Cox v. Momar Inc. (In re Affiliated Foods Sw. Inc.), 13–1721.

• Decision Date: 10 April 2014
• Docket Number: No. 13–1721.,13–1721.
• Citation: 750 F.3d 714
• Parties: In re AFFILIATED FOODS SOUTHWEST INC., Debtor. Richard L. Cox, Trustee, Appellant v. Momar Incorporated, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

750 F.3d 714

In re AFFILIATED FOODS SOUTHWEST INC., Debtor.

Richard L. Cox, Trustee, Appellant

v.Momar Incorporated, Appellee.

No. 13–1721.

United States Court of Appeals,

Eighth Circuit.

Submitted: Dec. 20, 2013.

Filed: April 10, 2014.

Thomas S. Streetman, Robert B. Gibson, argued, Crossett, AR, for Appellant.

Kimberly Wood Tucker, argued, Little Rock, AR., for Appellee.

Before WOLLMAN, LOKEN, and KELLY, Circuit Judges.

LOKEN, Circuit Judge.

This is an adversary proceeding commenced by Chapter 7 bankruptcy trustee Richard Cox to recover as avoidable preferences two payments that Momar, Inc. received from the debtor, Affiliated Foods Southwest, Inc., during the 90 days prior to Affiliated Foods filing a voluntary Chapter 11 petition (later converted to a Chapter 7 proceeding). At that time, Affiliated Foods was a wholesale food cooperative. Momar was a supplier of cleaning and sanitation products. Momar conceded that the payments were preferential transfers as defined in 11 U.S.C. § 547(b) and asserted affirmative defenses to preference liability, including the exception for transfers made in the ordinary course of business in 11 U.S.C. § 547(c)(2). Momar demanded a jury trial and refused to consent to trial by jury in the bankruptcy court.

Acknowledging Momar's right to a jury trial, the bankruptcy court referred the case to the United States District Court for the Eastern District of Arkansas. See Langenkamp v. Culp, 498 U.S. 42, 45, 111 S.Ct. 330, 112 L.Ed.2d 343 (1990) (“a creditor's right to a jury trial on a bankruptcy trustee's preference claim depends upon whether the creditor has submitted a claim against the estate,” quotation omitted). In the district court, the trustee conceded that one of the two transfers was not an avoidable preference. The parties filed cross-motions for summary judgment on Momar's claim that the second transfer—a payment of $31,470.50 made on April 26, 2009, to satisfy a Momar invoice dated March 31, 2009—fell within the ordinary course of business exception in § 547(c)(2). The trustee appeals the district court's ¹ grant of summary judgment excepting that second transfer. We affirm.

I.

“In general, an avoidable preference is a transfer of the debtor's property, to or for the benefit of a creditor, on account of the debtor's antecedent debt, made less than ninety days before bankruptcy while the debtor is insolvent, that enables the creditor to receive more than it would in a Chapter 7 liquidation. See§ 547(b). If a transfer is avoidable under § 547(b), the creditor may escape preference liability by proving that it falls within one of the exceptions set forth in § 547(c).” In re Jones Truck Lines, Inc., 130 F.3d 323, 326 (8th Cir.1997). This appeal concerns the often-litigated exception in § 547(c)(2) for transfers in the ordinary course of business.

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) significantly amended the ordinary course of business exception in § 547(c)(2). Pub.L. No. 109–8, § 409, 119 Stat. 23, 106 (2005). The prior version required a creditor seeking to avoid preference liability to prove three elements: (i) that the preferential transfer paid a debt incurred in the ordinary course of the debtor's business; (ii) that it was “made in the ordinary course of business ... of the debtor and the transferee”; and (iii) that it was made “according to ordinary business terms.” 11 U.S.C. § 547(c)(2) (2003); see In re U.S.A. Inns of Eureka Springs, Ark., Inc., 9 F.3d 680, 682–84 (8th Cir.1993).

In the BAPCPA amendment, Congress responded to widespread creditor concern that this three-part test was unfair and created needless uncertainty:

Quite often industry standards are extremely difficult to ascertain outside bankruptcy and difficult to prove in the context of preference litigation. Thus, it is more accurate to rely on the relationship between the parties.

In re Nat'l Gas Distribs., LLC, 346 B.R. 394, 401 (Bankr.E.D.N.C.2006), quoting a 1997 Report of the National Bankruptcy Review Commission; see generally Charles J. Tabb, The Brave New World of Bankruptcy Preferences, 13 Am. Bankr.Inst. L.Rev. 425, 440–45 (2005). Amended § 547(c)(2) now provides that a creditor that received a preferential transfer, such as Momar, will avoid preference liability if it proves that:

... such transfer was in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee, and such transfer was—

(A) made in the ordinary course of business or financial affairs of the debtor and the transferee; or

(B) made according to ordinary business terms.

While the preferred creditor must still prove that the debt was incurred in the ordinary course of the debtor's business,² the remainder of the test is now disjunctive. The creditor must prove that the transfer either was made in the “ordinary course of [its] business” with the debtor, or that it was made “according to ordinary business terms.” The preferred creditor “has the burden of proving the nonavoidability of a transfer under subsection (c).” 11 U.S.C. § 547(g).

This is the first case requiring us to apply amended § 547(c)(2). The district court ruled in the alternative that the preferential transfer in question was both “made in the ordinary course” of Momar's business with Affiliated Foods, and was “made according to ordinary business terms.” The parties briefed both issues on appeal. Because Momar must satisfy only one of these requirements under the amended statute, our conclusion that the transfer was “made in the ordinary course of business” within the meaning of § 547(c)(2)(A) means that we need not address the “ordinary business terms” standard in amended § 547(c)(2)(B).

II.

The facts regarding the course of dealings between Momar and Affiliated Foods are undisputed. Momar supplied cleaning and sanitation products on an as-needed basis, sending products and invoices to Affiliated Foods every three to four months. The bankruptcy petition was filed May 5, 2009. The following is a list of all transactions between the parties in the two years prior to that filing:

Invoice/

Period

Ship Date

Payment Date

Payment Amount

Days Elapsed

Pre–Preference

1/22/07

2/26/07

$16,840.20

35 days

4/23/07

5/7/07

$23,872.10

13 days

7/31/07

8/20/07

$24,667.80

20 days

10/31/07

12/17/07

$22,399.10

47 days

1/31/08

3/7/08

$34,450.09

35 days

5/29/08

7/15/08

$26,631.20

47 days

8/28/08

10/17/09

$29,089.00

49 days

Preference

12/31/08

2/16/09

$34,661.80

47 days

3/31/09

4/26/09

$31,470.50

26 days

In concluding that the last payment, the preferential transfer at issue, was made in the ordinary course of Momar's on-going business with Affiliated Foods, the district court noted that these nine payments were made between 13 and 49 days after the invoice date; that the seven pre-preference payments were made, on average, 35 days after the invoice date; that the four payments made in the year prior to bankruptcy were made, on average, 42 days after the invoice; and that the two pre-preference transfers during that year were made, on average, 48 days after the invoice. The transfer at issue was made 26 days after the invoice, well within this overall range. Based on this data, and the absence of evidence of “unusual collection activity,” the district court concluded that Momar “demonstrated the requirements of 11 U.S.C. § 547(c)(2)(A) by a preponderance of the evidence [and] is entitled to summary judgment in its favor as to this transaction.”

A. Our initial concern with this ruling is that Momar never withdrew its demand for a jury trial, § 547(c)(2)(A) requires “a peculiarly factual analysis,” and the district court in granting summary judgment applied a “preponderance of the evidence” standard that is appropriate after trial but not for the grant of summary judgment. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment may be granted “if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law”); Fed.R.Civ.P. 56(a). However, on appeal, the trustee does not argue that the court committed Rule 56 error. Instead, the Standard of Review section of the trustee's Brief states that we should review the district court's determination of “whether the payment to Momar was made in the ordinary course of business of the parties ... under the clearly erroneous standard,” the standard we applied in reviewing § 547(c)(2)post-trial rulings in case such as Lovett v. St. Johnsbury Trucking, 931 F.2d 494, 500 (8th Cir.1991).

We are unwilling to increase the parties' litigation expense on account of a procedural issue neither has raised. The § 547(c)(2)(A) issue has been resolved at the summary judgment stage in prior cases, and here the parties could have avoided this Rule 56 problem by submitting that issue to the district court on stipulated facts, rather than on cross motions for summary judgment. Cf. Nielsen v. Western Elec. Co., 603 F.2d 741, 743 (8th Cir.1979). Therefore, like the district court, we will decide the issue using post-trial standards. But we caution district courts and parties in future preferential transfer cases that the Seventh Amendment right to jury trial must be respected and therefore, unless a proper demand for jury trial has been waived, the normal rules limiting the grant of summary judgment apply. See In re Healthcentral.com, 504 F.3d 775, 790–91 (9th Cir.2007).

B. Turning to the merits, “[t]here is no precise legal test” to determine whether a preferential transfer was made in the ordinary course of business between the debtor and the creditor; “rather, the court must engage in a peculiarly factual analysis.” Lovett, 931 F.2d at 497 (quotations omitted). As we explained in Lovett, and as the plain meaning of the statute suggests, “the cornerstone” of the inquiry is that the creditor must demonstrate “some consistency with other business transactions between the...