Grant v. Swindal-Powell Co. (In re L. Bee Furniture Co.)

206 B.R. 981, 10 Fla. L. Weekly Fed. B 212, 1997 Bankr. LEXIS 96, 30 Bankr. Ct. Dec. (CRR) 329
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedJanuary 15, 1997
DocketBankruptcy No. 96-1017-BKC-3P7; Adv. No. 96-254
StatusPublished

This text of 206 B.R. 981 (Grant v. Swindal-Powell Co. (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. Swindal-Powell Co. (In re L. Bee Furniture Co.), 206 B.R. 981, 10 Fla. L. Weekly Fed. B 212, 1997 Bankr. LEXIS 96, 30 Bankr. Ct. Dec. (CRR) 329 (Fla. 1997).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JERRY A. FUNK, Bankruptcy Judge.

This proceeding came before the Court upon complaint to recover preferential transfers pursuant to 11 U.S.C. § 547(b). Upon the evidence presented at the trial held on September 18, 1996, the Court enters the following findings of fact and conclusions of law:

FINDINGS OF FACT

L. Bee Furniture filed its petition for Chapter 7 relief on February 23,1996. (Doc. 1). This Adversary Proceeding was filed on April 30,1996. (Doe. 50).

Swindal-Powell Company, Inc. (“Defendant”) is a wholesale furniture distributor located in Jacksonville, Florida and has been in business since 1923. (Tr. 1, 12, 17-21). Defendant supplied furniture to L. Bee Furniture Company, Inc. (“Debtor”), and the two have maintained a business relationship since the 1960’s. (Tr. 8-23).

Mr. David F. Cook, the Treasurer and Secretary of Swindal-Powell, testified that Debtor generally placed orders with Defendant on a weekly basis. (Tr. 19-20). During the months of November 1995 through February 1996, Defendant shipped furniture to Debtor as follows:

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(Tr. 16-23; Defendant Ex. 3-6).

Mr. Cook testified that the payment terms between Debtor and Defendant were “net 30 days” or 30 days from the date of invoice over the life of the parties’ relationship. (Tr. 20). Prior to the early part of 1995, Debtor established a $10,000 credit line with Defendant. (Tr. 20-21). In early 1995, Debtor’s credit line was increased to $15,000, and an additional increase to $25,000 took place in August 1995. (Tr. 20-21). This credit line remained the same until the Debtor’s bankruptcy petition was filed. (Id.).

With respect to the payment history between the parties, Mr. Cook testified that Defendant attempted to have Debtor pay its invoices within 60 days from the date of invoice although the terms were “net 30 days.” (Id.). This payment pattern existed over the life of the parties’ relationship. (Tr. 22). Mr. Cook further testified that there were times when more than 60 days elapsed between the date of the invoice and date the invoice was paid. (Id.). It was also possible that invoices remained unpaid for over 90 days. (Id.). This was discouraged by the Defendant, but Debtor routinely paid beyond the net 30 days terms. (Id.). Invoices were paid with a company check, and Defendant never requested cash payment. (Tr. 25).

Mr. Cook testified that when the Debtor exceeded its credit line, he would call Mr. Charles Moskovitz, President of L. Bee Fur[984]*984niture, and ask him to send a check to lower the balance, but no action was taken when invoices were not paid within 30 days. (Tr. 23-24). Mr. Cook further stated that the Defendant normally called Mr. Moskovitz at the end of each month and informed him of the dollar amount needed to bring the account within 60 days of outstanding invoice and below the $25,000 credit line. (Tr. 24). Within the past three years, Defendant never received a payment from Debtor without first contacting Mr. Moskovitz, and the calls made to Mr. Moskovitz were non-threatening and amicable. (Tr. 25-30). Defendant neither threatened to stop shipping furniture to Debtor, nor did Defendant threatened to take legal action against Debtor. (Id.). Also, no security interest was ever retained in the furniture Defendant sold to Debtor. (Tr. 31). This way of doing business remained the same over the duration of the parties’ relationship. (Tr. 24).

Mr. Cook further testified that Defendant always accepted Debtor’s post-dated checks for outstanding invoices since 1994. (Tr. 31, 74r-75). Post-dated checks were given to Defendant as long as the parties have been doing business, and checks were usually postdated from ten to fourteen days. (Id.). Defendant never objected to Debtor’s request to hold checks for a week or to post-date checks and continued delivering furniture to Debtor. (Tr. 31). This information was confirmed by Mr. Moskovitz’s testimony.

Charles W. Grant, Trustee of the Debtor’s estate (“Plaintiff’) presented evidence showing that during the preference period, Debt- or made the following payments:

(Plaintiff Ex. 1-10). Mr. Cook testified, and Mr. Moskovitz confirmed, that Debtor never told Defendant how each check should be applied, and the checks received from Debtor were applied to the oldest outstanding invoices. (Tr. 33-34; 74-75). For example, check number 28893, dated 11-27-95 for $3,400 was applied to invoices dated 09-18-95 through 09-27-95; check number 28894, dated 11-30-95 for $3,500 was applied to invoices dated 09-27-95 through 10 — 04—95; and cheek number 29065, dated 12-07-95 for $3,110.70 was applied to invoices dated 10-04-95 through 10-10-95. (Tr. 44-46; Defendant Ex. 8). The other seven payments were applied in similar fashion. (Id.).

Defendant also presented evidence regarding Defendant’s business relationship with its other approximately 300 customers. Mr. Cook further testified that the company’s other customers also paid beyond the net 30 days terms. (Tr. 22). Also, other customers have asked Defendant to hold cheeks and have paid with post-dated checks. (Tr. 32). Mr. Moskovitz also testified that it was normal for other wholesalers to have normally accepted post-dated checks. (Tr. 71).

Mr. Elmer James, owner of Regal Furniture, Inc., testified of his general knowledge of industry standards in the retail furniture business. (Tr. 82-102). Mr. James has been in the retail furniture business since 1965 when he began working for Sears, Roebuck & Company. (Tr. 96). He then began operating Regal Furniture Store on April 1,1974. (Tr. 82). Regal Furniture is also one of Defendant’s customers. (Id.). Mr. James testified that it was very common for him ask [985]*985Defendant to withhold depositing a check and has given Defendant many post-dated checks dating back to 1974. (Id.). Mr. James further testified that this is a common way of conducting business in the furniture industry. (Tr. 85-86). See also Defendant Ex. 11. Also, it is very common for furniture wholesalers and retailers to allow their credit terms to go beyond the net 30 days, although the invoices indicate “net 30 days” terms. (Tr. 91).

Defendant concedes that all the requirements of subsection 547(b) are satisfied, and Defendant asserts three affirmative defenses pursuant to subsections 547(c)(1), (2) and (4). (Adv.Rec. 12). Defendant, in its post-trial brief, abandoned subsection 547(e)(1) as an affirmative defense and maintains that transfers sought to be avoided are within the ordinary course of business exception under 547(c)(2) and the new value exception under 547(c)(4). (Id.).

CONCLUSIONS OF LAW

The issues in this proceeding are: (1) whether the transfers sought to be avoided were made within the ordinary course of business exception under subsection 547(c)(2) of the Bankruptcy Code; and (2) whether Defendant is entitled to the new value exception under subsection 547(c)(4) of the Bankruptcy Code. The Court will address each issue accordingly.

A. Ordinary Course of Business Exception

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206 B.R. 981, 10 Fla. L. Weekly Fed. B 212, 1997 Bankr. LEXIS 96, 30 Bankr. Ct. Dec. (CRR) 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grant-v-swindal-powell-co-in-re-l-bee-furniture-co-flmb-1997.