LLC v. Partner Reinsurance Company, Ltd., et al., Defendants–Appellants–Respondents. (2017)

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Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about January 23, 2017, which to the extent appealed from as limited by the briefs, upon defendants' CPLR 3211(a) motion to dismiss the amended complaint, denied dismissal of the first and second causes of action except for the portion of the first cause of action alleging that the initial loan and pledge transaction between defendant Partner Reinsurance Company, Ltd. (Partner Re) and nonparty debtor Stillwater Funding LLC (the Partner Re loan) was a fraudulent conveyance, unanimously affirmed, without costs.

The motion court correctly determined that the Partner Re loan was not a fraudulent conveyance, since a loan advance, regardless of the size of the collateral pledged, is “fair consideration” for the pledge (Debtor and Creditor Law §§ 274, 275;  see Chemtex, LLC v St. Anthony Enterprises, Inc., 490 F Supp 2d 536 [SD N.Y.2007] ).  However, the allegations that Stillwater Funding transferred its interests in the collateral, allegedly worth over $200 million, to defendants to satisfy a debt worth less than $40 million, thereby leaving Stillwater Funding unable to pay other creditors, states a cause of action for fraudulent conveyance (see Debtor and Creditor Law §§ 274, 275, 278;  In re Norstan Apparel Shops, Inc., 367 BR 68, 80 [Bankr ED N.Y.2007] ).

The motion court correctly found that discovery was warranted as to whether the foreclosure and sale agreement between Stillwater Funding, defendants, and others constituted a valid strict foreclosure under the New York Uniform Commercial Code (see N.Y. UCC 9–620), and whether the agreement was made in “good faith” (Comment 11 to N.Y. UCC 9–620).

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CLERK