Carrier Corp. v. Buckley

567 F.3d 1291, 2009 U.S. App. LEXIS 10054, 51 Bankr. Ct. Dec. (CRR) 168
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 11, 2009
DocketNo. 08-11098
StatusPublished
Cited by1 cases

This text of 567 F.3d 1291 (Carrier Corp. v. Buckley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carrier Corp. v. Buckley, 567 F.3d 1291, 2009 U.S. App. LEXIS 10054, 51 Bankr. Ct. Dec. (CRR) 168 (11th Cir. 2009).

Opinion

CUDAHY, Circuit Judge:

Section 547(b) of the Bankruptcy Code authorizes a trustee to avoid certain property transfers made by a debtor within 90 days before bankruptcy. The Code makes an exception, however, for transfers made in the ordinary course of business.

In the present case, the bankruptcy trustee for Globe Holding and its subsidiary Globe Manufacturing (which we will refer to collectively as Globe), brought an action to recover payments made by Globe to Carrier Corporation, one of Globe’s unsecured creditors, just prior to the filing of Globe’s bankruptcy petition. Carrier argues both that these payments were not preferential and that the payments were not avoidable because they were made in the ordinary course of business. Following a trial, the bankruptcy court granted judgment for the trustee, but declined to award prejudgment interest. In re Globe Holdings, Inc., 366 B.R. 186 (Bankr. N.D.Ala.2007). The district court affirmed. We affirm as well.

I.

Prior to its dissolution, Globe manufactured spandex in its three textile plants, the oldest of which was located in Fall River, Massachusetts. About six months before it declared bankruptcy, Globe executed a contract for Carrier to install a commercial climate control system in its Fall River plant in exchange for approximately $ 1.25 million to be paid in six installments.

On January 13, 2001, Globe filed a voluntary Chapter 11 petition.1 During the 90-day period prior to the filing of Globe’s petition, Globe had made two payments totaling $ 615,831 to Carrier. These two payments were made an average of 28 days late under the terms of the contract. (The other installment payments' — 'two of which were made well before the preference period, and two of which were made by a third party — are not at issue here.)

At the time of its bankruptcy petition, Globe owed approximately $146 million in senior secured debt. The Bankruptcy Court approved the sale of substantially all of Globe’s assets to a competitor for approximately $52 million, $42 million of which was paid to the senior secured lenders, leaving them with a deficiency of over $100 million on their secured claims. Subsequently, Globe’s trustee filed a complaint against Carrier pursuant to Section 547(b) [1296]*1296to recover the two payments that were made within 90 days of Globe’s bankruptcy petition.

II.

We review the district court’s decision to affirm the bankruptcy court de novo, which allows us to assess the bankruptcy court’s judgment anew, employing the same standard of review the district court itself used. See In re Issac Leaseco, Inc., 389 F.3d 1205, 1209 (11th Cir.2004); In re Club Assoc., 951 F.2d 1223, 1228 (11th Cir.1992). Thus, we review the bankruptcy court’s factual findings for clear error, and its legal conclusions de novo. In re Club Assoc., 951 F.2d at 1228-29.

Carrier argues that the payments the trustee seeks to recover were not preferential because Carrier would have been able to become a secured creditor if it had not been paid, and that the payments are not avoidable because they were made in the ordinary course of business. Neither of these arguments has merit.

A.

The Bankruptcy Code authorizes bankruptcy trustees to “avoid any transfer of an interest of the debtor in property” if five conditions are met. In brief, the trustee must show that the payment was (1) to the creditor, (2) on account of a previous debt, (3) made while the debtor was insolvent, (4) made 90 days before the bankruptcy petition was filed and (5) effective in enabling the creditor to receive more than it would have received had the debt- or’s estate been liquidated under Chapter 7. 11 U.S.C. § 547(b).2

Only the last of these conditions is relevant here: to avoid a transfer, the trustee must show that the transfer enabled the creditor to improve its position vis-a-vis other creditors. § 547(b)(5); see generally Barash v. Pub. Fin. Corp., 658 F.2d 504, 509 (7th Cir.1981) (“Section 547(b)(5) is directed at transfers which enable creditors to receive more than they would have received had the estate been liquidated and the disputed transfer not been made.”). Carrier argues that the two payments Globe made approximately two months before it declared bankruptcy did not improve its position because it could have become a secured creditor by exercising its right to perfect a lien on Globe’s Massachusetts textile plant. This argument is wide of the mark for two reasons.

First, and most obviously, while Carrier could have taken steps to become a secured creditor, it did not do so. By its terms, the parties’ contract is governed by Massachusetts law, under which a lien exists only following a proper recording of notice of the parties’ contract. See Tremont Tower Condo., LLC v. George B.H. Macomber Co., 436 Mass. 677, 767 N.E.2d 20, 23 (2002); see also Admiral Drywall, Inc. v. Cullen, 56 F.3d 4 (1st Cir.1995) [1297]*1297(noting that Massachusetts law does not recognize the existence of an equitable mechanic’s lien). Thus, while a contractor “has a statutory right to ... a lien- ... the lien itself does not exist until the contractor does something to assert that right.” Tremont, 767 N.E.2d at 25. In the present case, Carrier admits that it took no steps to assert its right to a lien, stating that it “saw no need.” (Carrier Reply at 2. ) This admission vitiates its claim that Globe’s payments immediately prior to its bankruptcy petition did not improve Carrier’s position relative to other creditors.3

A second problem with Carrier’s argument is that even if it had perfected a lien against Globe’s Massachusetts plant, there would have been no equity to which the lien could attach. Under Massachusetts law, a mechanic’s lien is subordinate to a duly registered mortgage. Mass. Gen. Laws ch. 254, § 7(a). In the present case, the sale of Globe’s assets left Globe’s senior secured lenders with a deficiency of over $100 million on their secured claims. Thus, there is no merit to Carrier’s suggestion that it would have been paid in full even if the preferential payments had not been made.

B.

Carrier’s argument that Globe’s payments, even if preferential, are not avoidable because they were made in the ordinary course of business is somewhat more compelling, but also ultimately unavailing.

The version of the Code that was in effect at the time this action was commenced provided that a trustee may not avoid a payment on a debt that was incurred in the ordinary course of business, paid in the ordinary course of business and paid in accordance with ordinary business terms. Pub.L. No. 95-598, 11 U.S.C. former § 547(c)(2), 92 Stat. 2549, 2598 (1978) (amended 2005).4

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Related

In Re Globe Manufacturing Corp.
567 F.3d 1291 (Eleventh Circuit, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
567 F.3d 1291, 2009 U.S. App. LEXIS 10054, 51 Bankr. Ct. Dec. (CRR) 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carrier-corp-v-buckley-ca11-2009.