Two recent bankruptcy cases decided on the same day by the same judge dealt with motions to amend the complaints in preference actions. Both cases illustrate the court’s application of the relation-back doctrine, with differing results. Along the way, the court addressed the requirements for proper service and equitable tolling of the statute of limitations.

In Bernstein v. Evergreen Line (In re Berkline/Benchcraft Holdings LLC), Adv. No. 13-50947 (MFW) (Del. Bankr. Aug. 6, 2013), the defendant, Evergreen Line, sought to dismiss the amended complaint filed by the plan administrator, Robert S. Bernstein, for defective service and as time-barred by the applicable statute of limitations. During the preference period, the debtors made payments to or for the benefit of Evergreen Line. Bernstein filed a complaint to recover the payments as preferential transfers pursuant to Sections 547 and 550 of the Bankruptcy Code against Evergreen Shipping Agency and served its registered agent in Texas with the summons and complaint. In a telephone call with Evergreen Shipping’s counsel, Bernstein learned that Evergreen Shipping was the U.S. agent for Evergreen Line, who was the party that had dealt with the debtors. Bernstein also learned that there was an error on the schedule of transfer payments in the original complaint so that the amount claimed was understated.

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