Joseph

MEMORANDUM *

James J. Joseph, the trustee in bankruptcy (the Trustee) for ETM Entertainment Network, Inc., appeals the district court’s affirmance of the bankruptcy court’s grant of summary judgment to Dillard’s, Inc., and Dillard Store Services, Inc. (collectively Dillard’s) on the Trustee’s preference and breach of contract claims against Dillard’s. We affirm.

(1) Primarily, the Trustee asserts that Dillard’s received a preference because it set off its claims for fees arising out of its contract with ETM against ETM’s claim for ticket sale proceeds under the same contract. The Trustee relies upon the provisions of 11 U.S.C. §§ 547 (b) and 550 in making that claim. However, what Dillard’s effected was a recoupment. See Sims v. United States Dep’t of Health & Human Servs. (In re TLC Hosps., Inc.), 224 F.3d 1008, 1011 (9th Cir.2000); Newbery Corp. v. Fireman’s Fund Ins. Co., 95 F.3d 1392 , 1398-1400 (9th Cir.1996); State ex rel. Saif Corp. v. Harmon (In re Harmon), 188 B.R. 421, 425 (B.A.P. 9th Cir.1995).

The distinction is enormous. While set-off can, and often does, result in a preference, which can be attacked by the Trustee, recoupment is not a preference at all because it…