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2007 NORTON BANKRUPTCY LAW SEMINAR MATERIALS

ADVANCED ISSUES IN AVOIDANCE

By Hon. William H. Brown, Dennis J. Connolly, David A. Lander, Timothy M. Lupinacci

 

 

but not in his own defense, because to so allow that testimony leads to the result in Hawes; that is, it is to be expected that the defendant's president would testify favorably to the defendant's position . . . [he is] not a disinterested witness" Finley v. Mr. T's Apparel, Inc. (In re Washington Mfg. Co.), 144 B.R. 376, 380-81 (Bankr. M.D. Tenn. 1992).

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"[T]he fact that it is not uncommon for [defendant's] customers to pay late does not establish that receiving payments late is the industry norm for freight shippers generally." Additionally, testimony of defendant's controller is "inherently suspect because it is to be expected that the testimony of an officer of the defendant would be favorable to the defendant's position." In re Ideal Security Hardware Corp., 186 B.R. at 239.
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Defendant's evidence on ordinary business terms suffers from "too high a level of generality . . . . [T]his Court lacks evidence as to the number of distributors [the defendant] utilized, the number of [the defendant's] delinquent accounts, the amount of credit usually extended to account debtors, and the frequency of workout arrangements with account debtors with invoices in excess of four months old." In re Dooley Plastics Co., 185 B.R. at 394.
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Testimony of defendant's president lacked credibility and reliability. The court stated that it could not expect the testimony of a defendant's president '"to be any different.'" In re Fred Hawes Org., Inc., 957 F.2d at 246.
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Testimony of defendant's sales manager and a second employee is "clearly that of interested parties and self serving . . . . Furthermore, there was no evidence which specifically described the details of industry practices similar to the one utilized in this case." Burber v. Riverside Intl Trucks, Inc. (In re Pearson Industries, Inc.), 142 B.R. 831, 844-45 (Bankr. C.D. Ill. 1992).
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"Defendant has not produced any evidence to establish the industry standards to which, it

 

 

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