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| vol 21, num 1 | August 2023 |
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| Timing Considerations for Commencing State Law Avoidance Actions in New York State |
| Currently in New York State, creditors’ ability to avoid fraudulent transfers is governed by one of two different statutory schemes, depending on when the transfer occurred. Although New York State adopted the Uniform Voidable Transactions Act in 2019, New York’s predecessor fraudulent transfer statute, the Uniform Fraudulent Conveyance Act, still governs those transfers that occurred prior to April 4, 2020. These two statutory schemes each have different limitations on time to commence an action. Accordingly, understanding the applicable statute of limitations will be crucial for creditors seeking to commence an action to avoid a transfer under New York Debtor and Creditor
Law or assess their risk of being targeted with such an action. |
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| Is Electricity a Good or a Service Under § 503(b)(9)? The Divide Among the Bankruptcy Courts Continues to Deepen in 2023 |
| Section 503(b)(9) of the Bankruptcy Code creates a priority status for claims for “goods” that were delivered to the debtor within the 20-day window preceding the filing of a bankruptcy action. These claims typically get paid in full and ahead of other claims, thus § 503(b)(9) claims status is highly coveted. Significantly, though, § 503(b)(9) does not apply to “services.” This distinction has created a deep divide of opinion where electricity is concerned, with some bankruptcy courts finding that electricity is a “good,” while others have determined it to be a “service.” That divide has widened even further the first half of this year when two more decisions
found electricity to be a service, thus denying it the coveted § 503(b)(9) priority claim status. |
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