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In re KF Dairies Inc.

filed: August 18, 1992.

IN RE: KF DAIRIES, INC., DEBTOR. COMMITTEE OF UNSECURED CREDITORS, APPELLANT,
v.
COMMODITY CREDIT CORPORATION, APPELLEE. COMMITTEE OF UNSECURED CREDITORS, APPELLANT, V. NATIONAL DAIRY PROMOTION AND RESEARCH BOARD, APPELLEE.



Appeal from the United States Bankruptcy Court for the Central District of California. Honorable Barry Russell, Bankruptcy Judge, Presiding. BK No. LA 86-12940-BR

Before: Ollason, Perris, and Meyers, Bankruptcy Judges

Author: Ollason

OLLASON, Bankruptcy Judge:

The bankruptcy court overruled objections to claims because the allegedly avoidable transfers upon which the objections were based occurred outside the applicable limitations period. These timely appeals followed and we reverse.

FACTS

Appellee Commodity Credit Corporation in BAP No. CC-91-2235 and Appellee National Dairy Promotion and Research Board in BAP No. CC-91-2237 (hereafter collectively "Appellees") received payment from the debtor on certain antecedent debts after commencement of the case from which these appeals arise. The statute controlling whether those transfers were avoidable is 11 U.S.C. § 549,*fn1 but no actions under that section were ever commenced. Appellees thereafter filed claims against debtor's estate concerning other unpaid debts.

The Committee of Unsecured Creditors (hereafter "Committee"), appellant in both BAP No. CC-91-2235 and BAP No. CC-91-2237, objected to those claims on the grounds set forth in section 502(d), which provides, in relevant part, that "the court shall disallow any claim of any entity . . . that is a transferee of a transfer avoidable under section . . . 549 of this title . . . ." Appellees responded, asserting the time-bar.

11 U.S.C. § 549(a) provides:

(a) Except as provided in subsection (b) or (c)*fn2 of this section, the trustee may avoid a transfer of property of the estate--

(1) that occurs after the commencement of the case; and

(2)(A) that is authorized only under section 303(f) or 542(c) of this title; or

(B) that is not authorized under this title or by the court.

Subsection (d) provides the limitations defense found in § 549:

(d) An action or proceeding under this section may not be commenced ...


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