Jones v. United Savings & Loan Ass'n (In re U.S.A. Inns of Eureka Springs Arkansas, Inc.)

151 B.R. 486, 1992 Bankr. LEXIS 2231
CourtUnited States Bankruptcy Court, W.D. Arkansas
DecidedSeptember 30, 1992
DocketBankruptcy No. 89-13136M; Adv. No. 89-3509
StatusPublished
Cited by2 cases

This text of 151 B.R. 486 (Jones v. United Savings & Loan Ass'n (In re U.S.A. Inns of Eureka Springs Arkansas, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. United Savings & Loan Ass'n (In re U.S.A. Inns of Eureka Springs Arkansas, Inc.), 151 B.R. 486, 1992 Bankr. LEXIS 2231 (Ark. 1992).

Opinion

MEMORANDUM OPINION

JAMES G. MIXON, Bankruptcy Judge.

On October 10, 1989, U.S.A. Inns of Eureka Springs, Arkansas, Inc., (U.S.A. Inns), filed a voluntary petition for relief under the provisions of chapter 11 of the United States Bankruptcy'Code. On November 24, 1989, the debtor-in-possession filed this adversary proceeding against United Savings & Loan Association (United) and others to recover certain preferential transfers pursuant to 11 U.S.C. § 547(b) (1988). United raised the affirmative defense that the transfers it received were made in the ordinary course of business and according to ordinary business terms pursuant to 11 U.S.C. § 547(c)(2) (1988).

On April 10, 1990, this case was converted to a proceeding under the provisions of chapter 7. Claude R. Jones, Esq., was appointed trustee and was subsequently substituted as party plaintiff. On November 11, 1991, a trial was held and the matter was taken under advisement. On December 17, 1991, an order was entered dismissing the complaint as to all defendants except United.

The proceeding before the Court is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(F) (1988), and the Court has jurisdiction to enter a final judgment in the case. The following shall constitute the Court’s findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052.

The essential facts are not in dispute. The original promissory note dated July 31, 1985, was made by Eureka Motel (Eureka) in the original principal sum of $2,700,-000.00. The note provided for repayment in equal monthly installments of $27,-940.00, due on the 30th day of each month. The entire unpaid principal was due July 29, 1992, and the parties contemplated that the note would be renewed and the interest rate adjusted at that time. The note was secured by a first lien on the Eureka Motel located in Eureka Springs, Arkansas, and a first security interest in all its furniture, fixtures, equipment and inventory.

On August 10, 1988, Eureka sold the Eureka Motel to the debtor. This transaction violated a due-on-sale clause contained in the deed of trust. The debtor assumed Eureka’s note payable to United; however, United was not aware of the assumption until after the sale was completed. Soon [489]*489after United discovered the sale, United met with the debtor’s representatives to discuss the loan. Mr. J.C. Benage (Be-nage), the chairman of the board, president and chief executive officer of United, testified that “after much discussion, and somewhat reluctantly] ... we did agree then to allow an assumption of our loan.” Record at 11.

On October 10, 1989, when the debtor filed bankruptcy, United’s claim against the debtor totaled $2,815,037.65 and was secured by collateral with a fair market value of $2,620,000.00. The parties stipulated that during the ninety-day period pri- or to the filing of the petition, the debtor made the following payments to United:

Date Amount
7/14/89 $ 6,538.45
7/21/89 6,461.55
7/26/89 7,000.00
8/01/89 1,845.37
8/01/89 11,154.63
8/08/89 2,642.19
8/17/89 7,357.81
8/18/89 966.30
8/18/89 5,233.70
8/25/89 3,800.00
9/01/89 10,000.00
Total $63,000.00

The following is a list of all other payments made by the debtor to United:

Date Amount
1/04/89 3,000.00
1/05/89 23,508.34
1/31/89 15,000.00
2/17/89 6,000.00
3/24/89 5,000.00
4/04/89 5,000.00
4/18/89 5,000.00
4/26/89 4,000.00
5/02/89 5,000.00
5/09/89 8,500.00
5/18/89 2,000.00
5/19/89 2,000.00
5/23/89 3,500.00
5/30/89 6,000.00
6/01/89 1,000.00
6/13/89 5,000.00
6/16/89 2,500.00
6/23/89 10,000.00
7/05/89 10,000.00
7/10/89 7,000.00

The parties stipulated that all the elements are present to constitute a preference under 11 U.S.C. § 547(b) (1988). However, United asserts the affirmative defense allowed under 11 U.S.C. § 547(c) (1988), which provides:

(c) The trustee may not avoid under this section a transfer—
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(2) 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(c)(2) (1988).

The legislative history of section 547(c)(2) suggests that the purpose of the ordinary course of business exception is to leave undisturbed normal financial relations between the debtor and the creditor. Ordinary course of business transactions do not detract from the general purpose of the preference section which is to discourage unusual action by either the debtor or his creditors immediately prior to bankruptcy. H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 373, reprinted in 1978 U.S.C.C.A.N. 5787, 5963, and 6329.

A creditor asserting the provisions of section 547(c)(2) as a defense to a preference action has the burden of proof to establish the applicability of the section. 11 U.S.C. § 547(g) (1988). See First Software Corp. v. Curtis Mfg. Co. (In re First Software Corp.), 81 B.R. 211, 212 (Bankr.D.Mass.1988); 4 Collier on Bankruptcy U 547.21[5] (15th ed. 1990). United must prove that the loan payments were 1) payments of a debt incurred in the ordinary course of business, 2) made in the ordinary course of business of the debtor and United, and 3) made according to ordinary business terms. 11 U.S.C. § 547(c)(2).

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151 B.R. 486, 1992 Bankr. LEXIS 2231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-united-savings-loan-assn-in-re-usa-inns-of-eureka-springs-arwb-1992.