Langston v. Hunt (In re Brints Cotton Marketing, Inc.)

68 B.R. 354, 1 Tex.Bankr.Ct.Rep. 135, 1986 Bankr. LEXIS 4731
CourtUnited States Bankruptcy Court, N.D. Texas
DecidedDecember 30, 1986
DocketBankruptcy No. 583-00111; Adv. No. 585-5059
StatusPublished

This text of 68 B.R. 354 (Langston v. Hunt (In re Brints Cotton Marketing, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Langston v. Hunt (In re Brints Cotton Marketing, Inc.), 68 B.R. 354, 1 Tex.Bankr.Ct.Rep. 135, 1986 Bankr. LEXIS 4731 (Tex. 1986).

Opinion

MEMORANDUM OF OPINION

JOHN C. AKARD, Bankruptcy Judge.

Brints Cotton Marketing, Inc. (BCMI) provided a cotton marketing service to farmers. The farmer delivered warehouse receipts for cotton to BCMI and entered into an “on-call” contract with BCMI. The farmer received from BCMI an amount equal to the Commodity Credit Corporation loan value attributable to the cotton, less certain charges for BCMI. The farmer would have a specified length of time in which to “call” his contract. When the contract was called, BCMI would pay the farmer the amount by which the market price for cotton on the date of the call exceeded the Commodity Credit Corporation loan value. See, Addison v. Langston (In re Brints Cotton Marketing, Inc.), 737 F.2d 1338 (5th Cir.1984).

In February, 1982, Darrell Hunt (Hunt) signed on-call contracts with BCMI. The warehouse receipts for Hunt’s cotton were not delivered until November, 1982, at which time Hunt received the loan value. In February, 1983, when the contracts had not been called, Hunt and BCMI entered into an agreement allowing him to “roll over” his contracts so he would have another 90 days in which to call them. On or about March 22, 1983, Hunt contacted BCMI and called his contracts. BCMI issued three checks to Hunt dated March 22, 1983, totaling $5,279.29. On March 31, 1983, these checks were paid by the First National Bank, Lubbock, Texas from funds held in the BCMI regular checking account.

On May 24, 1983, BCMI filed for relief under Chapter 7 of the Bankruptcy Code. David R. Langston, the Trustee-in-Bankruptcy for BCMI, filed this proceeding to set aside the $5,279.29 payments to Hunt as preferences under 11 U.S.C. § 547.1

Preferential Transfer?

In order to recover a preferential transfer, the Trustee must establish that the transfer was:

1. To or for the benefit of a creditor;
2. For or on account of an antecedent debt owed by the Debtor before such transfer was made;
3. Made while the Debtor was insolvent;
4. Made within 90 days before the date of the filing of the petition; and
5. Which enables the creditor to receive more than such creditor would receive in a liquidation under Chapter 7.

11 U.S.C. § 547.

Hunt is a creditor of BCMI. The Debtor is presumed to be insolvent during the 90 days immediately preceding the date of the filing of the petition. 11 U.S.C. § 547(f). [356]*356Hunt did not dispute that the Debtor was insolvent during that period and there was a specific finding by the prior Judge of this Court that BCMI was insolvent in March, 1983. Echols v. Langston (In re Brints Cotton Marketing, Inc.), No. 583-0147, Bankr.N.D.Tex. March 2, 1984, at 40-42.

The Proofs of Claim filed in this case exceeded $3 million while the liquid assets of BCMI on the date of bankruptcy totaled less than $250,000. When the monies presently in the possession of the Trustee are added to any monies which he might receive in the future (if he is successful in his litigation against other parties), it is probable that the dividend to unsecured creditors will be far less than 100%. Echols, supra, at 39-40.

Clearly the transfer occurred within 90 days of the filing of the Bankruptcy Petition.

When Was the Debt Incurred?

The question before the Court is whether the payments to Hunt were “for or on account of an antecedent debt owed by the debtor before such transfer was made.” 11 U.S.C. § 547(b)(2).

The Trustee contends that BCMI incurred the debt when Hunt delivered the warehouse receipts. Hunt contends the debt was not incurred until he called the contract and established the amount due him.

When Hunt delivered the warehouse receipts to BCMI in November, 1982, he fully performed his part of the contract and BCMI obtained title to the cotton. Apparently some of BCMI’s financial difficulties arose from the fact that BCMI expected the price of cotton to fall and sold the cotton before the farmers called their contracts. When the price of cotton rose and farmers began calling their contracts, BCMI suddenly found that it had sold cotton for less than it was obligated to pay the farmers. It is the delivery of the goods, in this case cotton represented by warehouse receipts, that established the obligation to pay. TEX.BUS. & COM.CODE ANN. § 2.507 (Vernon 1968).2

A “debt” means liability on a claim, 11 U.S.C. § 101(11) and a “claim” means a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured,” 11 U.S.C. § 101(4)(A). Thus, the debt arose at the time the warehouse receipts were delivered to BCMI and it makes no difference that the debt was unliquidated because the contract had not been called at that time.

In an analogous situation, the prior Judge of this Court held that telephone charges were incurred at the time the call was made, even though the Debtor did not know at that time the amount of the charges and the bill was delivered at a later date. Bass v. Southwestern Bell Telephone Co. (In re Ray W. Dickey & Sons, Inc.), 11 B.R. 146 (Bankr.N.D.Tex.1980). See also, Sandoz v. Fred Wilson Drilling Co. (In re Emerald Oil Co.), 695 F.2d 833 (5th Cir.1983) (holding that the date of delivery determined when the debt arose; not the date the invoice was issued), and Scherling v. Texaco International Trade, Inc. (In re Transpacific Carriers Corp.), 50 B.R. 649 (Bankr.S.D.N.Y.1985) (holding that payment made pursuant to a subsequently honored check was deemed made when the check was delivered).

This case has a fact pattern similar to that of Dickinson v. Meredith (In re Wathen’s Elevators, Inc.), 37 B.R. 870 (Bankr.W.D.Ky.1984). Wathen’s acted as a merchandiser of grain rather than as a grain storage warehouse. In October and November, 1981, Meredith delivered 3,543 bushels of grain to Wathen’s. He received a “scale ticket” indicating the date and amount of delivery, the producer’s name and a notation of “deferred settlement” with each delivery. Meredith received no [357]*357warehouse or grain storage receipts.

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68 B.R. 354, 1 Tex.Bankr.Ct.Rep. 135, 1986 Bankr. LEXIS 4731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/langston-v-hunt-in-re-brints-cotton-marketing-inc-txnb-1986.