In Re Carled, Inc., Debtor. Frederick M. Luper, Trustee v. Columbia Gas of Ohio, Inc.

91 F.3d 811, 36 Collier Bankr. Cas. 2d 732, 1996 U.S. App. LEXIS 18912, 29 Bankr. Ct. Dec. (CRR) 601, 1996 WL 431100
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 2, 1996
Docket94-4315
StatusPublished
Cited by61 cases

This text of 91 F.3d 811 (In Re Carled, Inc., Debtor. Frederick M. Luper, Trustee v. Columbia Gas of Ohio, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Carled, Inc., Debtor. Frederick M. Luper, Trustee v. Columbia Gas of Ohio, Inc., 91 F.3d 811, 36 Collier Bankr. Cas. 2d 732, 1996 U.S. App. LEXIS 18912, 29 Bankr. Ct. Dec. (CRR) 601, 1996 WL 431100 (6th Cir. 1996).

Opinion

MOORE, Circuit Judge.

Appellant Columbia Gas of Ohio, Inc. (“Columbia”) appeals from the district court’s order affirming the bankruptcy court’s order holding that the Chapter 7 trustee Frederick M. Luper (the “Trustee”) may avoid as preferential transfers under 11 U.S.C. § 547(b) payments made by Carled, Inc. (the “Debt- or”) to Columbia within the ninety days preceding the filing for bankruptcy. For the reasons that follow, we reverse.

I

The Debtor operated three restaurants in the Columbus, Ohio area. The Debtor obtained gas service from Columbia, a public utility operating in Ohio, for each of its restaurants for approximately one year. Before service was terminated in connection with the Debtor’s bankruptcy proceeding, the Debtor had a total of sixty-nine monthly transactions on its three accounts with Columbia. Columbia’s billing cycle is a forty-one day period that begins on the meter reading date and ends on the date that gas service could be terminated for nonpayment. Columbia sends invoices each month stating a “due date” approximately fourteen days after the delivery of the invoice. Of the Debtor’s sixty-nine transactions with Columbia, only approximately five payments were made before the due date. Columbia sent termination notices to the Debtor on several occasions but never terminated the Debtor’s service until the Debtor filed for bankruptcy. The Debtor took an average of thirty to thirty-two days to make payments on each of the three accounts over the life of the accounts. Except for one period of account *813 realignment, 1 the Debtor always paid within the billing cycle. However, the Debtor frequently waited until it received a termination notice before paying its utility bill. According to Columbia, this is fairly typical of a substantial number of commercial customers.

II

Unless one of the exceptions from section 547(e) applies, section 547(b) of the Bankruptcy Code provides that the trustee may avoid certain transfers made in the ninety days preceding the petition for bankruptcy as “preferences” if five conditions are satisfied. 11 U.S.C. § 547. To qualify as a voidable preference, a transfer must “(1) benefit a creditor; (2) be on account of antecedent debt; (3) be made while the debtor was insolvent; (4) be made within 90 days before bankruptcy; and (5) enable the creditor to receive a larger share of the estate than if the transfer had not been made.” Union Bank v. Wolas, 502 U.S. 151, 155, 112 S.Ct. 527, 529-30, 116 L.Ed.2d 514 (1991). It is undisputed that all of the elements required to establish a voidable preference under section 547(b) have been established in this case. See Luper v. Columbia Gas of Ohio, Inc., 170 B.R. 355, 357 (Bankr.S.D.Ohio 1994).

However, under section 547(e)(2) of the Bankruptcy Code, the trustee may not avoid any 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 debtor and the transferee;
(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(C) made according to ordinary business terms.

11 U.S.C. § 547(e)(2) (emphasis added). Subsections (B) and (C) of section 547(c)(2) “comprise a subjective and objective component respectively.” Logan v. Basic Distribution Corp. (In re Fred Hawes Org., Inc.), 957 F.2d 239, 244 (6th Cir.1992). “The subjective prong (subsection (B)) requires proof that the debt and its payment are ordinary in relation to other business dealings between that creditor and that debtor. The objective prong (subsection (C)) requires proof that the payment is ordinary in relation to the standards prevailing in the relevant industry.” Id. Pursuant to section 547(g), the creditor bears the burden of proving the nonavoidability of a transfer under section 547(c)(2) by a preponderance of the evidence. Id. at 242.

Whether a transaction comports with the standards for business conduct within an industry is a factual determination that we will not set aside unless it is clearly erroneous. Yurika Foods Corp. v. United Parcel Serv. (In re Yurika Foods Corp.), 888 F.2d 42, 45 (6th Cir.1989). See also Fed. R.Bankr.P. 8013; Fred Hawes, 957 F.2d at 242. “A finding of fact is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.” Fred Hawes, 957 F.2d at 242 (citations omitted). Although the factual underpinnings of the bankruptcy court’s decision must be upheld unless clearly erroneous, the application of the legal standard to the facts is a question of law that we review de novo. Hardin v. Caldwell (In re Caldwell), 851 F.2d 852, 857 (6th Cir.1988). Therefore, in the instant case, we must treat the bankruptcy court’s evidentiaiy findings as factual determinations and analyze whether the evidence supports the bankruptcy court’s legal conclusions as a matter of law.

Ill

Only subsection (C) of section 547(c)(2) is at issue in this appeal. The bankruptcy court and the district court held that although Columbia proved the first two elements of section 547(c)(2), it failed to prove that the Debtor’s payments to Columbia in the ninety days preceding bankruptcy were “made according to ordinary business terms” under section 547(c)(2)(C). See Luper, 170 B.R. at 358; District Court Opinion, at 9.

*814 To establish the third prong of the ordinary course of business exception, Columbia presented the following evidence relating to industry standards for billing for gas service. First, Columbia offered evidence about its own billing practices to show that its pattern of accepting late payments from the Debtor was not unusual. According to Columbia, a customer that failed to pay its bill by the “due date” stated on the invoice would suffer no “discemable consequences” (e.g., termination of service or adverse impact on credit rating) so long as the customer paid its bill within the forty-one day billing cycle described above. In addition, twenty percent of Columbia’s customers paid their bills after the thirtieth day in the billing cycle, which begins on the meter reading date.

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Bluebook (online)
91 F.3d 811, 36 Collier Bankr. Cas. 2d 732, 1996 U.S. App. LEXIS 18912, 29 Bankr. Ct. Dec. (CRR) 601, 1996 WL 431100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-carled-inc-debtor-frederick-m-luper-trustee-v-columbia-gas-of-ca6-1996.