Wallach v. Vulcan Steam Forging (In re D.J. Management Group)

161 B.R. 5, 1993 Bankr. LEXIS 1780
CourtDistrict Court, D. New York
DecidedOctober 20, 1993
DocketBankruptcy No. 90-11724 K; Adv. No. 93-1069 K
StatusPublished
Cited by12 cases

This text of 161 B.R. 5 (Wallach v. Vulcan Steam Forging (In re D.J. Management Group)) is published on Counsel Stack Legal Research, covering District Court, D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wallach v. Vulcan Steam Forging (In re D.J. Management Group), 161 B.R. 5, 1993 Bankr. LEXIS 1780 (nyd 1993).

Opinion

MICHAEL J. KAPLAN, Chief Judge.

This is a “core” proceeding (28 U.S.C. § 157) in which the Bankruptcy Trustee seeks to avoid, as 11 U.S.C. § 547(b) “preferences,” payments that were made to the defendant totalling $5,910.63 within 90 days before the Debtor filed its Chapter 11 Petition on June 8, 1990.

[6]*6The defendant does not dispute that preferential payments were made, but raises a number of arguments as affirmative defenses to the Trustee’s claims. The Court finds that a preferred creditor is not entitled to an offset for (1) unpaid credit extended to the Debtor-in-Possession, (2) “new value” that was fully paid, even though the payment was an unauthorized post-petition transfer, recovery of which is time-barred under 11 U.S.C. § 549(d).

The defendant first argues that it is entitled to a credit for $5,425.96 for unpaid invoices for goods shipped to the Debtor on credit after the filing of the Chapter 11 petition and which currently remain unpaid. The defendant argues that this amount should be credited as “new value” under the 11 U.S.C. § 547(c)(4) defense,1 because sound bankruptcy policy in that way encourages such extension of credit to a Debtor-in-Possession. This Court is persuaded by the reasoning of the Court in In re Bellanca Aircraft Corp., 850 F.2d 1275 (8th Cir.1988) that other policies militate to the contrary. The policy of encouraging the extension of credit to a D-I-P is not served if the effect is to give a preferred creditor an offset for unpaid post-petition credit extended; such an offset, if allowed, might be occurring at the expense of others who gave post-petition credit to the Debtor, but who were not recipients of pre-petition preferential transfers.

To take an oversimplified example, assume that C was preferred by D to the extent of $10,000. Assume that after the filing of the petition, C delivers $4,000 of goods on credit, but X (a different creditor who may or may not have done business with the debtor prior to the filing of the petition, but who, in any event, received no preferential transfers) delivers $20,000 of goods on credit to the debt- or-in-possession. By the defendant’s theory, only $6,000 (recovery of the $10,000, less a $4,000 offset) should be available to pay X’s $20,000 claim. (If there are no administrative expenses, X would receive the $6,000.) By the Trustee’s theory, he should be able to recover the $10,000 from C and that $10,000 should be available to pay the aggregate $24,000 claims of both creditors. X then would receive more than $8,000, not a mere $6,000.

At the time that credit is extended to a DI-P, it cannot necessarily be known whether all administrative expenses will be paid. Thus defendant’s theory, which would reduce the preferred creditor’s exposure to the preference attack, at the expense of the non-preferred administrative claimant is not a sound policy result.

But more to the point, the defendant’s result is not sustained by the language of the statute. As explained by the Bellanca Court, the “new value” exception contained in 11 U.S.C. § 547(c)(4) grants a credit only when a preferred creditor thereafter gave new credit to or for the benefit of “the debtor” as opposed to “the estate.” The phrase “the debtor” is systematically used throughout the Bankruptcy Code to connote an entity different from “the estate,” “the Trustee,” or “the debtor-in-possession.” If Congress had intended to recognize a “new value” exception for credit extended to the “estate” or to the “trustee,” it would not have used the word “debtor.” Furthermore, as noted by the Court in Bellanca and in In re Jed Florida System, Inc., 59 B.R. 886 (Bankr.S.D.Fla.1986), the extension of credit in the ordinary course of business to the operating post-petition entity is governed by 11 U.S.C. § 364(a). That statute clearly states that such credit is allowable as an administrative expense under 11 U.S.C. § 503(b)(1). Such treatment would not accord C (in the above hypothetical) a status greater than X’s. Thus, neither section 547(c)(4) nor section 364(a) support the defendant’s theory. The administrative expense claim which the defendant possesses does not earn it a dollar-for-dollar section 547(c)(4) defense against any voidable preference it received.

Next the defendant argues for offset of $5,511 worth of goods delivered to the Debtor on credit after the preferential payments but before the filing of the petition. [7]*7This is argued as an alternative “new value” defense. It would be clear that the defendant would be entitled to such offset under section 547(e)(4) had that credit remained unpaid, but in fact the Debtor-in-Possession paid those invoices a month after the filing of the Chapter 11 Petition (in violation of 11 U.S.C. § 549). The two-year statute of limitations contained in 11 U.S.C. § 549(d) had lapsed before those unauthorized post-petition payments were discovered; hence, the Trustee cannot affirmatively sue to recover the post-petition payments which satisfied those pre-petition invoices. The defendant argues that it is entitled to the “new value” credit even under these circumstances because (1) certain eases “recognize” a credit for “new value” in the form of the extension of credit even if that credit is later repaid, and (2) to deny the credit because of the post-petition payment would be to permit the Trustee to assert indirectly a section 549 cause of action that he is time-barred from directly asserting.

The cases cited by the defendant (for the proposition that new credit extended after the receipt of a preferential payment need not remain unpaid in order to constitute “new value”) do not, in fact, stand for the asserted proposition.

These cases2 illuminate the application of the so-called “subsequent advance rule.” They do not say that fully-paid new credit is “new value” for purposes of section 547(c)(4). They say that fully-paid new credit is to be included toward the “new credit” element of a “subsequent advance” analysis.

In a “subsequent advance” analysis of a section 547(c)(4) defense one seeks to determine the extent to which the estate was “enriched,” replenished with “money or money’s worth in goods, services, or new credit”3 by one or more exchanges between the Debt- or and the preferred creditor after the challenged transfer.

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Bluebook (online)
161 B.R. 5, 1993 Bankr. LEXIS 1780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallach-v-vulcan-steam-forging-in-re-dj-management-group-nyd-1993.