Ganis Credit Corp. v. Anderson (In re Jan Weilert R.V., Inc.)

258 B.R. 1, 45 Collier Bankr. Cas. 2d 1017, 2001 Cal. Daily Op. Serv. 1220, 2001 Daily Journal DAR 1597, 2001 Bankr. LEXIS 90, 37 Bankr. Ct. Dec. (CRR) 102
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedJanuary 24, 2001
DocketBAP No. CC-00-1110-PBMo; Bankruptcy No. RS 97-16032-MG; Adversary No. RS 98-1824-MG
StatusPublished
Cited by2 cases

This text of 258 B.R. 1 (Ganis Credit Corp. v. Anderson (In re Jan Weilert R.V., Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ganis Credit Corp. v. Anderson (In re Jan Weilert R.V., Inc.), 258 B.R. 1, 45 Collier Bankr. Cas. 2d 1017, 2001 Cal. Daily Op. Serv. 1220, 2001 Daily Journal DAR 1597, 2001 Bankr. LEXIS 90, 37 Bankr. Ct. Dec. (CRR) 102 (bap9 2001).

Opinions

MONTALI, Bankruptcy Judge.

Creditor Ganis Credit Corp. (Ganis) held liens on recreational vehicles (R.V.s) that had been traded in to debtor Jan Weilert R.V., Inc. (debtor), an R.V. dealer. The chapter 71 trustee sought to recover two payments debtor made to Ganis totaling $48,304.59 as preferential transfers under 547(b). The bankruptcy court rejected Ganis’s ordinary course of business defense under § 547(c)(2) and entered judgment for the trustee.2 The only issue on appeal is whether the bankruptcy court correctly applied the objective industry standard for the ordinary course of business defense. We AFFIRM.

FACTS

The bankruptcy court succinctly stated the background facts:

Debtor sold new and used recreational vehicles (“R.V.s”). The used vehicles were often obtained when the purchaser of a new R.V. had an older one to be used as a trade-in or a used vehicle was brought in to be sold on consignment (“trade-ins”). The trade-ins were sold by the Debtor as used vehicles. Often, money was still owed to the original financiers who held security interests in the used R.V.s. These liens were to be paid out of the money received by Debt- or when the vehicle was traded in or when the used R.V.s were purchased by third parties.
Defendants were one of these “original financiers” and held security interests in used R.V.s sold by Debtor. In the ninety days prior to bankruptcy filing, Debtor made two payments to Ganis totaling $48,304.59-

In re Weilert R.V., Inc., 245 B.R. 377, 380 (Bankr.C.D.Cal.2000).

The case before us involves those two payoffs of liens on trade-ins. The first trade-in R.V. was delivered to debtor by a customer on November 21, 1996. Debtor resold it on January 30, 1997, receiving $37,005.33 from the buyer the same day. Debtor deposited the proceeds in its general account. On February 20,1997, twenty-one days later (and ninety-one days after trade-in), the check that debtor had issued to Ganis to pay off the lien cleared debtor’s bank account. Thus debtor had unrestricted use of that money for that period of time, while Ganis’s collateral had been turned over to the buyer, subject to the Ganis lien.

The second trade-in R.V. was received by debtor on January 27, 1997. Debtor resold it on February 6, 1997, for $11,299.26 and deposited the proceeds in its general account. The check debtor issued to Ganis to pay off the second R.V. cleared debtor’s account on March 19, 1997, forty-one days later (and fifty-one days after trade-in). Again, debtor had use of the sales proceeds for that period of time while Ganis’s collateral was out of its and debtor’s control. In each case, when Ganis was paid, it released its lien on the respective R.V.

After debtor filed chapter 7, appellee, as trustee, brought an adversary proceeding to recover the two payments as preferences. All of the elements of a preference under § 547(b) were established on sum[4]*4mary judgment, and the propriety of that decision is not before us. In granting summary adjudication in favor of appellee on the § 547(b) preference elements the court found as ordinary course of business, debtor’s incurring obligations to pay off liens owed on trade-ins transferred to it by debtor’s customers. It also found that part of debtor’s ordinary course of business was to sell used R.V.s free and clear of any liens and that the payments were made in the ordinary course of business or financial affairs of debtor and Ganis (satisfying § 547(c)(2)(B)). In addition, a joint pretrial order established that the two payments to Ganis were “on account of an antecedent debt.”

After the trials in this case and the related case involving Bank of the West, the court issued a single opinion setting out its findings and conclusions. The court took judicial notice of the evidence presented in both cases, and considered all of the evidence in both cases in rendering its decision in each case.3 The court found that Ganis had not proven that the payments to it had been made according to ordinary business terms. Ganis appeals.

ISSUE

As noted, we do not revisit the trustee’s prima facie case under § 547(b). Our attention is limited to the only real issue at the trial, and the only issue on appeal, viz. whether Ganis had established that the payments to it were made according to ordinary business terms, as required for its ordinary course of business defense under § 547(c)(2)(C).

STANDARD OF REVIEW

Determining whether the bankruptcy court applied the correct legal standard is a question of law that the panel reviews de novo. See In re Loretto Winery, Ltd., 107 B.R. 707, 709 (9th Cir. BAP 1989). Whether a payment is made according to ordinary business terms is a question of fact reviewed for clear error. In re Kaypro, 230 B.R. 400, 403 (9th Cir. BAP 1999), aff'd in part, rev’d in part, 218 F.3d 1070 (9th Cir.2000). To the extent questions of fact cannot be separated from questions of law, the panel reviews them de novo as mixed questions of law and fact. Id. at 404.

DISCUSSION

Section 547(b) provides that certain transfers made by the debtor within 90 days before bankruptcy may be avoided as “preferences.”4 A transferee of a preferential payment may prevent avoidance if [5]*5it can prove by a preponderance of the evidence that it satisfies the elements of one of the defenses to avoidance of preferential payments set out in § 547(c). § 547(g); Kaypro, 230 B.R. at 404. Section 547(c)(2) provides that the trustee may not avoid a transfer:

to the extent that such transfer was—
(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debt- or and the transferee;
(B) made in the ordinary course of business or financial affairs of the debt- or and the transferee; and
(C) made according to ordinary business terms.

The defense at issue in this case is the third and final element of ordinary course of business defense set out in § 547(c)(2).

1. The Bankruptcy Court’s Ruling

In its published amended opinion addressing whether debtor’s payments to Ganis met the requirement of § 547(c)(2)(C), that the transfers be made according to ordinary business terms, the bankruptcy court acknowledged application of an objective standard, which “looks to whether the relevant industry would consider payment to have been made according to ‘ordinary business terms.’ ” Weilert, 245 B.R. at 382. Relying on testimony presented by David Russell, a witness for Bank of the West, the court found that the practice of R.V. dealers for trade-in vehicles was to pay off a lienholder on a trade-in vehicle within one to 45 days from the time the vehicle was sold to a third party, although payment could “easily be extended beyond 45 days from the date of trade-in.” Id. at 384.

The court also noted that it was customary in the industry, and in fact required by state law, that the lienholder sign over the lien documents upon payoff. Id. at 385.

The court stated:

At trial, Mr.

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258 B.R. 1, 45 Collier Bankr. Cas. 2d 1017, 2001 Cal. Daily Op. Serv. 1220, 2001 Daily Journal DAR 1597, 2001 Bankr. LEXIS 90, 37 Bankr. Ct. Dec. (CRR) 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ganis-credit-corp-v-anderson-in-re-jan-weilert-rv-inc-bap9-2001.