DocketNumber： BAP Nos. 12-6043, 12-6044
Citation Numbers： 482 B.R. 809
Judges： Federman, Saladino, Venters
Filed Date： 11/14/2012
Status： Precedential
Modified Date： 11/22/2022
In these consolidated appeals, Defendants San Diego Gas & Electric Company (“SDG & E”) and Southern California Edison Company (“SCE”) appeal the bankruptcy court’s judgments against them under 11 U.S.C. § 547(b) for payments they received from the Debtors
The Defendants assign error to three aspects of the bankruptcy court’s ruling. They argue: 1) that the transfers at issue weren’t preferential because the Defendants weren’t creditors of the Debtors, as required by § 547(b)(1); 2) that the transfers were not on account of antecedent debts, as required by § 547(b)(2); and 3) that the bankruptcy court erred in limiting the Defendants’ new value credits to the value of the utility services they provided to the Debtors’ customers in the preference period.
For the reasons stated below, we affirm the bankruptcy court’s decision with regard to its determination that the payments the Defendants received from the Debtors are avoidable under 11 U.S.C. § 547(b), but we reverse on the bankruptcy court’s calculation of the Defendants’ new value credits.
JURISDICTION
The bankruptcy court’s judgment is a final order over which we have jurisdiction under 28 U.S.C. § 158(b).
BACKGROUND
The facts are undisputed. On February 6, 2009, separate involuntary Chapter 7 bankruptcy petitions were filed against the Debtors. An Order for Relief was entered in each case on March 3, 2009, and the Debtors’ bankruptcy estates were substantively consolidated on February 2, 2011.
The Debtors’ business was to provide utility-management and bill-payment services to restaurants and other businesses. As originally conceived, the Debtors’ business worked in the following manner: The Debtors would receive invoices from a utility provider on behalf of a customer and then periodically report to the customer regarding those invoices. The customer then would transfer funds to the Debtors in an amount that corresponded to the amount of the invoice report and, after receiving those funds from the customer, the Debtors would send the utility provider a check drawn on the Debtors’ bank account.
All of the transfers at issue in this appeal relate to two of the Debtors’ and Defendants’ mutual customers: Buffets, Inc. (and related entities) and Wendy’s International, Inc.
In the 90 days prior to the petition date of February 6, 2009, the Debtors made the following 24 transfers to Defendant SCE totaling $183,512.74:
Check No._Check Amt._Check Date_Rcvd. by SCE_Clear Date
6077932_$4,178.52_10/21/08_11/12/08_11/14/2008
6077954_$4,224.86_10/21/08_11/12/08_11/14/2008
6076652_$5,943.93_10/17/08_11/14/08_11/18/2008
6076653_$8,125.06_10/17/08_11/14/08_11/17/2008
6076654_$9,620.77 10/17/08_11/14/08_11/17/2008
6076656 $9,996.85 10/17/08 11/14/08 11/17/2008
6078516_$8,156.87_10/23/08_11/12/08_11/14/2008
6078532_$8,188.20_10/23/08_11/19/08_11/21/2008
6078537_$7,827.17_10/23/08_11/18/08_11/20/2008
6078554_$7,435.41_10/23/08_11/18/08_11/20/2008
6078566_$7,804.13_10/23/08_11/18/08_11/20/2008
6078617_$7,678.34_10/23/08_11/13/08_11/17/2008
6079360_$7,371.65_10/27/08_11/13/08_11/17/2008
6079362_$10,844.50_10/27/08_11/13/08_11/17/2008
6079363_$9,514.28_10/27/08_11/13/08_11/17/2008
6079379_$7,860.50_10/27/08_11/17/08_11/19/2008
6079380_$6,322.93_10/27/08_11/17/08_11/19/2008
6079381_$6,628.53_10/27/08_11/17/08_11/19/2008
6079382_$7,970.53_10/27/08_11/17/08_11/19/2008
6079943_$8,460.80_10/28/08_11/12/08_11/14/2008
6080543_$6,881.98_10/29/08_11/17/08_11/19/2008
6080554_$7,461.95_10/29/08_11/25/08_11/28/2008
6080946$7,066.22_10/30/08_11/20/08_11/24/2008
All 24 of the transfers were made by checks drawn on a checking account at U.S. Bank in the name of debtor LGI Energy Solutions, Inc., account no. xxxxxxxx. The first two checks, nos. 6077932 and 607954, totaling $8,403.38, related to Wendy’s; the other 22 checks related to Buffets.
In the 90 days prior to the petition date of February 6, 2009, the Debtors made eight transfers to Defendant SDG & E totaling $75,053.85. All eight of the transfers were made by checks drawn upon account no. 3321 and related to utility services provided to Buffets.
Check No._Check Amt._Check Date_Rcvd by SDG & E Clear Date
6075058_$5,773.59 10/13/08_11/12/08_11/14/08
6078518_$10,402.58 10/23/08_11/12/08_11/17/08
6078952_$9,093.92 10/24/08_11/18/08_11/20/08
6079349_$10,468.59 10/27/08_11/10/08_11/12/08
6079949_$8,514.01 10/28/08_11/20/08_11/24/08
6080548_$11,097.37 10/29/08_11/17/08_11/19/08
6081120_$10,062,69 10/31/08_11/25/08_11/26/08
6081126$9,64110 10/31/08_11/26/08_11/28/08
The 3321 account was a basic, unrestricted business checking account. Both the monthly statements for the 3321 account and the checks drawn on the 3321 account indicate that LGI Energy Solutions, Inc. was the sole holder of the account. Wendy’s and Buffets last made deposits into the 3321 account on November 3, 2008, and November 4, 2008, respectively. Thereafter, Wendy’s and Buffets made their payments to the debtors via other accounts owned by the Debtors at M & I Marshall & Ilsley Bank. Between November 3, 2008, when Wendy’s made its last deposit into the 3321 account, and November 28, 2008, when the last of the 24 checks was debited against the 3321 account, the balance of the 3321 account was overdrawn or drawn to a nominal amount every business day.
On and after November 10, 2008, through the petition date, Defendant SCE sent 32 Buffets invoices to the Debtors, which they then reported to Buffets. Buffets remitted payment to the Debtors for these invoices, but the Debtors never forwarded those payments on to SCE. The Debtors received a total of $157,886.99 pursuant to these invoices.
On and after November 10, 2008, through the petition date, Defendant SDG & E sent 21 Buffets invoices to the Debtors, which they then reported to Buffets. Buffets remitted payment for these invoices, but the Debtors never forwarded those payments on to SDG & E. The Debtors received a total of $97,475.50 pursuant to these invoices.
The bankruptcy court held a hearing on the Trustee’s preference claims (Count I)
The Defendants timely appealed.
STANDARD OF REVIEW
We review the bankruptcy court’s legal conclusions de novo and its findings of fact under a clearly erroneous standard.
DISCUSSION
As summarized above, the Defendants appeal three aspects of the bankruptcy court’s ruling. They argue: 1) that the Defendants weren’t creditors of the Debtors, 2) that the transfers were not on account of antecedent debts, and 3) that the bankruptcy court miscalculated the value of the Defendants’ new value credits. Each argument is addressed in turn.
A. The Defendants were creditors of the Debtors
The Bankruptcy Code defines “creditor” as an “entity that has a claim against a debtor that arose at the time of or before the order for relief concerning the debt- or.”
(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,*815 matured, unmatured, disputed, undisputed, legal, equitable, secured, or;
(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduce to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.7
The bankruptcy court held that the Defendants were creditors of the Debtors on two grounds. It found that the Defendants were beneficiaries of a trust created between the Debtors and their customers and that the Defendants became creditors when the Debtors violated the trust by depleting the customer deposits without paying the Defendants’ invoices. Alternatively, the bankruptcy court found that the Defendants were contractual “third-party beneficiaries” with direct claims against the Debtors. Neither of these findings is clearly erroneous.
1. Trust Beneficiary Claims
Minnesota law requires three elements for the creation of a trust: (1) a trustee; (2) a beneficiary; and (3) a definite trust res.
The Debtors’ agreements with Wendy’s and Buffets both evince an intent to create a trust. Paragraph 3b of the agreement between the Debtors and Buffets provides that Buffets will provide money to the Debtors to be used for the specific purpose of paying the bills of utility companies and states that “[a]t no time shall LGI have a legal or equitable interest in the Customers funds and Customer grants no security interest to LGI.”
The Debtors’ and Buffets’ intent to create the “incidence of a trust” is further evidenced by the state-court complaint attached to Buffets’ proof of claim, which repeatedly invokes trust language:
• “As a result, [the Debtor] held Plaintiff Buffets’ funds in trust....” (¶3)
• “Defendant M & I Marshall & Ilsley Bank knew [the Debtor] did not have any ownership interest in Plaintiff Buffets’ funds and that [the Debtor] held Plaintiff Buffets’ funds in trust subject to fiduciary duties.” (¶ 4)
• “The Contract provided that [the Debtor] would directly receive the utility invoices ... .to wire transfer or ACH transfer this gross amount to a bank account [Debtor] designated where Plaintiff Buffets’ monies were held in trust for the payment of utility invoices.” (¶ 30)
Having determined that a trust was created, the bankruptcy court held that the Debtors’ dissipation of the trust res, ie.,
The Sixth Circuit Court of Appeals, in First Federal of Michigan v. Barrow,
Initially, the monthly payments collected in trust from the mortgagors, including the pro rata amounts for the superior mortgages, taxes, hazard insurance and investors which had originally been held in trust for the mortgagors ... and which were deposited into the Salem Central Account, subsequently lost their identity as a result of commingling with other unidentified debtor funds derived from numerous other miscellaneous sources and became the property of the debtors’ estate.
Additionally, for at least ninety days immediately preceding debtors’ declaration of bankruptcy and probably for some time prior thereto when it became apparent that debtors’ exploding expenses hopelessly exceeded income and the Salem Central Account consistently carried a five figure negative balance, and when monies from that account were disbursed to honor previously issued checks in satisfaction of pre-exist-ing indebtedness, the mortgagors as well as the appellant taxing authorities and investors were stripped of their status as beneficiaries of any trust or constructive trust that may have existed while the mortgage payments were identifiable in segregated escrow accounts and they became general creditors of the debtors and the debtors’ bankrupt estate because the debtors’ conversion of the mortgage payments had occurred at the moment when the identifiable funds were deposited into Salem’s negative balance Central Account from which transfers were made to satisfy debtors’ pre-existing indebtedness to the mortgagors and appellants. Accordingly, the appellants’ charge that the transfers here in controversy were not in payment of pre-existing indebtedness must fail and the repayments to the appellants must be declared to be voidable preferences.12
Like the appellants in First Federal, the Defendants here became general, unsecured creditors of the Debtors at the moment the Debtors depleted the customer deposits, which the evidence shows happened on a daily basis and, most importantly, before the Debtors used those deposits for their intended purpose.
In sum, consistent with the intent to create a trust, Wendy’s and Buffets entrusted the Debtors with specific, identifiable property that they were to hold in trust for payment to the Defendants and other utility companies. The Debtors’ failure to preserve trust property was a breach of trust which gave the Defendants unsecured claims against the Debtors. Thus, the bankruptcy court’s holding that the Defendants were creditors of the Debt
2. Third-Party Beneficiary Claims
“It is the prevailing rule in Minnesota and other jurisdictions in the United States that a third party may sue on a contract made for his direct benefit.”
At oral argument, the Defendants conceded that SDG & E and SCE were third-party beneficiaries with regard to the transfers received on account of the utility services provided to Buffets. They continue to maintain, however, that the language in the Energy Services Agreement with Wendy’s precludes a claim by the Defendants as third-party beneficiaries.
First, the context of the quoted passage suggests that it was intended only to reinforce the parties’ agreement that LGI had no duty to extend credit, i.e., pay a utility bill for which Wendy’s had not yet forwarded payment. To wit, page 7 of the agreement provides in larger part:
LGI shall then be obligated to pay each utility invoice within two business days of receipt of Wendy’s ACH transfer. LGI shall in no event be required to advance any of its funds or to utilize LGI’s credit in connection with or on behalf of Wendy’s, nor shall LGI be required to incur any liability in connection therewith. Wendy’s shall indemnify and hold harmless LGI from and against any and all claims, liabilities, costs and expenses relating to utility invoices that have been processed in accordance with this Agreement.16
Second, the italicized portion can be interpreted as establishing LGI’s receipt of funds from Wendy’s as a condition precedent to LGI’s obligation to pay utility providers.
Finally, the Energy Services Agreement’s statement that LGI was not required to incur any liability does nothing to actually prevent LGI from incurring a debt to a utility company as a result of its breach of the agreement by, for example, using the funds it received from Wendy’s for another purpose. This interpretation would be more consistent with the subsequent sentence which specifically contemplates potential claims against LGI by the utilities.
B. The preferential transfers to the Defendants were made in payment of antecedent debts as required by 11 U.S.C. § 547(b)(2)
The Defendants argue that the transfers at issue were not preferences because they weren’t made in payment of antecedent debts. According to the Defendants, the Debtors would not actually owe a debt to the Defendants until the Debtors breached their agreements with Buffets and Wendy’s by failing to make timely payments to the Defendants. Essentially, they argue that a debt created by contract does not arise until the promisor repudiates or breaches the contract. They point to the Eighth Circuit case, In re Bridge Information Systems, Inc.,
The Defendants’ argument on this point is without merit and their reliance on In re Bridge Information Systems, Inc. is misplaced.
The Bankruptcy Code does not define when the debtor incurs a debt, but it does define a “debt” as a liability on a claim.
The rights and duties of a third-party beneficiary contract “depend upon, and are measured by, the terms of the contract.” Under the Buffets Energy Services Agreement, the Debtors were obligated to the “timely payment of invoices” upon receipt of the customer funds. Under the Agreement with Wendy’s, the Debtors were required to “pay each utility invoice within two business days of receipt of Wendy’s ACH transfer.”
The fact that the Debtors had a time within which to perform their obligations before they would be in breach of the contract does not mean that the obligation did not arise until those deadlines were upon them or past, just as the prepayment of a loan before an installment due date or the maturity date constitutes payment on an antecedent debt.
Furthermore, Bridge Information Systems, Inc., does not stand for the proposition the Defendants attribute to it, i.e., that a contractual duty to pay does not arise until a party is in breach of that duty. Rather, the question in that case was
For these reasons, we conclude that the bankruptcy court did not err in its determination that the transfers at issue here were made in payment of antecedent debts for purposes of 11 U.S.C. § 547(b)(2).
C. The Defendants’ new value credit was improperly determined
Section 547(c)(4) of the Bankruptcy Code provides:
The trustee may not avoid under this section a transfer—
(4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor—
(A) not secured by an otherwise unavoidable security interest; and
(B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor....”
“New value” is defined as “money or money’s worth in goods, services, or new credit ... including proceeds of such property.” 11 U.S.C. § 547(a)(2).
The bankruptcy court held that the plain language of § 547(c)(4) — specifically, its reference to “such creditor” — requires that new value be supplied by the creditor that received the preferential transfer. Accordingly, it limited the Defendants’ new value credit to the value of the utility services they provided to Buffets and Wendy’s during the preference period.
The Defendants contend that under the Eighth Circuit Court of Appeals case, Jones Truck Lines, Inc. v. Central States, Southeast and Southwest Areas Pension Fund (In re Jones Truck Lines, Inc.),
In Jones Truck Lines, a Chapter 11 debtor-employer sued to recover, as preferential transfers, payments to a “Health and Welfare Fund” and to a “Pension Fund” made on behalf of its employees.
Arguably, because the Defendants were found to be creditors in their own right, as opposed to just transferees of payments that benefitted a creditor (Wendy’s or Buffets), the holding of Jones Truck Lines would appear to be contrary to the plain terms of § 547(c)(4), which requires “such creditor,” ie., the creditor that received the transfer (or the benefit of the transfer) to provide the new value. However, the holding in Jones Truck Lines can be harmonized with the statute by interpreting it as a recognition that in tripartite relationships where the transfer to a third party benefits the primary creditor, new value can come from that creditor, even if the third party is a creditor in its own right. And that is exactly the nature of the tripartite relationship here. In fact, as trust beneficiaries and third-party beneficiaries, the Defendants are creditors of the Debtors precisely because the payments made to them were intended to benefit the creditors) that provided the new value (ie., the Debtors’ customers, Wendy’s and Buffets).
Giving the Defendants credit for all of the payments Wendy’s and Buffets made to the Debtors on account of utility services provided by the Defendants, SDG & E’s liability is reduced to zero and SCE’s liability is reduced to $25,625.75. The charts below show the calculation of the Defendants’ new value credits based on the figures contained in the record.
SCE — WENDY’S NEW VALUE ANALYSIS
Transfer Date Preferential Transfer Transfer to Debtor Net Preference Comment
11/14/2008 4,178.52 4,178.52
11/14/2008 4,224.86 3,403.38
11/20/2008 $40,00 g,363.38
11/20/2008 2,447.73 $5,915.65
11/20/2008 $40,00 $5,875.65
11/20/2008 :,647.66 $3,227.99
11/21/2008 $40.00 $3,187.99
11/21/2008 $2,604.31 $583.6
11/25/2008 $40.00 $543.68
11/25/2008 $2,848.46 ($2,304.78) Preference Liability Eliminated
Transfer Date Preferential Transfer Transfer to Debtor Net Preference Comment
11/14/2008 4,178.52 $4,178.52
11/14/2008 $4,224.86 8,403,38
11/14/2008 $7,948.76 $16,352.14
11/14/2008 8,156.87 $24,509,01
11/14/2008 $8,460.80 $32,969.81
11/14/2008 7,003.12 $25,966,69
11/14/2008 $138.53 $25,828.16
11/17/2008 8,125.06 $33,953.22
11/17/2008 $9,620.77 $43,573.99
11/17/2008 $9,996.85 $53,570,84
11/17/2008 $7,678.34 $61,249,18
11/17/2008 $7,371.65 8,620,83
11/17/2008 $10,844,50 $79,465.33
11/17/2008 9,514.28 $88,979.61
11/18/2008 $5,943.93 $94,923,54
11/19/2008 $6,114.90 8,808.64
11/19/2008 $864.00 $87,944,64
11/19/2008 $960.11 $86,984.53
11/19/2008 4,832.03 $82,152,50
11/19/2008 $4,570.59 $77,581.91
11/19/2008 $7,033.00 $70,548.91
11/19/2008 3,168.70 $64,380.21
11/19/2008 $5,294.10 9,086,11
11/19/2008 5,253.98 $53,832.13
11/19/2008 $7,860.50 $61,692.63
11/19/2008 $6,322.93 $68,015,56
11/19/2008 5,628.53 $74,644.09
11/19/2008 $7,970.5 $82,614.62
11/19/2008 $6,881.98 $89,496.60
11/20/2008 $21.30 $89,475,30
11/20/2008 5,283.78 4,191,52
11/20/2008 $5,410.79 $78,780.73
11/20/2008 $5,728.54 $73,052.19
11/20/2008 $5,280.57 $67,771.62
11/20/2008 3,118.07 $61,653.55
11/20/2008 $7,827.17 $69,480.72
11/20/2008 $7,435.41 $76,916.13
11/20/2008 $7,804.13 $84,720,26
11/21/2008 8,188.20 $92,908.46
11/24/2008 $7,066.2 $99,974.68
11/28/2008 $5,470.19 $94,504.49
11/28/2008 $5,058.94 9,445.55
11/28/2008 $7,803.90 $81,641.65
11/28/2008 $6,438.30 $75,203.35
11/28/2008 $4,826.31 $70,377.04
12/1/2008 $71.29 $77,767.70
12/1/2008 $5,256.98 $72,510.72
12/1/2008 $6,067.03 $66,443.69
12/1/2008 $4,771.92 $61,671.77
12/1/2008 3,218.99 $55,452.78
12/1/2008 5,148.72 $50,304.06
12/9/2008 5,107.77 $44,196.29
12/9/2008 5,577.87 $38,618.42
12/9/2008 3,892.98 $31,725.4
12/9/2008 $6,099.69$25,625.75
Preference Liability
SDG & E — BUFFETS NEW VALUE ANALYSIS
Transfer Date Preferential Transfer Transfer to Debtor Net Preference Comment
11/12/2008 $10,468.59 $10,468.59
11/13/2008 3,126.29 $7,342.30
11/13/2008 1,747.28 5,595.02
11/13/2008 1,255.58 $339.44
11/13/2008 11/13/2008 $7,208.34 ($6,868.90) 2,167.03 $0.00 New Value credit does not carry forward.
11/14/2008 5,773.59 $5,773.59
11/17/2008 $10,402,58 $16,176.17
11/19/2008 $11,097.37 $27,273.54
11/20/2008 $7,487.70 $19,785.84
11/20/2008 $2,328.80 $17,457.04
11/20/2008 $9,093.92 $26,550.96
11/24/2008 !,514.01 $35,064.97
11/25/2008 $8,195.65 $26,869.3
11/25/2008 1,855.14 25,014.18
11/26/2008 $10,062.69 $35,076.87
11/28/2008 8,254,95 $26,821.9
11/28/2008 $1,955.21 $24,866.71
11/28/2008 $9,641.10 $34,507.81
12/1/2008 $1,667.01 $32,840.80
12/1/2008 8,236.52 $24,604.28
12/1/2008 $7,942.75 $16,661.5
12/1/2008 $2,055.03 $14,606.50
12/5/2008 7,509.62 $7,096.8
12/5/2008 1,788.17 $5,308.71
12/5/2008 $1,609.64 $3,699.07
12/5/2008 12/5/2008 12/5/2008 $7,454.17 ($3,755.10) $7,880.45 ($11,635.55) L,750.17 ($13,385.72) Preference Liability Extinguished
CONCLUSION
For the foregoing reasons, the portion of the bankruptcy court’s judgment determining that the Defendants received preferential transfers is affirmed. The court’s calculation of the Defendants’ new value
. Because the two Debtor's estates have been consolidated, for convenience all references herein will be to the “Debtors,” although a
. Only SC E provided utility service to Wendy's.
.On May 3, 2012, the Defendants filed motions for summary judgment seeking the dismissal of all counts (I, II, and III) of the Amended Complaint(s). The Trustee voluntarily dismissed Counts II and III, and the bankruptcy court denied summary judgment on Count I.
. See Drewes v. Vote (In re Vote), 276 F.3d 1024, 1026 (8th Cir.2002).
. See Lovett v. St. Johnsbury Trucking, 931 F.2d 494, 500 (8th Cir.1991).
. 11 U.S.C. § 101(10).
. 11 U.S.C. § 101(5).
. See e.g., In re Bush’s Trust, 249 Minn. 36, 81 N.W.2d 615, 620 (1957).
. Id. at 619-20.
. Technically, this language would not create a trust, inasmuch as the trustee of a trust holds legal title to the res while the beneficiaries hold an equitable interest in the res. See Farmers State Bank of Fosston v. Sig Ellingson & Co., 218 Minn. 411, 16 N.W.2d 319, 322 (1944). Nevertheless, this language could be interpreted as evidence of the parties’ intent to preclude the Debtors from treating customer funds as their own money, which in turn could be interpreted as an intent to create a trust, albeit clumsily expressed.
. 878 F.2d 912, 917-918 (6th Cir.1989).
. Id. (emphasis added).
. Buchman Plumbing Co., Inc. v. Regents of the Univ. of Minnesota, 298 Minn. 328, 215 N.W.2d 479, 483 (1974).
. In re Maurer, 256 B.R. 495, 502 (8th Cir. BAP 2000).
. Minnesota follows the Restatement (Second) of Contracts, see Cretex Companies, Inc. v. Constr. Leaders, Inc., 342 N.W.2d 135, 139 (Minn.1984), which permits a promisor and promise to contractually restrict (or eliminate) the rights of a third-party beneficiary. “(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties....” Restatement (Second) of Contracts § 302.
.Emphasis added.
. 327 B.R. 382 (8th Cir. BAP 2005), aff'd 474 F.3d 1063 (8th Cir.2007)
. 11 U.S.C. § 101(12).
. See In re Energy Co-op. Inc., 832 F.2d 997, 1001 (7th Cir.1987) ("By defining a debt as a 'liability on a claim,’ Congress gave debt the same broad meaning it gave claim.”).
.See, e.g., In re Bennett Funding Group, Inc., 220 B.R. 739 (2nd Cir. BAP 1998).
. In re Bridge Information Systems, Inc., 327 B.R. at 387-89.
. 130 F.3d 323 (8th Cir.1997).
. Id. at 325-36.
. Id.; In re Jones Truck Lines, Inc., 196 B.R. 483, 492 (Bankr.W.D.Ark.1995.)
. In re Jones Truck Lines, Inc., 130 F.3d at 328-29.
. All of these figures are contained in the Stipulations of Fact filed in the underlying bankruptcy court cases, Stoebner v. SCE, 11-4066 (Doc. 39) and Stoebner v. SDG & E, 11-4065 (Doc. 38).