Grant v. Renda Broadcasting Corp. (In re L. Bee Furniture Co.)

227 B.R. 902, 12 Fla. L. Weekly Fed. B 71, 1998 Bankr. LEXIS 1645, 33 Bankr. Ct. Dec. (CRR) 794
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedDecember 21, 1998
DocketBankruptcy No. 96-1017; Adversary No. 96-260
StatusPublished
Cited by2 cases

This text of 227 B.R. 902 (Grant v. Renda Broadcasting Corp. (In re L. Bee Furniture Co.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grant v. Renda Broadcasting Corp. (In re L. Bee Furniture Co.), 227 B.R. 902, 12 Fla. L. Weekly Fed. B 71, 1998 Bankr. LEXIS 1645, 33 Bankr. Ct. Dec. (CRR) 794 (Fla. 1998).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GEORGE L. PROCTOR, Bankruptcy Judge.

This ease is before the Court upon Order of Remand entered by the United States District Court for the Middle District of Florida, Jacksonville Division, entered on May 6, 1998, to determine whether certain preference payments were made in the ordinary course of the Debtor’s business in accordance with § 547(c)(2). After a trial on September 15, 1998, the Court enters the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACTS:1

1. Defendant owns a radio station in Jacksonville, Florida. (Tr. at 9.) Debtor advertised with Defendant’s radio station from 1991 to 1996.

2. Although the payment terms of Defendant’s invoices to the Debtor contained payment terms of “thirty days net,” the debtor consistently paid its invoices between 90 and 120 days. (Tr. at 9-10; Def.Ex. 1.) Defendant’s other customers usually paid between sixty and ninety days (Tr. at 9.)

3. In the spring of 1995, Debtor decided to increase its advertising on Defendant’s station, using a theme of liquidation. (Tr. at 10-11.) At debtor’s suggestion, Defendant agreed to extend Debtor’s advertising credit, provided the Debtor did not allow any of the invoices to become outstanding past 90 days. (Tr. at 11-12.) This policy was reduced to writing on April 3, 1995. (Def.Ex. 2; Tr. at 12, 24.)

4. Under the parties’ arrangement, the Defendant’s business manager would telephone the Debtor at the beginning of each month and relate the amount that was in the 90-day aging category. Debtor, at its discretion, would then divide that amount into installments and issue a series of post-dated checks in like amounts. Defendant would pick up the checks and deposit them as they matured. (Tr. at 11-12.)

5. For four months following the agreement, Debtor carried outstanding invoices past 120 days. (Tr. at 19-20.) After August 1995, Debtor did not carry a balance past 120 days. (Tr. at 19-20; Def.Ex. 3.)

6. Following the implementation of this procedure, Debtor forwarded to Defendant multiple series of post-dated checks for past-due invoices. In June 1995, Defendant received two checks for $2,000 each, which were applied against invoice 9511 for February 1995 and invoice 9791 for April 1995. (Tr. at 18.) In July, 1995 Defendant received two checks for $3,900 each which were ap[904]*904plied to April invoice 9791. (Tr. at 18.) In August 1995, Defendant received one check for $2,478, and one check for $2,006.25 which were applied to invoices 10181 and 10129 for May 1995. (Tr. at 18.) In September 1995, Defendant received two checks for $3,203.81, and one check for $3,203.83, which were applied to invoice 10339 for June 1995. In October, 1995 Defendant received three checks of $3,327.18 each, which were applied to invoice 10535 of July, 1995.

7. On February 23, 1996 Debtor filed for relief under Chapter 7 of the Bankruptcy Code, and Plaintiff was appointed as trustee. (Case Doc. 1.)

8. Plaintiff alleges that within 90 days prior to its bankruptcy filing, Debtor transferred to Defendant the following series of checks, totaling $27,435:

Series A
Check No. Amount Date
28752 $3,600.00 11/28/95
28753 $3,600.00 12/05/95
28754 $3,600.00 12/06/95
28755 $3,675.50 12/18/95
Series B
Check No. Amount Date
29277 $3,240.00 01/10/96
29278 $3,240.00 01/16/96
29279 $3,240.00 01/22/96
29280 $3,240.00 01/30/96

(Doc. 1.)

10.The checks in Series A were applied to invoice 10713 of August, 1995. (Tr. at 14.) The checks in Series B were applied to invoice 107359,10884, and 10885 of September, 1995. (Tr. at 15.)

11. At trial, Defendant stipulated that all the elements required to establish a preference under 11 U.S.C. § 547(b) had been met, but argued that the transfers were protected from the Plaintiffs avoidance powers by the ordinary course of business exception of 11 U.S.C. § 547(c)(2).

12. This Court held that the payments were protected under the ordinary course of business exception of § 547(c)(2) and entered Judgment for the Defendant on January 15, 1997. (Doc. 16.) In so finding, the Court construed all sections of § 547(c)(2) subjectively, focusing on the specific business relationship of the parties rather than industry practices.

13. Plaintiff filed a Notice of Appeal from the Judgment and the proceeding eventually came before the Honorable Harvey E. Schlesinger, United States District Judge, Middle District of Florida, Jacksonville Division (Case No. 97-158-Civ-J-20.)

14. Judge Schlesinger reversed and remanded the Judgment entered by this Court for reconsideration and further proceedings (as appropriate), in light of the Eleventh Circuit’s decision in Miller v. Florida Mining and Materials (In re A.W. & Assoc., Inc.), 136 F.3d 1439 (11th Cir.1998). (Doc. 21.) In In re A.W. & Associates, Inc., the court found that pursuant to § 547(c)(2)(C) bankruptcy courts are required to examine industry standards.

15. Therefore, the sole issue currently be-. fore the Court is whether Defendant has met its burden of proof on ordinary business terms under § 547(c)(2)(C).

CONCLUSIONS OF LAW

Plaintiff asserts that the procedure utilized by Debtor and Defendant to pay delinquent bills was so idiosyncratic as to exclude it from ordinary business terms. Plaintiff argues that not only the age of the debts paid, but the method of payment by post-dated checks was unusual for the industry. Plaintiff points out that this Court, in its prior Findings of Fact and Conclusions of Law found the procedure to be “unique” and “unusual”.

Defendant asserts that the timing of the payments made by Debtor to Defendant was within the standards and practices in the radio advertising industry. Defendant introduced evidence that sixteen of its radio stations accept the vast majority of its payments between sixty and ninety days from the date of issuance of the invoice.2 Defendant also [905]*905argues that the method of payment (postdated installment checks) was not “idiosyncratic”. Defendant asserts that the method of payment was cemented in long before the Debtor filed bankruptcy.

In A.W. & Assoc. the Eleventh Circuit Court of Appeals endorsed the reasoning of the Seventh Circuit Court of Appeals as set forth in In Matter of Tolona Pizza Products Corp., 3 F.3d 1029 (7th Cir.1993):

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227 B.R. 902, 12 Fla. L. Weekly Fed. B 71, 1998 Bankr. LEXIS 1645, 33 Bankr. Ct. Dec. (CRR) 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grant-v-renda-broadcasting-corp-in-re-l-bee-furniture-co-flmb-1998.