Bash v. American Tool Companies, Inc. (In re George Worthington Co.)

163 B.R. 115, 30 Collier Bankr. Cas. 2d 970, 1994 Bankr. LEXIS 63
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedJanuary 10, 1994
DocketBankruptcy No. 91-10641; Adv. No. 93-1356
StatusPublished
Cited by3 cases

This text of 163 B.R. 115 (Bash v. American Tool Companies, Inc. (In re George Worthington Co.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bash v. American Tool Companies, Inc. (In re George Worthington Co.), 163 B.R. 115, 30 Collier Bankr. Cas. 2d 970, 1994 Bankr. LEXIS 63 (Ohio 1994).

Opinion

MEMORANDUM OF OPINION AND ORDER

RANDOLPH BAXTER, Bankruptcy Judge.

I.

In this voluntary Chapter 7 proceeding, Brian A. Bash (the Trustee) seeks the recovery of certain preferential transfers made by The George Worthington Company (the Debtor) within the ninety-day period prior to bankruptcy petition filing. Defendant, American Tool Companies, Inc. (ATC) caused to be filed its motion for summary judgment. The issue to be resolved is whether the preferential transfers are avoidable and recoverable by the Debtor’s bankruptcy estate.

II.

The parties orally stipulated at the summary judgment motion hearing that the two payments made by the Debtor with two checks, were made preferentially pursuant to § 547(b) of the Code. Notwithstanding the stipulation, American Tool argued that the preferential payments it received from the Debtor are not avoidable, as an applicable exception to avoidance is available under § 547(c) of the Code.

Generally, where the six elements under § 547(b) have been sufficiently demonstrated by the moving party, the subject transfer is an avoidable preference and, consequently, is recoverable for the benefit of the Debtor’s estate pursuant to § 550 of the Code. The only exceptions to such recovery are found under § 547(c). Herein, American Tool alleges that provisions of § 547(c)(4) are applicable to the facts at bar and, effectively, render the preferential payments nonavoida-ble.

The exception set forth under § 547(c)(4) is commonly referred to as the “substantial new value” rule. Generally, it protects lenders who extend further credit to a financially distressed debtor after a previous debt has been repaid. In pertinent part, § 547(e)(4) provides:

The trustee may not avoid under this section a transfer to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtors—
(A) not secured by an otherwise unavoidable security interest; and
(B) on account of which new value the debtor did not make an otherwise un[117]*117avoidable transfer to or for the benefit of such creditor.

Notwithstanding the above-quoted language, the Bankruptcy Code does not allow all preferential payments made during the preference period to be netted out. Section 547(e)(4) excepts transfers from preference avoidance only to the extent that, after the transfer, the creditor gave new value on an unsecured basis to the debtor. See, Energy Co-op., Inc. v. Cities Serv. Co., 130 B.R. 781, 789-90 (N.D.Ill.1991).

In this matter, the subject transfer of an interest of the Debtor was made by two (2) checks. In order to determine the extent to which new value was given after the transfers by check, it first must be determined when the transfer occurs for purposes of § 547(c)(4). A majority of the appellate courts considering this issue hold that the transfer is made when the cheek is received by the creditor. See, Kroh Bros. Devel. Go. v. Continental Constr. Engineers, Inc., 930 F.2d 648, 650-51 (8th Cir.1991); In re Bellanca Aircraft Corp., 850 F.2d 1275, 1283-84 (8th Cir.1988); In re Fasano/Harriss Pie Co., 71 B.R. 287, 289 (W.D.Mich.1987); Leathers v. Prime Leather Finishes Co., 40 B.R. 248, 251 (D.Me.1984); Gold Coast Seed Co. v. Spokane Seed Co., 30 B.R. 551, 553 (B.A.P. 9th Cir.1983). See also, Epstein, et al., Bankruptcy, p. 343 (1993).

The (c)(4) exception applies on a payment-by-payment basis. Procedurally, the mechanics of (c)(4) are applied in the following manner1:

1. First, identify a payment (or other transfer) that is preferential under § 547(b);
2. Then, check to see if the avoidable amount of the preference can be reduced by the amount of later-advanced new value that qualifies under (c)(4);
3. Finally, test new value for qualification under (c)(4) by seeing, if under (c)(4)(A) and (B), it was accompanied by a payment (or other transfer, or was secured) which payment was itself unavoidable.

Applying those mechanics to the matter at hand, ATC received a check from the Debtor on December 12, 1990 in the amount of $4,965.00. On the same date, ATC received another check from the Debtor in the amount of $840.84. Undisputedly, both checks were for goods to be delivered by ATC to the Debtor. Subsequently, on December 14, 1990, ATC shipped goods to the Debtor valued at $9,609.73, with shipping terms of “F.O.B. destination”. On December 18, 1990, the Debtor received delivery of ATC’s goods at the Debtor’s Mentor, Ohio location. The Debtor initially filed its voluntary petition for relief under Chapter 11 of the Bankruptcy Code on February 4, 1991 but was subsequently converted to Chapter 7 proceedings on July 10, 1991. On June 29, 1993, the Trustee commenced this action to avoid both of the subject payments and recover them for the benefit of the Debtor’s estate.

The parties having stipulated that the transfers by check were made preferentially, the next step is to determine whether the avoidable amount of the preference can be reduced by the amount of later advanced new value pursuant to § 547(c)(4). The goods shipped by ATC on December 14,1990 to the Debtor were shipped subsequent to ATC receiving both checks from the Debtor and also were valued in an amount ($9,609.73) which was substantially greater than the amount of both checks.

Throughout the § 547(c) statutory exceptions to an otherwise voidable transfer, where the transferred interest is made by check, the transfer is generally deemed to have occurred when the check was actually delivered to the creditor if the check was paid in due course. See, In re Kroh Bros., 930 F.2d 648, 650-51 (8th Cir.1991), on remand, 131 B.R. 717 (Bankr.W.D.Mo.1991); In re Jolly N., Inc., 122 B.R. 897, 908-09 (Bankr.D.N.J.1991); In re Wingspread Corp., 120 B.R. 8, 11-13 (Bankr.S.D.N.Y.1990); In re Amarex, 88 B.R. 362, 365 (W.D.Okla.1988). For this rule to apply, the parties necessarily must intend to rely on the check as a cash transaction and not when the checks were postdated and were not treated [118]*118as cash by the parties thereon. See, In re N.Y. City Shoes, Inc., 880 F.2d 679, 683-85 (3d Cir.1989); In re Bob Grissett Golf Shoppes, Inc., 78 B.R. 787, 791-92 (Bankr.E.D.Va.1987). It has not been demonstrated that this is a concern in the matter at bar.

In determining whether new value has been given where goods and/or services are provided by the creditor, the majority view is the new value is given when the services are actually rendered or when the goods are actually delivered, rather than when the creditor chooses to calculate the price of the goods or services or to bill for them. See, Jolly N., Inc., supra at 908; In re Camelot Motors Corp., 86 B.R. 520, 522 (Bankr.W.D.Mich.1988); In re Excel Enterprises, Inc., 83 B.R. 427, 431 (Bankr.W.D.La.1988).

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163 B.R. 115, 30 Collier Bankr. Cas. 2d 970, 1994 Bankr. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bash-v-american-tool-companies-inc-in-re-george-worthington-co-ohnb-1994.