Satija v. C-T Plaster, Inc. (In re Sterry Industries, Inc.)

553 B.R. 96
CourtUnited States Bankruptcy Court, W.D. Texas
DecidedJune 9, 2016
DocketNo. 13-11818-TMD; Adv. Proc. No. 15-01108-TMD
StatusPublished
Cited by1 cases

This text of 553 B.R. 96 (Satija v. C-T Plaster, Inc. (In re Sterry Industries, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Satija v. C-T Plaster, Inc. (In re Sterry Industries, Inc.), 553 B.R. 96 (Tex. 2016).

Opinion

MEMORANDUM OPINION

TONY M. DAVIS, UNITED STATES BANKRUPTCY JUDGE

Summers are hot in Texas, so pools are a hot item. But not hot enough to help a pool installer named Sterry avoid bankruptcy. Shortly before bankruptcy, Sterry paid a debt to CenTex, a subcontractor, and the bankruptcy trustee now seeks to recover that payment as preferential. Can Cen-Tex establish an ordinary course of business defense to the trustee’s suit even though a change in its ownership also changed the course of its business with Sterry?

I. BACKGROUND

For some time prior to bankruptcy, Sterry Industries, Inc. (‘.‘Sterry”) used Hines/Harvey Interests, LLC dba Cen-Tex Plaster, Inc. (“Cen-Tex”) to put the permanent liner in pools constructed by Sterry. Sterry did so by faxing a work order to Cen-Tex specifying where and [98]*98when to install the liner. Cen-Tex then installed the liner and sent an invoice to Sterry. As soon as the liner was installed, Sterry filled the pool and then looked for payment from the owner.

Up until six months before Sterry’s bankruptcy, each invoice gave a payment deadline of “Net 30,” and both parties ■ understood that to mean payment was due within 30 days. Sterry would generally mail Cen-Tex a check, but sometimes a representative from Cen-Tex would pick up the check at Sterry’s offices.

Then, about six months before Sterry’s bankruptcy, Cen-Tex was sold to a new owner, and the business practice between Cen-Tex and Sterry changed in two ways. First, the invoice payment deadline changed from “Net 30” to “Due upon Receipt,” but witnesses for both parties testified that this still meant due within 30 days.1 Second, instead of waiting for Ster-ry to mail the check, Cen-Tex would send a representative to pick up' each check at Sterry’s offices. These two changes in business practice were consistently observed during the six month period from the change in ownership to the bankruptcy filing. Thus, the course of business during the three months right before bankruptcy, the preference period, was the same as it was for the prior three month period but differed somewhat from the course of business before the change in Cen-Tex’s ownership.

At trial, Sterry’s business manager, Laura Terry, testified that after the ownership change she felt pressured to pay Cen-Tex because it now sent someone to pick up all payments in person. Terry said she remembers this period well because this collection practice caused her stress. In observing her demeanor on direct and cross examination, however, the Court inferred that she was likely also stressed because her employer — which was also her son’s company — was approaching bankruptcy. Terry also testified that Sterry sometimes allowed other vendors to pick up checks on Friday afternoons.

No one submitted a chart summarizing the payment history prior to the six months before bankruptcy. Because of the relevance' of this payment history, the Court used the exhibits admitted at trial to créate this chart:

[99]*99[[Image here]]

[Editor’s Note: The preceding image contains the reference for footnote (2) ].”

According to the invoice records, prior to the ownership change Sterry was generally not paying Cen-Tex’s invoices within 30 days.3 Records from September of 2012 to February of 2013 show payments made between 53 and 112 days after the invoice date.4 This changed in March of 2013 when Sterry paid the last two invoices, sent by Cen-Tex under its prior owner, on the invoice date.5 During the first three months after Cen-Tex changed owners, Sterry paid the first invoice the next day, but paid the next four invoices within 4, 9, 17, and 7 days.6 During the preference period, the time gap between the invoice and payment dates lengthened to 22,14, and 18 days.7

II. ANALYSIS

To prevent unequal treatment between creditors, subsection 547(b) of the Bankruptcy Code allows a trustee to avoid and recover a preferential transfer, which is any transfer of a debtor’s property made to a creditor, for debt owed by the debtor, while the debtor was insolvent. Arbitrarily, the only payments subject to this “claw-back” provision are those made during the preference period.8 This means that if the payments happen to fall in that three [100]*100month window, the creditor might actually have to refund payments made on valid debt to a company that may now be unable to repay that debt in full.9

The creditor can avoid this trap, however, if it can establish one of the affirmative defenses listed in subsection 547(c).10 These defenses are premised in part on the notion that while we do not want to encourage a race to the courthouse on the eve of bankruptcy, we still want vendors and customers to transact with troubled businesses.11 Here, Cen-Tex admits that Sterry paid it $18,526 during the preference period, but asserts the ordinary course of business defense.

To establish this affirmative defense, Cen-Tex first has the burden of proving that each payment was “of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee.”12 This element is' easily satisfied. The payments at issue were made for debt , incurred in the ordinary course of business between Sterry and Cen-Tex: adding liners to pools built by Sterry. Cen-Tex must next show that the payments were either (1) “made in the ordinary course or financial affairs of the debtor and the transferee”— the so-called “subjective prong” — or (2) “made according to ordinary business terms” — the so-called “objective prong.”13 As previously noted by this Court, Cen-Tex only needs to prove one of these prongs.14

When considering the “subjective prong,” courts look at “ ‘whether the transactions between the debtor and the creditor before and during the ninety-day period are consistent.’ ”15 Several factors inform the analysis, including: “ ‘the length of time the parties were engaged in the transaction in issue, whether the amount or form of tender differed from past practices, whether the creditor engaged in any unusual collection activity, and the circumstances under which the payment was made (i.e. whether the creditor took advantage of the debtor’s weak financial condition)’”16 In a prior case with a similarly short payment history, this Court compared the “timing and manner of payments made before the [preference [p]eriod with the timing and manner [101]*101of those made during the [preference [p]eriod.”17

According to the payment records, under the prior ownership, payments were generally late until March 22, 2013 when Cen-Tex created two invoices that were paid by Sterry on the same day. Shortly after that, the new owner took over. Thereafter, the timing and manner of payments between Sterry and Cen-Tex in the three months prior to the preference period was substantially the same as during the preference period: someone would come in and pick up the check for Cen-Tex within a few weeks of the invoice date.

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Bluebook (online)
553 B.R. 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/satija-v-c-t-plaster-inc-in-re-sterry-industries-inc-txwb-2016.