Abbott v. Arch Wood Protection, Inc. (In re Wood Treaters, LLC)

491 B.R. 591
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedApril 22, 2013
DocketBankruptcy No. 3:09-bk-1895-PMG; Adversary Nos. 3:11-ap-205-PMG, 3:11-ap-206-PMG, 3:11-ap-208-PMG, 3:11-ap-209-PMG, 3:11-ap-210-PMG, 3:11-ap-211-PMG, 3:11-ap-213-PMG
StatusPublished
Cited by3 cases

This text of 491 B.R. 591 (Abbott v. Arch Wood Protection, Inc. (In re Wood Treaters, LLC)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbott v. Arch Wood Protection, Inc. (In re Wood Treaters, LLC), 491 B.R. 591 (Fla. 2013).

Opinion

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION

PAUL M. GLENN, Bankruptcy Judge.

THIS CASE came before the Court for a final evidentiary hearing in these adversary proceedings. The proceedings were consolidated for purposes of trial.

Doreen Abbott, as Chapter 7 Trustee, commenced the proceedings by filing seven Complaints to Avoid Post-Petition Transfers against the named Defendants. The proceedings were brought pursuant to § 549 of the Bankruptcy Code, which generally provides that a trustee may avoid unauthorized, post-petition transfers of estate property. The transfers at issue in this case were payments made by the Debtor to the Defendants for the purchase of goods related to the lumber business.

To establish standing to avoid a transfer under § 549, the Trustee must show as a jurisdictional requirement that the estate suffered an injury as a result of the transfer. To address this requirement at trial, the Trustee introduced evidence that the overall value of the bankruptcy estate was diminished by the transfers to the Defendants, because the transfers had the aggregate effect of decreasing the Debtor’s ultimate liquidation value.

The Trustee failed to satisfy her burden of proving that she has standing to bring the avoidance actions. To establish an avoidance claim, a trustee must prove every required element with respect to each transfer that she seeks to avoid. In this case, the Trustee did not prove that any specific transfer injured the estate, because she did not show that the goods purchased in any specific transaction either (1) were not fair value for the purchase price, or (2) were re-sold at a loss by the Debtor or the liquidator. The Trustee lacks standing to avoid the transfers, and a judgment should be entered in favor of the Defendants.

Background

The Debtor, Wood Treaters, LLC, filed a petition under Chapter 11 of the Bankruptcy Code on March 16, 2009, and was authorized to operate its business pursuant to § 1108 of the Bankruptcy Code. The business of the Debtor involved the manufacture and sale of preserved wood products and other building supplies.

The parties have stipulated to the following facts regarding the Debtor’s Chapter 11 case:

1. On March 25, 2009, the Debtor filed a Motion for Authority to use the cash collateral of Regions Bank (Regions). Prior to the petition date, Regions held a perfected, first priority security interest in virtually all of the Debtor’s assets. (¶¶ 4, 5, 6).
2. The Court entered interim Consent Orders authorizing the Debtor to use Regions’ cash collateral on April 22, 2009, and May 19, 2009, and entered a [594]*594Final Consent Order allowing the use of cash collateral on August 12, 2009. (¶¶ 8, 10,11).
3. Regions subsequently transferred its claim to 2010 Angelina Capital Fund, LLC (Angelina). (¶ 14).
4. The Debtor operated its business under Chapter 11 for more than sixteen months. (¶ 20).
5. On July 26, 2010, the Court entered an Order converting the Debtor’s Chapter 11 case to a case under Chapter 7. (¶ 19).

(Docs. 146, 147, Trial Memoranda, Statements of Uncontested Facts).

The Final Consent Order Allowing the Use of Cash Collateral established a baseline balance of the total value of the Debt- or’s accounts and inventory as of a specific date. Generally, the Debtor was authorized to use cash collateral. However, if during operations the combined balance of the Debtor’s deposit accounts, accounts receivable up to a certain amount, and inventory decreased below the baseline balance, the Debtor was required to pay Regions an additional adequate protection payment, and the Debtor was not authorized to use cash collateral until the additional adequate protection payment was made. The Debtor was also required to provide financial information to Regions twice each month, and Regions had the right to inspect all records reflecting the use of cash collateral.

On April 19, 2011, after the conversion of the Chapter 11 case to a Chapter 7 case, the Trustee filed ten Complaints to Avoid Posb-Petition Transfers. In each of the Complaints, the Trustee alleged that the Debtor transferred funds to the respective defendant during the course of the Chapter 11 case, and that the transfers were not authorized because they were in violation of the Cash Collateral Orders. According to the Trustee, the transfers violated the Cash Collateral Orders because they occurred while the combined balance of the Debtor’s accounts and inventory was less than the baseline balance. Consequently, the Trustee seeks to avoid and recover the transfers pursuant to § 549 and § 550 of the Bankruptcy Code.

Seven of the Trustee’s ten adversary proceedings are currently before the Court. The named Defendant in each proceeding, and the range of dates for the alleged transfers, are as follows:

1. Adv. No. 11-205 — six transfers to Arch Wood Protection, Inc. between April 8, 2010, and July 7, 2010.
2. Adv. No. 11-206 — eighteen transfers to Cochran Forest Products, Inc. between April 2, 2010, and July 20, 2010.
3. Adv. No. 11-208 — sixteen transfers to Tatum Brothers Lumber Company, Inc. between April 8, 2010, and July 21, 2010.
4. Adv. No. 11-209 — fourteen transfers to Varn Wood Preserving Company, LLC between April 2, 2010, and July 20, 2010.
5. Adv. No. 11-210 — five transfers to Tolleson Lumber Company between April 8, 2010, and July 21, 2010.
6. Adv. No. 11-211 — five transfers to Claude Howard Lumber Company, Inc. between May 6, 2010, and July 14, 2010.
7. Adv. No. 11-213 — five transfers to Byrd Transportation, Inc. and WL Byrd Lumber Company, Inc. between May 6, 2010, and July 21, 2010.

The parties have stipulated that all of the Defendants sold goods to the Debtor, that the Debtor transferred estate property to the Defendants post-petition, and that the transfers were transfers of the cash collateral of either Regions or Angelina. (Docs. 146, 147, Trial Memoranda, Statement of Uncontested Facts, ¶¶ 21, 23, 31, 32).

[595]*595Discussion

The Complaints were brought pursuant to § 549 of the Bankruptcy Code. Generally, § 549 provides that a trustee may avoid a post-petition transfer of property of the estate that is not authorized by the Bankruptcy Code or the Court. 11 U.S.C. § 549(a). In determining whether a post-petition transfer of cash collateral is “authorized,” Courts look to § 363(c)(2) of the Bankruptcy Code, which provides that a Chapter 11 debtor may not use cash collateral unless the secured creditor consents, or the Court has authorized its use. 11 U.S.C. § 363(c)(2).

In this case, the Trustee asserts that the Debtor’s payments to the Defendants were not authorized, because neither Regions nor Angelina consented to the use of their cash collateral outside the terms of the Cash Collateral Orders, and because the Debtor was not in compliance with the Orders at the time that the transfers were made.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
491 B.R. 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-v-arch-wood-protection-inc-in-re-wood-treaters-llc-flmb-2013.