Unsecured Creditors Committee v. Community Bank, E ( 2013 )


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  •                           CORRECTED
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 12-60234                 January 7, 2013
    Lyle W. Cayce
    Clerk
    STINSON PETROLEUM COMPANY, INCORPORATED
    Debtor
    THE UNSECURED CREDITORS COMMITTEE
    Plaintiff
    v.
    COMMUNITY BANK, ELLISVILLE MISSISSIPPI, a/k/a Community Bank
    Defendant - Appellee
    v.
    DEREK A. HENDERSON,
    Trustee - Appellant
    Appeal from the United States District Court
    for the Southern District of Mississippi
    Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges.
    No. 12-60234
    PER CURIAM:*
    Stinson Petroleum Company (“Stinson”) engaged in a check-kiting scheme
    using checking accounts Stinson held with Community Bank (“Community”) and
    Bank of Evergreen (“Evergreen”).1 Stinson perpetrated the kite by depositing
    worthless checks into its account with Community that were drawn on its
    account with Evergreen while simultaneously depositing worthless checks into
    the latter that were drawn on the former. By circulating worthless checks
    between the two accounts, and by taking advantage of provisional credits that
    both banks extended to deposits not yet collected, Stinson created the impression
    of a positive account balance while substantial debt accrued.
    As kites are prone to do, the scheme eventually collapsed. Evergreen was
    the first to uncover the kite, so it did not incur any losses. Community, by
    contrast, was not so lucky. Community ultimately determined that, because of
    the kite, Stinson accumulated an overdraft of between $6 and $7 million in its
    account with Community. Community met with Stinson and Evergreen and
    agreed to receive two wire transfers worth $3.5 million from Stinson’s Evergreen
    account.
    Stinson subsequently filed for bankruptcy under Chapter 11, and a
    committee of unsecured creditors (“the Creditors”) commenced an adversary
    proceeding against Community seeking to avoid the two wire transfers as
    avoidable preferences under 
    11 U.S.C. § 547
    (b). The bankruptcy was later
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    1
    “Check kiting consists of drawing checks on an account in one bank and depositing
    them in an account in a second bank when neither account has sufficient funds to cover the
    amounts drawn. Just before the checks are returned for payment to the first bank, the kiter
    covers them by depositing checks drawn on the account in the second bank. Due to the delay
    created by the collection of funds by one bank from the other, known as the ‘float’ time, an
    artificial balance is created.” United States v. Stone, 
    954 F.2d 1187
    , 1188 n.1 (6th Cir. 1992).
    2
    No. 12-60234
    converted to Chapter 7, and bankruptcy trustee Derek A. Henderson (“the
    Trustee”) was substituted as the plaintiff. Ultimately, both the bankruptcy court
    and the district court concluded that the wire transfers were not avoidable
    preferences, and the Trustee appealed.
    At issue is whether Community, because of the wire transfers, improved
    its position, meaning that it fared better than it would have fared under
    Stinson’s Chapter 7 liquidation. The Bankruptcy Code provides that the Trustee
    has the burden of demonstrating that Community would have received less
    under Chapter 7 than it did via the prepetition transfers. We conclude that the
    lower courts did not clearly err in determining that the Trustee failed to satisfy
    this burden and therefore AFFIRM the judgment of the district court.
    BACKGROUND
    Evergreen became suspicious of Stinson’s activity sometime around the
    weekend of July 4, 2009 and froze the company’s account two days later.
    Consequently, the kite collapsed. Before Community learned that Evergreen
    had uncovered the check-kiting scheme and, by returning checks for insufficient
    funds, taken steps to protect itself, Community continued to grant Stinson
    provisional credit, of which Stinson availed itself. This resulted in Stinson’s
    overdraft with Community, which the bank determined to be between $6 and $7
    million.
    In light of this debt, Community met with representatives from Stinson
    and Evergreen and agreed to receive a direct payment of $3.5 million via two
    wire transfers from Stinson’s account with Evergreen. The first wire transfer
    totaled $1,992,863 and included a notation in the written instructions that read,
    “payment for checks #2226, 2231, 2229,” three checks drawn from Stinson’s
    Evergreen account and deposited in its Community account on June 30, 2009.
    The second wire transfer totaled $1,507,137 and included a notation in the
    written instructions that read, “payment of returned checks.” According to
    3
    No. 12-60234
    testimony later heard by the bankruptcy court, the purpose of the wire transfers
    was to reimburse Community for the eighteen checks Evergreen returned to
    Community after the kite collapsed.
    Stinson later filed for Chapter 11 bankruptcy, at which point the Creditors
    commenced their adversary proceeding against Community, the prosecution of
    which was eventually charged to the Trustee once the bankruptcy was converted
    from Chapter 11 to Chapter 7. Both the Trustee and Community cross-moved
    the bankruptcy court for summary judgment, but the court denied both motions.
    The parties tried the wire-transfer claims before the bankruptcy court over the
    course of two days.     Noteworthy here, Community’s senior vice president
    testified at trial that the bank may have been able to collect the $3.5 million via
    Chapter 7.
    The bankruptcy court found that the wire transfers were not avoidable
    preferences. Specifically, the bankruptcy court found that, because Community
    granted provisional credit to Stinson and because Stinson took advantage of this
    credit, Community held a perfected, first-priority security interest in the
    eighteen returned checks and their proceeds and that the Trustee had failed to
    prove that the transfers were not intended to satisfy Community’s security
    interest. Consequently, the bankruptcy court ruled that the wire transfers did
    not deplete Stinson’s bankruptcy estate and did not improve Community’s
    position relative to how the bank would have fared via Chapter 7. The district
    court affirmed the bankruptcy court’s ruling. The district court observed that
    the Trustee had the burden of proving that Community would have received less
    than $3.5 million via Chapter 7 liquidation and concluded that “the record
    contains scant evidence to that effect.” The Trustee timely appealed.
    STANDARD OF REVIEW
    We review a bankruptcy appeal from the district court “applying the same
    standard to the bankruptcy court’s findings of fact and conclusions of law that
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    No. 12-60234
    the district court applied.” In re Morrison, 
    555 F.3d 473
    , 480 (5th Cir. 2009).
    Namely, we review “findings of fact . . . for clear error[] and . . . conclusions of
    law . . . de novo.” 
    Id.
     We review mixed questions of law and fact de novo. In re
    San Patricio Cnty. Cmty. Action Agency, 
    575 F.3d 553
    , 557 (5th Cir. 2009).
    Whether a transfer constitutes an avoidable preference is a question of law;
    however, we review the fact question underlying any element of the Trustee’s
    preference claim for clear error. See In re Ramba, Inc., 
    416 F.3d 394
    , 401-02 (5th
    Cir. 2005).
    “A finding of fact is clearly erroneous only if on the entire evidence, the
    court is left with the definite and firm conviction that a mistake has been
    committed.” In re Duncan, 
    562 F.3d 688
    , 694 (5th Cir. 2009) (internal quotation
    marks omitted). If the bankruptcy court’s view of the evidence “is plausible in
    light of the record viewed in its entirety, [we] may not reverse it even though
    convinced that had [we] been sitting as a trier of fact, [we] would have weighed
    the evidence differently.” In re Martin, 
    963 F.2d 809
    , 814 (5th Cir. 1992)
    (quoting Anderson v. City of Bessemer City, 
    470 U.S. 564
    , 574 (1985)) (internal
    quotation marks omitted). In fact, “[if] there are two permissible views of the
    evidence, the factfinder’s choice between them cannot be clearly erroneous.” 
    Id.
    (quoting Anderson, 
    470 U.S. at 574
    ) (internal quotation marks omitted).
    DISCUSSION
    A.
    The Trustee’s preference claim is based on Section 547(b), which provides:
    (b)     Except as provided in subsections (c) and (I) 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;
    5
    No. 12-60234
    (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
    (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).
    “Section 547(b) . . . allows a trustee to recover as a preferential payment
    certain transfers made by a debtor to a creditor within the ninety-day period
    prior to bankruptcy.” Braniff Airways, Inc. v. Exxon Co., U.S.A., 
    814 F.2d 1030
    ,
    1033 (5th Cir. 1987). Its purpose is twofold: (1) it permits a trustee to avoid pre-
    bankruptcy transfers occurring on the eve of bankruptcy so as to discourage
    creditors “from racing to the courthouse to dismember the debtor during his slide
    into bankruptcy”; and (2) it ensures fair distribution among the creditors. Union
    Bank v. Wolas, 
    502 U.S. 151
    , 161 (1991) (quoting H.R. REP. NO. 95-595, at 177
    (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6138) (internal quotation marks
    omitted).
    In this case, Community conceded at trial that the Trustee could prove the
    first four elements of § 547(b) and disputed only the Trustee’s claims under §
    547(b)(5). Accordingly, at issue is “the requirement that before a trustee in
    bankruptcy [may] avoid a preferential payment, the trustee must establish that
    the payment enabled the creditor to receive more than the creditor would have
    received upon liquidation under Chapter 7 of the bankruptcy code.” Braniff
    Airways, 
    814 F.2d at 1034
     (footnote omitted). This test is often referred to as the
    6
    No. 12-60234
    “greater percentage test” or the “improvement in position” test. See, e.g., In re
    El Paso Refinery, LP, 
    171 F.3d 249
    , 253 (5th Cir. 1999); In re Clark Pipe &
    Supply Co., 
    893 F.2d 693
    , 698 (5th Cir. 1990). Importantly, the Trustee bears
    the burden on this point. 
    11 U.S.C. § 547
    (g); Braniff Airways, 
    814 F.2d at
    1034
    n.3.
    Under this test, the bankruptcy court was required “to construct a
    hypothetical Chapter 7 liquidation [based on the evidence that the parties
    presented at trial] and determine what the creditor would have received had the
    transfers not taken place.” In re N.A. Flash Found. Inc., 298 F. App’x 355, 359
    (5th Cir. 2008) (citing In re ML & Assocs., Inc., 
    301 B.R. 195
    , 202 (Bankr. N.D.
    Tex. 2003)). “If the creditor receives a greater percentage of its debt as a result
    of the prepetition transfer than it would have in a bankruptcy distribution, the
    transfer is preferential.” 
    Id.
     (citing In re El Paso Refinery, 
    171 F.3d at 253-54
    ).
    B.
    In analyzing whether Community received more via the wire transfers
    than it would have received under Chapter 7, we must “consider how the debt
    would have been treated in a Chapter 7 liquidation.” Braniff Airways, 
    814 F.2d at 1034
    . Here, Community’s status as Stinson’s creditor is the locus of the
    inquiry because “a fully secured creditor who receives a prepetition payment
    does not receive a greater percentage than he would have in a bankruptcy
    proceeding.” In re El Paso Refinery, 
    171 F.3d at 254
    . This is “because as a fully
    secured creditor, [Community] would have recovered 100% payment in a
    bankruptcy proceeding.” 
    Id.
     Accordingly, “[p]ayments to a fully secured creditor
    are not preferential because the creditor does not receive more than he would in
    a Chapter 7 liquidation.” Braniff Airways, 
    814 F.2d at 1034
     (alteration in
    original) (quoting In re Mason & Dixon Lines, Inc., 
    65 B.R. 973
    , 977 (Bankr.
    M.D.N.C. 1986)) (internal quotation marks omitted).
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    No. 12-60234
    Relevant here is section 75-4-210(a) of the Mississippi Code, which
    provides:
    (a)   A collecting bank has a security interest in an item and any
    accompanying documents or the proceeds of either:
    (1)    In case of an item deposited in an account, to the extent to
    which credit given for the item has been withdrawn or
    applied;
    (2)    In case of an item for which it has given credit available for
    withdrawal as of right, to the extent of the credit given,
    whether or not the credit is drawn upon or there is a right of
    charge-back; or
    (3)    If it makes an advance on or against the item.
    MISS. CODE ANN. § 75-4-210(a). The Trustee acknowledges that this provision
    means that “a bank that extends provisional credit on a deposited check prior to
    actually collecting funds on that check automatically obtains a perfected security
    interest in the check and its proceeds” and that this is precisely the situation in
    which Community found itself. Nonetheless, and despite case law providing that
    a fully secured creditor who receives a prepetition payment has, as a matter of
    law, not received a preferential transfer, see In re El Paso Refinery, 
    171 F.3d at 254
    ; Braniff Airways, 
    814 F.2d at 1034
    , the Trustee argues that Community
    could not guarantee when and whether it would have received any payment and
    thus faults the district court for improperly assuming that Community would
    have received $3.5 million from Stinson via Chapter 7.
    We do not accept the Trustee’s argument. The relevant inquiry is whether
    Community, because of the $3.5 million wire transfers, improved its position
    relative to how well it would have fared in a hypothetical Chapter 7 liquidation.
    Specifically, the Trustee has the burden of showing “that the payment enabled
    the creditor to receive more than the creditor would have received upon
    liquidation under Chapter 7 of the bankruptcy code.” Braniff Airways, 
    814 F.2d at
    1034 & n.3. Phrased another way, the Trustee must prove that Community
    8
    No. 12-60234
    would have received less under Chapter 7. Here, the district court did not
    improperly assume that Community would have recouped $3.5 million via
    Chapter 7; rather, the district court did not clearly err in concluding that the
    Trustee failed to satisfy his burden of proving that Community would not have
    received at least $3.5 million in a Chapter 7 liquidation.
    Given that the Trustee concedes that Community was a fully secured
    creditor by operation of section 75-4-210 of the Mississippi Code, the prepetition
    payment Community received is, as a matter of law, not a preferential transfer
    avoidable under 
    11 U.S.C. § 547
    (b). See In re El Paso Refinery, 
    171 F.3d at 254
    ;
    Braniff Airways, 
    814 F.2d at 1034
    . Moreover, the district court’s conclusion is
    supported by the record. Community’s senior vice president testified that the
    bank may have been able to collect the $3.5 million via Chapter 7. Given “two
    permissible views of the evidence, the [bankruptcy courts]’s choice between them
    cannot be clearly erroneous.” In re Martin, 963 F.2d at 814 (quoting Anderson,
    
    470 U.S. at 574
    ) (internal quotation marks omitted). We therefore conclude that
    the lower courts did not clearly err in determining that the $3.5 million wire
    transfers were not avoidable preferences under § 547(b).
    CONCLUSION
    For these reasons, we AFFIRM the judgment of the district court.
    9