Gordon v. Westside Bank & Trust Co. (In re James E.)

190 B.R. 979, 1995 Bankr. LEXIS 1936, 28 Bankr. Ct. Dec. (CRR) 491
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedDecember 18, 1995
DocketBankruptcy No. A94-68993-ADK; Adv. No. 95-6166
StatusPublished
Cited by1 cases

This text of 190 B.R. 979 (Gordon v. Westside Bank & Trust Co. (In re James E.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordon v. Westside Bank & Trust Co. (In re James E.), 190 B.R. 979, 1995 Bankr. LEXIS 1936, 28 Bankr. Ct. Dec. (CRR) 491 (Ga. 1995).

Opinion

ORDER

ARMAND DAVID KAHN, Bankruptcy Judge.

Plaintiff, the Chapter 7 Trustee for the estate of James E. and Karin B. Combs (“Plaintiff-Trustee”) filed the above-styled adversary proceeding (the “Complaint”) to recover certain allegedly preferential and fraudulent transfers pursuant to 11 U.S.C. §§ 547, 548, and 550. It is before the Court on cross-motions for summary judgment filed by Defendant Westside Bank & Trust Company (‘Westside”) and Plaintiff-Trustee. Defendant American Mobile Offices, Inc. (“AMO”) has failed to file a response to 'either cross-motion. Therefore, the cross-motions are deemed to be unopposed by AMO. See LR 220-l(b), NDGa., made applicable to this proceeding by BLR 705-2, NDGa. The Court finds this matter to be a core proceeding within the meaning of 28 U.S.C. § 157(b)(2).

I.

The following facts are undisputed. On or about April 8, 1993, AMO, the wholly owned corporation of James E. and Karin B. Combs (the “Debtors”), executed a promissory note (the “Note”) in favor of Westside in the principal amount of $20,000.00. See Exhibit “A” attached to the Complaint. It was payable in full on April 8, 1994. The Note was secured by, inter alia, AMO’s accounts receivable, and it was guaranteed by the Debtors.

[980]*980Sometime on or before March 31,1994, the Debtors liquidated their retirement account at Westside by withdrawing the sum of $30,-871.08. This sum was deposited in the Debtors’ personal bank account at the Etowah Bank. On April 7,1994, the Debtors wrote a check on this account in the amount of $23,-000.00 payable to AMO. The next day, April 8, the check to AMO was deposited in AMO’s bank account at Westside. On the same day, April 8, AMO paid Westside $20,137.78 by check number 1234, signed by Debtor Karin B. Combs in satisfaction of the Note.

The Parties appear to dispute the amount of funds available in AMO’s Westside bank account during the time surrounding the transaction in question. For the purposes of the cross-motions for summary judgment, the Court will adopt Plaintiff-Trustee’s version of the “facts” and assume that there was little in AMO’s account before or after the transaction and that the only way AMO could have paid its debt to Westside was by the $23,0000.00 deposit made by the Debtors into its account on April 8,1994.

II.

A. RECOVERY AGAINST WESTSIDE

Plaintiff-Trustee seeks to recover, pursuant to § 550(a)(1), the transfer of the sum of $20,137.78 from Westside as a preferential transfer of property of the Debtors. It is undisputed that, if the transfer had been made directly from the Debtors to Westside, the transfer would have been preferential.1 Plaintiff-Trustee maintains that he may recover the transfer from Westside pursuant to § 550(a)(1), which provides that

[ejxcept as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from—
(1) the initial transferee of such transfer or the entity for whose benefit such transfer was made.

Although Westside was not the actual initial transferee of the funds from the Debtors, Plaintiff-Trustee argues that AMO acted as a mere conduit and should be overlooked. In support of his conduit theory, Plaintiff-Trustee relies upon the case of Nordberg v. Societe Generate (In re Chase & Sanborn Corp.), 848 F.2d 1196 (11th Cir.1988) (“Chase & Sanborn II”). In Chase & Sanborn II, the trustee was attempting to recover a fraudulent conveyance. The Eleventh Circuit Court of Appeals affirmed the lowers courts’ refusal to find that the defendant, Societe Generate — a French bank, was an initial transferee within the meaning of § 550(a)(1), where it had received a wire transfer of funds from the debtor.

The court found that Societe Generate was a mere commercial conduit. In reaching this result, the Court of Appeals used a control test previously adopted in In re Chase & Sanborn, 813 F.2d 1177 (11th Cir.1987) (“Chase & Sanborn I”) to determine whether Societe Generate had actual control over the funds. “The control test, then, as adopted by this circuit, simply requires courts to step back and evaluate a transaction in its entirety to make sure that their conclusions are logical and equitable.” Chase & Sanborn II, 848 F.2d at 1199.

Applying this control test to the proceeding sub judice, it is undisputed that the funds were deposited into AMO’s own bank account. After the deposit, AMO could have used the funds in any manner it chose, in.cluding paying its debt to Westside. Plaintiff-Trustee, in essence, is requesting that this Court ignore the fact that AMO was a separate entity from the Debtors. However, he has not alleged any facts that would allow [981]*981the Court to ignore the corporate form of AMO.

In support of its position that AMO was not a mere conduit, Westside relies heavily on the case of Billings v. Key Bank of Utah (In re Granada, Inc.), 156 B.R. 303 (D.Utah 1990). In Granada, the trustee was attempting to recover as preferential transfers made by the debtor general partner through its partnerships. The district court affirmed the bankruptcy court’s finding that the partnerships were initial transferees within the meaning of § 550(a)(1) and not mere conduits as the trustee had asserted. Just as the Debtors in the proceeding sub judice controlled AMO, the debtor in Granada controlled the partnerships. In response to this fact pattern, the Granada court stated as follows:

The bankruptcy court was concerned with the fact that Granada not only controlled the funds transferred to the partnerships but also controlled the disposition of the partnerships’ funds. This fact, however, does not mean that the partnerships had no control over the money. The partnerships properly exercised control over the funds through Granada, their general partner. Granada’s control over the funds was also the partnerships’ control over the funds. The trustee has offered no persuasive reason why Granada should be treated as an entity foreign to the partnerships. To follow the trustee’s reasoning would mean that partnerships would almost always be conduits of their general partners since general partners always control their partnerships. Such a rule would, in this court’s opinion, go far beyond what the conduit theory was designed to accomplish.

Granada, 156 B.R. at 308.

Although the holding in Granada is obviously not binding on this Court, the Court does find its reasoning persuasive.

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Bluebook (online)
190 B.R. 979, 1995 Bankr. LEXIS 1936, 28 Bankr. Ct. Dec. (CRR) 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-westside-bank-trust-co-in-re-james-e-ganb-1995.