Energy Cooperative, Inc. v. U.S.A. Rookwood (In re Energy Cooperative, Inc.)

97 B.R. 388
CourtDistrict Court, N.D. Illinois
DecidedFebruary 23, 1989
DocketNo. 81 B 5811; Dist. No. 85 C 3550; Adv. No. 82 A 3721
StatusPublished
Cited by2 cases

This text of 97 B.R. 388 (Energy Cooperative, Inc. v. U.S.A. Rookwood (In re Energy Cooperative, Inc.)) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Energy Cooperative, Inc. v. U.S.A. Rookwood (In re Energy Cooperative, Inc.), 97 B.R. 388 (N.D. Ill. 1989).

Opinion

[389]*389MEMORANDUM OPINION

KOCORAS, District Judge:

Before the court is defendant, U.S.A. Rookwood Corporation’s (“Rookwood”) motion for summary judgment. For the following reasons, Rookwood’s motion is granted.

FACTS

This action is brought by the Trustee in bankruptcy (“Trustee”) for the estate of Energy Cooperative, Inc. (“ECI”) pursuant to 11 U.S.C. § 547 to set aside alleged preferential transfers ECI made to Rook-wood during the ninety days preceding ECI’s filing of bankruptcy on May 15,1981. These transfers occurred under two exchange agreements between the parties.

On September 10, 1980, ECI and Rook-wood entered into the first agreement, an “evergreen” exchange agreement (“Exchange Agreement,” also referred to by the parties as Contract 691). The exchange agreement was unlimited in duration and provided that Rookwood would deliver to various terminals operated by ECI specified amounts of petroleum product and that ECI would then be obligated to return product to Rookwood. This agreement was of a type customarily entered into by Rookwood.

The second agreement, Contract 12040, was entered into by the parties on April 2, 1981. This agreement provided for a single transaction pursuant to which ECI “book transferred” product to Rookwood. Rookwood delivered an equivalent amount of the same product to ECI that same day.

Rookwood alleges that it is entitled to summary judgment because ECI incurred debts and made transfers to Rookwood in the ordinary course of business, according to ordinary business terms, and within forty-five days of the date ECI incurred debts to Rookwood. The transfers, Rookwood argues, are thus excepted from the Trustee’s power of avoidance.

ECI concedes that the transfer under Contract 12040 and certain transfers pursuant to the Exchange Agreement are not recoverable by the Trustee. However, the Trustee asserts that approximately $400,-731 of product exchanged under the exchange agreement during the 90 days prior to bankruptcy constitutes a preference under the Bankruptcy Code. It is these transfers that are at issue in the present motion and will be discussed in greater detail.

DISCUSSION

Summary judgment is appropriate if the pleadings, answers to interrogatories, admissions, affidavits and other materials show “that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one which might affect the outcome of the suit under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). No genuine issue exists “unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Id. 106 S.Ct. at 2511. Summary judgment may be granted if the evidence is merely colorable or is not significantly probative. Id.

When a properly supported motion for summary judgment has been made, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.” Id. The opposing party is entitled to the benefit of all favorable inferences which can reasonably be drawn from the underlying facts; however, only reasonable inferences will be drawn, not every conceivable inference. DeValk Lincoln [390]*390Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987).

Applying these standards, the court must determine whether a genuine issue of material fact exists which precludes a finding that the transfers in question satisfy the requirements for § 547(c)(2) exception. Under Section 547(c)(2) of the bankruptcy code, the Trustee is prevented from avoiding an otherwise “preferential transfer” to the extent that such transfer was:

(A) in payment of a debt incurred in the ordinary course of business or financial affairs of the debtor and the transferee;
(B) made not later than 45 days after such debt was incurred;
(C) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(D) made according to ordinary business terms.

11 U.S.C. § 547(c)(2) (Pre-1984 amendments). Rookwood alleges that all 4 elements of this exception have been satisfied for all transfers under the exchange agreement, and therefore, Rookwood is entitled to summary judgment as a matter of law. The court agrees.

Without dispute, all but one of the criteria are met. At issue is whether ECI’s obligation (debt) to Rookwood in certain specific transactions was “incurred” within a time period sufficient to satisfy the “45 day rule” of § 547(c)(2)(B).

Both parties cite with approval the analysis set forth in Barash v. Public Finance Corp., 658 F.2d 504 (7th Cir.1981). The Seventh Circuit, quoting 4 Collier on Bankruptcy, ¶ 547.38 (15th ed.1980) discussed when a debt is “incurred”:

“(t)he probably better view is that the debt is incurred whenever the debtor obtains a property interest in the consideration exchanged giving rise to the debt.”

658 F.2d at 509. The court went on to note that the primary purpose of the § 547(c)(2) exception is to leave undisturbed normal financial relations, because it does not detract from the general policy of the preference section to discourage unusual payments or transfers by either the debtor or his creditors, which unfairly benefit some creditors at the expense of others on the eve of bankruptcy. Id. at 510 (cites omitted). The transactions in question in this case were part of the parties’ ongoing business relationship and made in the ordinary course of business.

ECI and Rookwood frequently used book transfers of product rather than physical transfer. Such transfers were in the ordinary course of business. Further, it seems clear that ECI incurred a debt to Rookwood on the date Rookwood delivered product to ECI, whether by physical transfer or book transfer. Barash, supra.

The Exchange Agreement between the parties contains a provision which provides that, “(t)he volume delivered by each partner to the other shall be kept reasonably in balance at all times ...” (Aff. Nunn, paras. 4, 7). In Fina, this court found that it is the transfer of products by one exchange partner to the other which triggers the obligation (i.e. when the debt is incurred) to return an equal amount of product to the other partner. Thus, no antecedent debt existed until one partner owed product to the other on account of a prior delivery by the other. Mem. Opinion, December 12, 1986, p. 6. This analysis is properly applied to book as well as physicial transfers.

For the specific transfers in question, Rookwood asserts that ECI incurred a debt to Rookwood on January 28, 1981 in the amount of 543,984 gallons of product.

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