Tuesday, October 29, 2013

Preference Actions - Ordinary Course of Business and New Value Defenses

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On February 10, 2010, the Bankruptcy Court for the Southern District of Florida issued its opinion in the case of Deborah C. Menotte, Trustee v. Oxyde Chemicals, Inc., __ B.R. ___, 2010 WL 554900 (Bkrtcy.S.D.Fla.). The case involved a attempt to avoid and recover an alleged preferential transfer and the creditor's alleged a defense of "ordinary course of business" or "new value." The transfer in issue was a check dated within 90 days before the filing for payment of an invoice dated a few months earlier.

Elements of Preference Avoidance

The Court noted that the U.S. Supreme Court has explained that the purpose for the trustee's power to avoid preferences is to "discourage creditors from 'racing to the courthouse to dismember the debtor during bankruptcy,' and to facilitate an equality of distribution among creditors. The Court reviewed that section 547 (b) sets forth five elements to allow an avoidance of a preference.

  1. Payment was to or for the benefit of a creditor
  2. On account of an antecedent debt
  3. Made while the debtor was insolvent
  4. Made within 90 days before the bankruptcy petition date (one year for insider)
  5. Effective in allowing the creditor to receive more than it would have received in a chapter 7 distribution
Ordinary Course of Business Defense

The Court found that the five elements of a preference were met and that the payment could avoided unless one of the exceptions set forth in section 547 (c) applied. The creditor argued that the section 547 (c)(2)(A) "ordinary course of business" exception applied. The elements of this exception are that the (i) debt was incurred in the ordinary course of business or financial affairs of the debtor and creditor and (ii) the payment was made in the ordinary course of business of the debtor and creditor. The trustee argued that this exception did not apply as the payment was made later than payments made during the pre-ninety day period and was made in response to unusual collection activity.

The Court cited the 11th Circuit case of In re Globe Mfg. Corp., 567 F.3d 1291 (11th Cir. 2009) and explained that the "ordinary course inquiry is subjective" and requires the court to consider whether the transfer was ordinary in relation to other business dealings between the creditor and debtor. It further stated that courts consider the following in making this determination:

  • Prior course of dealings between the parties during the pre-preference period - Transactions during the pre-preference are examined to determine the parties' ordinary course of business and then transactions occurring during the preference period are compared to the parties' pre-preference transaction to determine if they were made in a similar manner. Although courts have various mathematical tools available to make these analyses, there is no single formula the court must use and most tend to use the "range of terms that define the transaction, rather than considering only averages." The payment need not be rigidly similar to each past transaction, but need only demonstrate "some consistency with other business transaction."
  • Amount of the payments
  • Timing of the Payments - Untimely payments are more likely to be considered outside the ordinary course of business. The operative date is the date of delivery of the check and not the date the check is issued, but dishonored checks are considered delivered on the date the check is actually honored by the drawee bank.
  • Circumstances surrounding the payments - Otherwise "normal" payments which result from "unusual debt collection or payment practices" are not protected. Marathon Oil Co. v. Flatau (In re Craig Oil Co.), 785 F.2d 1563, 1566 (11th Cir. 1986). In making this determination (as with aging of payments), courts "normally conduct a comparative analysis between the preference and pre-preference periods." The analysis in on a case by case basis and legal action or coercion is not required.

Although the Court found that the payment was within the range of the debtor's ordinary course of late payments, it found that the circumstances surrounding the payment indicated "unusual debt collection" and therefore took it outside of the ordinary course of business. In making this finding, the Court compared the emails between the parties during the preference and pre-preference periods and found that warning of imposition of prepaid credit status/request for next day payment and a placement of a "credit hold"(which triggered the payment herein) were substantively different types of collection activity.

New Value Defense

The Court also rejected the creditor's attempt to use the section 547 (c)(4) "new value" exception as the other credit that was extended was before and not after the challenged preference payment. The section 547 (c)(4) new value defense requires that (1) the creditor extend new value after receiving the challenged payments, 2. the new value must be unsecured, and 3. the new value must remain unpaid.

Prejudgment Interest

The Court found that pursuant to the 11th Circuit's decision in In re Globe Mfg. Corp., courts have the discretion to award prejudgment interest as a matter of federal common law, but that its award must be "equitable." As the Court found that the creditor's ordinary course of business defense was colorable although ultimately unpersuasive and that the creditor did not otherwise delay the proceedings, it declined to exercise its discretion to award prejudgment interest.