McKittrick v. Gavilon, LLC (In re Cascade Grain Products, LLC)

465 B.R. 570, 66 Collier Bankr. Cas. 2d 1143, 2011 Bankr. LEXIS 4197, 55 Bankr. Ct. Dec. (CRR) 185
CourtUnited States Bankruptcy Court, D. Oregon
DecidedOctober 28, 2011
DocketBankruptcy No. 09-30508-elp7; Adversary No. 11-3038
StatusPublished
Cited by2 cases

This text of 465 B.R. 570 (McKittrick v. Gavilon, LLC (In re Cascade Grain Products, LLC)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKittrick v. Gavilon, LLC (In re Cascade Grain Products, LLC), 465 B.R. 570, 66 Collier Bankr. Cas. 2d 1143, 2011 Bankr. LEXIS 4197, 55 Bankr. Ct. Dec. (CRR) 185 (Or. 2011).

Opinion

MEMORANDUM OPINION

ELIZABETH PERRIS, Bankruptcy Judge.

Plaintiff, the trustee in this Chapter 71 bankruptcy ease, filed this complaint to recover as preferential transfers $19,885,728.12 that debtor Cascade Grain Products, LLC (“debtor”), paid to defendants 2 within 90 days before bankruptcy. Defendants move for summary judgment, arguing that all transfers were settlement payments on account of forward contracts [572]*572and therefore not subject to recovery as preferences under § 546(e).3

FACTS

Before it filed bankruptcy, debtor, an ethanol producer, entered into a number of contracts with defendants for the shipment of corn to be used in the production of ethanol. Pursuant to those contracts, defendants shipped corn to debtor and issued invoices, which debtor paid. Overpay-ments and underpayments were netted out. Within the 90 days before bankruptcy, debtor made payments to defendants totaling $19,885,728.12.

The contracts called for shipment within a window of time. In four of the contracts, the shipment window commenced on the same date as the date of the contract. Each of those four contracts included a delivery term of “Del PNW,” which the parties agree means that the contracts are “delivered contracts” as that term is used in the National Feed and Grain Association’s Rule 6.

The trustee seeks to recover the payments made within 90 days before bankruptcy as preferences pursuant to § 547(b).

Defendants do not dispute that the payments fit the requirements for a preferential transfer under § 547(b).4 They argue, however, that they are entitled to summary judgment because they have a complete defense to recovery of the transfers under § 546(e).

DISCUSSION

The court shall grant summary judgment if there are no genuine disputes about material facts and the moving party is entitled to judgment as a matter of law. Fed. R. Bankr.P. 7056; Fed.R.Civ.P. 56(a). There are no disputes about material facts, therefore the question here is whether defendants are entitled to judgment as a matter of law.

Section 546(e) provides, as relevant, that the trustee may not avoid a transfer if it is a settlement payment made to a forward contract merchant in connection with a forward contract. The trustee does not dispute that the payments were settlement payments, that defendants are forward contract merchants, or that a number of the contracts were forward contracts. He does, however, dispute that four of the contracts were forward contracts that are protected by § 546(e).5

[573]*573The Bankruptcy Code defines a “forward contract” as

a contract ... for the purchase, sale, or transfer of a commodity, ... with, a maturity date more than two days after the date the contract is entered intofj

§ 101(25)(A) (emphasis supplied). The trustee argues that the contracts at issue had a maturity date that is less than two days after the contract was entered into, and so are not forward contracts protected by § 546(e). He calculates the total payments made on those contracts to equal $10,543,628.72.

The trustee’s argument is based on the fact that each of the contracts at issue provides for shipment of corn within a window of time commencing on the same date as the date of the contract. For example, Contract No. 57234 is dated October 24, 2008, and calls for shipment of corn between October 24, 2008 and October 31, 2008. Because the shipment window commenced on the same date as the contracts, the trustee argues that the contracts matured less than two days after the contracts were entered into and therefore are not forward contracts. In other words, he views “maturity” as the date on which defendants’ performance could commence.

Defendants argue that the date of maturity is not the first date in the window for shipment, but instead is the last date on which performance can occur under the contract.6 The question is not, they argue, whether the contract could be performed within two days of the contract date, but instead whether performance is due within two days of the contract date.

The dispute distills to what is meant by “maturity date” in § 101(25)(A). Although the Bankruptcy Code defines “forward contract,” it does so in part by using the term “maturity date,” which it does not define.

In determining the meaning of “maturity date” as used in the definition of “forward contract” in § 101(25)(A), the court will look at the ordinary meaning of the term. See Ransom v. FIA Card Servs., N.A., — U.S.-, 131 S.Ct. 716, 724, 178 L.Ed.2d 603 (2011). In the context of commercial law, the date of maturity is “[t]he date when a debt falls due, such as a debt on a promissory note or bond.” Black’s Law Dictionary 452 (9th ed. 2009). An obligation is “due” when it is “[immediately enforceable” or “[o]wing and payable.” Id. at 574.

Courts that have looked at the question of “maturity date” for purposes of § 546(e) and § 101(25)(A) have come to different conclusions about the meaning of the term. In In re Mirant Corp., 310 B.R. 548, 565 n. 26 (Bankr.N.D.Tex.2004), for example, the court said that “[t]he term ‘maturity’ suggests a single date.” It concluded, however, “that ‘maturity’ means the due date for commencement of performance!,]” rejecting the Blade's Law Dictionary definition because it defines the term “solely in terms of a promissory note.” Id. Looking to the legislative history of § 101(25), the court noted that Congress contemplated a series of transactions, thereby supporting its conclusion that there could be numer[574]*574ous maturity dates, or due dates for commencement of performance, for a single contract.

The most recent case to have addressed the issue is In re Renew Energy LLC, 2011 WL 3793157 (Bankr.W.D.Wis. Aug. 24, 2011), which was a preference action to recover payments made by an ethanol plant to a natural gas company. The payments related to three contracts, each of which, as in this case, provided a window of time for performance. The court noted that no court had, as yet, explicitly defined “maturity date.” Id. at *4. It rejected reliance on cases, such as Lightfoot v. MXEnergy, Inc., 2011 WL 1899764, *4 (E.D.La. May 19, 2011), that say that the date of the first delivery is the maturity date, because in Lightfoot there was no dispute that the first date of delivery was outside the two-day period. “In the absence of any helpful definition in the Bankruptcy Code or the Uniform Commercial Code,” the court said, the common sense or usage

definition of “maturity date” is the date that all other obligations under the contract have been performed, and nothing else need be done except tender payment. Common usage in the context of forward contracts suggests that it refers to the date on which delivery has occurred and payment to “settle” is due.

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465 B.R. 570, 66 Collier Bankr. Cas. 2d 1143, 2011 Bankr. LEXIS 4197, 55 Bankr. Ct. Dec. (CRR) 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckittrick-v-gavilon-llc-in-re-cascade-grain-products-llc-orb-2011.