Stoebner v. San Diego Gas & Electric Co. (In re LGI Energy Solutions, Inc.)

482 B.R. 809
CourtUnited States Bankruptcy Appellate Panel for the Eighth Circuit
DecidedNovember 14, 2012
DocketBAP Nos. 12-6043, 12-6044
StatusPublished
Cited by1 cases

This text of 482 B.R. 809 (Stoebner v. San Diego Gas & Electric Co. (In re LGI Energy Solutions, Inc.)) 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
Stoebner v. San Diego Gas & Electric Co. (In re LGI Energy Solutions, Inc.), 482 B.R. 809 (bap8 2012).

Opinion

VENTERS, Bankruptcy Judge.

In these consolidated appeals, Defendants San Diego Gas & Electric Company (“SDG & E”) and Southern California Edison Company (“SCE”) appeal the bankruptcy court’s judgments against them under 11 U.S.C. § 547(b) for payments they received from the Debtors1 in the 90 days [812]*812prior to the bankruptcy petition date. After giving credit for certain “new value” transfers, the bankruptcy court entered judgment against SCE for $131,267.63 and against SDG & E for $31,242.63.

The Defendants assign error to three aspects of the bankruptcy court’s ruling. They argue: 1) that the transfers at issue weren’t preferential because the Defendants weren’t creditors of the Debtors, as required by § 547(b)(1); 2) that the transfers were not on account of antecedent debts, as required by § 547(b)(2); and 3) that the bankruptcy court erred in limiting the Defendants’ new value credits to the value of the utility services they provided to the Debtors’ customers in the preference period.

For the reasons stated below, we affirm the bankruptcy court’s decision with regard to its determination that the payments the Defendants received from the Debtors are avoidable under 11 U.S.C. § 547(b), but we reverse on the bankruptcy court’s calculation of the Defendants’ new value credits.

JURISDICTION

The bankruptcy court’s judgment is a final order over which we have jurisdiction under 28 U.S.C. § 158(b).

BACKGROUND

The facts are undisputed. On February 6, 2009, separate involuntary Chapter 7 bankruptcy petitions were filed against the Debtors. An Order for Relief was entered in each case on March 3, 2009, and the Debtors’ bankruptcy estates were substantively consolidated on February 2, 2011.

The Debtors’ business was to provide utility-management and bill-payment services to restaurants and other businesses. As originally conceived, the Debtors’ business worked in the following manner: The Debtors would receive invoices from a utility provider on behalf of a customer and then periodically report to the customer regarding those invoices. The customer then would transfer funds to the Debtors in an amount that corresponded to the amount of the invoice report and, after receiving those funds from the customer, the Debtors would send the utility provider a check drawn on the Debtors’ bank account.

All of the transfers at issue in this appeal relate to two of the Debtors’ and Defendants’ mutual customers: Buffets, Inc. (and related entities) and Wendy’s International, Inc.2 The Debtors provided bill-payment services to Buffets pursuant to an “Energy Services Agreement” dated January 5, 2007. The Debtors and Wendy’s were parties to an Energy Services Agreement dated May 1, 2007.

In the 90 days prior to the petition date of February 6, 2009, the Debtors made the following 24 transfers to Defendant SCE totaling $183,512.74:

Check No._Check Amt._Check Date_Rcvd. by SCE_Clear Date

6077932_$4,178.52_10/21/08_11/12/08_11/14/2008

6077954_$4,224.86_10/21/08_11/12/08_11/14/2008

6076652_$5,943.93_10/17/08_11/14/08_11/18/2008

6076653_$8,125.06_10/17/08_11/14/08_11/17/2008

6076654_$9,620.77 10/17/08_11/14/08_11/17/2008

6076656 $9,996.85 10/17/08 11/14/08 11/17/2008

[813]*8136078508_$7,948.76_10/23/08_11/12/08_11/14/2008

6078516_$8,156.87_10/23/08_11/12/08_11/14/2008

6078532_$8,188.20_10/23/08_11/19/08_11/21/2008

6078537_$7,827.17_10/23/08_11/18/08_11/20/2008

6078554_$7,435.41_10/23/08_11/18/08_11/20/2008

6078566_$7,804.13_10/23/08_11/18/08_11/20/2008

6078617_$7,678.34_10/23/08_11/13/08_11/17/2008

6079360_$7,371.65_10/27/08_11/13/08_11/17/2008

6079362_$10,844.50_10/27/08_11/13/08_11/17/2008

6079363_$9,514.28_10/27/08_11/13/08_11/17/2008

6079379_$7,860.50_10/27/08_11/17/08_11/19/2008

6079380_$6,322.93_10/27/08_11/17/08_11/19/2008

6079381_$6,628.53_10/27/08_11/17/08_11/19/2008

6079382_$7,970.53_10/27/08_11/17/08_11/19/2008

6079943_$8,460.80_10/28/08_11/12/08_11/14/2008

6080543_$6,881.98_10/29/08_11/17/08_11/19/2008

6080554_$7,461.95_10/29/08_11/25/08_11/28/2008

6080946$7,066.22_10/30/08_11/20/08_11/24/2008

All 24 of the transfers were made by checks drawn on a checking account at U.S. Bank in the name of debtor LGI Energy Solutions, Inc., account no. xxxxxxxx. The first two checks, nos. 6077932 and 607954, totaling $8,403.38, related to Wendy’s; the other 22 checks related to Buffets.

In the 90 days prior to the petition date of February 6, 2009, the Debtors made eight transfers to Defendant SDG & E totaling $75,053.85. All eight of the transfers were made by checks drawn upon account no. 3321 and related to utility services provided to Buffets.

Check No._Check Amt._Check Date_Rcvd by SDG & E Clear Date

6075058_$5,773.59 10/13/08_11/12/08_11/14/08

6078518_$10,402.58 10/23/08_11/12/08_11/17/08

6078952_$9,093.92 10/24/08_11/18/08_11/20/08

6079349_$10,468.59 10/27/08_11/10/08_11/12/08

6079949_$8,514.01 10/28/08_11/20/08_11/24/08

6080548_$11,097.37 10/29/08_11/17/08_11/19/08

6081120_$10,062,69 10/31/08_11/25/08_11/26/08

6081126$9,64110 10/31/08_11/26/08_11/28/08

The 3321 account was a basic, unrestricted business checking account. Both the monthly statements for the 3321 account and the checks drawn on the 3321 account indicate that LGI Energy Solutions, Inc. was the sole holder of the account. Wendy’s and Buffets last made deposits into the 3321 account on November 3, 2008, and November 4, 2008, respectively. Thereafter, Wendy’s and Buffets made their payments to the debtors via other accounts owned by the Debtors at M & I Marshall & Ilsley Bank. Between November 3, 2008, when Wendy’s made its last deposit into the 3321 account, and November 28, 2008, when the last of the 24 checks was debited against the 3321 account, the balance of the 3321 account was overdrawn or drawn to a nominal amount every business day.

[814]*814On and after November 10, 2008, through the petition date, SCE sent 32 Wendy’s invoices to the Debtors, which they then reported to Wendy’s. Wendy’s remitted payment for these invoices, but the Debtors never paid the related invoices of SCE. The Debtors received a total of $41,426.39 pursuant to these invoices.

On and after November 10, 2008, through the petition date, Defendant SCE sent 32 Buffets invoices to the Debtors, which they then reported to Buffets. Buffets remitted payment to the Debtors for these invoices, but the Debtors never forwarded those payments on to SCE. The Debtors received a total of $157,886.99 pursuant to these invoices.

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Related

John R. Stoebner v. San Diego Gas & Electric Co.
746 F.3d 350 (Eighth Circuit, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
482 B.R. 809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stoebner-v-san-diego-gas-electric-co-in-re-lgi-energy-solutions-inc-bap8-2012.