Yoppolo v. Fifth Third Bank of NW Ohio (In re Bostic)

171 B.R. 270, 31 Collier Bankr. Cas. 2d 1004, 1994 Bankr. LEXIS 1289
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedJuly 29, 1994
DocketBankruptcy Nos. 93-3159, 93-30140
StatusPublished
Cited by4 cases

This text of 171 B.R. 270 (Yoppolo v. Fifth Third Bank of NW Ohio (In re Bostic)) 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
Yoppolo v. Fifth Third Bank of NW Ohio (In re Bostic), 171 B.R. 270, 31 Collier Bankr. Cas. 2d 1004, 1994 Bankr. LEXIS 1289 (Ohio 1994).

Opinion

MEMORANDUM OPINION AND DECISION

RICHARD L. SPEER, Bankruptcy Judge.

This cause comes before the Court on Plaintiffs Complaint to Avoid Preferential Transfer and Defendants Answer. The parties agreed to submit written arguments and stipulations. The Court has reviewed the written arguments of Counsel, Briefs, all correspondences and exhibits, as well as the entire record in the case. Based on that review and for the following reasons, the Court finds that the transaction between Debtor and Defendant constitutes a preference which may be avoided pursuant to 11 U.S.C. § 547; that Plaintiffs request for statutory interest from May 25, 1993 should be Granted; and that Plaintiffs request for turnover should be Granted.

FACTS

Debtor was an employee of The Fifth Third Bank of Northwestern Ohio, N.A. (hereafter “Defendant”) and a participant in the Fifth Third Bancorp Master Profit Sharing Plan (hereafter “Plan”). The Plan is a qualified trust under 26 U.S.C. § 401(a), subject to the Employee Retirement Income Security Act of 1974 (hereafter “ERISA”). The Plan also contains antialienation language required by ERISA which creates a restriction on the transfer of a beneficial interest of the Debtor in the Plan enforceable under applicable non-bankruptcy law.

Debtor’s interest in the Plan, amounting to Twenty-Two Thousand Two Hundred Forty-Eight and 39/100 Dollars ($22,248.39) was distributed to her by cheek on November 30, 1992. Debtor authorized Defendant to supply her endorsement to the check. Pursuant to Debtor’s instructions, Defendant retained Ten Thousand Four Hundred Forty-five and 74/100 Dollars ($10,445.74) and delivered to Debtor a check for the remaining Eleven Thousand Eight Hundred Two and 65/100 Dollars ($11,802.65). Defendant applied the money received toward Debtor’s antecedent indebtedness. Debtor spent the amount delivered to her on miscellaneous debts.

Debtor concedes that she was insolvent on November 30, 1992. Defendant concedes that as a result of the transfer, it received more than it would have received if this were a case under Chapter 7 of the Bankruptcy Code; the transfer had not been made; and Defendant had received payment of such debt to the extent provided by the Bankruptcy Code.

On January 19,1993, Debtor filed her Petition for relief under Chapter 7. The Trustee (hereafter “Plaintiff’) subsequently filed a Complaint to Avoid Preferential Transfer un[272]*272der 11 U.S.C. § 547(b). The Defendant responded with an Answer and objected to the return of funds. At the Pre-Trial, Counsel agreed to submit all pending issues to the Court by way of Briefs and Stipulations.

LAW

11 U.S.C. § 547

§ 547. Preferences.

(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;
(5) that enabled 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.

11 U.S.C. § 541

§ 541. Property of the Estate

(c)(2) A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title.

11 U.S.C. § 542

§ 542. Turnover of property of the estate,

(a) Except as provided in subsection (c) or (d)of this section, an entity, other then a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debt- or may exempt under section 533 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.

26 U.S.C. § 402

§ 402. Taxability of beneficiary of employees’ trust.

(5) Rollover amounts
(C) Transfer must be made within 60 days of receipt
Subparagraph (A) shall not apply to any transfer of a distribution made after the 60th day following the day on which the employee received the property distributed.

DISCUSSION

I. JURISDICTION AND CORE PROCEEDING.

The issues before this Court include whether Debtor’s transfer of Ten Thousand Two Hundred Pour Hundred Forty-five and 74/100 Dollars ($10,445.74) to Defendant constitutes a preferential transfer under 11 U.S.C. § 547; what amount, if any, must Defendant turnover to Plaintiff; and whether Defendant is required to pay interest on the amount, if any, subject to turnover. Pursuant to 28 U.S.C. §§ 157(b)(2)(E) and 157(b)(2)(F), this case is a core proceeding. This Court has jurisdiction over the parties and subject matter hereto pursuant to 28 U.S.C. § 1334.

II. The TRANSFER Between Plaintiff and Defendant Constitutes a Preference.

A trustee can seek to set aside as a preference, any payment which meets the qualifications of 11 U.S.C. § 547(b). Those qualifications include a payment to a creditor, for an antecedent debt, made while debtor is insolvent, within ninety (90) days before the date of the filing of a petition for bankruptcy, that enables the creditor to receive more than such creditor would receive under a normal Chapter 7 liquidation. 11 U.S.C. § 547(b).

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Cite This Page — Counsel Stack

Bluebook (online)
171 B.R. 270, 31 Collier Bankr. Cas. 2d 1004, 1994 Bankr. LEXIS 1289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yoppolo-v-fifth-third-bank-of-nw-ohio-in-re-bostic-ohnb-1994.