HomePlace of America, Inc. v. Salton, Inc. (In re Waccamaw's HomePlace)

325 B.R. 524, 2005 Bankr. LEXIS 962, 44 Bankr. Ct. Dec. (CRR) 227
CourtUnited States Bankruptcy Court, D. Delaware
DecidedMay 31, 2005
DocketBankruptcy No. 010181PJW; Adversary No. 0207101PJW
StatusPublished
Cited by3 cases

This text of 325 B.R. 524 (HomePlace of America, Inc. v. Salton, Inc. (In re Waccamaw's HomePlace)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
HomePlace of America, Inc. v. Salton, Inc. (In re Waccamaw's HomePlace), 325 B.R. 524, 2005 Bankr. LEXIS 962, 44 Bankr. Ct. Dec. (CRR) 227 (Del. 2005).

Opinion

MEMORANDUM OPINION

PETER J. WALSH, Bankruptcy Judge.

This is the Court’s ruling following a three-day trial on HomePlace of America, Inc.’s (“HomePlace”) Code § 547 complaint against Saltón, Inc. (“Saltón”) to recover $3,522,561.09 of transfers made during the preference period. For the reasons set forth below, the Court finds in part for HomePlace and in part for Saltón.

BACKGROUND

HomePlace and related entities operated super-stores for the home decor, housewares and furnishings marketplace offering a variety of brand name merchandise in a warehouse atmosphere.

In June 1999, HomePlace Holdings Inc. (“Holdings”) and its subsidiaries Home-Place Management, Inc., HomePlace Stores, Inc. and HomePlace Stores Two, Inc. were acquired out of bankruptcy by Waccamaw Corporation (“Waccamaw”). Holdings, its subsidiaries and Waccamaw were concurrently merged into and became wholly owned subsidiaries of a newly created entity, HomePlace.

Saltón is a vendor and manufacturer of small appliances, with its principal place of business in Lake Forest, Illinois. Through [527]*527its manufacture and sale of its products, Saltón has done business primarily in the small appliance industry (the “Industry”) beginning at least in 1986. Saltón markets and sells its products globally through an internal sales force and a network of independent commissioned sales representatives.

HomePlace began ordering products from Saltón in its own name in July 1999. HomePlace and Saltón continued transacting business with each other through January 16, 2001 when HomePlace and its affiliates filed their chapter 11 petitions. Both a disclosure statement (Case Doc. # 1589) and a liquidation plan (Case Doc. # 1590) have been filed in the chapter 11 case. The amount available for distribution to unsecured creditors is likely to be nominal relative to the aggregate claims. Solicitation of votes for the plan has been held in abeyance pending the outcome of certain preference actions, including this one.

In 1999 and 2000, Salton’s form of invoices called for HomePlace to make payments “net 30” days from the date of receipt of the goods or receipt of the invoice, whichever was later. In 2000, while Saltón sold products to HomePlace on conventional “net 30” days terms, the parties also agreed to “Extended Dating” or “Big Buy” terms for certain sales transactions. In contrast to conventional payment terms such as “net 30” days or “net 60” days, an Extended Dating or Big Buy arrangement involves large purchases with payments to be made on an agreed specified date far beyond 30 or 60 days.1 The terms for the Big Buy program in 2000 were discussed by Keith Hamden (“Hamden”), Vice President of Sales for Saltón, Jim O’Brien (“O’Brien”), an independent sales representative for Saltón, and Terry McAllister (“McAllister”), a buyer for HomePlace, at a meeting held at Salton’s Illinois office in late April or early May 2000. The Big Buy called for “split dating”, with 50% of the program to be paid on November 10, 2000 and the remaining 50% due on December 10, 2000. (Tr. 2, p. 97, 1. 8-16.2) During the spring and fall of 2000 Home-Place purchased large quantities of product from Saltón. Neither Saltón nor HomePlace possess copies of the purchase orders for goods ordered by HomePlace from Saltón. (Tr. 2, pp. 74,1. 25 — 75,1. 6.) Notwithstanding the parties understanding regarding the Big Buy transactions, all of Salton’s invoices to HomePlace stated “net 30”. According to Saltón, this was because its computer-based system that produced the invoices could not accommodate the Big Buy arrangement.

During the ninety days preceding the petition date, HomePlace made payments to or for the benefit of Saltón in the aggregate amount of $3,522,561.09. The specifics of the transfers are as follows:

Check Payment Payment Receipt Date Date_Amount Date
10/20/00 10/30/00 $ 20,191.46 10/27/00
10/20/00 10/30/00 $ 35,156.52 10/27/00
11/13/00 11/15/00 $ 34,407.68 11/14/00
11/13/00 11/16/00 $1,250.025.71 11/14/00
12/11/00 12/13/00 $2,091,594.41 12/12/00
12/11/00 12/19/00 $ 91,185.31 12/12/00
Total $3,522,561.09

Both at trial and in its post-trial response, HomePlace appears to have abandoned [528]*528any argument contesting that Saltón established the affirmative defenses with respect to the four smaller payments. (Tr. 3, p. 121, 1. 13-16; Doc. #135, p. 13.) Consequently, this opinion will only address the two large payments, one in November ($1,250,025.71) and the other in December ($2,091,594.41).

With regard to these two payments, Salton’s credit manager, Bruce Hofstetter (“Hofstetter”), testified at trial that around November 1, 2000 he sent a list of all outstanding invoices to HomePlace’s account payables manager, Scott Raux (“Raux”), with the understanding that half would be paid on November 10, 2000 and half on December 10, 2000. (Tr. 2, p. 146, 1. 1-15.) Raux confirmed that he had discussions with Hofstetter at the end of October regarding the invoices to be included in the November 10, 2000 payment. (Tr. 3, pp. 13, 1. 22 — 14, 1. 21.) On November 13, 2000, O’Brien picked up the check in the amount of $1,250,025.71 (the “November Payment”) from HomePlace’s headquarters in South Carolina.

After November 10, 2000 Hofstetter sent Raux a new list of invoices regarding the expected December 10, 2000 payment. (Tr. 2, p. 146, 1. 16-19.) Raux confirmed that he had another conversation with Hofstetter in early December with regard to the invoices to be paid on December 10, 2000. (Tr. 3, p. 16, 1. 6-18.) Raux also testified that he did not check to see if all the invoices listed were part of the Big Buy program and he did not challenge Hofstetter on the lists. (Tr. 3, pp. 26, 1. 13 — 27, 1. 10.) Raux merely sought some corrections on some of the invoices. (Tr. 3, p. 27, 1. 4-8.) On December 11, 2000, Hofstetter picked up the check in the amount of $2,091,594.41 (the “December Payment”) from HomePlace’s headquarters in South Carolina.

At trial, Saltón contested whether HomePlace had established all five elements of a preferential transfer under Code § 547(b). Saltón also put on evidence that the transfers were shielded from avoidance as “ordinary course” transfers under Code § 547(c)(2) and because Saltón provided “new value” pursuant to Code § 547(c)(4). Saltón also asserts that the instant action is precluded by Code § 502(d) because of its allowed pre-petition claim in the amount of $210,327.18.

DISCUSSION

Code § 547(b) provides five elements that must be established for Home-Place to avoid the November and December Payments. Because the parties have agreed three of the elements have been met, the contested elements are whether the transfers were:

(3) made while the debtor was insolvent; ... and
(5) that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.

11 U.S.C.

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325 B.R. 524, 2005 Bankr. LEXIS 962, 44 Bankr. Ct. Dec. (CRR) 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/homeplace-of-america-inc-v-salton-inc-in-re-waccamaws-homeplace-deb-2005.