Jones v. Aristech Chemical Corp.

157 B.R. 720, 29 Collier Bankr. Cas. 2d 1270, 1993 U.S. Dist. LEXIS 11843, 1993 WL 328373
CourtDistrict Court, N.D. Georgia
DecidedJune 30, 1993
Docket1:93-cr-00056
StatusPublished
Cited by6 cases

This text of 157 B.R. 720 (Jones v. Aristech Chemical Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Aristech Chemical Corp., 157 B.R. 720, 29 Collier Bankr. Cas. 2d 1270, 1993 U.S. Dist. LEXIS 11843, 1993 WL 328373 (N.D. Ga. 1993).

Opinion

ORDER

HAROLD L. MURPHY, District Judge.

This case is before the Court on the Trustee’s appeal of the January 11, 1993 Order of the Bankruptcy Court. The Trustee contends that the Bankruptcy Court erred in: (1) holding that Aristech Chemical Corporation’s (“Aristech”) shipment of goods before Goleo’s checks were honored constituted a “new value” exception against preference payments under 11 U.S.C. § 547; and (2) failing to award the Trustee prejudgment interest on the amount of preference payments from the date of demand. Jurisdiction is proper pursuant to 11 U.S.C. § 158(a).

I. BACKGROUND

This case arises from the involuntary bankruptcy of Goleo filed on March 1,1991. Prior to Golco’s bankruptcy, Aristech supplied polypropylene to Goleo. During the 90 day preference period prior to when Goleo filed for bankruptcy on March 1, 1991, Aristech received various payments from Goleo, and in turn made various shipments of polypropylene to Goleo. The transactions basically occurred as follows. Goleo would request a shipment of polypropylene from Aristech. Aristech would request that Goleo pay off its oldest outstanding invoice. Goleo would then send a check covering the oldest outstanding invoice. Finally, Aristech would ship the polypropylene to Goleo.

Golco’s Trustee claims that $43,745.60 of these payments from Goleo to Aristech were preferential transfers under 11 U.S.C. § 547, and, therefore, avoidable. Aristech claims that only $22,337.20 of the payments were preferential transfers. The difference stems from the parties’ dispute over the proper treatment of Aristech’s January 28, 1991 shipment to Goleo in the amount of $21,408.40, and the two checks Goleo sent to Aristech, which Aristech received on January 26, 1991, prior to the shipment, but which Golco’s bank did not honor until the day of the shipment.

Aristech claims that the January 28,1991 shipment falls within the “new value” exception under Section 547(c)(4), which states in relevant part:

(c) The trustee may not avoid under this section a transfer—
(4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor—

11 U.S.C. § 547(c)(4) (emphasis added). Ar-istech argues the Court should apply the date of receipt rule to determine the date of transfer under Section 547(c)(4). This would mean that the transfer of the two checks occurred when Aristech received the checks on January 26, 1991, before Aris-tech extended new value to Goleo in the form of the January 28 shipment to Goleo. Therefore, the value of the shipment could be asserted as a set-off of subsequent new value pursuant to Section 547(c)(4).

The Trustee, however, contends that the Court should apply the date of honor rule. That would mean that the transfer of the two checks occurred on the same day as Aristech extended new value to Goleo, on January 28. Therefore, the new value could not be asserted as a set-off of subsequent new value because Aristech would not have extended the new value in the *722 form of the shipment after Goleo had transferred the two checks, as Section 547(c)(4) requires.

The Bankruptcy Court applied the date of receipt rule, determined that Aristech extended new value in the form of the shipment after Goleo had transferred the two checks, and, therefore, found that the new value could be asserted as a set-off of subsequent new value pursuant to Section 547(c). Thus, the Bankruptcy Court found that the value of the preferential transfers was only $22,337.20.

The Trustee also contends that the estate is entitled to prejudgment interest on the amount awarded. Aristech argues that the Trustee is not entitled to prejudgment interest on the amount awarded because a genuine dispute existed as to the value of the preferential transfers. The Bankruptcy Court agreed, and denied the Trustee's request.

II. STANDARD OF REVIEW

Pursuant to 11 U.S.C. § 158, the District Court sits as an Appellate Tribunal and shall review the facts and findings of the Bankruptcy Court. The District Court reviews findings of fact under the “clearly erroneous” standard. Nordberg v. Arab Banking Corp. (In re Chase Sanborn Corp.), 904 F.2d 588, 593 (11th Cir.1990); Fed.R.Bankr.P. 8013. A finding of fact is clearly erroneous “if the record lacks substantial evidence to support it,” Thelma C. Raley, Inc. v. Kleppe, 867 F.2d 1326, 1328 (11th Cir.1989), so that the Court has the “definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). The District Court reviews conclusions of law de novo. Nordberg, 904 F.2d at 593.

III. DISCUSSION

A. Value of the Preferential Transfers

The issue here is whether the January 28, 1993 shipment falls within the “new value” exception. The answer depends on whether the Court applies the date of receipt rule or the date of honor rule to determine the date the transfer occurred under Section 547(c)(4). While the Eleventh Circuit has not addressed the issue and courts are split on the issue, the Court finds that the majority and better view is that the date of receipt rule determines when a transfer by check occurs under Section 547(c)(4). See Matter of Kroh Bros. Development Co., 930 F.2d 648 (8th Cir.1991); In re Almarc Mfg., Inc., 62 B.R. 684 (Bankr.N.D.Ill.1986); Matter of Georgia Steel, Inc., 38 B.R. 829 (Bankr.M.D.Ga.1984).

The date of receipt rule furthers the purpose of the “new value” exception, which is to encourage creditors to deal with troubled businesses. See Kroh Bros., 930 F.2d at 651-653. Treating the date of the transfer as the date a creditor receives a check, encourages creditors to extend new value to troubled businesses in a timely manner. On the other hand, treating the date of transfer as the date a debtor’s bank honors the check, would discourage creditors from extending new value to debtors.

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157 B.R. 720, 29 Collier Bankr. Cas. 2d 1270, 1993 U.S. Dist. LEXIS 11843, 1993 WL 328373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-aristech-chemical-corp-gand-1993.