Dowden v. Ray F. Sharp Lumber Co. (In re Townsend-Robertson Lumber Co.)

144 B.R. 407, 1992 Bankr. LEXIS 1370
CourtUnited States Bankruptcy Court, E.D. Arkansas
DecidedJune 30, 1992
DocketBankruptcy No. 89-10219, AP No. 91-1004
StatusPublished
Cited by1 cases

This text of 144 B.R. 407 (Dowden v. Ray F. Sharp Lumber Co. (In re Townsend-Robertson Lumber Co.)) 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
Dowden v. Ray F. Sharp Lumber Co. (In re Townsend-Robertson Lumber Co.), 144 B.R. 407, 1992 Bankr. LEXIS 1370 (Ark. 1992).

Opinion

[408]*408MEMORANDUM OPINION

MARY D. SCOTT, Bankruptcy Judge.

THIS CAUSE came on for trial before the Court, on April 29, 1992. Sylvia Borc-hert appeared for the trustee and Everett Gibson appeared for the defendant Ray F. Sharp Lumber Company. This adversary proceeding was initiated by a complaint to compel turnover of property. The trustee requests that certain transfers be avoided pursuant to sections 547, 548, 549, 550 of the Bankruptcy Code. Defendant Ray F. Sharp Lumber Company (“Sharp”) denies that any preferential transfers occurred, that he did not receive notice of the bankruptcy, and that he has a statutory lien on the property stored on his premises.

The debtor operated a wholesale lumber business. In February 1989, the principal of the debtor corporation (“Townsend-Robertson”), Cecil Robertson, died. Cecil Robertson’s son, David Robertson, sought to wind up the affairs of his father, including liquidation of the financially troubled company, Townsend-Robertson Lumber Company. One of the larger debts of Townsend-Robertson was owed to Ray F. Sharp Lumber Company (“Sharp”). On February 14, 1989, Townsend-Robertson owed $36,-765 to Sharp. However, there was a fairly large amount of lumber owned by the debt- or stored at Sharp’s place of business.

Sharp operates a custom kiln drying facility. It does not buy and sell lumber, but provides inspection, separation, and drying services. It stores lumber for short periods of time, but, in general, will charge a fee (calculated retroactively) if lumber is left on the premises for an excessive length of time. Storage fees are generally not charged to customers who do a large volume of business with Sharp and who turn over inventory rapidly.

Sharp’s course of dealing with Townsend-Robertson, however, varied somewhat from its normal practice. Because of the long-standing friendship between Ray Sharp and Cecil Robertson, Sharp stored lumber on its premises for Townsend-Robertson free of charge. Indeed, Sharp testified that some of the lumber which is the subject of this suit had been stored at Sharp since 1984. In this manner, Townsend stored much of its inventory of lumber on Sharp’s premises. Townsend would purchase lumber and ship it to Sharp. Sharp would treat the lumber and ship the lumber to the ultimate buyer upon instructions from Townsend-Robertson. At the time of Cecil Robertson’s death in February 1989, Sharp had possession of 231,817 feet of lumber owned by the debtor.1

David Robertson and Ray Sharp agreed, in February 1989, that Sharp would take title to some of the lumber stored at the business in satisfaction of the debt owed to Sharp. The invoice documents relating to this transaction are dated February 21, 1989. Particular pieces of lumber were selected and valued. The value was slightly in excess of the debt owed. Accordingly, Sharp delivered to the debtor a check in the amount of $2,286.41 in payment of the excess value of the lumber.

In March 1989, David Robertson and Ray Sharp spoke regarding the remainder of the lumber stored at Sharp. It was agreed between David Robertson and Ray Sharp that Sharp would sell the remaining lumber stored at the Sharp premises on the following terms: (1) Sharp would redry the lumber as necessary and deduct its fee for the redrying from the sale proceeds; (2) Sharp would deduct its fee for inspecting and separating the lumber from the sale proceeds; (3) Sharp would deduct a storage fee from the sale proceeds; and (4) Sharp would deduct a sales commission from the proceeds.2 The lumber was not in fact sold [409]*409until sometime in June 1989. The involuntary chapter 7 petition in bankruptcy was filed on June 30, 1989.

The trustee seeks turnover of the value of the lumber transferred to Sharp and to obtain the proceeds of the lumber sold by Sharp. The trustee asserts that a fraudulent transfer under 11 U.S.C. § 548(a)(2), and/or a preference under 11 U.S.C. § 547 occurred.3 Sharp asserts that there are no remaining funds to turn over to the trustee. After deduction of his valid fees in preservation, storage, and sale of the lumber, protected by a statutory lien, there are no proceeds to remit.

In order to properly analyze the causes of action under the trustee’s two theories of recovery, it is necessary to separate the two different transactions or transfers at issue. The first transaction is the sale of lumber to Sharp in February 1989, in liquidation of Townsend-Robertson’s debt to Sharp, in which title to lumber was transferred to Sharp (“the title transaction”). The second transaction is the agreement between Townsend-Robertson and Sharp for Sharp to sell the remaining lumber (“the commission transaction”). Sharp does not contend that it is entitled to proceeds of the sale in excess of its fees; it contends that its fees consumed the proceeds.

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157, 1334. Moreover, this Court concludes that this is a “core proceeding” within the meaning of 28 U.S.C. § 157(b) as exemplified by 28 U.S.C. § 157(b)(2)(E).

Fraudulent Transfer: Section 548(a)(2)

First, the trustee asserts that a transfer of an interest of Townsend-Robertson to Sharp was made within one year before the date of the bankruptcy, by which Townsend received less than reasonably equivalent value, such that the transfer must be avoided pursuant to Bankruptcy Code section 548(a)(2).4 There is no real dispute that a “transfer” occurred within the meaning of the Bankruptcy Code. The primary issue is whether the debtor received “reasonably equivalent value” in the exchange.

The Eighth Circuit Court of appeals addressed the meaning of “reasonably equivalent value” in In re Ozark Restaurant Equipment Co., Inc., 850 F.2d 342 (8th Cir.1988):

The concept of reasonably equivalent value is a means of determining if the debt- or received a fair exchange in the market place for the goods transferred. Considering all the factors bearing on the sale, did the debtor receive fair market value for the property.

Id. at 344-45.

The Court finds that reasonably equivalent value exists with respect to the title transaction. The transfer of the lumber in February 1989 in satisfaction of the debt was an arms-length transaction. The un-controverted evidence was that the value of the lumber was slightly in excess of the debt. In order to ensure a fair exchange, Sharp remitted $2,286.41 to Townsend-Robertson as payment for the excess value of the lumber. Accordingly, the trustee is not entitled to recover the value of the [410]*410lumber related to the title transaction under section 548(a)(2).

The Court finds that the drying, inspection, separation, and commission charges also constitute reasonably equivalent value.

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Bluebook (online)
144 B.R. 407, 1992 Bankr. LEXIS 1370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowden-v-ray-f-sharp-lumber-co-in-re-townsend-robertson-lumber-co-areb-1992.