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Inc.), 52 F.3d 228 (9th Cir. 1995); Hall-Mark Electronics Corp. v. Sims (In re Lee), 179 B.R. 149 (9th Cir. B.A.P. 1995) aff'd, 108 F.3d 239 (9th Cir. 1997); Kepler v. Sec. Pac. Housing Servs. (In re McLaughlin), 183 B.R. 171 (Bankr. W.D. Wis. 1995); Krafsur v. Scurlock Permiam Corp. (In re El Paso Refinery L.P.), 178 B.R. 426 (Bankr. W.D. Tex. 1995).
In In re Eleva, 235 B.R. 486 (10th Cir. Bank. BAP, 1999) the Court looks carefully at the timing of the new value and determines that the relevant date to determine when new value is given is the date of the shipment of the goods.
The Circuits are split as to whether the new value itself must remain unpaid under (c)(4)(B). The Third, Seventh, Eighth, and Eleventh Circuits have stated that the new value must remain unpaid. See New York City Shoes, Inc. v. Bentley Int'l., Inc. (In re New York City Shoes, Inc.), 880 F.2d 679, 680 (3d Cir. 1989); In the Matter of Prescott, 805 F.2d 719, 731 (7th Cir. 1986); Kroh Bros. Dev. Co. v. Continental Constr. Eng'rs., Inc. (In re Kroh Bros. Dev. Co.), 930 F.2d 648, 653 (8th Cir. 1991); Charisma Investment Co.,
N.V. v. Airport Sys., Inc. (In re Jet Florida Sys., Inc.), 841 F.2d 1082, 1083 (11th Cir. 1988) (dicta). The value advanced after a preferential transfer does not constitute new value for § 547(c)(4) purposes unless the value advanced actually benefited a debtor. Jet Florida, 841 F.2d at 1084. The subsection's utility is limited to the extent to which the estate was enhanced by the creditor's subsequent advances during the preference period. Id. at 1084.
The Fourth, Fifth and Ninth Circuits allow the new value to be used defensively even if paid, if that payment itself is avoidable. Laker v. Vallette (In the Matter of Toyota of Jefferson, Inc.), 14 F.3d 1088, 1093 n.2 (5th Cir. 1994); Mosier v. Everfresh Food Co. (In re IRFM, Inc.), 52 F.3d 228, 231 (9th Cir. 1995). See generally JKJ Chevrolet, Inc., 412 F.3d 545 (4th Cir. 2005) (finding that the repayment of new value alone does not deprive the creditor of the section 547(c)(4) defense but that the issue depends on
