FEDERALUnited States Bankruptcy Court, N.D. Texas
2003

Cunningham v. T & R Demolition, Inc. (In Re ML & Associates, Inc.)

301 B.R. 195United States Bankruptcy Court, N.D. Texas • Decided 2003Voided
Lien WaiverRetentionCited 13 times

HOLDING

A bankruptcy trustee tried to recover a $62,182 payment made to subcontractor T & R Demolition as a preferential transfer. The court ruled the trustee could not recover the payment because T & R would have received the same amount anyway from the project's payment bond in a Chapter 7 liquidation. This protects subcontractors who get paid from payment bonds—those payments generally cannot be clawed back by a bankruptcy trustee.

KEY FINDINGS

Lien Waiver

If you're paid from a payment bond on a public project, that payment is safer from bankruptcy clawback than other payments because you'd receive it anyway in liquidation

Retention

The trustee must prove you received MORE than you would have gotten in Chapter 7; if a payment bond covers your claim, you likely received what you were entitled to

FULL COURT OPINION