Johnson Bros. Truckers Inc. v. Butner , 9 F. App'x 156 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: JOHNSON BROTHERS TRUCKERS 
INCORPORATED,
Debtor.
P. WAYNE SIGMON, Trustee in
Bankruptcy for Johnson Brothers
Truckers, Incorporated,
Plaintiff-Appellee,
v.  No. 99-1625
TERESA G. BUTNER,
Defendant-Appellant,
and
WILLIAM E. BUTNER; AMTRUC,
INCORPORATED; OLD WEST TRADING
COMPANY,
Defendants.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Vorhees, District Judge.
(CA-97-14-5-V, BK-92-50554, AP-94-5237)
Argued: January 25, 2000
Decided: May 15, 2001
Before MOTZ and KING, Circuit Judges, and
John T. COPENHAVER, Jr., United States District Judge for the
Southern District of West Virginia, sitting by designation.
2 IN RE: JOHNSON BROTHERS TRUCKERS
Affirmed by unpublished opinion. Judge Copenhaver wrote the opin-
ion, in which Judge Motz and Judge King joined.
COUNSEL
ARGUED: J. Steven Brackett, J. STEVEN BRACKETT LAW
OFFICE, Hickory, North Carolina, for Appellant. John W. Taylor,
MITCHELL, RALLINGS, SIGNER, MCGIRT & TISSUE, P.L.L.C.,
Charlotte, North Carolina, for Appellee. ON BRIEF: David C.
Pishko, William E. Butner, H. Kent Crows, ELLIOT, PISHKO, GEL-
BIN & MORGAN, P.A., Winston-Salem, North Carolina, for Appel-
lant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
COPENHAVER, District Judge:
This is an appeal from an order entered March 25, 1999, by the
United States District Court for the Western District of North Caro-
lina, affirming the bankruptcy court and dismissing the appeal of
Teresa Butner taken from the bankruptcy court’s order entered on
December 31, 1996, in an adversary proceeding filed against her by
the trustee in bankruptcy for the debtor, Johnson Brothers Truckers,
Inc.
Ms. Butner appeals from the district court’s affirmance of the order
of the bankruptcy court awarding judgment against her in the amount
of $302,500. The judgment consists of three components:
$100,000 in preferential transfers received by Ms. Butner,
an insider, on an antecedent debt during the year prior to the
IN RE: JOHNSON BROTHERS TRUCKERS 3
filing by the debtor of its Chapter 11 petition on August 18,
1992. (11 U.S.C. § 547)
$95,500 in fraudulent transfers received by Ms. Butner dur-
ing that same year prior to bankruptcy. (11 U.S.C. § 548)
$107,000 in post-petition transfers received by Ms. Butner
from the time of the filing of the Chapter 11 petition until
its conversion to Chapter 7 liquidation on May 25, 1993. (11
U.S.C. § 549)
The district court concluded that the bankruptcy court appropriately
found that Ms. Butner had failed to meet the burden of proving her
affirmative defense that the transfers were in the ordinary course of
business as to both the $100,000 preference and the $107,000 in post-
petition transfers and that the bankruptcy court properly found that
reasonably equivalent value had not been given for any of the $95,500
in fraudulent transfers. We affirm.
I.
The debtor, Johnson Brothers Truckers, Inc., was engaged in long
haul trucking, primarily transporting furniture along the eastern sea-
board from its terminals located in North Carolina and New Jersey.
Teresa Butner claims that she provided short and long-term financ-
ing to the debtor to enable it to continue its operations. Her husband,
William E. Butner, served as attorney for the debtor and, until just
prior to the debtor’s first venture into Chapter 11 in 1978, held a 50%
ownership interest in the debtor. After relinquishing his ownership
interest, Mr. Butner continued to remain directly involved in the oper-
ations of the company until May 25, 1993, the date on which the debt-
or’s bankruptcy case was converted to Chapter 7. Throughout that
period, Mr. Butner and the debtor’s president, Gerald Johnson, con-
trolled the debtor’s operations along with several alter egos.
Ms. Butner paid $100,000 to Granite Bank on August 26, 1991, in
order to satisfy partially a loan by Granite Bank of $548,769 to the
debtor, Johnson Brothers Truckers, Inc., William E. Butner and Ger-
4 IN RE: JOHNSON BROTHERS TRUCKERS
ald Johnson. The proceeds of the Granite Bank loan were used to
cover the loss to banks that were victims of a check kiting scheme
engaged in by the debtor along with Amtruc Incorporated, whose sole
shareholder was Mr. Butner, and G&G Trucking. The $100,000 paid
by Ms. Butner to Granite Bank was set up on the debtor’s books as
a long-term obligation of the debtor due and owing to her as of Sep-
tember 3, 1991.
In addition, short-term financing is claimed to have been provided
to the debtor by Ms. Butner pursuant to an alleged lease/purchase
agreement between the debtor and her. In particular, in order to pro-
vide the debtor with working capital, Ms. Butner claims that she
would purchase trailers from the debtor both in her individual capac-
ity and in her capacity as President and sole shareholder of Old West
Trading Company, and then lease them back to the debtor at the rate
of $250 per trailer per month. The alleged lease/purchase agreement
between the debtor and Ms. Butner was unwritten and informal. The
debtor did not transfer the certificates of title to its trailers to Ms. But-
ner when she is said to have purchased them. Instead, according to
Ms. Butner, the certificates of title were held by her husband until the
lease payments were made in full. No payment by Ms. Butner for the
trailers supposedly purchased by her from the debtor is shown.
Ms. Butner acknowledges that she received all of the payments
aggregating $302,500. Those funds were deposited by her husband
into a "trust account" maintained by him. It was through that same
account that Ms. Butner allegedly paid for trailers purchased from the
debtor. She and Mr. Butner have refused to allow the trust account
records, except for certain checks selected by them, to be examined
by anyone other than their own accountants.
By order entered on February 9, 1996, the bankruptcy court granted
partial summary judgment in favor of the trustee as to the elements
of each of his claims but ruled that a question of fact remained as to
whether Ms. Butner could show the existence of indebtedness owing
by the debtor to her at any given time and prove the affirmative
defense of ordinary course of business. After a three-day trial in Octo-
ber, 1996, the bankruptcy court found that she had not done so. Judg-
ment was entered in favor of the trustee and against Ms. Butner in the
amount of $302,500.
IN RE: JOHNSON BROTHERS TRUCKERS 5
We review the judgment of the district court sitting in review of a
bankruptcy court de novo, applying the same standards of review
applied in the district court. In re Wilson, 149 F.3d 249, 251-52 (4th
Cir. 1998). The bankruptcy court’s findings of fact will not be set
aside unless clearly erroneous. Bankr. R. 8013; In re Johnson, 960
F.2d 396, 399 (4th Cir. 1992). This standard also applies to a bank-
ruptcy court’s determination that a party has failed to satisfy its bur-
den of proof. Bartmess v. Federal Crop Ins. Corp., 845 F.2d 1258,
1261 (5th Cir. 1988). Under the clearly erroneous standard of review,
"findings of fact will be affirmed unless [the appellate court’s] review
of the entire record leaves [it] with the definite and firm conviction
that a mistake has been committed." Harman v. Levin, 772 F.2d 1150,
1153 (4th Cir. 1985). Our review of the bankruptcy court’s applica-
tion of the law is de novo. In re Johnson, 960 F.2d at 399.
II.
Generally, when an insolvent debtor makes a payment to an unse-
cured creditor within 90 days before a bankruptcy petition is filed,
that payment constitutes a "preference" under 11 U.S.C. § 547(b) that
may be recovered by the trustee, thereby forcing that creditor to stand
in line with the rest of the debtor’s unsecured creditors.1 Advo-System,
1
Section 547(b) provides that:
(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; or
(B) between ninety days and one year before the date of
the filing of the petition, if such creditor at the time
of such transfer was an insider; and
6 IN RE: JOHNSON BROTHERS TRUCKERS
Inc. v. Maxway Corp., 37 F.3d 1044, 1045 (4th Cir. 1994). This
period is extended for payments made to insiders up to one year prior
to the filing of the bankruptcy petition. See 11 U.S.C. § 547(b)(4)(B).
The bankruptcy court concluded that Ms. Butner was an "insider" for
purposes of § 547 by virtue of her relationship to William Butner
who, following an extensive evidentiary hearing tracking the entire
history of Mr. Butner’s relationship with the debtor, was found by the
bankruptcy court to be an "insider" of the debtor. Ms. Butner does not
appeal the bankruptcy court’s decision in this regard.
We have recognized that two major policies drive § 547(b):
First, the avoidance power promotes the "prime bankruptcy
policy of equality of distribution among creditors" by ensur-
ing that all creditors of the same class will receive the same
pro rata share of the debtor’s estate. Second, the avoidance
power discourages creditors from attempting to outmaneu-
ver each other in an effort to carve up a financially unstable
debtor and offers a concurrent opportunity for the debtor to
work out its financial difficulties in an atmosphere condu-
cive to cooperation.
Advo, 37 F.3d at 1047 (citing Morrison v. Champion Credit Corp. (In
re Barefoot), 952 F.2d 795, 797-98 (4th Cir. 1991)).
A. The $100,000 Preference
Ms. Butner claims that $100,000 of the payments made by the
debtor to her within one year prior to the filing of the bankruptcy peti-
(5) that enables 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. § 547(b).
IN RE: JOHNSON BROTHERS TRUCKERS 7
tion are not avoidable because they constituted repayment of a
$100,000 loan and are protected by the ordinary course of business
exception of § 547(c)(2).2
Section 547(c) provides the unsecured creditor several shields with
which it can defend against the trustee’s avoidance power. Advo, 37
F.3d at 1045. One such shield, found in § 547(c)(2), is known as the
"ordinary course of business" exception which applies when the credi-
tor can establish that: (1) the underlying debt on which payment was
made was "incurred by the debtor in the ordinary course of business
or financial affairs" of the debtor and creditor; (2) the transfer was
"made in the ordinary course of business or financial affairs" of the
debtor and creditor; and (3) the transfer was made "according to ordi-
nary business terms." In re Jeffrey Bigelow Design Group, Inc., 956
F.2d 479, 486 (4th Cir. 1992) (citing 11 U.S.C. § 547(c)(2)).
The "ordinary course of business" exception operates as an affirma-
tive defense. The recipient of such a payment has the burden of prov-
ing by a preponderance of the evidence that each payment falls within
§ 547(c)(2). See 11 U.S.C. § 547(g); Advo, 37 F.3d at 1047; see also
A.W. & Assoc., Inc. v. Florida Mining and Materials, 136 F.3d 1439,
1441 (11th Cir. 1998); Logan v. Basic Distribution Corp., 957 F.2d
239, 242 (6th Cir. 1992).
The Bankruptcy Code fails to define either "ordinary course of
business" or "according to ordinary business terms." The legislative
history states simply that the "purpose of [the ordinary course of busi-
ness] exception is to leave undisturbed normal financial relations,
2
(c) The trustee may not avoid under this section a transfer —
***
(2) to the extent that such transfer was —
(A) in payment of a debt incurred by the debtor in the ordi-
nary course of business or financial affairs of the debtor and the
transferee;
(B) made in the ordinary course of business or financial
affairs of the debtor and the transferree; and
(C) made according to ordinary business terms.
8 IN RE: JOHNSON BROTHERS TRUCKERS
because [this exception] does not detract from the general policy of
the preference section to discourage unusual action by either the
debtor or his creditors during the debtor’s slide into bankruptcy." S.
Rep. No. 989, 95th Cong., 2d Sess. 88 (1978), reprinted in 1978
U.S.C.C.A.N. 5787, 5874. Thus, "those courts testing a transfer for
‘ordinariness’ under section 547(c)(2) have generally focused on the
prior conduct of the parties, the common industry practice, and, par-
ticularly, whether payment resulted from any unusual action by either
the debtor or creditor." In re Jeffrey Bigelow, 956 F.2d at 486 (citing
4 Collier on Bankruptcy ¶ 547.10 (15th ed. 1990)).
In order to ascertain whether or not a transfer was made in the ordi-
nary course of business, the court must "engage in a ‘peculiarly fac-
tual’ analysis." Id. at 486 (quoting In re First Software Corp., 81 B.R.
211, 213 (Bankr. D. Mass. 1988)); In re Fulghum Const. Corp., 872
F.2d at 743. The "focus of [the] court’s inquiry must be directed to
an analysis of the business practices which were unique to the particu-
lar parties under consideration." In re Jeffrey Bigelow, 956 F.2d at
486. In conducting its inquiry, the court’s "[a]ttention should be
drawn to the reality of the situation and not the formal structure." Id.
at 488.
In addition, the court must ascertain whether a preferential payment
was made in accordance with ordinary business terms. We have rec-
ognized that "[a] payment is made according to ordinary business
terms if the payment’s terms are not unusual when compared with the
prevailing standards in the creditor’s industry." Advo, 37 F.3d at
1048. In other words, "the benchmark for ordinariness is the norm in
the creditor’s industry." Id.The bankruptcy court found that Ms. Butner failed to sustain her
affirmative defense that the preferential transfers met the ordinary
course of business requirements of § 547(c)(2). The $100,000 debt set
up on the debtor’s books as a long-term obligation as of September
3, 1991, may for our purpose be assumed to have been incurred in the
ordinary course of business. That is by no means clear. The debt to
Granite Bank on which the $100,000 payment was made by Ms. But-
ner was owing not only by the debtor but also by Mr. Butner who
himself paid $100,000 thereon, as did Gerald Johnson. The obligation
IN RE: JOHNSON BROTHERS TRUCKERS 9
to Ms. Butner could just as well be regarded as one owing to her by
Mr. Butner and Mr. Johnson.
In any event, the payments thereon have not been shown either to
have been made in the ordinary course of business of the debtor and
Ms. Butner or according to ordinary business terms. It is first
observed that no terms were specified. The $100,000 "long-term" debt
is not evidenced by a promissory note or any memorandum. The
interest rate it was to bear is unstated. The terms for its repayment,
including the time and amount of repayment and whether by a single
payment or installments, is not stated. Ms. Butner has failed to meet
her burden of showing that payments thereon were made according
to ordinary business terms.
The payments which Ms. Butner claims were made on the
$100,000 loan are within a group of 65 checks, drawn on the debtor,
transferring sums to Ms. Butner over an 11-month period from Sep-
tember 6, 1991, to the filing of the Chapter 11 case on August 18,
1992, aggregating $195,500.
The $95,500 portion of that sum is said by Ms. Butner to have been
paid to her by the debtor as lease/purchase payments on trailers which
she claims to have bought from and then leased back to the debtor but
for which there is no underlying documentary or record evidence.
Those payments continued while the Chapter 11 case was pending for
some nine months down to the conversion to Chapter 7 on May 25,
1993, by which time 42 post-petition payments aggregating $107,000
had also been made. Inasmuch as the payments on the alleged
$100,000 debt and the lease/purchase trailers are bound together, the
circumstances surrounding both are pertinent to a consideration of
issues relating to each.
The $195,500 in payments are each made for an unidentified pur-
pose. The "memo" line of each check is blank without any description
of why it was written. The 65 payments lack regularity. They range
from $1,500 to $7,500 and they are made sometimes twice a day,
sometimes once a week and on two occasions after the lapse of two
or three weeks. Just over half, $98,500, came in a concentrated period
of 29 days from November 26 to December 24, 1991. The last pay-
ment was some seven months prior to bankruptcy and would thus
10 IN RE: JOHNSON BROTHERS TRUCKERS
escape the usual ninety-day preference period, a time that is extended
to one year if the recepient is found to be an insider. The payments
are invariably in multiples of $500, although the "lease/purchase
agreement" is said to have required a $250 monthly payment per
trailer and, accordingly, would be expected to produce some pay-
ments ending in $250 or $750 denominations. Throughout the 11-
month period down to the Chapter 11 filing, the debtor seems to have
contemplated a bankruptcy proceeding inasmuch as its attorney
signed the necessary petition, prepared by Mr. Butner, under date of
July 29, 1991, which date was crossed through and revised on two
occasions by the time the Chapter 11 petition was filed on August 18,
1992.
The payment of $98,500 to Ms. Butner during a one-month period
at the end of 1991 constituted unusual action on the part of the debtor
that enabled Ms. Butner rather quickly to recover from the debtor the
entirety of her $100,000 payment to Granite Bank that she had made
for the benefit of her husband as well as the debtor and Gerald John-
son. It came at a time when the debtor’s bankruptcy was contem-
plated. In view of the insider role that Mr. Butner played in the affairs
of the debtor, he was in a position to cause the debtor’s checks to be
issued to Ms. Butner and then deposit them in the trust account which
he maintained. Under those circumstances it became particularly
incumbent upon Ms. Butner to come forward with evidence to carry
the burden of establishing the affirmative defense of ordinary course
of business. Instead of doing so, the Butners refused to allow the
trustee in bankruptcy to examine the records of the trust account. Ms.
Butner has thus failed, as the bankruptcy court found, to carry the bur-
den of proving that repayment of the $100,000 was made in the ordi-
nary course of the business of the debtor and that of Ms. Butner. The
bankruptcy court’s finding is not clearly erroneous.
B. The $107,000 Post-Petition Payments
Section 549 of the Bankruptcy Code provides, in pertinent part,
that:
(a) [T]he trustee may avoid a transfer of property of the
estate —
IN RE: JOHNSON BROTHERS TRUCKERS 11
(1) that occurs after the commencement of the
case; and
***
(2)(B) that is not authorized under this title or by
the court.
11 U.S.C. § 549(a). According to Ms. Butner, $107,000 of post-
petition transfers here, though not authorized by the bankruptcy court,
were payments made in the ordinary course of the debtor’s business
and are authorized by both 11 U.S.C. § 364(a) and 11 U.S.C.
§ 363(c)(1).
Section 364(a) of the Bankruptcy Code provides that the debtor-in-
possession "may obtain unsecured credit and incur unsecured debt in
the ordinary course of business. . . ." 11 U.S.C. § 364(a). Section
363(c)(1) states that the debtor-in-possession "may enter into transac-
tions, including the sale or lease of property of the estate, in the ordi-
nary course of business, without notice or a hearing. . . ." Id. at
§ 363(c)(1). The burden is on the recipient to prove that post-petition
transfers occurred in the ordinary course of business.3 See F.R.B.P.
Rule 6001 (one "asserting the validity of a transfer under § 549 shall
have the burden of proof."); see also Springfield Contracting Corp.
v. Huennekens, 154 B.R. 214 (Bankr. E.D. Va. 1993). It is from these
two provisions that Ms. Butner contends that the post-petition pay-
ments made to her pursuant to the alleged lease/purchase agreement
were authorized by the Bankruptcy Code and therefore not avoidable
by the trustee.
3
Under § 364(b), if the transaction is not in the ordinary course of busi-
ness, "[t]he court, after notice and hearing, may authorize the [debtor-in-
possession] to obtain unsecured credit or to incur unsecured debt." The
bankruptcy court found, in granting partial summary judgment, that the
alleged lease/purchase transactions were financing transactions intended
as secured rather than unsecured financing such that authorization by the
bankruptcy court was required under § 364(b). No court approval having
been obtained, the bankruptcy court held at the summary judgment stage
that the post-petition transfers were voidable under § 549, absent estab-
lishment by the Butners of an affirmative defense.
12 IN RE: JOHNSON BROTHERS TRUCKERS
Other than the self-serving statements of appellant and her hus-
band, however, there is no evidence in the record that shows that Ms.
Butner purchased trailers from the debtor. While Gerald Johnson, the
debtor’s president, testified that the debtor leased trailers from Old
West Trading Company for about a year ending in 1992, he does not
state that Ms. Butner actually purchased any trailers from the debtor.
At best, Johnson stated at trial that "he [Mr. Butner] would purchase
some trailers and lease them to us and then turn around and then sell
them." Moreover, the financial records offered at trial, through the
testimony of the debtor’s accountant, Edward Bowers, do not reflect
any accounting entries which support Ms. Butner’s contention that
she purchased trailers from the debtor. According to Mr. Bowers, the
only entry reflecting any payment made by Ms. Butner was the one-
time $100,000 entry on the debtor’s books in the long-term obligation
account as of September 3, 1991. The only other entries in that
account reflect the $302,500 in payments made to her. There is sim-
ply no evidence that demonstrates that Ms. Butner made any payment
to the debtor to purchase its trailers or that she ever acquired title
thereto. The bankruptcy court aptly found that Ms. Butner failed to
show that the post-petition transfers aggregating $107,000 were
undertaken in the ordinary course of business. Indeed, the records of
the debtor and those made available by Ms. Butner do not reflect any
consideration as having been given by her for the post-petition trans-
fers. Accordingly, the court is unable to find with a "definite and firm
conviction that a mistake [was] committed" by the bankruptcy court
when it found an absence of credible evidence to support the validity
of the $107,000 in post-petition transfers to Ms. Butner. See Harman,
772 F.2d at 1153.
C. The $95,500 Pre-Petition Fraudulent Transfers
As noted, Ms. Butner also received pre-petition payments from the
debtor totaling $95,500 during the 11-month period prior to the Chap-
ter 11 filing. The bankruptcy court found those payments to be avoid-
able as fraudulent conveyances pursuant to 11 U.S.C. § 548(a).
Section 548(a) of the Bankruptcy Code provides, in pertinent part,
that:
(a) The trustee may avoid any transfer of an interest of the
debtor in property, or any obligation incurred by the
IN RE: JOHNSON BROTHERS TRUCKERS 13
debtor, that was made or incurred on or within one
year before the date of the filing of the petition, if the
debtor voluntarily or involuntarily —
***
(2)(A) received less than a reasonably equivalent
value in exchange for such transfer or
obligation; and
(B)(i) was insolvent on the date that such trans-
fer was made. . . .
11 U.S.C. § 548(a).
The bankruptcy court found, and Ms. Butner does not dispute, that
the debtor was insolvent during the period one year prior to the bank-
ruptcy. The issue, then, is whether reasonably equivalent value was
given in exchange for the $95,500 in payments. This court, in In Re
Jeffrey Bigelow, recognized that reasonably equivalent value is not
susceptible to simple formulation. 956 F.2d at 484. "As long as the
unsecured creditors are not worse off because the debtor, and conse-
quently the estate, has received an amount reasonably equivalent to
what it paid, no fraudulent transfer has occurred." Id.
Ms. Butner contends that the bankruptcy court erred in finding that
the debtor did not receive reasonably equivalent value for these trans-
fers. In support of this contention, she directs us to the testimony of
the debtor’s accountant, Edward Bowers, who testified at trial that the
debtor’s books reflected that at the time of the conversion to Chapter
7 the debtor owed Ms. Butner $218,254.23, and that she owed noth-
ing to the debtor. The only other evidence in the record on that point
is the self-serving testimony of Ms. Butner to that same effect.4
4
William J. Lawing, an accountant hired by Mr. Butner to audit his cli-
ent trust accounts, testified at trial that his audit revealed that Ms. Butner
deposited $1,176,306.93 into her husband’s trust account and that
$506,371.45 of checks were written out of that account to her. Lawing’s
testimony is of little, if any, relevancy on the issue of whether Ms. But-
ner contributed more to the debtor than she received. It is again noted
that the records of the trust account have been withheld from the trustee
in bankrutpcy.
14 IN RE: JOHNSON BROTHERS TRUCKERS
Reasonably equivalent value has not been shown for any part of the
$95,500 in post-petition transfers just as none was shown for the
$107,000 in post-petition transfers. While Ms. Butner claims to have
purchased the debtor’s trailers and leased them back, the observation
of the bankruptcy court that there was virtually no evidence other than
the Butners’ "say so" to support that claim is a fit one.
The court is unable to find that the bankruptcy court erred in con-
cluding that $95,500 of pre-petition transfers were fraudulent and
avoidable pursuant to 11 U.S.C. § 548(a).
III. Conclusion
For all of these reasons, the judgment of the bankruptcy court is
AFFIRMED.