P.A. Bergner & Co. v. Bank One, Milwaukee, N.A. (In re P.A. Bergner & Co.)

140 F.3d 1111, 35 U.C.C. Rep. Serv. 2d (West) 373, 1998 U.S. App. LEXIS 6922, 32 Bankr. Ct. Dec. (CRR) 536, 1998 WL 164124
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 9, 1998
DocketNos. 96-3879, 96-3937
StatusPublished
Cited by72 cases

This text of 140 F.3d 1111 (P.A. Bergner & Co. v. Bank One, Milwaukee, N.A. (In re P.A. Bergner & Co.)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
P.A. Bergner & Co. v. Bank One, Milwaukee, N.A. (In re P.A. Bergner & Co.), 140 F.3d 1111, 35 U.C.C. Rep. Serv. 2d (West) 373, 1998 U.S. App. LEXIS 6922, 32 Bankr. Ct. Dec. (CRR) 536, 1998 WL 164124 (7th Cir. 1998).

Opinion

DIANE P. WOOD, Circuit Judge.

The proper treatment of standby letters of credit in bankruptcy proceedings is a subject of considerable complexity. In this case, P.A. Bergner & Company was the account party for standby letters of credit that Bank One Milwaukee, N.A. (“Bank One”) issued in favor of two beneficiaries. Shortly before Bergner declared bankruptcy, it made certain payments to Bank One to cover the bank’s own payments honoring the letters of credit. Bergner now wants to recover those payments, as either voidable preferences under section 547(b) of the Bankruptcy Code, or voidable setoffs under section 553 of the Code. See 11 U.S.C. §§ 547(b), 553. (All statutory citations not otherwise attributed are to the Bankruptcy Code, Title 11.) As a preliminary matter, we must also consider Bergner’s standing to assert this action at all, as well as various defenses to its right to recover those payments. Both the bankruptcy court and the district court found in favor of Bergner, although both refused to award it [1847]*1847prejudgment interest. Because of the independence of each part of a letter of credit transaction, and because Bank One cannot rely on the argument that it had a perfected interest at the critical time in the funds it used to cover its payments to the beneficiaries of the letters of credit, we agree with the district court that the payments in question were voidable preferences and affirm. On Bergner’s cross-appeal from the denial of 'prejudgment interest, we find that the denial was an abuse of discretion and remand for a determination of the appropriate amount of interest to award Bergner.

I

Bergner (now known as Carson Pirie Scott & Co.) is the holding company for a number of large retail department stores, principally located in the Midwest. At the time the events at issue here began to unfold Bank One was Bergner’s primary cash management bank. It handled Bergner’s primary’ operating account, and it also issued standby letters of credit in substantial amounts to entities with which Bergner did business, including suppliers and insurers. Bergner did not rely primarily on Bank One for credit; instead, it maintained a revolving line of credit with a group of mostly Eúropean banks led by the Swiss Bank Corporation (collectively, “the Swiss bank group”).

On July 26, 1989, Bergner and Bank One entered into a Standby Letter of Credit Agreement (“SLCA”) under which Bank One agreed to issue standby letters of credit as security for some of Bergner’s credit obligations. This general agreement was to govern the terms of all irrevocable standby letters of credit Bank One might issue for Bergner. Under section 1, Bergner promised to pay Bank One the amount of'any draft drawn under a letter of credit issued pursuant to the SLCA “at or before presentation of the draft” by the letter’s beneficiary. If an “event of default” occurred, Berg-ner was obligated to pay Bank One the full amount of all drafts that could be presented under outstanding letters of credit, which sum Bank One would hold without interest for the purpose of honoring such drafts. Section 6 of the SLCA gave Bank One “a security interest in and lien on any deposit account or other money now or hereafter owed [Bergner] by [Bank One].” Bergner also agreed that Bank One could, “at any time after the occurrence of an Event of Default, without prior notice or demand set off against any such accounts or other money, all or part of the unpaid balance of the Obligations.” Section 12 directed that the SLCA was to be governed by the laws of the State of Wisconsin, and that letters of credit issued under it were to be interpreted according to whatever version of the Uniform Customs and Practice for Documentary Credits (UCP) published by the International Chamber of Commerce was in effect at the time of the issuance of that letter.

At Bergner’s request, Bank One issued standby letters of credit, under the SLCA, to several beneficiaries, two of which are relevant to this action: one of Bergner’s suppliers, Associated Merchandising Corporation (“AMC”), and Bergner’s insurance company, Liberty Mutual Insurance Company. These letters, like all letters of credit, had three relevant parties — the account party, or applicant (Bergner, the bank’s customer), the issuer (Bank One), and the beneficiaries (AMC and Liberty Mutual). The relationship between each pair of parties involved in a letter of credit transaction is entirely independent, although each relationship is necessary to support a letter of credit, somewhat like the three legs of a tripod. See generally John F. Dolan, The Law of Letters of Credit: Commercial and Standby Credits ch. 2 (rev. ed.1996).

The first leg of our tripod — the agreement between Bank One and Bergner — was a contractual relationship, represented here by the SLCA we have’ already described. The letters of creclit themselves,' which embodied the direct arrangement between the issuer (Bank One) and the beneficiaries (AMC and Liberty Mutual) were the second leg. Third, of course, Bergner had distinct obligations to the beneficiaries that the standby letters of credit were designed to secure.

Bank One’s letter of credit notifying AMC that Bergner had established an irrevocable standby credit in its favor was typical. That letter specified the documents AMC would need to present in order to draw on the credit, set forth a number of special condi[1848]*1848tions, and specified that the letter was subject to the 1983 version of the UCP, Int’l Chamber of Commerce Pub. No. 400. The AMC letter of credit contained a so-called “evergreen” clause, see Dolan, The Lato of Letters of Credit, at G-12 (Glossary), under which, upon expiration, it would automatically be renewed for one year unless Bank One provided at least 60 days notice of nonrenewal. The bank also promised that if it sent such a notice, AMC would have the following right:

[Ajfter such notice is given ... funds under this Letter of Credit will also be available against a sight draft drawn on us by AMC, accompanied by a signed written statement on its letterhead stating:
“The proceeds of the accompanying draft will be held and applied against the obligations of CPS Department Stores, Carson Pirie Scott & Co. and/or P.A. Bergner & Co. of Illinois' to The Associated Merchandising Corporation as they come due from time to time”.

The AMC credit was first issued on July 31,1990, for a face amount of $31,000,000. It was amended nine times to reflect increases or decreases in the amount of Bergner’s outstanding orders with AMC. By July 2, 1991', the amount of the credit was $31,207,000, and the expiration date was July 31,1991.

Between March 1989, and September 1990, Bank One also issued four letters of credit at Bergner’s request to Liberty Mutual. These too' were irrevocable standby letters governed by the 1983 Revision of the UCP. Taken together, their initial face amount totaled $7,097,803, but as of July 1991, they totaled $5,836,725 and were also due to expire on July 31.

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Bluebook (online)
140 F.3d 1111, 35 U.C.C. Rep. Serv. 2d (West) 373, 1998 U.S. App. LEXIS 6922, 32 Bankr. Ct. Dec. (CRR) 536, 1998 WL 164124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pa-bergner-co-v-bank-one-milwaukee-na-in-re-pa-bergner-co-ca7-1998.