In Re Pucci Shoes, Incorporated, Debtor. Raymond A. Yancey v. Robert Varner Virginia Varner

120 F.3d 38, 1997 U.S. App. LEXIS 18474, 31 Bankr. Ct. Dec. (CRR) 183, 1997 WL 409176
CourtCourt of Appeals for the Fourth Circuit
DecidedJuly 23, 1997
Docket96-2276
StatusPublished
Cited by10 cases

This text of 120 F.3d 38 (In Re Pucci Shoes, Incorporated, Debtor. Raymond A. Yancey v. Robert Varner Virginia Varner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Pucci Shoes, Incorporated, Debtor. Raymond A. Yancey v. Robert Varner Virginia Varner, 120 F.3d 38, 1997 U.S. App. LEXIS 18474, 31 Bankr. Ct. Dec. (CRR) 183, 1997 WL 409176 (4th Cir. 1997).

Opinions

OPINION

WILKINS, Circuit Judge:

Robert and Virginia Varner appeal a $10,-000 judgment entered against them by the district court in this action brought by Raymond A. Yancey, trustee of the bankruptcy estate of debtor Pucci Shoes, Incorporated (Pucci), to set aside a transfer from Pucci to the Varners pursuant to 11 U.S.C.A. §§ 547(b), 549(a) (West 1993). The district [40]*40court rejected the Varners’ claim that they were entitled to retain the transfer as an exchange for value occurring between the filing of an involuntary bankruptcy petition and the entry by the bankruptcy court of an order of relief. See 11 U.S.C.A. § 549(b) (West Supp.1997). The Varners argue that the district court erred in concluding that the transfer did not qualify for the § 549(b) exception because the Varners did not provide value prior to or contemporaneously with the transfer. We agree with the Varners that § 549(b) imposes no requirement that the value provided for a transfer be made prior to or simultaneously with the transfer. However, because the bankruptcy court did not render factual findings on other aspects critical to a determination of whether § 549(b) may be applied here, we remand for further proceedings consistent with this opinion.

I.

On December 23,1993, an involuntary petition seeking relief under Chapter 7 of the Bankruptcy Code was filed against Pucci. The following day, Pucci’s manager, Robert Dekar, visited his stepfather and mother Robert and Virginia Varner, the sole stockholders of Pucci. Dekar presented the Varners, who were unsecured creditors of Pucci for over $100,000, with a check for $10,000 and obtained the Varners’ agreement to infuse additional capital into the corporation by obtaining a loan using their personal residence as collateral. Dekar testified before the bankruptcy court that the $10,000 transfer was intended to cover the Varners’ expenses in obtaining the additional line of credit. The Varners subsequently made two loans to Pucci — the first, in July, was for $50,000 and the second, in September, was for $60,000. Thereafter, on December 20, 1994, the bankruptcy court entered an order of relief.

Yancey subsequently brought this action seeking to set aside the $10,000 payment to the Varners. The Varners opposed the action, asserting that the transfer fit within the exception to the trustee’s power to set aside a postpetition payment by a debtor set forth in § 549(b). The parties stipulated to the relevant dates, and the Varners offered the testimony of Dekar to the facts set forth above. The bankruptcy court ruled that the Varners had not proven their entitlement to the § 549(b) exception, reasoning that the transfer to the Varners was not made simultaneously with the transfer of the $110,000 to Pucci. Thus, the bankruptcy court entered a $10,000 judgment against the Varners.

On appeal, the district court affirmed, explaining:

The purpose of the [§ 549(b) ] exception is to allow a business to continue normal operations while an involuntary petition is pending. This purpose is not served by the Varners’ July and September loans, which, though surely helping to sustain the company, were both attenuated in connection and remote in time from the $10,000 payment. Rather than given “in exchange” for “value,” the payment was merely incidental to securing an infusion of additional capital in the future by means of a loan. The court aligns itself with those cases giving a narrow reading to § 549(b) and imposing a condition of substantial simultaneity in the exchange.

J.A. 48-49. The Varners appeal from this decision.

II.

A bankruptcy court is authorized to enter final judgment in a core bankruptcy proceeding referred to it by the district court. See 28 U.S.C.A. § 157 (West 1993 & Supp.1997); United States v. Wilson, 974 F.2d 514, 516 (4th Cir.1992); Canal Corp. v. Finnman (In re Johnson), 960 F.2d 396, 399 (4th Cir.1992). On appeal from such a final decision of a bankruptcy court, a district court acts as an appellate tribunal, reviewing the findings of fact of the bankruptcy court for clear error and its legal conclusions de novo. See 28 U.S.C.A. § 158(a) (West Supp.1997); In re Johnson, 960 F.2d at 399. When acting in this capacity, the district court is not authorized to make its own findings on disputed issues of fact in the first instance. See Great W. Bank v. Sierra Woods Group, 953 F.2d 1174, 1176 (9th Cir.1992); In re Neis, 723 F.2d 584, 588-89 (7th Cir.1983). On appeal from the decision of the district court, a court of appeals exercises [41]*41de novo review of the district court, “effectively standing in its shoes to consider directly the findings of fact and conclusions of law by the bankruptcy court.” Cypher Chiropractic Ctr. v. Runski (In re Runski), 102 F.3d 744, 745 (4th Cir.1996). Accordingly, “we review legal conclusions by the bankruptcy court de novo and may overturn its factual determinations only upon a showing of clear error.” Id.

A bankruptcy trustee is authorized by § 549(a) of the Bankruptcy Code to avoid certain transfers of property of the bankruptcy estate “that oecur[ ] after the commencement of the case.” 11 U.S.C.A. § 549(a). Section 549(b) provides an exception to the trustee’s power to set aside post-petition transfers:

In an involuntary case, the trustee may not avoid under subsection (a) of this section a transfer made after the commencement of such case but before the order for relief to the extent any value, including services, but not including satisfaction or securing of a debt that arose before the commencement of the ease, is given after the commencement of the case in exchange for such transfer, notwithstanding any notice or knowledge of the case that the transferee has.

11 U.S.C.A. § 549(b). The time between the filing of the petition for involuntary bankruptcy and the order of relief commonly is referred to as the “gap period.” Hamilton v. Lumsden (In re Geothermal Resources Int’l, Inc.), 93 F.3d 648, 651 n. 1 (9th Cir.1996) (per curiam). Thus, a transfer of property of the bankruptcy estate made in exchange for value during the gap period may not be avoided by a bankruptcy trustee.

The sole question presented to us is whether, in order to satisfy the § 549(b) exception, the value provided in exchange for property of the bankruptcy estate must be given prior to or simultaneously with the transfer of the property, provided the trans-

fer is made and the value is given during the gap period. As a question of the correct interpretation of the Bankruptcy Code, this issue is one of law subject to plenary review. See In re Runski, 102 F.3d at 745.

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120 F.3d 38, 1997 U.S. App. LEXIS 18474, 31 Bankr. Ct. Dec. (CRR) 183, 1997 WL 409176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pucci-shoes-incorporated-debtor-raymond-a-yancey-v-robert-varner-ca4-1997.