Ogier v. Superior Distribution Roofing & Bldg. Materials (In re BLS Gen. Contracting)

• Decision Date: 08 March 2022
• Docket Number: ADVERSARY PROCEEDING 20-06182-LRC,18-66675-LRC
• Court: U.S. Bankruptcy Court — Northern District of Georgia
• Parties: IN THE MATTER OF: BLS GENERAL CONTRACTING, LLC Debtor. v. SUPERIOR DISTRIBUTION ROOFING & BUILDING MATERIALS and/or SRS DISTRIBUTION, INC., Defendant. TAMARA MILES OGIER AS CHAPTER 7 TRUSTEE, Plaintiff,

IN THE MATTER OF: BLS GENERAL CONTRACTING, LLC Debtor.

TAMARA MILES OGIER AS CHAPTER 7 TRUSTEE, Plaintiff,
v.
SUPERIOR DISTRIBUTION ROOFING & BUILDING MATERIALS and/or SRS DISTRIBUTION, INC., Defendant.

No. 18-66675-LRC

ADVERSARY PROCEEDING No. 20-06182-LRC

United States Bankruptcy Court, N.D. Georgia, Atlanta Division

March 8, 2022

IN PROCEEDINGS UNDER CHAPTER 7 OF THE BANKRUPTCY CODE

ORDER

LISA RITCHEY CRAIG U.S. BANKRUPTCY COURT JUDGE

Before the Court is a Motion for Summary Judgment (Doc. 9) (the "Motion") filed by Tamara Miles Ogier in her capacity as the Chapter 7 Trustee (the "Trustee") for the estate of BLS Contracting, LLC ("Debtor"). The Motion arises in connection with a complaint (the "Complaint," Doc. 1) filed on September 28, 2020, by the Trustee to avoid

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and recover a preferential transfer from Superior Distribution Roofing & Building Materials ("SRS"). In considering the Motion, the Court also read and considered SRS's amended answer (Doc. 5), SRS's opposition to the Motion (the "Response," Doc. 10), Trustee's reply to the Response (the "Reply," Doc. 11), SRS's response to the Reply (the "Response to the Reply," Doc. 12), and the amended affidavit of K'Lynn Bechtel (the "Bechtel Affidavit," Doc. 13). The Trustee includes her statement of material facts ("PSMF") in her Motion, and SRS includes its statement of material facts ("DSMF") in its Response.

I. Background

Debtor filed the underlying bankruptcy case (Case No. 18-66675, the "Petition") on October 2, 2018. SRS started doing business with Debtor in April 2017, providing Debtor with various construction goods and services on credit. Bechtel Affidavit at ¶ 4. During the ninety days preceding the filing of the Petition, Debtor transferred a total of $26, 818.25 to SRS (the "Transfers") for goods and services rendered. PSMF and DSMF at ¶ 9. Through the Motion and Complaint, the Trustee contends that the Transfers are avoidable preferences pursuant to 11 U.S.C. § 547(b).^[1]

Citing the affirmative defense of § 547(c)(2), SRS argues that the Transfers were made according to the ordinary course of business dealings between SRS and Debtor. SRS claims that during its relationship with Debtor, SRS accepted late payments from Debtor. Bechtel Affidavit at ¶ 6. Specifically, in the six months leading up to the filing of the

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Petition, SRS says that it received payments that averaged 180 days after Debtor's receipt of goods and, in the ninety days leading up to the Petition, it received payments that averaged 229 days after the receipt of goods. Id. at ¶¶ 8 and 9.

II. Legal Standards

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, made applicable to this adversary proceeding by Rule 7056 of the Federal Rules of Bankruptcy Procedure, a court will grant summary judgment only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c), Fed.R.Bankr.P. 7056. The moving party bears the burden of establishing the right to summary judgment. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Clark v. Union Mut. Life Ins. Co., 692 F.2d 1370, 1372 (11th Cir. 1982). Once the moving party makes a prima facie showing of its right to judgment as a matter of law, the nonmoving party must go beyond the pleadings and demonstrate that a material issue of fact exists precluding summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Where the facts are not disputed, the Court must determine whether the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

At the summary judgment stage of a proceeding, the Court's function is not to determine the truth of the matter by weighing the evidence, but rather to determine if there is a genuine issue for trial. Id. When making this determination,...