Murray v. Cushing Trucking, Inc. (In re Chicago, Missouri & Western Railway Co.)

127 B.R. 839, 1991 Bankr. LEXIS 1531, 21 Bankr. Ct. Dec. (CRR) 573
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedFebruary 13, 1991
DocketBankruptcy No. 88 B 5141; Adv. Nos. 90 A 208, 90 A 313
StatusPublished
Cited by1 cases

This text of 127 B.R. 839 (Murray v. Cushing Trucking, Inc. (In re Chicago, Missouri & Western Railway Co.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murray v. Cushing Trucking, Inc. (In re Chicago, Missouri & Western Railway Co.), 127 B.R. 839, 1991 Bankr. LEXIS 1531, 21 Bankr. Ct. Dec. (CRR) 573 (Ill. 1991).

Opinion

MEMORANDUM OPINION

JOHN D. SCHWARTZ, Chief Judge.

Daniel Murray, the Trustee for the Chicago, Missouri, and Western Railway Company (“CM & W” or “Debtor”), has moved for partial summary judgment against defendants Cushing Trucking, Inc. (“Cush-ing”) and TW Communication Corporation, named herein as TW ComCorp., (“TWC”) (collectively the Defendants). In his motion, the Trustee seeks to establish the [841]*841existence of all of the elements necessary to establish a preferential transfer of funds under § 547 of the Bankruptcy Code1 as to each of the Defendants. According to the Trustee, a transfer by check, for purposes of § 547(b) of the Bankruptcy Code, is not effective until the bank accepts or honors the check. For the reasons set forth herein, the court, after considering the pleadings, exhibits, and memoranda filed, finds no reason to limit the Trustee’s motion to partial summary judgment and awards full summary judgment against the Defendants.2

JURISDICTION AND PROCEDURE

This matter arises under § 547(b) and, accordingly, this court has jurisdiction to entertain this motion pursuant to 28 U.S.C. § 1334 (1982 & Supp.1990). This motion constitutes a core proceeding under § 157(b)(2)(F) and is before the court for decision pursuant to local rule 2.33 of the Northern District of Illinois referring bankruptcy cases and proceedings to this court for hearing and determination.

FACTS AND BACKGROUND

The relevant facts herein are not in dispute.3 On January 30, 1987, Debtor issued its check No. 112506 in the amount of $1,261.46 payable to defendant TWC on an antecedent debt. Debtor’s bank honored this check on January 8, 1988. Debtor also issued two checks to defendant Cushing in payment on an antecedent debt. On January 8, 1988, Debtor issued its check No. 112609 in the amount of $5622.00 to Cush-ing which Debtor’s bank honored on January 15, 1988. On March 25, 1988, Debtor issued its check No. 114016 in the amount of $9,488.50 to Cushing which Debtor’s bank honored on March 30, 1988 (collectively, these checks amount to $14,866.50). Debtor subsequently filed its voluntary petition under Chapter 11 of the Bankruptcy Code on April 1, 1988. Thus, while the check to TWC was issued 92 days pre-petition and honored 82 days pre-petition, the checks to Cushing were both issued and honored within the 90 day pre-petition preference period.

STANDARD FOR SUMMARY JUDGMENT

In order to prevail on a motion for summary judgment, the movant must meet the statutory requirements as set forth in Rule 56 of the Federal Rules of Civil Procedure, made applicable to this adversary proceeding by Bankruptcy Rule 7056. Rule 56(c) provides in relevant part:

[T]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c). Summary judgment is appropriate only if there remains no genuine issue of material fact for trial and the movant is entitled to judgment as a matter of law. Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1339 (7th Cir.1985). If a non-moving party fails to establish an element essential to the case on which the non-movant has the burden of proof, summary judgment is appropriate. Samuels v. Wilder, 871 F.2d 1346, 1349 (7th Cir.1989). The facts alleged by the movant must be such that the court can reasonably conclude on a preponderance of the evidence that the movant is entitled to a verdict. Anderson v. Liberty Lobby, [842]*842Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); In re Calisoff, 92 B.R. 346, 350-51 (Bankr.N.D.Ill.1988).

DISCUSSION

In order to establish a preference under § 547(b), the Trustee must prove by a preponderance of the evidence, each of six elements with respect to the transaction in question. Specifically, the Trustee must show 1) a transfer of an interest in the debtor’s property, 2) to or for the benefit of a creditor of the debtor, 3) for or on account of an antecedent debt of the debtor, 4) made while the debtor was insolvent, 5) on or within 90 days before the filing of the petition, and 6) that the transfer allowed the creditor to receive more than it would have in a Chapter 7 liquidation. The only issue in dispute is whether the Debtor's checks effected a transfer of Debtor’s funds on or within 90 days of the filing of Debtor’s Chapter 11 petition.

As courts in this district have previously determined, “the vast majority of courts that have considered this issue have held that a transfer for purposes of § 547(b) occurs on the date the debtor’s bank honors the check.” In re Almarc Mfg., Inc. (Chaitman v. Chicago Boiler Co.), 52 B.R. 582, 583 (Bankr.N.D.Ill.1985). See In re Global Distrib. Network (Global Distrib. Network v. Star Expansion Co.), 103 B.R. at 949, 952 (Bankr.N.D.Ill.1989). See also, In re St. Louis Globe Democrat, Inc., 99 B.R. 946 (Bankr.E.D.Mo.1989); In re All Am. of Ashburn, Inc. (Bonapfel v. La-Salle-Deitch Co.), 95 B.R. 251 (Bankr.N.D.Ga.1989); In re Sims Office Supply, Inc., 94 B.R. 744 (Bankr.M.D.Fla.1988); In re AMWC (AMWC v. General Elec.), 94 B.R. 428 (Bankr.N.D.Tex.1988); In re Nucorp Energy, Inc., 92 B.R. 416 (Bankr. 9th Cir.1988); In re Newman Cos. (Laird v. Bartolameolli), 83 B.R. 571 (Bankr.E.D.Wis.1988). However, this court notes the existence of authority to the contrary, most notably the recent Sixth Circuit decision in In re Belknap, Inc. (Official Unsecured Creditors’ Comm. of Belknap v. Shaler Corp.), 909 F.2d 879 (6th Cir.1990) (transfer of a check, for preference purposes, occurs upon delivery from debtor to creditor).

Notwithstanding these conflicting positions, the court need proceed no further with regard to the checks issued to defendant, Cushing. Regardless of whether the transfer upon honor rule or the transfer upon delivery rule applies, the result is the same. The application of either rule leads to the conclusion that the transfers to Cushing occurred within the 90 day preference period and, thus, were preferential transfers subject to the Trustee’s avoiding powers.

The check to defendant TWC, on the other hand, presents the type of situation in which the court is compelled to choose among the competing positions. The fact that the check to TWC was issued 92 days pre-petition, but not honored until 82 days pre-petition clearly renders either rule dis-positive.

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127 B.R. 839, 1991 Bankr. LEXIS 1531, 21 Bankr. Ct. Dec. (CRR) 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murray-v-cushing-trucking-inc-in-re-chicago-missouri-western-railway-ilnb-1991.