In re Bowen, Bankruptcy No. 1-79-01434
Decision Date | 24 April 1980 |
Docket Number | Adversary Proceeding No. 1-79-0019.,Bankruptcy No. 1-79-01434 |
Citation | 3 BR 617 |
Parties | In re William Orville BOWEN, Sarah Williams Bowen, Debtors. Flossie WEILL, Trustee, Plaintiff, v. SOUTHERN CREDIT UNION, Defendant. |
Court | U.S. Bankruptcy Court — Eastern District of Tennessee |
Kyle R. Weems, Chattanooga, Tenn., for plaintiff/trustee.
David W. Norton, Chattanooga, Tenn., for defendant.
This cause came on to be heard in open court on January 22, 1980, upon the complaint of plaintiff against defendant under 11 U.S.C. § 547 and the answer of defendant. The court heard proof and considered exhibits filed in this adversary proceeding, as well as claims filed in the bankruptcy case by defendant credit union.
In October of 1978, the debtors executed two notes to the defendant. The notes provided for repayment in monthly installments beginning on November 16, 1978.
On October 11, 1979, the debtors filed a petition in bankruptcy. They had been making regular installment payments to the defendant for almost a year. Regular monthly installment payments, totaling $983.82, were made by payroll deductions within 90 days before the debtors filed their petition.
From the proof and the entire record the court finds all five elements of a preferential transfer. The transfer may be avoided unless it is one of the types excepted by § 547(c).
Southern Credit Union contends the payment is within the exception specified by § 547(c)(2), which provides:
Collier on Bankruptcy 15th ed., Para. 547.38, states that payment of a debt in the ordinary course of business within forty-five (45) days after it was incurred will not effect a preference. The legislative history, particularly House Report No. 95-595, U.S. Code Cong. & Admin.News 1978, p. 5787, is in accord. The key word is when a debt is "incurred".
The exception of § 547(c)(2) is discussed by Richard B. Levin in An Introduction to the Trustee's Avoiding Powers, 53 Am. Bankr.L.J. 173, 187 (1979). The comment is particularly significant since Mr. Levin was on the House Judiciary Committee staff that drafted the Code.
Mr. Levin discusses the intent of the second exception (§ 547(c)(2)) which was relied upon by defendant. At page 186, Mr. Levin says:
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