Official Unsecured Creditors Committee of Sufolla, Inc. ex rel. Estate of Sufolla, Inc. v. U.S. National Bank

2 F.3d 977
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 23, 1993
DocketNo. 92-35202
StatusPublished
Cited by16 cases

This text of 2 F.3d 977 (Official Unsecured Creditors Committee of Sufolla, Inc. ex rel. Estate of Sufolla, Inc. v. U.S. National Bank) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Official Unsecured Creditors Committee of Sufolla, Inc. ex rel. Estate of Sufolla, Inc. v. U.S. National Bank, 2 F.3d 977 (9th Cir. 1993).

Opinion

FARRIS, Circuit Judge:

U.S. National Bank of Oregon appeals the district court’s judgment in favor of the Official Unsecured Creditors Committee of Su-folla, Inc., in the Committee’s action to recover a transfer made by the Chapter 11 debtor to the Bank. The district court found the transfer to be preferential and allowed the Creditors Committee to recover against the Bank pursuant to 11 U.S.C. § 550(a)(1). After examining for the first time the problem of the “trilateral preference,” we affirm.

I.

On December 11,1985, Sufolla entered into a loan and security agreement with the Bank whereby the Bank agreed to supply Sufolla with a line of credit and Sufolla granted the Bank a security interest in certain collateral to secure any resulting indebtedness. The Bank subsequently perfected its interest. Sufolla’s obligation was guaranteed by certain of its shareholders.

Sufolla filed a voluntary petition for reorganization on June 9, 1988. Prior to March 9, 1988, but subsequent to June 9, 1987, Sufolla paid the Bank $4,322.05 from the sale of equipment, a source other than collateral.

The Official Unsecured Creditors Committee initiated an adversary proceeding against the Bank in the United States Bankruptcy Court for the District of Oregon, seeking, inter alia, to avoid and recover the payment [979]*979to the Bank.1 The bankruptcy court concluded that the transfer was a preference recoverable directly from the Bank and entered judgment against the Bank for $4,322.05. The Bank appealed to the United States District Court for the District of Oregon, which affirmed the judgment of the bankruptcy court. This appeal followed.2

The issue presented is one of statutory construction. We review the district court’s judgment de novo. Briggs v. Kent (In re Professional Inv. Properties of America), 955 F.2d 623, 626 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 63, 121 L.Ed.2d 31 (1992).

II.

A.

Section 547(b) of the Bankruptcy Code permits the trustee in bankruptcy to avoid certain prepetition transfers of property interests of the debtor.3 Section 547(b)(4)(B) establishes an extended preference recovery period for transfers made to or for the benefit of an insider. The one-year preference period is designed to deter insiders from influencing an insolvent debtor to distribute its remaining assets in a manner that benefits the insider to the detriment of non-insider creditors. Section 550(a) empowers a trustee in bankruptcy to recover transfers avoided under § 547(b).4

The individuals who guaranteed Sufolla’s obligation are “insiders” within the meaning of § 547(b)(4)(B), see 11 U.S.C. § 101(31) (Supp. III 1991). None of the defenses in § 547(c) are implicated. The guarantors are also “creditors” within the meaning of § 547(b)(1) because they have a contingent right to payment from the debtor. See 11 U.S.C. § 101(10), (5) (Supp. III 1991).

In the customary trilateral preference case, the debtor transfers an interest in property to a non-insider creditor within one year — but not within ninety days — of bankruptcy. The trustee, representing the unsecured creditors of the debtor, seeks to avoid the transfer under § 547(b) and to recover from the non-insider under § 550(a), on the theory that the transfer benefited the insider guarantor by reducing the guarantor’s exposure on the debtor’s obligation.

B.

Although we confront this issue for the first time, four circuits have held that a trustee may recover from an outside creditor a transfer made within one year of bankruptcy, where the transfer benefits an inside guarantor. See Levit v. Ingersoll Rand Fin. [980]*980Corp. (In re V.N. Deprizio Constr.), 874 F.2d 1186 (7th Cir.1989); Southmark Corp. v. Southmark Personal Storage, Inc. (In re Southmark Corp.), 993 F.2d 117, 120 (5th Cir.1993); Ray v. City Bank & Trust Co. (In re C-L Cartage Co.), 899 F.2d 1490 (6th Cir.1990); Manufacturers Hanover Leasing Corp. v. Lowrey (In re Robinson Bros. Drilling, Inc.), 892 F.2d 850 (10th Cir.1989), aff'g, Lowrey v. First Nat’l Bank of Bethany (In re Robinson Bros. Drilling, Inc.), 97 B.R. 77 (W.D.Okla.1988); see also T.B. Westex Foods, Inc. v. Federal Deposit Ins. Corp. (In re T.B. Westex Foods, Inc.), 950 F.2d 1187 (5th Cir.1992) (allowing recovery from garnishor of payment made by debtor garnishee, where payment benefited garnishee’s insider).

The leading case is In re Deprizio, upon which the bankruptcy court and the district court relied. Deprizio employed a “literal-reading” approach to the interpretation of §§ 547(b) and 550(a). See generally Hank J. Brands, The Interplay Between Sections 517(b) and 550 of the Bankruptcy Code, 89 Colum.L.Rev. 530, 539 (1989). The Deprizio analysis begins with § 547(b), which defines those transfers that are avoidable. Deprizio, 874 F.2d at 1194. Transfers benefiting inside creditors are subject to the extended preference period of § 547(b)(4)(B).

Under Deprizio, once it is determined that the elements of § 547(b) are satisfied, the unambiguous language of § 550(a) then identifies the party responsible for repayment of the preference. Id. Section 550(a), unlike § 547(b), makes no distinction between insiders and outsiders; recovery may be obtained from either the initial transferee (the outside creditor) or the entity for whose benefit the transfer was made (the inside creditor), id.; In re C-L Cartage, 899 F.2d at 1494, but not both, see 11 U.S.C. § 550(c) (“The trustee is entitled to only a single satisfaction....”).

C.

Several bankruptcy courts have concluded that an insider’s guaranty does not expose an outside lender to the extended preference recovery period of § 547(b)(4)(B), relying on their “equitable” powers to circumvent the “plain meaning” of §§ 547(b) and 550(a). See, e.g., Official Creditors’ Comm. of Arundel Hous. Components, Inc. (In re Arundel Hous. Components, Inc.), 126 B.R. 216, 219 (Bankr.D.Md.1991); Block v. Texas Commerce Bank Nat’l Ass’n (In re Midwestern Cos.), 96 B.R. 224, 225-28 (Bankr.W.D.Mo.1988), aff'd 102 B.R. 169 (W.D.Mo.1989); In re Aerco Metals, Inc., 60 B.R. 77, 82 (Bankr.N.D.Tex.1985); Schmitt v. Equibank (In re R.A. Beck Builder, Inc.), 34 B.R. 888, 894 (Bankr.W.D.Pa.1983).

Courts applying the “equitable approach” invariably cite Collier on Bankruptcy:

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