,]’ the court must interpret this statutory provision in accordance

with legislative intent upon the passage of [Section 547(c)(4)]. In re Lee Min Ho Chen, 482 B.R.
473, 481 (Bankr. D.P.R. 2012) (quoting Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L.Ed.
13
1 60 (1803)). On its face, the statute does not permit an ambiguous reading as the majority approach
2
has taken on incorporating the requirement of mandating that the new value remains unpaid in order
3
for a creditor to prevail in a subsequent new value defense. Although this Court takes the minority
4
5 approach, the Defendant fails to adequately demonstrate to this Court how it met the burden of the
6
subsequent new value defense and whether it met the subsequent new value defense in whole or in
7
part regarding the Dorado del Mar and the Bayamon Oeste Properties. Merely pointing to the Code
8
9 and citing some facts with no connecting analysis are insufficient to meet the burden of prevailing in
10
a motion for summary judgment. These questions will need to be addressed at a trial.
11
Summarily, Defendant failed to carry out the burden as mandated by either Adickes or
12
13 Celotex. Defendant not only failed to produce evidence negating an essential element of the
14
nonmoving party's case, but it also failed to show that the Plaintiff does not have enough evidence of
15
an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.
16
17 Summarily, Plaintiff presented sufficient evidence to demonstrate that there is genuine issue of fact
18
in dispute for a trial.
19
However, in regards to the Los Jardines Property controversy, this Court will grant the
20
21 summary judgment in part to the Defendant because the Plaintiff did not address the arguments
22
posed by the Defendant in regards to the Los Jardines Property payments.
23
WHEREFORE, IT IS ORDERED that Defendant’s Motion for Summary Judgment shall be,
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25 and it hereby is, DENIED IN PART as to the Dorado del Mar Property for payment in the amount of

$19,783.30 and the Bayamon Oeste Property for payment in the amount of $18,782.32, and
GRANTED IN PART as to the Los Jardines Property in the amount of $13,977.42. Clerk to enter
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1 || judgment and schedule a final pre-trial hearing.
SO ORDERED

4 San Juan, Puerto Rico, this 23rd day of October, 2013.
5
Ce
’ Brian K. Tester
8 U.S. Bankruptcy Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11358608. Public record. Not legal advice.