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Mills), 176 Bankr. 924, 928 (D. Kan. 1994); see also Roete v.
Smith, 936 F.2d 963, 965-966 (7th Cir. 1991). Instead, the
exception prevents presentment of the instrument from violating
the automatic stay. Id.
We also hold that respondent has failed to carry her burden
of proof that Mr. Premji constructively received the $6,444
represented by the September 23, 1990, check.
No evidence was introduced to establish M&L's bank account
balance or the amounts of outstanding obligations as of September
23, 1990, or for any relevant period. Ms. Jobin testified that
M&L's ponzi scheme collected approximately $10 million over the
12 months prior to October 1, 1990, the date the bankruptcy
petition was filed. However, there is no evidence as to what
part, if any, of this amount was available on or about September
23, 1990, to cover the $6,444 check.
Respondent relies primarily on the fact that Mr. Premji had
cashed four of M&L's interest checks in August 1990, at the Bank
of Boulder. All four checks are part of the record. That M&L
had sufficient funds in its account in August 1990, does not
support a finding that funds were available on or about September
23, 1990.
Respondent contends that Mr. Premji exercised dominion and
control over the interest income because he reinvested it rather
than obtaining cash and that he included it in his $77,972 proof
of claim filed in the bankruptcy proceeding. However, these acts
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