Braniff Airways, Inc. v. Exxon Co.

814 F.2d 1030, 16 Collier Bankr. Cas. 2d 1447, 1987 U.S. App. LEXIS 5185
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 20, 1987
DocketNo. 86-1531
StatusPublished
Cited by45 cases

This text of 814 F.2d 1030 (Braniff Airways, Inc. v. Exxon Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Braniff Airways, Inc. v. Exxon Co., 814 F.2d 1030, 16 Collier Bankr. Cas. 2d 1447, 1987 U.S. App. LEXIS 5185 (5th Cir. 1987).

Opinion

ROBERT MADDEN HILL, Circuit Judge:

In this bankruptcy appeal, Exxon Company, U.S.A., argues that the district court erred in concluding that Exxon could not setoff pre-petition claims owed to it by debtor Braniff Airways, Inc., against prepetition debts that it owed to Braniff. We find that Exxon does have a right of setoff pursuant to 11 U.S.C. § 553(a), but that any setoff is potentially subject to being recovered by Braniff pursuant to 11 U.S.C. § 553(b). Since the record is not sufficient to allow us to decide whether a section 553(b) recovery by Braniff is appropriate, we reverse and remand this case for further proceedings as outlined herein.

I.

The facts in this case are undisputed and have been stipulated to by both parties. Prior to Braniff’s filing its petition on May 13, 1983, for relief under Chapter 11 of the Brankruptcy Code, Exxon and Braniff were parties to a contract for the sale of jet turbo fuel. Pursuant to the contract, Braniff made a prepayment by wire transfer each week based on its estimated fuel needs for the following week. On May 11 Braniff made one of these weekly prepayments in the amount of $530,000 for estimated fuel purchases for the week beginning May 12. By May 13 when Braniff filed its bankruptcy petition, it had used $96,252.11 in fuel. The unused prepayment of $434,972.20 was owed to Braniff.

As of the date of the bankruptcy petition, Exxon also had pre-petition claims against Braniff in the amount of $1,824.21. An agreed turnover order pursuant to 11 U.S.C. § 542(b) was subsequently entered in the bankruptcy court authorizing Exxon to setoff mutual pre-petition claims and debts in the amount of $1,824.31 under 11 U.S.C. § 553. The remaining $433,147.89 of the prepayment was ordered remitted to Braniff.

Prior to the filing of Braniff’s bankruptcy petition, Braniff and Exxon also had a contract for the sale of turbo oil, lubricating oil, gasoline, and other miscellaneous products that were sold on open account. [1033]*1033During the ninety-day period prior to bankruptcy, Braniff had made payments total-ling $145,745.30 to cover purchases it made pursuant to this account.1

Braniff commenced this action by filing suit in the district court seeking to recover as voidable preferences the payments it made to Exxon on the open account during the ninety days prior to its filing for bankruptcy protection. Braniff stipulated that $80,752.80 of the $145,745.30 in open account payments fall within the exception in 11 U.S.C. § 547(c)(2)2 and are not recoverable as voidable preferences. The dispute regarding these payments revolves around the remaining $64,992.50.

As a result of a stipulation by the parties as to the facts, the only issue to be decided by the district court was whether Braniff s open account payments to Exxon allowed Exxon to receive more than it would have if the payments had not been made and Braniff were liquidated under Chapter 7 of the Bankruptcy Code. The resolution of that question depended on whether Exxon was secured by a right of setoff of its claim against Braniff in the amount of $64,992.50 against the debt that it owed to Braniff in the amount of $433,147.89.

The district court ruled in Braniff's favor. The court found that Exxon did not have a right of setoff under 11 U.S.C. § 553 because the debt owed by Exxon to Braniff was created by a judgment of the bankruptcy court, which occurred after the bankruptcy petition was filed. Thus, because the debt arose post-petition, the court held that the debts were not mutual, prepetition debts, and the requirements of section 553 prior to a setoff being allowed were not met.

Exxon now appeals, contending that the debts were mutual and pre-petition and therefore it was entitled to setoff the amount owed by Braniff against the amount owed to Braniff. This right of setoff, Exxon claims, has the status of a secured claim and thus the payments made by Braniff to it on the open account were not preferential because, being secured, it did not receive more than it would have in a Chapter 7 liquidation.

II.

Section 547(b) of the bankruptcy code allows a trustee to recover as a preferential payment certain transfers made by a debt- or to a creditor within the ninety-day period prior to bankruptcy. This section provides the elements of a preference:

Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under Chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.

[1034]*103411 U.S.C. § 547(b). The first four elements are not in dispute; Exxon has stipulated to the applicability of each one. The controversy revolves around the fifth element. This is the requirement that before a trustee in bankruptcy can avoid a preferential payment, the trustee must establish3 that the payment enabled the creditor to receive more than the creditor would have received upon liquidation under Chapter 7 of the bankruptcy code. It must be determined, then, whether Exxon, in receiving the prepetition open account payments from Braniff, received more than it would have if the payments had not been made and Braniff were liquidated.

To compare what the creditor would have received in a Chapter 7 liquidation with what it received pre-petition, it is necessary to consider how the debt would have been treated in a Chapter 7 liquidation. In re Mason and Dixon Lines, Inc., 65 B.R. 973, 976 (Bankr.M.D.N.C.1986). That is, if the debtor had not made the payment to the creditor, and the debtor were liquidated, it must be determined what amount the creditor would receive.

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Bluebook (online)
814 F.2d 1030, 16 Collier Bankr. Cas. 2d 1447, 1987 U.S. App. LEXIS 5185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braniff-airways-inc-v-exxon-co-ca5-1987.