Vaughan v. Thompson (In re B.J. Packing, Inc.)

161 B.R. 397, 1993 Bankr. LEXIS 1787
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedSeptember 9, 1993
DocketBankruptcy No. 92-3473; Related Case No. 90-33607
StatusPublished

This text of 161 B.R. 397 (Vaughan v. Thompson (In re B.J. Packing, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vaughan v. Thompson (In re B.J. Packing, Inc.), 161 B.R. 397, 1993 Bankr. LEXIS 1787 (Ohio 1993).

Opinion

MEMORANDUM OPINION AND ORDER

RICHARD L. SPEER, Bankruptcy Judge.

This cause comes before the Court upon Plaintiffs Complaint to Avoid Preferential Transfer to Thompson, Hiñe and Flory (hereafter “Defendants”) and Defendants’ Answer. At the Trial, the parties were afforded the opportunity to present testimony, evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the entire record in this case. Based upon that review, and for the following reasons, this Court finds that to the extent that the transfer was made on account of an antecedent debt which Debtor incurred before the transfer was made, Plaintiff may avoid as a preference the transfer of a check made payable to Defendants by Debtor on or about October 4, 1990; and that the Plaintiff may recover, for the benefit of the estate, the amount to Thirty Nine Thousand Two Hundred Eighteen and 80/100 Dollars ($39,218.80).

FACTS

The parties have stipulated to the following facts:

1. Defendants served as legal counsel for Debtor prior to the filing of its Chapter 7 case.

2. Upon receipt of remuneration totalling Sixty Pour Thousand One Hundred Eighty Seven and 29/100 Dollars ($64,187.29), Defendants rendered a legal opinion which was relevant to a business transaction between Debtor and John Morrell & Company (hereafter “Morrell”).

3. The amount paid to Defendants for its legal opinion in the Morrell transaction equals the amount due Defendants for antecedent legal services performed and billed as follows:

a. April 9, 1990 $19,277.29
b. April 30, 1990 $20,669.62
c. May 17, 1990_$24,240.38
$64,187.29

4. Debtor was insolvent at the time that the check was issued to Defendants on October 4, 1990.

5. Debtor filed its Petition for Relief under Chapter 7 on October 17, 1990.

6. After receipt of payment, Defendants performed additional legal services with a value of Three Thousand Six Hundred Seventy Four and 74/100 Dollars ($3,674.74) for which they never received payment.

In addition to these stipulations, Richard E. Streeter, partner in Defendants’ law firm, testified that as a condition precedent to the rendering of the Morrell opinion, Debtor was required to bring “relatively current” its outstanding debt. Debtor was not billed separately for services performed in conjunction with the issuance of the Morrell opinion. The entire amount paid was applied to legal services performed and billed by Defendants on April 9,1990; April 30,1990; and May 17, 1990.

In open court, Counsel agreed that Defendants’ receipt of Sixty Four Thousand One Hundred Eighty Seven Thousand and 29/100 Dollars ($64,187.29) exceeds that which would be received under a Chapter 7 liquidation. Counsel further agreed that the amounts of Twenty One Thousand Two Hundred Ninety Three and 75/100 Dollars ($21,293.75) and Three Thousand Six Hundred Seventy Four and 74/100 Dollars ($3,674.74) constitute “new value” as defined in 11 U.S.C. § 547(a)(2). Moreover, Counsel agreed that the amount in controversy is actually Thirty Nine Thousand Two Hundred Eighteen and [399]*39980/100 Dollars ($39,218.80)1. Also in controversy is an additional Fifty Five Dollars ($55.00) which Plaintiff claims is attributable to services rendered for Debtor on an unrelated matter.

LAW

11 U.S.C. § 547. Preferences

(a) In this section—
(2)“new value” means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation;
(b) Except as provided in subsection (c) of this section, the 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 ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
(c) The trustee may not avoid under this section a transfer—
(1) to the extent that such transfer was—
(A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and
(B) in fact a substantially contemporaneous exchange;
(2) to the extent that such transfer was—
(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee;
(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(C) made according to ordinary business terms;

11 U.S.C. § 550. Liability of transferee of avoided transfer

(a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from—
(1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or
(2) any immediate or mediate transferee of such initial transferee.

DISCUSSION

Proceedings to determine, avoid, or recover preferences are core proceedings under 28 U.S.C. § 157(b)(2)(E). This Court must determine if the Thirty Nine Thousand Two Hundred Eighteen and 80/100 Dollars ($39,-218.80) paid to Defendants by Debtor for [400]

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Related

Preferences
11 U.S.C. § 547(a)(2)
Procedures
28 U.S.C. § 157(b)(2)(E)

Cite This Page — Counsel Stack

Bluebook (online)
161 B.R. 397, 1993 Bankr. LEXIS 1787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vaughan-v-thompson-in-re-bj-packing-inc-ohnb-1993.