Levy v. Gatlin

118 B.R. 384, 1989 Bankr. LEXIS 2679
CourtDistrict Court, E.D. South Carolina
DecidedMay 8, 1989
DocketBankruptcy Nos. 86-03801, 86-03803 to 86-03805 and 86-03871; Complaint No. 88-0353
StatusPublished
Cited by1 cases

This text of 118 B.R. 384 (Levy v. Gatlin) is published on Counsel Stack Legal Research, covering District Court, E.D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Levy v. Gatlin, 118 B.R. 384, 1989 Bankr. LEXIS 2679 (southcarolinaed 1989).

Opinion

ORDER

WILLIAM THURMOND BISHOP, Bankruptcy Judge.

The matter before the Court is the Adversary Complaint filed by R. Geoffrey Levy, Trustee (“Plaintiff”) against D. Ed Gatlin, d/b/a Plantation Station (“Defendant”) seeking recovery of preferential payments totalling $37,064.81. The Defendant admits that the Plaintiff has established the requisite elements under 11 U.S.C. § 547(b), but contends that the Plaintiff should not recover the payments because they were made in the “ordinary course of business” pursuant to 11 U.S.C. § 547(c)(2).

The Defendant is engaged in the sale of, among other things, gas and oil and has sold gas and oil to the Debtors over a period of several years. The payments complained of are summarized as follows:

1. Check No. 1769, dated 9/5/86 in the amount of $8,000.00
This check represents the payment for undetermined past due invoices.
2. Check No. 091525, dated 9/5/86 in the amount of $2,072.81
This check represents the payment of finance charges on outstanding fuel bills, more specifically:
(a)the March, 1986 fuel bill, dated April 2, 1986, in the amount of $6,176.61 invoice numbers 09922 and 09924;
finance charges paid:
November, 1985 $ 130.13
December, 1985 140.22
January, 1986 166.75
January, 1986 166.75
February, 1986 78.97
$ 682.82
(b)The April, 1986 fuel bill, dated May 1, 1986, in the amount of $8,001.06; finance charges paid:
January, 1986 $ 166.75
February, 1986 78.97
March, 1986 92.65
$ 338.37
(c)the June, 1986 fuel bill, dated July 1, 1986, in the amount of $8,649.90, invoice numbers 11066 and 11068;
finance charges paid:
January, 1986 $ 166.75
March, 1986 92.65
April, 1986 120.02
May, 1986 103.76
$ 483.18
(d)the July, 1986 fuel bill, dated August 5, 1986, in the amount of $10,020.45 invoice numbers 11734, 11727 and 11733;
finance charges paid:
January, 1986 $ 166.75
March, 1986 92.65
April, 1986 120.02
May, 1986 103.76
June, 1986 85.26
$ 568.44
3. Check No. 091988, dated September 26, 1986, in the amount of $17,-20143
This check also represents the payment of finance charges on outstanding fuel bills as well as actual fuel bills which includes:
March, 1986 finance charges $ 92.65
April, 1986 finance charges 120.02
March, 1986 fuel charges 6,176.61
April, 1986 fuel charges 8,001.06
$14,390.34
The above total is $2,811.09 less than the actual amount of the check. This amount represents payment of the August, 1986, fuel charges and was not considered a preference by the Plaintiff.
4. Check no. 092597, dated October 16, 1986, in the amount of $12,601.66
This check represents payments made for fuel charges pursuant to invoices 10384 and 10388, specifically:
May, 1986 fuel charges $ 6,917.43
June, 1986 fuel charges ' 5,684.23
$12,601.66

The four payments complained of were made between 108 and 191 days after the indebtedness was incurred by the Debtors. [386]*386In defense of the Plaintiff’s preference claim, the Defendant introduced a chart showing the payment history between the Debtors and the Defendant for the period of August 1985 up to the time of the alleged preferential payments. The chart indicates that in the previous year, the lag time between invoice date and payment date was between 48 days and 123 days after the invoice date.

It is the Defendant’s contention that the alleged preferential payments were made in the ordinary course of business of the Debtor and the Defendant.

Section 547(c)(2) of the Bankruptcy Code provides:

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

The Bankruptcy Code does not define “ordinary course of business”. Accordingly, the Court must focus on the conduct of the parties involved. In other words, “ordinary” contemplates what is ordinary with respect to the parties. In re First Software Corporation, 81 B.R. 211 (Bkrtcy.D.Mass.1988); In re Fulghum Construction Corp., 78 B.R. 146 (M.D.Tenn.1987); Matter of Van Huffel Tube Corporation, 74 B.R. 579 (Bkrtcy.N.D.Ohio 1987).

The factors the Court should consider in determining whether a transferee has established the requirements of 11 U.S.C. § 547(c)(2) include: 1) the prior course of dealing between the parties; 2) the amount of the payments; 3) the timing of the payments; and 4) the circumstances surrounding the payments. In re Jerry-Sue Fashions, Inc., 91 B.R. 1006 (Bkrtcy.S.D.Fla.1988); In re First Software Corp., 81 B.R. 211 (Bkrtcy.D.Mass.1988); In re White, 58 B.R. 266 (Bkrtcy.E.D.Tenn.1986).

In other words, a transferee needs to demonstrate some consistency with other business transactions between the debt- or and the transferee. Cases which have held that the transferee failed to establish this element have done so on the basis that the payment was extraordinary in nature or amount, or was paid by some unusual method. In re Magic Circle Energy Corporation, 64 B.R. 269 (Bkrtcy.W.D.Okl. 1986); In re Jerry-Sue Fashions, 91 B.R. 1006 (Bkrtcy.S.D.Fla.1988).

Prior to 1984, Section 547(c)(2) provided that in order for the alleged preferential transfer to be excepted from the trustee’s avoiding powers, it must have been made not later than 45 days after the debt was incurred.

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Related

In Re Gardner Matthews Plantation Co.
118 B.R. 384 (D. South Carolina, 1989)

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Bluebook (online)
118 B.R. 384, 1989 Bankr. LEXIS 2679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levy-v-gatlin-southcarolinaed-1989.