Pierce v. Collection Associates, Inc. (In re Pierce)

504 B.R. 506, 2013 WL 6847123
CourtUnited States Bankruptcy Appellate Panel for the Eighth Circuit
DecidedJanuary 30, 2014
DocketBAP No. 13-6048
StatusPublished
Cited by4 cases

This text of 504 B.R. 506 (Pierce v. Collection Associates, Inc. (In re Pierce)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pierce v. Collection Associates, Inc. (In re Pierce), 504 B.R. 506, 2013 WL 6847123 (bap8 2014).

Opinion

KRESSEL, Bankruptcy Judge.

The debtors, Brandon G. Pierce and Nicole L. Pierce, appeal from an order of the bankruptcy court1 denying their complaint [508]*508to avoid and recover transfers of wages to the appellee,. Collection Associates, Inc. For the reasons that follow, we affirm.

BACKGROUND

On December 10, 2012, the Pierces filed a chapter 13 bankruptcy petition. Prior to the petition, Collection Associates filed a collection suit against Brandon Pierce in Nebraska state court and obtained a judgment. Pursuant to a Nebraska court order Collection Associates garnished Pierce’s employment wages. The garnishment occurred partially during the 90 days prior to the bankruptcy filing. The garnishments that took place during that time were in the following amounts:

Check Date Amount Garnished Payroll Week Ending
9/28/2012 $118.48 1. 9/23/2012
10/12/2012 $148.10 2.10/7/2012
10/26/2012 $148.10 3.10/21/2012
11/9/2012 $148.10 4.11/4/2012
11/23/2012 $148.10 5.11/18/2012
12/7/2012 $148.10 6. 12/2/2012

The total amount of the wage garnishments was $858.98. However, Collection Associates did not receive that entire sum. Pursuant to Neb.Rev.Stat. Section 25-1056, wages that are withheld by a garnishee must first be transferred to the court for delivery to the judgment creditor. At the time of the bankruptcy filing the court had only received and delivered $562.78 to Collection Associates.

Two days after the bankruptcy filing, on December 12, 2012, the court received a check for $148.10 from Pierce’s employer, the garnishee. It did not deliver these funds to Collection Associates. On December 21, 2012, Collection Associates filed a cancellation of garnishment. Despite the cancellation, on December 26, 2012, the court received another check for $148.10 from the garnishee. These funds also were not transferred to Collection Associates. Instead, the court returned the two checks to the garnishee. The garnishee then directly refunded the checks to Pierce.

On February 13, 2013, the Pierces filed an adversary proceeding seeking an order avoiding the transfers of the garnished funds and requiring Collection Associates to return $562.78 to them.2 On June 20, 2013, the parties submitted a statement of stipulated facts. The’ case was tried on those stipulated facts on August 21, 2013. The bankruptcy court held that the transfers were not avoidable. On September 3, 2013, the Pierces filed a timely notice of appeal.

Meanwhile, on August 21, 2013, the chapter 13 trustee filed a notice of payment default. The Pierces failed to cure the default and on September 25, 2013 the bankruptcy case was dismissed. On October 23, 2013, the Pierces filed a “motion to reinstate” their case. On November, 14, 2013, that motion was granted.

STANDARD OF REVIEW

We review the bankruptcy court’s factual findings for clear error and its conclusions of law de novo. Blackwell v. Lurie (In re Popkin & Stern), 223 F.3d 764, 765 (8th Cir.2000).

We may affirm the bankruptcy court’s order on any basis supported by [509]*509the record, even if that ground was not considered by the trial court. Mid-City Bank v. Skyline Woods Homeowners Assoc. (In re Skyline Woods County Club, LLC), 431 B.R. 830, 836 n. 16 (8th Cir. BAP 2010).

ANALYSIS

Mootness

Collection Associates argues that this appeal is moot because on September 25, 2013 the bankruptcy case was dismissed. However, Collection Associates fails to address the fact that the Pierces’ “motion to reinstate” the case was granted. There is really no such procedure as “reinstating” a case. In effect, when the court granted the “motion to reinstate” the order of dismissal was vacated. See F.R. Bank. P. 9023. Therefore this appeal is not moot.

Avoidance of Transfers

Section 547(b) of the Bankruptcy Code provides that a trustee may avoid any transfer of an interest of the debtor in property:

(1) To or for the benefit of a creditor;
(2) For or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) Made while the debtor was insolvent
(4) Made—
(A) on or within 90 days before the date of the filing of the petition; or
(B) between 90 days and one year before the date of the filing of the petition, is such creditor at the time of such transfer was an insider.
(5) The enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under Chapter 7
(B) the transfer had not been made; and
(C) such creditor received payments of such debt to the extent provided by the provisions of this title.

As provided by the statute, a trustee may bring an action to avoid a prepetition transfer. However, 11 U.S.C. § 522(h), when read in conjunction with 11 U.S.C. § 522(g), allows a debtor to avoid prepetition preferential transfers if (1) the property transferred would have been exempt; (2) the property was not transferred voluntarily; and (3) the trustee has not sought to bring an avoidance action. See McCarthy v. Brevik Law (In re McCarthy), 501 B.R. 89 (8th Cir. BAP 2013); see also 11 U.S.C. § 522(g)-(h).

The Pierces and Collection Associates agree that all elements of § 547(b) are met with regard to the transfers of the garnished wages. However, even if the elements of § 547(b) are met there are defenses to avoidance actions. The relevant defense is found in 11 U.S.C. § 547(c)(8). It reads:

(c) a trustee may not avoid under this section a transfer-
ís) if, in a case filed by an individual debtor whose debts are primarily consumer debts, the aggregate value of all property that constitutes or is affected by such transfer is less than $600.

The parties disagree on whether the above exception applies. The bankruptcy court held that § 547(c)(8) did apply because Collection Associates did not get the benefit or the value of $600 or more3.

[510]*510Collection Associates agrees with the bankruptcy court and argues that § 547(c)(8) applies because they received less than $600. They argue that it is irrelevant that $858.98 was garnished from Pierce’s wages because they only received a portion of that amount. The amount received by Collection Associates does not include the last two garnishment payments.

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Bluebook (online)
504 B.R. 506, 2013 WL 6847123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-collection-associates-inc-in-re-pierce-bap8-2014.