McLemore v. Third National Bank in Nashville

136 B.R. 727, 1992 U.S. Dist. LEXIS 2193
CourtDistrict Court, M.D. Tennessee
DecidedFebruary 13, 1992
DocketNo. 3:91-0173
StatusPublished
Cited by1 cases

This text of 136 B.R. 727 (McLemore v. Third National Bank in Nashville) is published on Counsel Stack Legal Research, covering District Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLemore v. Third National Bank in Nashville, 136 B.R. 727, 1992 U.S. Dist. LEXIS 2193 (M.D. Tenn. 1992).

Opinion

MEMORANDUM

WISEMAN, District Judge.

This bankruptcy appeal raises the issue of whether a Bankruptcy Court properly held that a trustee in bankruptcy may recover preferential transfers from a bank that extracted itself from the debtor’s illegal check kiting scheme. The Bankruptcy Court for the Middle District of Tennessee held on February 8, 1991 that the debt- or’s checking transactions resulted in avoidable preferences and ordered the trustee to recover $2,254,935 plus pre-judgment interest from January 30, 1989. In re Montgomery, 123 B.R. 801 (Bankr.M.D.Tenn.).

For the following reasons, this Court AFFIRMS the judgment and order of the Bankruptcy Court.

BACKGROUND

In July 1987, N. Eddie Montgomery, a Nashville lawyer whose company, South-land Escrow Services, Inc. (Southland), conducted thousands of real estate closings in Middle Tennessee, initiated a business relationship with the Third National Bank in Nashville (TNB). Montgomery complained to TNB officers that he was having cash flow problems with his accounts at another bank. In response, TNB designed a “cash management system” for Montgomery, consisting of three new TNB accounts, a lock box, and an “Interlink” computer terminal. The system was intended to reverse Montgomery’s cash flow problems, and earn him an estimated $42,246 in annual interest.

The cash management system became operational in August 1987. As designed, Montgomery would have runners deliver checks to the lock box at TNB’s operations center throughout the day; these deposits would be immediately credited to Montgomery’s Main Funding Account (MFA). Once a day, funds needed to cover disbursements would be transferred from the MFA to the other two accounts, a Zero Balance Account (ZBA) at Third National, and a Controlled Disbursement Account (CDA) at a TNB affiliate in Oak Ridge, Tennessee. Montgomery could write checks on both these accounts. TNB recommended that Montgomery use the ZBA for “local checks”, because checks would clear that account throughout the day. Using the CDA whenever possible would gain Montgomery “days of float” because the distant bank cleared checks only once each morning. Montgomery could manage all these accounts with the Interlink terminal.

From the start the system failed to work as intended; deposits usually were made to [729]*729TNB branches throughout the Nashville area, rather than to the lock box, the CDA remained largely unused, and the ZBA was not “zeroed out” at the close of each day. Checks against the ZBA were carried as an overdraft until the next day, and then the MFA would be debited to cover the ZBA overdraft, regardless of whether the MFA contained sufficient funds to do so. On succeeding days, incoming checks would be applied against overdrafts in the MFA. In short, although many checks were coming and going, Montgomery’s accounts were constantly “one day in arrears”.

Montgomery earned no interest from his accounts. By September 1987, his $500,000 line of credit was exhausted, and TNB began assessing Montgomery “analysis charges” each month based on the “average [negative] collected balances” in the MFA and ZBA.

In January and February 1988, TNB officers met with Montgomery to discuss the cash management system and the analysis charges. Montgomery agreed to “take action” to reduce the negative balances. By then, TNB officers were discussing how to move Montgomery out of the bank, especially in light of the January analysis charge for $30,850 — the largest they had ever seen.

On February 10, 1988, Montgomery presented TNB with a written proposal to reduce his negative balances by changing the conduct of his real estate closings, by transferring funds from Sovran Bank (currently NationsBank) to TNB, and establishing a line of credit at Sovran Bank. Montgomery also agreed to make monthly deposits of $5000 at TNB, to be pledged against the Sovran credit line.

In April 1988, TNB “deleted” Montgomery’s cash management services. On April 11, 1988, Montgomery met with TNB officers to discuss the mechanics of stopping the system. Between April 18th and April 21st, disbursements from the ZBA abruptly stopped. When two deposits to the MFA bounced, they were replaced by $320,000 in cashiers’ checks drawn on Sovran. No deposits were made to the MFA after May 3, 1988. On May 9, 1988 funds from the MFA were used to pay approximately $240,000 on Montgomery’s line of credit at TNB. By mid May, Montgomery’s balances at TNB were reduced to insignificance, and his TNB credit line was converted to a term loan.

Involuntary Chapter 7 petitions were filed against Montgomery and Southland on June 3, 1988.

A C.P.A. hired by John C. McLemore, Montgomery’s trustee in bankruptcy, later determined from his analysis of more than 60,000 checking transactions and 6,000 real estate closings that Montgomery/South-land’s activities were part of a “colossal check kiting scheme” involving TNB, Sov-ran, Metropolitan Federal Savings and Loan Association, and Investor’s Federal Savings Bank.

On January 30, 1989, the trustee demanded that TNB return approximately $2 million in preferential transfers under 11 U.S.C. § 547. The matter was tried before Bankruptcy Judge Keith M. Lundin in the Middle District of Tennessee, and the Bankruptcy Court found that TNB received an avoidable preference when it extracted itself from the debtor’s check kiting scheme within 90 days of Montgomery’s involuntary bankruptcy. The Bankruptcy Court ordered the trustee to recover from TNB $2,254,935 plus prejudgment interest from the date of trustee’s demand. The amount of the judgment consisted of the greatest extent of the kite residing at TNB during the preference period ($2,012,418 on March 21, 1988), plus $242,517 in payments that were made against Montgomery’s line of credit at TNB in May 1988, after the kite had shifted away from TNB.

STANDARDS OF REVIEW

On appeal, a Bankruptcy Court’s findings of fact may only be reversed if they are “clearly erroneous”. Bankruptcy Rule 8013, In re Finn, 909 F.2d 903, 905 (6th Cir.1990). Conclusions of law are fully reviewable on appeal. In re New England Fish Co., 749 F.2d 1277, 1280 (9th Cir.1984), In re Gribben, 84 B.R. 494, 495 (S.D.Ohio 1988). An award of prejudgment interest is within the discretion of the [730]*730Bankruptcy Court; a finding of abuse of discretion requires “a definite conviction that the court, upon weighing relevant factors, clearly erred in its judgment.” In re Universal Clearing House, 60 B.R. 985, 1001 (D.Utah 1986), Gordon v. United States Steel Corp., 724 F.2d 106, 108 (10th Cir.1983).

ISSUES PRESENTED

TNB raises the following issues on appeal:

1) Did the Bankruptcy Court fail to properly identify the existence of a “transfer” or “transfers” as required by 11 U.S.C. § 547(b)?

2) Did the Bankruptcy Court err by failing to find that any such transfer involved a property interest of the debtor?

3) Did the kiting transactions result in a depletion of the debtor’s estate?

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Related

In Re Montgomery
136 B.R. 727 (M.D. Tennessee, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
136 B.R. 727, 1992 U.S. Dist. LEXIS 2193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclemore-v-third-national-bank-in-nashville-tnmd-1992.