City of Elkins v. Davidson (In re Swink)

142 B.R. 874, 1992 Bankr. LEXIS 1200, 23 Bankr. Ct. Dec. (CRR) 278
CourtUnited States Bankruptcy Court, E.D. Arkansas
DecidedJune 29, 1992
DocketBankruptcy No. 90-4106M; Adv. No. 90-4089
StatusPublished

This text of 142 B.R. 874 (City of Elkins v. Davidson (In re Swink)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Elkins v. Davidson (In re Swink), 142 B.R. 874, 1992 Bankr. LEXIS 1200, 23 Bankr. Ct. Dec. (CRR) 278 (Ark. 1992).

Opinion

MEMORANDUM OPINION

JAMES G. MIXON, Bankruptcy Judge.

On January 17, 1990, an involuntary petition was filed against Swink & Company (Swink), and on February 23,1990, an order was entered adjudicating Swink a debtor under chapter 7 of the United States Bankruptcy Code. Charles Darwin Davidson, Esq., (trustee) was appointed the chapter 7 trustee. On June 29, 1990, the City of Elkins (Elkins) filed a complaint to determine priority status alleging that it is a “customer” pursuant to 11 U.S.C. § 741 and, therefore, entitled to a priority status pursuant to 11 U.S.C. § 752.

The proceeding before the Court is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), and the Court has jurisdiction to enter a final judgment in the case. The following shall constitute the Court’s findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052.

BACKGROUND

Swink was a securities broker-dealer with its principal place of business located in Little Rock, Arkansas. Swink was registered with the Securities and Exchange Commission and the Arkansas Securities Department. Elkins is a municipal corporation located in West Virginia. In June 1989, Elkins executed a “Customer’s Agreement” with Swink as the broker-dealer and Elkins as the customer for the purpose of buying and selling securities. The [875]*875customer agreement authorized Swink to buy and sell securities for Elkins and denoted Elkins as a “customer” in this agreement. In August 1989, Elkins and Swink executed a “Master Repurchase Agreement” in anticipation of engaging in repurchase agreements involving securities. Both documents required Elkins to maintain a margin account as collateral for credit transactions involving the sale or purchase of securities.

According to Glyn Wyland, the City Treasurer of Elkins, the investment activities of Elkins included the purchase of securities such as U.S. treasury bonds and U.S. government agency securities such as mortgage-backed securities issued by the Government National Mortgage Association (GNMA) and the Federal Home Loan Mortgage Corporation (FHLMC).1 Elkins purchased securities on a trade date on credit with a settlement date in the future. Elkins would then attempt to “match” or “pair up” a sale of the same securities with the same settlement date. If the market price of the securities increased between the trade date and settlement date, Elkins would make a profit on the transaction. Conversely, if the market price of the securities decreased, Elkins would suffer a loss.

The two series of transactions involved in this adversary proceeding involve securities issued by FHLMC, known as pass through certificates. According to the testimony of Donald Gates, a former employee of Swink, these types of FHLMC securities are book-entry or uncertificated securities, which are maintained through the Federal Reserve book-entry system. Swink and Elkins entered into the two series of transactions between August and December, 1989. Each series commenced by Elkins purchasing a FHLMC security and, prior to the settlement date, selling the security back to Swink subject to an agreement by Elkins to repurchase the security at a stated price. Swink would simultaneously enter into almost identical transactions with Dain Bos-worth (Bosworth), a security broker located in Minneapolis, Minnesota, which involved the same securities.

More specifically, the two transactions were as follows. On July 20, 1989, Elkins purchased a $2,000,000 par value 10% FHLMC security whose pool number was 360064. The settlement date for this transaction was August 17, 1989. As the settlement date approached, the market price of the securities had decreased and Elkins was anticipating a loss on any attempted match. In order avoid a loss on the transaction, Elkins agreed to sell the $2,000,000 FHLMC security to Swink pursuant to a repurchase agreement. Between August 17 and December 27, 1989, Elkins repurchased and resold the same security to Swink on several occasions.

The second series of transactions began on December 4, 1989, when Elkins purchased a $4,000,000 par value 10!/2% FHLMC security whose pool number was 535754. The settlement date for this transaction was December 19, 1989. After the trade date on December 4, 1989, the market price of the securities decreased, and, as in the first series of transactions, Elkins sold the $4,000,000 bonds to Swink under a repurchase agreement, agreeing to buy the bonds back on December 31, 1989.

As a result of the two series of transactions, Elkins has a claim against Swink in the total sum of $201,625.37. Elkins’s claim is based on the following two components: (1) the November 1989 principal and interest due on the first transaction involving pool number 360064 in the amount of $27,112.81 and (2) the balance of its margin account, which is the net result of the series of trade transactions in the amount of $174,512.56. The amount of Elkins’ claim is not disputed.

DISCUSSION

The issue to be determined is whether a participant in a repurchase agreement with a broker-dealer is a “customer” pursuant [876]*876to 11 U.S.C. § 741(2) and, therefore, entitled to the priority status granted a customer under 11 U.S.C. § 752.

Elkins argues that it meets the definition of “customer” as provided in 11 U.S.C. § 741 and, therefore, is entitled to a priority status as a customer. More specifically, Elkins alleges that it acquired securities from Swink in the ordinary course of Swink’s business as a broker-dealer, that the transactions involved the purchase and sale of securities, and that the transactions created a fiduciary relationship between Swink and Elkins.

The trustee argues that Elkins has not met the elements of 11 U.S.C. § 741 because the securities involved in the two series of transactions were not “held” by Swink for Elkins, but were sold to third parties pursuant to repurchase agreements. According to the trustee’s argument, the repurchase agreement transactions do not qualify for the customer protection afforded by 11 U.S.C. §§ 741-752.

Bankruptcy cases involving securities broker-dealers are administered under the provisions of 11 U.S.C. §§ 741-752, as well as other applicable sections of Title 11. A liquidation under 11 U.S.C. §§ 741-752 is independent from a proceeding pursuant to 15 U.S.C. § 78e

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142 B.R. 874, 1992 Bankr. LEXIS 1200, 23 Bankr. Ct. Dec. (CRR) 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-elkins-v-davidson-in-re-swink-areb-1992.