Regular course of business is a phrase used to determine the routine record keeping and other procedures applied to the maintenance of something. The usual transactions, customs and practices of a business, often used to judge the validity of certain transactions. To protect those transactions which replace value to the bankruptcy estate previously transferred, the Bankruptcy Code carves out seven exceptions or defenses to the trustee’s recovery powers. The regular course of business defense is commonly argued as an exception by vendors.
That defense protects payments, in all or part, received by an unsecured creditor within 90 days of the bankruptcy from recovery where the creditor establishes certain elements detailed below. The policy supporting the regular course of business defense is two-fold:
To establish the regular course of business defense, the vendor must not only establish the payments received from the customer during the preference were ordinary with payments prior to the preference period, the vendor may be required to show that the customer’s practices are similar, though not necessarily identical, to others in the industry.
