http://blogs.abiworld.org/ ABI Bankruptcy Blog Exchange » Miami Florida Bankruptcy Law » June 21, 2009 Gregarius 0.5.4 en http://jbublick.blogspot.com/2009/06/potentionally-subordinated-creditors.html Sun, 21 Jun 2009 06:12:00 -0700 http://jbublick.blogspot.com/2009/06/potentionally-subordinated-creditors.html
The motion to dismiss by Flamingo Enterprises, Inc. alleged that the petitioners were not qualified to petition for the involuntary relief in that their claims were the subject of a bona fide dispute as to whether they were subordinated to a bank credit facility. that therefore they were not qualified creditors.

The Court noted that per the case of In re Euro-American Lodging Corp., 357 B.R. 700, 712 (Bankr. S.D.N.Y. 2007) that there is a five part test for a contested involuntary petition: 1. whether the claims are not contingent as to liability, 2. whether the claims are not subject to a bona fide dispute as to liability or amount, 3. whether the claims total in the aggregate at least $13,475.00, 4. whether three or more entities commenced the petition, and 5. whether the alleged debtor is generally not paying its debts as they come due. The Court further noted that the only item in issue was whether the petitioners' claims are the subject to a bona fide dispute as to liability or amount.

The Court rejected Flamingo Enterprises, Inc.'s argument that the question of of subordination introduced a "bona fide dispute". The Court stated that whether or not the claims of the petitioners are subordinated, they represent a liability or "financial obligation." The Court distinguished the case of IMI Acquisition of Boca Raton Corp., 221 B.R. 35, 37 (Bankr. S.D. Fla. 1998) due to the intervening amendments of BAPCPA to sections 303(b)(1) and 303(h)(1) which narrowed the scope of "bona fide dispute" by adding "as to liability or amount."Jordan E. Bublick, Miami, Florida, Attorney at Law, Practice Limited to Bankruptcy Law, Member of the Florida Bar since 1983 ]]>