By Paul Avron ( August 29, 2018, 2:54 PM EDT) -- In Kaye v. Blue Bell Creameries Inc. (In re BFW Liquidation LLC),[1] the Eleventh Circuit held that language in Charisma Investment Co. NV v. Airport System Inc. (In re Jet Florida System Inc.),[2] providing that the "new value" defense in Section 547(c)(4) could only be invoked as to new value that "remained unpaid," was dictum,[3] and on further review, was incorrect. Judge Julie Carnes, writing for the three-judge panel, made clear that "[t]his purported requirement was never at issue in the case and it played no role in our decision or reasoning."[4] The Eleventh Circuit's decision wipes out a valuable tool for debtors, trustees and post-confirmation estate representatives for avoiding and recovering preferential transfers,[5] and in doing so provides an additional tool for preference defendants. Judge Carnes explained that, because the relevant language in Jet Florida System was dictum, the court was free to re-examine the issue. After doing so, the court concluded that the requirement that new value remain unpaid was untenable on every level of analysis....