Waldschmidt v. Ranier

706 F.2d 171, 8 Collier Bankr. Cas. 2d 644, 1983 U.S. App. LEXIS 28146, 10 Bankr. Ct. Dec. (CRR) 702
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 9, 1983
DocketNos. 81-5779, 81-5801
StatusPublished
Cited by15 cases

This text of 706 F.2d 171 (Waldschmidt v. Ranier) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waldschmidt v. Ranier, 706 F.2d 171, 8 Collier Bankr. Cas. 2d 644, 1983 U.S. App. LEXIS 28146, 10 Bankr. Ct. Dec. (CRR) 702 (6th Cir. 1983).

Opinion

KRUPANSKY, Circuit Judge.

This action joins inquiry into the longstanding judicially evolved application of [172]*172the “net result rule” as the criteria for determining a preferential transfer as defined in 11 U.S.C. § 547 of the Bankruptcy Reform Act of 1978. An involuntary petition in bankruptcy was filed against Fulghum Construction Corporation (Fulg-hum) whereupon the trustee initiated the instant proceeding to, inter alia, avoid as preferential transfers certain monetary transactions which transpired between Fulghum and its sole shareholder, Ranier &. Associates (Ranier), during the one year period immediately preceding the filing of the bankruptcy petition. Both the bankruptcy court and reviewing district court adjudged that application of the net result rule, incorporated into 11 U.S.C. § 547(b)(5) as a judicial gloss, foreclosed a finding that the transfers were preferential. See: In re Fulghum Construction Corp., 7 B.R. 629 (Bankr.M.D.Tenn.1980); In re Fulghum Construction Corp., 14 B.R. 293 (M.D.Tenn. 1981). The operative facts, detailed in the lower courts’ opinions, disclose that approximately 100 transactions occurred between Ranier and Fulghum during the year immediately preceding the filing of the bankruptcy petition. The aggregate amount of the payments by Ranier to Fulghum exceeded the aggregate amount of the payments tendered by Fulgham to Ranier during this period and the value of the estate was accordingly appreciated.

Preferential transfers which may be avoided by the trustee are defined in 11 U.S.C. § 547(b):

(b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of property of the debtor—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owned 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 filing of the petition; or
(B) between 90 days and one year before the date of the filing of the petition, if such creditor, at the time of such transfer—
(i) was an insider; and
(ii) had reasonable cause to believe the debtor was insolvent at the time of such transfer; 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 provision of this title.

As is facially evident from this provision, all five enumerated criteria must be satisfied before a trustee may avoid any transfer of property as a preference. See: In re Bishop, 17 B.R. 180, 181-82 (Bkrtcy.N.D.Ga. 1982). Section 547(b) is proscribed by its own terms to the numerous “defenses” available to creditors which appear in § 547(c) and which, if applicable, preclude the trustee from avoiding the § 547(b) preferential transfer. Particularly, § 547(c)(4) provides:

(c) The trustee may not avoid under this section a transfer—
* * * * * *
(4) to or for the benefit of a creditor, to the extent that, after such transfer,
. such creditor gave new value to or for the benefit of the debtor—
(A) not secured by an otherwise unavoidable security interest; and
(B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor

Section 547(c)(4) is perhaps most accurately characterized as a “subsequent advance rule”. Preferential transfers as defined in § 547(b) may not be avoided by the trustee if “after such transfer, such creditor gave new value”. Id. See: In re Bishop, supra; In re Garland, 19 B.R. 920 (Bkrtcy.E.D.Mo. 1982); In re Rustia, 20 B.R. 131, 135 (Bkrtcy.S.D.N.Y.1982); In re Fabric Buys of Jericho, 22 B.R. 1013, 1016-17 (Bkrtcy.S. [173]*173D.N.Y.1982); In re Hersman, 20 B.R. 569 (Bkrtcy.N.D.Ohio 1982).

In the action sub judice, the district court adjudged, and the parties do not dispute on appeal, that the criteria of § 547(b)(1) through (b)(4) have been satisfied. In addressing the application of § 547(b)(5) to the facts of the case at bar, however, the district court relied upon its equitable powers to justify its application of the net result with the following rationale:

[T]his Court must agree with the Bankruptcy Court that two “net result rules” actually exist in bankruptcy law. One, that of section 547(c)(4) and insisted upon by the trustee, is statutory. The other, that applied by the Bankruptcy Court, is nonstatutory, a judicial gloss upon the requirements of section 547(b).

14 B.R. at 303. Applying the net result rule as a condition implicitly incorporated into § 547(b)(5) and, correspondingly, a threshold requirement to support a preferential transfer, the district court observed that the net effect of all the transactions between the debtor, Fulghum, and the creditor, Ranier, appreciated the value of the estate and, accordingly, the transfers could not be avoided by the trustee as preferences. Upon concluding that no preferential transfers existed it was unnecessary for the district court to identify the defenses available to the creditor under § 547(c).

The net result rule is a judicially created doctrine, predicated upon principles of equity, which evolved shortly after the enactment of the Bankruptcy Act of 1898 to presumably rectify what was judicially perceived to be inequities in bankruptcy law. See: In re Garland, supra, 19 B.R. at 922-25 (artfully documenting development of this doctrine); In re Bishop supra, 17 B.R. at 183-85 (same). As an equitable doctrine its application, of necessity, must “comport to and remain compatible with the prevailing legislative intent”. In re Bell, 700 F.2d 1053, 1057 (6th Cir.1983); United States v. Killoren, 119 F.2d 364, 366 (8th Cir.1941). Logic dictates that judicial interposition of the net result rule into § 547(b)(5) vitiates the congressional intent clearly reflected both on the face of § 547 and in the legislative history of the enactment.

Since the net result rule is “broader” •in scope than the subsequent advance rule of § 547(c)(4), engrafting the former doctrine upon § 547(b)(5) as a threshold requirement for the qualifying preference would render the defense incorporated in § 547(c)(4) impotent.

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Cite This Page — Counsel Stack

Bluebook (online)
706 F.2d 171, 8 Collier Bankr. Cas. 2d 644, 1983 U.S. App. LEXIS 28146, 10 Bankr. Ct. Dec. (CRR) 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waldschmidt-v-ranier-ca6-1983.