Lowrey v. Manufacturers Hanover Leasing Corp. (In re Robinson Bros. Drilling, Inc.)

6 F.3d 701
CourtCourt of Appeals for the Tenth Circuit
DecidedSeptember 28, 1993
DocketNo. 93-6016
StatusPublished
Cited by12 cases

This text of 6 F.3d 701 (Lowrey v. Manufacturers Hanover Leasing Corp. (In re Robinson Bros. Drilling, Inc.)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowrey v. Manufacturers Hanover Leasing Corp. (In re Robinson Bros. Drilling, Inc.), 6 F.3d 701 (10th Cir. 1993).

Opinion

BRORBY, Circuit Judge.

We are called upon in this appeal1 to consider the unusual suggestion that, for purposes of the preferential transfer section of the Bankruptcy Code, a comparatively minor reduction in a preferred creditor’s extensive financial liabilities conferred no cognizable economic benefit on the creditor because his remaining debts still vastly overwhelmed his assets. Reasons both legal and practical lead us to reject such a view.

The Trustee brought this adversary proceeding under 11 U.S.C. §§ 547(b) and 550(a) to avoid and recover certain allegedly preferential prepetition transfers by debtors to various creditors, including appellant Manufacturers Hanover Leasing Corp. (Manufacturers). Because these payments were made more than ninety days but less than one year before the petition was filed, the Trustee relied on § 547(b)(4)(B), which permits avoidance of preferential transfers within this relatively remote time frame if the benefitting creditor was an insider. Although Manufacturers itself was an outsider, debtors’ obligation to Manufacturers had been guaranteed by debtors’ president, chief executive officer, and controlling shareholder, J.D. Hodges. On a prior appeal in this same proceeding, this court recognized that as guarantor of a debt on which his corporation had made prepetition payment, Hodges could fulfill the insider-creditor requirement of the statute. See Manufacturers Hanover Leasing Corp. v. Lowrey (In re Robinson Bros. Drilling, Inc.), 892 F.2d 850 (10th Cir.1989) (adopting district court opinion, see Lowrey v. First Nat'l Bank (In re Robinson Bros. Drilling, Inc.), 97 B.R. 77 (W.D.Okla.1988), holding that § 547(b)(4)(B) permits avoidance of transfer to noninsider-creditor inuring to benefit of insider-guarantor). Other circuits have likewise found § 547(b)(4)(B) satisfied in connection with such “trilateral-preference” arrangements. See Ray v. City Bank & Trust Co. (In re C-L Cartage Co.), 899 F.2d 1490, 1494 (6th Cir.1990); Levit v. Ingersoll Rand Fin. Corp., 874 F.2d 1186, 1200-01 (7th Cir.1989).

On remand from that earlier decision, Manufacturers defended against the Trustee’s adversary complaint by arguing, among other points, that: (1) Hodges’ hopeless insolvency precluded him from gaining a cognizable benefit from a merely partial reduction in his liabilities; (2) even if such a benefit were theoretically possible, the actual $175,-000 reduction in Hodges’ guarantor liability to Manufacturers was de minimus relative to his overall negative net worth (over $96 million) and, thus, should not be recognized as a benefit; and (3) in any event, Hodges’ liability exposure was not really reduced by debtors’ prepetition transfer because his guaranty provided “it shall continue to be effective, or be reinstated, as the case may be, if at any time payment [by debtors] ... is rescinded or must otherwise be restored or returned by [Manufacturers] upon [debtors’] insolvency, bankruptcy or reorganization ..., all as though such payment had not been made.” Appellant’s App. at 90 (bankruptcy court quoting guaranties). On appeal from the ensuing judgment entered in favor of the Trustee, Manufacturers reasserts these same three arguments.2

[703]*703Under 11 U.S.C. § 547(g), a trustee seeking to avoid an allegedly preferential transfer under § 547(b) “has the burden of proving by a preponderance of the evidence every essential, controverted element resulting in the preference.” 4 Collier on Bankruptcy ¶ 547.21[5] at 547-93 (15th ed. 1993); see, e.g., Sloan v. Zions First Natl Bank (In re Castletons, Inc.), 990 F.2d 551, 555 (10th Cir.1993) (trustee’s avoidance claim rejected because “she did not satisfy her burden of proof under § 547(b)(5)”). The bankruptcy court and district court both held that the Trustee had satisfied his burden on the controverted issue of benefit under §§ 547(b)(1), (b)(4)(B) by establishing debtors’ $175,000 payment to Manufacturers on the obligation guarantied by Hodges. Reviewing the bankruptcy court’s underlying factual findings for clear error and its legal conclusions de novo, see Clark v. Valley Fed. Sav. & Loan Ass’n (In re Reliance Equities, Inc.), 966 F.2d 1338, 1340 (10th Cir.1992), we affirm for the reasons to follow.

The benefit requirement imposed by §§ 547(b)(1), (b)(4)(B) is clearly satisfied when an insider-creditor receives a “quantifiable monetary reduction” in his financial liability to a third party for which he would have had only the bankruptcy estate to look to for reimbursement. See The Travelers Ins. Co. v. Cambridge Meridian Group, Inc. (In re Erin Food Servs., Inc.), 980 F.2d 792, 800-01 (1st Cir.1992). Thus, “[tjhere can be no question that [for purposes of the preference statute] an insider-guarantor derives measurable economic benefit from a payment on the guaranteed debt, to the extent the insider’s contingent liability on the personal guaranty is reduced.” Id. at 797 (emphasis in original); see also Levit, 874 F.2d at 1190, 1194 (reduction in debtor’s obligation to creditor diminishes financial exposure of guarantor; debtor’s transfer to creditor undoubtedly produces a benefit for guarantor).

Aside from Manufacturers’ legal argument that the quoted text from Hodges’ guaranty precluded any substantive reduction in his liability, which we address and reject infra, Manufacturers does not dispute the fact that debtors’ prepetition payment reduced, dollar for dollar, Hodges’ liability as guarantor. Instead, Manufacturers contends that because that reduction obviously could not lift Hodges out of insolvency, he received no cognizable benefit. Manufacturers cites no pertinent authority, nor have we found any, suggesting that the otherwise undeniable economic benefit represented by an actual reduction in pecuniary liabilities somehow disappears simply because the beneficiary remains insolvent following the reduction. In practical effect, Manufacturers seeks judicial creation of a special rule exempting a whole class of (insolvent) creditor-beneficiaries from the trustee’s avoidance powers. The proposed exemption runs afoul of both the spirit of § 547(b) and the counsel of common sense. Surely a creditor whose bills have been paid off — even if only in part— with a debtor’s funds has been preferred over the debtor’s other creditors who have thereby been denied any opportunity to satisfy their claims from those same funds. Moreover, as a benefitted creditor is the first element of a preferential transfer claim, see

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6 F.3d 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowrey-v-manufacturers-hanover-leasing-corp-in-re-robinson-bros-ca10-1993.