Class 31: Preferences - OU Law

Class 31: Preferences - OU Law

31: Preferences Charles Tabb 2010 What is a preference? Transfer shortly before bankruptcy by an insolvent DR that favors (prefers) one creditor over other creditors In way that undermines the bankruptcy distributional scheme

Simple hypo Dr has 3 Crs A, B, and Owes each one 6 grand C (so 18 total debts) Only has 6K in assets A week before files bk, Dr pays off A in full, nothing left If dont recover payment to A, B and C get nothing Bk distributional scheme is undermined by eve-of-bankruptcy

solution Make A give back the 6 grand it got paid to the bk trustee Then A, B, and C all get paid an equal amount (2K each -- 1/3 of the 6) in the bankruptcy But isnt it legal?? Crazy thing about preferences as

avoiding power is it allows the bk estate to recapture a payment that was perfectly legal when it was made Dr owes Bob a debt. Dr pays Bob. Dr files bankruptcy. Bob has to give $ back. What about finality? In that scenario, Bob has a perfectly legitimate complaint that he should be able to keep a payment of a valid

debt. And not only that, he may have to give it back many months later! So the strong commercial law policy of finality is seriously undermined Hardship on Creditor? Indeed, having to repay as a preference a validly paid debt could cause considerable hardship on a creditor may well have

already spent that money! Say Bob is the family dentist, did $3000 of dental work on Debtor (should have known, with that name ), got paid then Dr files Bk, Bob Why avoid? So why avoid? The core problem is making the transition from state collection law, where the priority rule is race, to

bankruptcy, where priority rule is equality Why, cont. Note would not be a problem if did not have a time lag between onset of drs insolvency and filing of bankruptcy Insolvent-----------transfer------------Bankruptcy If Dr becomes insolvent, though, and bankruptcy does not follow immediately, the state law race paradigm (i) undermines

equality, and (ii) also may trigger destructive Cr race for assets, the run on bank Common response to scarcity The way that Crs react if find out Dr insolvent is common reaction by competitors for scarce resources Examples: Oklahoma land rush Sooners College bowl games Federal judges selecting judicial clerks

Self-policing? In each of the cases cited, all involved tried to agree to rules limiting ability to get the jump on others and take advantage And So it never works in event a Dr pays some creditors and not others when insolvent, and bk soon follows, only solution is ex post to impose retroactive repayment obligation

Debtor pick and choose Just as Creditors may see bankruptcy looming and race in to grab something before it is all gone, the Debtor may see financial doom looming and pick and choose among Loan shark favored creditors medical DR Mom

Credi t card Theory of why Thus, the normative concept of preference law is to extend the equality norm back in time from the bk case to the pre-bk period, when Dr is insolvent if Dr is solvent, then state law race paradigm not a problem, b/c by definition everyone will get paid in full Original hypo: A, B, C each owed 6. If Dr had 20

in assets, then fine to pay A its 6 not hurt B or C. Why?, cont. In theory, could extend preference reachback period as far back prior to bk as when Dr 1st became insolvent b/c all transfers after that undermine equality, threaten run on bank But

in interests of (i) certainty and (ii) finality, use a set time period of vulnerability Good or bad preferences do motives matter? If ONLY cared about equality norm, would have a much simpler preference rule But hard to get away from notion

that there is nothing wrong with paying debts in the normal course of affairs Notion that should only set aside motives? Original notion: only a preference if debtor had an intent to prefer Then

only if creditor had an intent to obtain a preference 1898 Act only if Cr had reasonable cause to believe Dr insolvent Today ok if paid in ordinary course Today: standard litany of reasons In

sum, today the Supreme Court, and Congress, embrace the following as justifications for preference law: 1) equality 2) deter the race for assets Note not really a deterrence, though, b/c worst that can happen is have to give it back

Structure of 547 1) elements of a preference: 547(b) Trustee has burden of proof Must prove all the elements 2) exceptions, i.e., safe harbors: 547(c) Creditor has burden of proof Any exception suffices

Elements of a preference a transfer, 547(b) of property of the debtor, 547(b) to or for the benefit of a creditor, 547(b)(1) for or on account of an antecedent debt, 547(b)(2) made while the debtor was insolvent, 547(b)(3), (f) made during the preference period of 90 days before bankruptcy (or one year for insiders), 547(b)(4) that enables the creditor to receive more than it would have in a hypothetical chapter

Problem 9.9(a) Facts: Creditor loans Debtor, Inc. $8K on January 5 The loan is guaranteed by Prez, the CEO of Debtor, Inc.. On April 1, Debtor, Inc. pays Creditor $8K On May 1, Debtor, Inc. files bankruptcy. 9.9(a)(1) Preference as to Creditor?

Analysis: Transfer of Dr property? to or for the benefit of a Cr? antecedent debt? Dr insolvent? Preference period? Preferential effect? Also called improvement-in-position or greater % 9.9(a)(2) Preference Analysis: as to Prez?

Transfer of Dr property? to or for the benefit of a Cr? antecedent debt? Dr insolvent? Preference period? Preferential effect? 9.9(b)(1) Same as a, except file bk September 1 (Cr was paid on April 1) Analysis preference as to Creditor?: Transfer of Dr property? to or for the benefit of a Cr? antecedent debt?

Dr insolvent? Preference period? Preferential effect? 9.9(b)(2) Preference Analysis: as to Prez? Transfer of Dr property? to or for the benefit of a Cr? antecedent debt? Dr insolvent? Preference period? Preferential effect?

Deprizio Payment to non-insider Cr more than 90 days before bk, on a debt guaranteed by an insider Avoid as preference as to insider, not Cr, b/c of 90-day period But allow recovery vs Cr as initial

transferee 550(a)(1), even though not avoidable as to Cr Fixing Deprizio 550(c) (1994): may not recover from non-insider based on transfer made > 90 days before bk that is avoided only as to insider But what if transferred a lien to noninsider? No recovery just set aside lien so 550(c) no help Add 547(i) (2005): avoidance only as to

insider The Ponzi case: Cunningham v Brown Ponzi scheme (Peter-Paul): Mor e new 1 $ st

Ne w$ Ne w$ $ Mor e new $ Mor e new $

Eve n mor e new $ Eve n mor e new Eve $ n mor

e new Eve $ n mor e new Facts in Ponzi case Charles Ponzi was promising 50% return in 90 days, or pay in full 45 days international postal coupons

s all invested between July 20-24s all invested between July 20-24 Money deposited in Hanover Trust > balance July 24 $871K, withdrawals > 871K July 26-28, but new deposits kept + balance August 2 newspaper expose, run s all invested between July 20-24s were repaid Aug 2-4 Aug 9 overdraft closed him down Aug 9 -- Bankruptcy filed Aug 12- Ponzi surrender to authorities Preference action Trustee in bankruptcy sued Brown and the

other defendants for the recovery of the amounts paid to them by Ponzi on August 2, 3 and 4 on account of the debts incurred on July 20-24 as voidable preferences Theory while insolvent, & within preference period (Indeed in week before!), Ponzi repaid antecedent debts, allowing those repaid to recover more than their share Why need preference law The

facts of the Ponzi case starkly illustrate why need a preference law Wildly If insolvent, run on assets allow payments to Brown et al to stand up, then they get paid in full while others similarly duped get nothing Ponzi case issue? What

did Brown & others argue by way of defense? said were not paid with Ponzis property instead, they said they just got their own money back a rescission for fraud, based on constructive trust If so would not be a preference, b/c only worry if deplete Drs own assets & prospective bankruptcy estate that can be used to pay creditors

Own property back? Not a frivolous argument e.g., payments to a trust beneficiary would preference Begier SCOTUS held preference when Dr paid US for trust-fund taxes during preference period b/c the taxes paid were the subject of a statutory trust in favor of the U.S. govt

Other trust claimants? Hypo: Department store, has an eyeglass section In fact the eye section is Ked out by dept store to an independent Optical Co. Arrangement is: $ paid to eyeglass section originally go into stores coffers, then each month the store remits back the collected proceeds to Optical Co, minus the stores 15% fee Issue: are remittances made to Optical Co in preference period recoverable as preferences? Analysis of trust claim

Answer? Will depend on whether the relationship between Optical and Department Store truly is a trust arrangement, in which event the monies remitted back are in fact, and always have been, the property of Optical Or, just a debtor-creditor relationship, in which case is a transfer of the Dept Stores property, paying on a debt, and thus is a preference Holding in Ponzi case

Supreme Court in Cunningham held was NOT a return to investors of their own property, but a preferential transfer to them of Ponzis property Rationale for Ponzi holding 1st no evidence that there was a constructive trust & that investors were rescinding for fraud seems just getting paid on their debts

2nd even if were a valid constructive trust & investors asserting a return of own property: Must TRACE their property and cannot Presumptive tracing rules n/a, b/c everyone was defrauded ALL investors in the same duped boat Credit card balance transfers &earmarking: Marshall Facts: Dr had credit card accounts with (i) MBNA &

(ii) Cap One July 27: direct Cap One to make $38K in balance transfers to MBNA Oct. 13 file bankruptcy Trustee sue MBNA to recover preference schematic paid 38 e w O for

38 Pays 38, balance transfer ccee eenn eerr tt eeff uuii PPrr ss MBNA Cap One Cl a im

DR Trustee Defense? MBNA argued no transfer of property of Dr paid by Cap One, not Dr Just a substitution of one Cr for another, no preference

Which look like? Claim purchase? Along the lines of the old Sesame Street game one of these things looks like another, must decide which of following scenarios the balance transfer is more like: 1st: one Cr buys another Crs claim Claim > NOT preference b/c

transfer Dr fono r 8 3 38 Owe property Pays $, buys claim DR Or, Loan to DR then payment to CR? Or, 2nd, Dr borrows money & uses

loan proceeds to pay off debt IS a preference to an o l y e 38 a s e p U w O

Creditor One Creditor Two Debtor lo an No different if bypass Dr If like a 2nd scenario case, would not change the result if Dr instead of borrowing money 1st, then paying it over, just told Cr Two to pay the loan directly to Cr One e

w O 38 Debtor Creditor One Creditor Two Use loan to pay loa n

Possible tests Court considered two tests: dominion & control does Dr have dominion & control over the $ being loaned from Cap One? diminution of the estate is the estate being depleted by the balance transfer? Applying the tests How

apply: Dominion & control test? Diminution of the estate test? Why not earmarking? Earmarking: 1) what is it? 2) why did court hold did not apply here? Are balance transfers bad? Did the balance transfer from Cap One to MBNA implicate the sorts of concerns that justify preference law?

If allow recapture from MBNA, did estates other Crs get a windfall? What now? After Ct holds that MBNA is liable for the preference, what happens? What happens to estate? What about claims? Timing rules Critical

to know WHEN a transfer is deemed made for preference purposes: Was the transfer made within the preference period? Was transfer made on account of antecedent debt? Timing rule 547(e)(2):when transfer? When effective between transferor and

transferee, IF perfected within 30 days Not until perfected if > 30 days 547(e)(1): perfected? Real property bfp cant beat Personal property lien Cr cant beat Applying timing rules Outright transfer (e.g., paid cash) Effective instantly, & good agst the

world (bfp, lien cr) Transfer of a lien Need to record in public records Delay in recording? Hypo: Jan 1: Dr borrow $25K from Cr, grants Cr art 9 security interest in collateral to secure March 1: Cr perfects May 1: bankruptcy filed

Can trustee avoid the Crs lien as a preference? Delayed perfection, analysis In hypo, the Cr and Dr intended to make a simultaneous exchange (loan for security), so if Cr had perfected right away, not a preference b/c no antecedent debt; also, not within 90 day period BUT since delayed beyond 30 days deem the transfer of security interest to be on March 1:

Now IS for antecedent debt (arose Jan 1) Within 90 days of May 1 bk filing So is avoidable as preference! Delay, but < 30 days Change hypo: loan for security on Jan 1, Cr not perfect until Jan 29; bk filed May 1 NOT a preference: Since perfected within 30 days of when lien

effective btwn Dr and Cr (i.e., on Jan 1) (here, 28 days), treat as if transfer made back on Jan 1 So: No antecedent debt, never a preference Plus here, not within 90 days of bankruptcy Grace period matter of federal law Note that the 30-day grace period in 547(e)(2)(A) has nothing to do with any particular state law or status (e.g., need not be a PMSI)

Solely a creature of federal bankruptcy law anyone & everyone always gets 30 days to perfect for preference purposes What about a CHECK? Barnhill In Supreme Court case of Barnhill v Johnson, Ct had to decide when a transfer was made by check: When check was delivered to payee? (at

day 92) Or, when check was honored by bank? (day 90) Holding in Barnhill For purposes of applying the elements of a preference under 547(b), the Court held in Barnhill that a check is not transferred until it is honored by the bank Rationale: under state law (e.g., UCC Art 3), no actual transfer of property from drawer of check

to payee until honor Many a slip between delivery & honor, payee get $0 Court left open possibility that a delivery date might be used for preference exceptions Freedom Group Facts: June 2: LH judgment vs Dr (FG), $7K+ June 12: notice of garnishment issued June 15 [day 91]: garnishment served on Drs bank Lien arise under state law June 16 [day 90]: DR deposit $18K in account June 17: final order issued

Bank pays LH $7743 pursuant to garnishment Sept 14 bk filed FG (DIP) sue LH to recover $7743 payment - preference Payment or lien? Note that DIP is seeking to recover the payment by bank of $7743 as a preference, but court is focusing on when LHs garnishment lien was effective why? Issue

The decisive issue in case, then, is when the garnishment lien was transferred from Dr to LH If transfer was within 90-day preference period, then lien is indisputably avoidable 90-day mark was June 16 Creditors argument LH

argued that the transfer was made on June 15 (conveniently, day 91!) when the garnishment lien is deemed perfected (in sense that no other cr could become a lien cr and get priority over it) date notice served on bank holding 7th circuit held, however, that the transfer was not made until the court issued final order until then, rights purely tentative Analogized to Barnhill check delivery

case, deference to state law Said here had perfection (on service) before transfer rationale Statute Must have an effective transfer of property as between Dr and Cr under state law, whether or not perfected see 547(e)(2)(A) Preference policy b/c of continuing nature of garnishment

lien, otherwise allow Dr to prefer LH by depositing $ in account within 90 days, after LHs perfection intact What about the $18k deposit? Assume, for sake of argument, that 7th circuit had agreed with Cr that the transfer was effective from time was perfected, which was on date of service (June 15), which was day 91, outside preference period Is

it nevertheless a problem that the $18K was not deposited in the account until June 16 (which was day 90)? i.e., could there be a transfer of a lien on $18K before the $18K existed?? Palmer Clay Products Facts: During preference period, Dr made several payments ($1843) to Cr Dr insolvent at time Allegedly, % paid to Cr at time was not > % would have gotten if Drs assets then

liquidated Trustee sue Cr Issue in Palmer Question before the Court was how to construe the greater % test (i.e., what today would be 547(b)(5)) Creditors argument? What exactly was the Creditor arguing in terms of how the greater % test should be interpreted?

Holding of Court Court holds that must construe test in terms of the actual effect of how affects Crs recovery Rule of thumb after Palmer Payment = preferential effect unless: 1) all unsecured creditors will be paid

100% in bk Or 2) the creditor transferee is fully secured Courts hypo Claim = $10K Paid $1000 during preference period Bk distribution = 50% (1) without challenged transfer? Cr get $5K (50% of 10K) (2) with challenged transfer? Cr would get $5,500 (100% of the

$1,000 paid, plus 50% of remaining $9k. i.e., $4500) Why rule of thumb works The reason the Palmer rule of thumb works is that if the bankruptcy distribution would be less than 100% to unsecured creditors, the preferred creditor has to be better off if gets to keep 100% of any pre-bk payment made On those $, is getting 100%, not smaller

bk % In hypo, the $500 difference is explained Problem 9.10(a) Facts: Debtor owes Creditor $20K for debt incurred on January 1, for which Debtor granted Creditor a perfected security interest in collateral worth $20K (i.e, fully secured) On April 1 Debtor pays Creditor $10K On April 2 Debtor files bankruptcy Is the $10K payment to Creditor a voidable preference?

Analysis 9.10(a) Issue is whether payment has a preferential effect, i.e., does it enable Cr to receive more than it would have in a hypothetical chapter 7 liquidation, under 547(b)(5)? NO preferential effect b/c Cr was fully secured So would have gotten paid in full in bk

case anyway 9.10(b) Facts: Debtor owes Creditor $20K for debt incurred on January 1, for which Debtor granted Creditor a perfected security interest in collateral worth $12K (i.e, undersecured) On April 1 Debtor pays Creditor $10K On April 2 Debtor files bankruptcy Is the $10K payment to Creditor a voidable preference?

Analysis 9.10(b) Without payment, what would Cr get in bankruptcy? 12K secured claim paid in full, 12K 8K unsecured claim (20-12) (assume 25% to unsec. Crs) = 2K Total 14 K With payment, what will Cr get in bk? 10K payment before bk 10K debt remaining, secured for 12, so get 10K total

Total 20K Yes, is a preference Why? Reason is a preference is b/c would bifurcate the 20K claim into: Secured = 12 Unsecured = 8 Then, the 10K payment prior to bankruptcy is allocated first to pay off the unsecured

claim (for 8), and as to that 8K, the payment has a preferential effect, since unsec crs in bk only get 25%

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