JULIA W. BRAND, Bankruptcy Judge.
Before the Court are (1) Plaintiff Imagine Fulfillment Services, LLC's ("Plaintiff" or "IFS") Motion for Partial Summary Judgment, or in the Alternative, Summary Adjudication of Facts ("IFS' Motion") and (2) Defendant DC Media Capital LLC's ("Defendant" or "DC Media") Motion for Partial Summary Judgment as to Second and Fifth Affirmative Defenses ("DC Media's Motion"). IFS seeks summary judgment that three prepetition transfers to DC Media are avoidable preferences under section 547(b).
A hearing was held on November 5, 2012, at 10:00 a.m., at which time the Court heard oral argument and took this matter under submission. The Court, having considered the pleadings, evidentiary record, and the oral arguments of counsel, finds and concludes as follows:
The Court finds the following facts to be undisputed.
Prior to the Petition Date, a dispute arose between IFS and DC Media. DC Media sued IFS in Los Angeles Superior Court (Case No. BC408418) for, among other things, breach of contract and damages (the "State Court Action"). On December 16, 2011, the Superior Court entered judgment in the State Court Action in favor of DC Media and against IFS for, among other things, breach of contract and damages, in the amount of $2,356,546.00, plus prejudgment interest, attorneys' fees and costs (the "Judgment"). The Judgment includes pre-judgment interest of $967,776, attorneys' fees of $541,946.50 and costs of $29,556.42 for a total of $3,997,223.
On December 27, 2011, DC Media filed a Notice of Judgment Lien with the California Secretary of State.
On January 24, 2012, DC Media recorded an Abstract of Judgment with the Los Angeles County Recorder.
On February 7, 2012, IFS filed a notice of appeal of the Judgment. This appeal was pending as of the Petition Date and remains pending.
On March 5, 2012, DC Media caused the Los Angeles County Sheriff's Office ("Sheriff") to levy upon IFS' Wells Fargo bank account. The Sheriff seized approximately $81,196.00, which the Sheriff continues to hold and has not turned over to DC Media.
As of the Petition Date, IFS had not satisfied the Judgment. DC Media was a creditor of IFS during the period from December 16, 2011, through March 25, 2012.
During the period from December 16, 2011 through March 25, 2012 IFS did not own real property.
Both IFS and DC Media have provided evidence regarding IFS' solvency during the 90 days before the Petition Date. IFS introduced evidence showing the value of its assets and liabilities as stated on its balance sheet at the time of each of the transfers at issue.
Date Value of Assets and Liabilities December 27, 2011 Assets $472,217 Liabilities $780,315 December 31, 2011 Assets $683,802 Liabilities $871,900 January 24, 2012 Assets $596,969 Liabilities $941,968 March 5, 2012 Assets $653,929 Liabilities $951,770 March 31, 2012 Assets $908,227 Liabilities $1,176,256
In addition, IFS contends that the Judgment is a liability that, when added to its balance sheet liabilities, establishes its insolvency at each of the relevant times. DC Media introduced an appraisal of certain of IFS' assets. DC Media also introduced evidence in the form of IFS' business records to show that IFS' cash in its checking account as of December 27, 2011 was $231,965 instead of negative $65,151, as stated on IFS' balance sheet and that its accounts receivable as of December 27, 2011 was $413,650 instead of $394,779 as provided in the balance sheet. This results
This Court has jurisdiction over this adversary proceeding under 28 U.S.C. §§ 157(b) and 1334(b). This matter is a core proceeding under 28 U.S.C. §§ 157(b)(2)(A), (E), (H), and (O). Venue is proper in this Court. 28 U.S.C. § 1409(a).
Rule 7056 states that Civil Rule 56 applies in adversary proceedings. Under Civil Rule 56(c), summary judgment is warranted where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the [moving party] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The court may grant summary judgment on all or part of the claim. Fed.R.Civ.P. 56(a)-(b).
To prevail on a summary judgment motion, the moving party must show that there are no triable issues of material fact as to matters on which it has the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On issues where the moving party does not have the burden of proof at trial, the moving party is required to show only that there is an absence of evidence to support the non-moving party's case. Id.
To defeat a summary judgment motion, the non-moving party must affirmatively present specific admissible evidence sufficient to create a genuine issue of material fact for trial. See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. The non-moving party may not rely solely on its pleadings or conclusory statements. Fed.R.Civ.P. 56(e). Nor may the non-moving party merely attack or discredit the moving party's evidence. Nat'l Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir.1983).
IFS seeks summary judgment that (i) the filing of the Notice of Judgment Lien with the California Secretary of State ("Transfer One"), (ii) the recording of the Abstract of Judgment with the Los Angeles County Recorder ("Transfer Two"), and (iii) the Sheriff's levy on IFS bank account ("Transfer Three") are avoidable preferences under section 547(b). DC Media argues that the Court must deny IFS' Motion because genuine issues of material fact remain as to (1) whether Transfer One was made during the 90-day window, (2) whether IFS was insolvent on the transfer dates, and (3) whether DC Media will receive more from the transfers than it would receive in a hypothetical chapter 7 liquidation.
DC Media seeks summary judgment that (1) Transfer One is not avoidable pursuant to section 547(c)(2) because the filing of the Notice of Judgment Lien was made in the ordinary course of business and according to ordinary business terms, and (2) Transfer Two is not avoidable pursuant to section 547(c)(9) because IFS owns no real property, and therefore the Abstract of Judgment is less than the $5,850.00
For the reasons set forth below, the Court will grant summary judgment as to each element of Transfer One, other than the last element, that the transfer allows DC Media to receive more than it would in a hypothetical chapter 7 liquidation. The Court will deny IFS' Motion with respect to Transfer Two. The Court will grant summary judgment as to Transfer Three. The Court will deny DC Media's Motion.
A trustee or debtor in possession may avoid certain transfers made within 90 days before the bankruptcy filing that would otherwise prefer one or more creditors at the expense of other creditors. 11 U.S.C. § 547(b); In re Ahaza Sys., Inc., 482 F.3d 1118, 1122 (9th Cir.2007). To avoid a transfer as preferential, IFS must show all of the following elements:
11 U.S.C § 547(b); see also, In re Flooring Concepts, Inc., 37 B.R. 957, 960 (9th Cir. BAP 1984).
There is no dispute that Transfer One and Transfer Three are transfers of an interest of IFS in property to or for the benefit of DC Media, a creditor of IFS, on account of the DC Media Judgment, an antecedent debt. Thus, summary judgment as to these elements is appropriate and the Court will not address those elements in its discussion.
With respect to Transfer One, the Notice of Judgment Lien, the parties dispute (1) when the transfer was made; (2) whether IFS was insolvent at the time of the transfer; and (3) whether the transfer allows DC Media to receive more than it would receive in a chapter 7 liquidation had the transfer not been made.
To be avoidable as a preference, a transfer must have occurred during the 90 day preference period applicable to transfers to non-insiders. 11 U.S.C. § 547(b)(4). IFS has the burden of proof on this element. 11 U.S.C. § 547(g). A transfer is "made" on the date it "takes effect between the transferor and transferee, if such transfer is perfected at [the time of the transfer] or within 30 days" thereafter. 11 U.S.C. § 547(e)(2). If a transfer is perfected after this 30-day period, the transfer is deemed "made" at the time of perfection. 11 U.S.C. § 547(e)(2)(B); In re Loken, 175 B.R. 56, 63-64 (9th Cir. BAP 1994). If a transfer is not perfected as of the petition date, the transfer is deemed to have occurred immediately before the petition date. 11 U.S.C. § 547(e)(2)(C). A transfer affecting personal property is perfected when a creditor on a simple contract
State law controls when a transfer is effective between parties. McKenzie v. Irving Trust Co., 323 U.S. 365, 370, 65 S.Ct. 405, 89 L.Ed. 305 (1945). Under California law, a judgment lien on personal property is created by filing a Notice of Judgment Lien in the office of the Secretary of State. Cal.Civ.Proc.Code § 697.510(a); Waltrip v. Kimberlin, 164 Cal.App.4th 517, 529, 79 Cal.Rptr.3d 460 (2008); Kaichen's Metal Mart, Inc. v. Ferro Cast Co., 33 Cal.App.4th 8, 11, 39 Cal.Rptr.2d 233 (1995). A judgment lien attaches to business personal property interests owned by the judgment debtor when the judgment lien is filed, as well as to any lienable property later acquired by the judgment debtor. Cal.Civ.Proc.Code §§ 697.530(a)-(b). Thus, a judgment lien takes effect on the date a judgment creditor files its Notice of Judgment Lien with the Secretary of State. Further, under California law, the first judgment lien to attach prevails over later-filed judgment liens. Cal.Civ.Proc.Code § 697.600(a).
Here, it is undisputed that DC Media filed its Notice of Judgment Lien on December 27, 2011. Under California law, the filing of the Notice of Judgment Lien created a judgment lien that took effect when the notice was filed. Cal.Civ.Proc. Code § 697.510(a). After that date, a creditor on a simple contract could not obtain a greater lien. Cal.Civ.Proc.Code § 697.600(a). Accordingly, under section 547(e)(2), Transfer One was made on December 27, 2011, the date when the transfer took effect and was perfected. This transfer affected all of IFS' personal property on that date, along with any after-acquired personal property.
DC Media argues that Transfer One cannot be avoided under section 547(e)(3), which provides that "a transfer is not made until the debtor has acquired rights in the property transferred." 11 U.S.C. § 547(e)(3). DC Media then identifies accounts receivable in which IFS acquired rights after the petition date, arguing that Transfer One was not "made" as to these postpetition transfers until IFS acquired rights in the accounts receivable. DC Media's argument misses the mark. The issue is when Transfer One — the attachment and perfection of DC Media's Judgment Lien — was made, not whether assets acquired after the petition date are transfers. While DC Media's Judgment Lien attaches to IFS' after-acquired property, when such property is acquired does not affect when the Judgment Lien itself was created under California law.
Therefore, because the Judgment Lien was created on December 27, 2011, IFS has carried its burden of proof that Transfer One was made within the 90-day window of section 547(b)(4).
For a debtor-in-possession to avoid a preferential transfer, the debtor must have been insolvent at the time the transfer was made. 11 U.S.C. § 547(b)(3). A debtor is presumed to be insolvent 90 days before the filing of a petition. 11 U.S.C. § 547(f). To defeat the presumption, the transferee must come forward with substantial evidence of the debtor's solvency at the time the transfer was made. In that case, the presumption disappears and the debtor must present evidence sufficient to prove insolvency. In re Sierra Steel, Inc., 96 B.R. 275, 277 (9th Cir. BAP 1989).
A debtor is insolvent where the debtor's debts exceed its assets (excluding exempt assets or assets that have been transferred, concealed, or removed with
Although courts in this Circuit commonly refer to the insolvency analysis under section 547(b)(3) as a "balance sheet test," the balance sheet book value of a debtor's assets may not always equal the fair market value. Matter of Lamar Haddox Contractor, Inc., 40 F.3d 118, 121 (5th Cir.1994) ("[A] fair valuation may not be equivalent to the values assigned on a balance sheet.... The fair value of property is not determined by asking how fast or by how much it has been depreciated on the corporate books, but by estimating what the debtor's assets would realize if sold in a prudent manner in current market conditions." (internal quotations and citation omitted)). Nevertheless, a court may still consider book value as competent evidence from which it may draw inferences about a debtor's insolvency. In re Roblin Indus., Inc., 78 F.3d 30, 36 (2d Cir.1996) (citation omitted).
Because IFS is presumed to be insolvent during the 90 day preference period, DC Media must introduce at least "some evidence [of debtor's solvency] to rebut [this] presumption." In re Koubourlis, 869 F.2d at 1322. Here, DC Media challenges IFS' balance sheets as evidence of fair value by presenting some evidence that IFS has undervalued certain assets and overstated certain liabilities on its balance sheet as of December 27, 2011.
A "debt" is a "liability on a claim." 11 U.S.C. § 101(12). A "claim" is defined as a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." 11 U.S.C. § 101(5)(A). The terms "debt" and "claim" are coextensive. In re Quintana, 107 B.R. 234, 237 (9th Cir. BAP 1989), aff'd, 915 F.2d 513 (9th Cir.1990). Thus, "contingent liabilities must be included in the computation of total indebtedness." 2 Collier on Bankruptcy ¶ 101.32[5] (16th ed. 2011). "For purposes of the insolvency test, if there is a contingent asset or contingent liability, that asset or liability must be reduced to its present, or expected value." Id. at n. 94; see Matter of Xonics Photochemical, Inc., 841 F.2d 198, 200 (7th Cir.1988). Accord In re Trans World Airlines, Inc., 134 F.3d 188, 197 (3d Cir.1998), cert. denied, 523 U.S. 1138, 118 S.Ct. 1843, 140 L.Ed.2d 1093 (1998); F.D.I.C. v. Bell, 106 F.3d 258, 264 (8th Cir.1997); Covey v. Commercial Nat'l Bank of Peoria, 960 F.2d 657, 660 (7th Cir.1992); F.D.I.C. v. Municipality of Ponce, 904 F.2d 740, 744 (1st Cir.1990); In re Chase & Sanborn Corp., 904 F.2d 588, 594-95 (11th Cir.1990); In re Sierra Steel, Inc., supra. Thus, to value a liability, a court should engage in a two-step analysis: first, the court must determine whether the liability is contingent, and second, if so, the court should discount the contingent liability to its expected value.
Here, DC Media contends that the Judgment is a contingent liability which should be given little value based on IFS' estimation of its chance of success on appeal. DC Media contends that the Judgment should be valued consistent with the approach of the Seventh Circuit in Xonics, which stated that "[t]o value the contingent liability it is necessary to discount it by the probability that the contingency will occur and the liability become real." 841 F.2d at 200. The Xonics court stated that the value of the contingent liability should be determined as a function of the value of the debtor's assets. Id. According to DC Media, using this approach would yield a value for the Judgment of $7,394.70 (the estimated chance of liability on the Judgment (10%) multiplied by the net value of IFS' assets ($73,947.00)). Adding this amount to IFS' balance sheet liabilities on the date of Transfer One would make the Debtor solvent on that date, according to DC Media.
Without conceding that the Judgment should be discounted, IFS asserts that if the Court were to discount the Judgment
However, both DC Media and IFS skip the critical first step, a determination of whether the Judgment is a contingent liability. The Court cannot reach the issue of the value of the Judgment as a contingent liability without first determining that the Judgment is contingent. If the Judgment is a contingent liability, the Court cannot make this determination on summary judgment because it requires the Court to weigh evidence in determining the value of the contingent liability. If the Judgment is not contingent, the full amount of the Judgment must be included in the insolvency analysis.
As noted above, the Code's definition of "claim" includes a contingent right to payment. 11 U.S.C. § 101(5). However, the Code does not define the term "contingent." In re Nicholes, 184 B.R. 82, 88 (9th Cir. BAP 1995). Case law has primarily focused on defining "contingent" in the context of section 303 (threshold requirements for chapter 7 and 11 involuntary petitions), section 109(e) (debtor eligibility for chapter 13 relief) and section 502(c) (estimation of claims). In each of these contexts, courts have held that a claim is not contingent "if all events giving rise to liability occurred prepetition." In re Fostvedt, 823 F.2d 305, 306-07 (9th Cir.1987) (§ 109(e) case). Accord In re Loya, 123 B.R. 338, 340 (9th Cir. BAP 1991) (§ 109(e) case); In re Dill, 30 B.R. 546, 549 (9th Cir. BAP 1983), aff'd, 731 F.2d 629 (9th Cir.1984) (§ 303(b)(1) case); In re Mitchell, 255 B.R. 345, 359-60 (Bankr. D.Mass.2000) (§ 109(e) case); In re Nugent, 254 B.R. 14, 38 (Bankr.D.N.J.1998) (§ 502(c) case); In re Audre, 202 B.R. 490, 492 (Bankr.S.D.Cal.1996) (§ 502(c) case); In re Keenan, 201 B.R. 263, 264 (Bankr. S.D.Cal.1996) (§ 502(c) case).
In the seminal case In re All Media, the bankruptcy court enunciated the "triggering event test" for determining whether the claims of petitioning creditors were non-contingent, thus making such creditors eligible to file an involuntary bankruptcy petition. In re All Media Props., Inc., 5 B.R. 126, 131 (Bankr.S.D.Tex.1980), aff'd, 646 F.2d 193 (5th Cir.1981), overruled on other grounds by In re Trusted Net Media Holdings, LLC, 550 F.3d 1035 (11th Cir. 2008). The All Media court examined the authority under the Bankruptcy Act of 1898 on whether a liability was contingent:
In re All Media, 5 B.R. at 132 (footnote omitted); see also Bankr.Act of 1898, § 59(b), 11 U.S.C. (1976 Ed.) § 95(b). The All Media court held that under section 303, a claim is contingent as to liability if a triggering event is required for the claim to come into existence:
Id. at 133 (emphasis added).
Numerous cases have applied All Media's "triggering event" definition of contingent liabilities for purposes of section 303 eligibility. See, e.g., In re Seko Inv., Inc., 156 F.3d 1005, 1008 (9th Cir.1998); In re Smith, 243 B.R. 169, 179 (Bankr. N.D.Ga.1999); In re Turner, 32 B.R. 244, 247 (Bankr.D.Mass.1983).
In addition, courts have applied the "triggering event" test to determine whether a debt is contingent for purposes of chapter 13 eligibility under section 109(e). Under section 109(e),
11 U.S.C. § 109(e).
"[A] creditor's claim is not contingent when the `triggering event' occurred before the filing of the chapter 13 petition." 2 Collier on Bankruptcy ¶ 109.06[2][b] (16th ed. 2011); see also Brockenbrough v. C.I.R., 61 B.R. 685, 686-87 (W.D.Va.1986) (quoting In re All Media, 5 B.R. at 133) (because debtor's tax liability was triggered by his prepetition failure to pay taxes, that liability was no longer contingent as of the petition date).
In In re Mitchell, supra, the bankruptcy court for the District of Massachusetts considered whether a California state court judgment that was on appeal was a contingent debt for determining the debtors' eligibility for chapter 13 relief under section 109(e). 255 B.R. at 358-61. While recognizing that under California law, a judgment on appeal was not final for res judicata purposes until the appeal was concluded, the bankruptcy court nevertheless held that the California judgment against the chapter 13 debtors was not a contingent debt. Id. at 359-60. The court held that the liability was not contingent because all events giving rise to debtors' liability to the judgment creditor occurred prior to the filing of debtors' petition, even though the judgment was on appeal as of the filing date. Id.Accord Matter of Redburn, 193 B.R. 249 (Bankr.W.D.Mich. 1996); In re Johnson, 191 B.R. 184 (Bankr.D.Ariz.1996). In reaching its decision the Mitchell court relied on In re Keenan, 201 B.R. 263 (Bankr.S.D.Cal. 1996), a bankruptcy court decision from the Southern District of California that addressed the same issue in the context of claim estimation under section 502(c). Section 502(c) provides that a court shall estimate "any contingent or unliquidated claim, the fixing or liquidation of which, as the case may be, would unduly delay the administration of the case." 11 U.S.C. § 502(c)(1).
In Keenan, a chapter 11 debtor asked the court to estimate a judgment creditor's claim that arose from a prepetition state court judgment. 201 B.R. at 264. The debtor argued that because California judgments on appeal have no preclusive effect, the judgment creditor's claim was contingent and therefore the court was obligated to estimate the claim pursuant to section 502(c). Id. Rejecting the debtor's argument, the court held that the judgment was not a contingent claim because all events giving rise to liability occurred prior to the filing of the bankruptcy petition. Id. The court further held that even though the judgment on appeal had no preclusive effect, "the inapplicability of issue preclusion does not make a claim based upon a trial court verdict either contingent or unliquidated." Id.
Further, a dispute over a claim does not render the claim contingent. E.g., In re McNeil, 13 B.R. 434, 436 (E.D.Tenn.1981); In re Pennypacker, 115 B.R. 504, 507 (Bankr.E.D.Pa.1990) (rejecting argument that all disputed debts are contingent); In re Elsub Corp., 70 B.R. 797,
Few preference cases have addressed the issue of whether a claim is contingent for purposes of determining the debtor's solvency. Indeed, in Xonics and Sierra Steel, cases cited by DC Media, the issue was not whether the debt at issue was contingent but how to account for the contingent liability in determining solvency. See Xonics Photochemical, Inc., 841 F.2d at 200; In re Sierra Steel, Inc., 96 B.R. at 279. In In re Attaway, the bankruptcy court for the District of Oregon addressed the definition of a contingent liability in the section 547(b) context. 180 B.R. 274 (Bankr.D.Or.1995). In that case, the court noted that "[T]he rule is clear that a contingent debt is `one which the debtor will be called upon to pay only upon the occurrence or happening of an extrinsic event which will trigger the liability of the debtor to the alleged creditor.'" Id. at 278 (quoting In re Fostvedt, 823 F.2d at 306). Another case holds that "contingent liabilities must be limited to costs arising from foreseeable events that might occur while the debtor remains a going concern," impliedly espousing the "triggering event" definition of contingent liabilities from All Media. In re Trans World Airlines, Inc., 134 F.3d 188, 198 (3d Cir.1998); see also In re Lids Corp., 281 B.R. 535, 546 (Bankr. D.Del.2002).
These cases demonstrate that the "triggering event" test has been widely applied to determine whether a debt is contingent. Further, the Ninth Circuit Court of Appeal adopted this test in In re Fostvedt, with respect to contingent liability for eligibility under section 109(e). The rules of statutory construction provide that a term should be construed consistently throughout a statute. See Yamaguchi v. State Farm Mut. Auto. Ins. Co., 706 F.2d 940, 947 (9th Cir.1983). For these reasons, the Court will adopt this test to determine whether the Judgment is a contingent liability for purposes of section 547. Thus, because the events giving rise to the Judgment occurred pre-petition and prior to each of the transfers at issue, the Judgment is not a contingent debt and was not contingent as of any of the relevant transfers. As a result, the full amount of the Judgment must be included as a liability of IFS. Including the Judgment in the solvency calculation, the Court concludes that IFS was insolvent at the time each of the transfers was made, even if the adjustments to IFS' asset and liability values suggested by DC Media are accepted. Therefore, the issues of fact raised by DC Media with respect to IFS' assets and liabilities are not material and DC Media has failed to rebut the presumption of insolvency. IFS is entitled to summary judgment on this element.
Finally, a transfer is not preferential unless it enables the transferee creditor to receive more than it would have
Section 547(b)(5) is sometimes called the "greater amount" test, which requires a court "to construct a hypothetical chapter 7 case and determine what the creditor would have received if the case had proceeded under chapter 7." In re LCO Enters., 12 F.3d 938, 941 (9th Cir. 1993). "In making its determination, the court must decide the transferee's creditor class and determine what distribution that class would have received had the transfer not been made." 2 Collier on Bankruptcy ¶ 547.03[7] (16th ed. 2011). For example, any payment to a general unsecured creditor during the 90-day preference window would be preferential, because in a hypothetical chapter 7, the unsecured creditor would have only received its chapter 7 distribution. See id. In contrast, because a fully-secured creditor will always receive payment in full on its claim in a chapter 7 case, a payment to a fully-secured creditor would not be preferential. In re World Fin. Servs. Ctr., Inc., 78 B.R. 239, 241-42 (9th Cir. B.A.P. 1987). However, a prepetition payment to a fully-secured creditor may be preferential if the creditor's lien is avoidable in a chapter 7 case. In re Jones, 226 F.3d 917, 921-22 (7th Cir.2000). In addition, "the mere act of perfecting a security interest within the preference period has a preferential effect as it allows that creditor to realize more than it otherwise would have in a liquidation under Chapter 7." In re Fox, 229 B.R. 160, 167 (Bankr.N.D.Ohio 1998).
Here, the filing of the Notice of Judgment Lien created and perfected DC Media's lien in IFS' personal property, allowing DC Media to receive more than it would in a chapter 7 liquidation had DC Media's claim remained unsecured. DC Media argues that IFS has failed to meet its burden under section 547(b)(5) of producing sufficient evidence that DC Media would be paid less than 100% of its allowable claims as a general unsecured creditor in a hypothetical chapter 7 case. However, the act of creating and perfecting the Judgment Lien, in and of itself, means that DC Media will receive more than it would in a chapter 7 liquidation because the Judgment Lien has elevated DC Media's payment status over all other unsecured creditors. With the Judgment Lien, DC Media will be paid before any payments are made to any other unsecured creditors. If DC Media had not received the Judgment Lien, it would share in any distributions pro rata with other unsecured creditors.
DC Media also argues that the Judgment Lien does not allow DC Media to receive more than it would in a chapter 7 liquidation because DC Media also has a lien in IFS' personal property assets as a result of service of an Order for Appearance of Judgment Debtor ("ORAP Lien"). Under California Code of Civil Procedure section 708.110(d), service of an Order for Appearance of Judgment Debtor creates a lien in favor of the judgment creditor on the judgment debtor's non-exempt assets. Cal.Civ.Proc.Code § 708.110(d). IFS filed a motion to amend the Complaint in this adversary proceeding to avoid the ORAP Lien. At a hearing on this motion, the Court granted the Motion to Amend. However, no order has as yet been entered. Until the status of the ORAP Lien
Transfer Three is the Sheriff's seizure on March 5, 2012, of $81,196.00 from IFS' Wells Fargo bank account. These funds are still being held by the Sheriff and have not been turned over to DC Media. DC Media does not contest IFS' challenge to Transfer Three. This transfer also must be avoided as IFS has established each element of a preferential transfer under section 547(b). Transfer Three was a transfer of an interest in IFS' property (the bank account funds). Second, the Sheriff made its levy for the benefit of DC Media. Third, this transfer was on account of an antecedent debt (the Judgment). Fourth, this transfer was made on March 5, 2012, within the 90-day preference window. IFS was insolvent at the time that Transfer Three was made. Finally, DC Media's receipt of the funds held by the Sheriff would result in DC Media receiving more than it would receive in a hypothetical chapter 7 liquidation as in a chapter 7 case, such proceeds would be available for the benefit of all unsecured creditors.
DC Media asserts that Transfer Two, the Abstract of Judgment recorded with the Los Angeles County Recorder on January 24, 2012, may not be avoided since the Debtor owns no real property and therefore the transfer is less than the threshold minimum amount of $5,850 that may be recovered as a preferential transfer under section 547(c)(9). DC Media recorded an Abstract of Judgment with the Los Angeles County Recorder, pursuant to California law. Cal.Civ.Proc.Code § 697.310(a). Recordation of an abstract of judgment creates a lien that attaches to all of the debtor's real property interests in the county, and to any after-acquired property, for the "amount required to satisfy the money judgment." Cal.Civ.Proc. Code §§ 697.340(a)-(b), 697.350(a); SBAM Partners v. Cheng Miin Wang, 164 Cal.App.4th 903, 907, 79 Cal.Rptr.3d 752 (2008).
Under California law, a recorded abstract of judgment creates a lien only on real property. See Bagley v. Ward, 37 Cal. 121, 131 (1869) ("Our remarks are confined to real property, as the judgment does not constitute a lien upon personal property."); Arnett v. Peterson, 15 Cal.App.3d 170, 172-73, 92 Cal.Rptr. 913 (1971) (affirming lower court holding that personal property was not subject to lien created by a recorded abstract of judgment). The parties do not dispute that IFS owned no real property in Los Angeles County on the date of recordation. IFS still owns no real property. Moreover, under California law a lien cannot exist absent attachable property. See E. Bay Mun. Util. Dist. v. Garrison, 191 Cal. 680, 692, 218 P. 43 (1923); Gostin v. State Farm Ins. Co., 224 Cal.App.2d 319, 325, 36 Cal.Rptr. 596 (1964). In In re Thomas, the bankruptcy court for the Eastern District of California found that even when a judgment creditor properly recorded an abstract of judgment, no judgment lien was created as a matter of law where a debtor had no attachable property as of the petition date. 102 B.R. 199, 201 (Bankr.E.D.Cal.1989).
Here, IFS did not own any real property in Los Angeles County on the date of recordation or at any time from that date through the petition date. IFS still owns no real property. Thus, DC Media's recordation of the abstract of
Therefore, IFS is not entitled to summary judgment as to Transfer Two. Furthermore, because Transfer Two is not a transfer under the Code, the court denies as moot summary judgment on DC Media's section 547(c)(9) defense.
DC Media argues that it is entitled to partial summary judgment on its second affirmative defense as to Transfer One, because the filing of the Notice of Judgment Lien occurred in the ordinary course of business and according to ordinary business terms. The court disagrees.
A creditor may defeat a preference action by establishing that the alleged preference falls within one of the exceptions listed in section 547(c). The creditor bears the burden of proof of these defenses. 11 U.S.C. § 547(g). Section 547(c)(2) provides creditors with an "ordinary course of business" defense to a preference action. 11 U.S.C. § 547(c)(2); see In re Healthcentral.com, 504 F.3d 775, 789 (9th Cir.2007). To prevail on this defense, the transferee must show that (1) the transfer was made "in payment of a debt incurred by the debtor in the ordinary course of business" and (2) that the payment was either "made in the ordinary course of business" or "made according to ordinary terms." 11 U.S.C. § 547(c)(2).
Here, DC Media argues that the recording of the Notice of Judgment Lien was "payment of a debt incurred" in the "ordinary course of business." This argument fails. A transfer in the form of a security interest is not the type of "payment" contemplated by section 547(c)(2). See, e.g., In re Grand Chevrolet, Inc., 25 F.3d 728, 732 (9th Cir.1994) ("A payment on a loan (whether secured or unsecured) is very different from a transfer of a security interest."); In re Four Winds Enters., Inc., 100 B.R. 24, 25 (Bankr.S.D.Cal.1989) ("the [section 547(c)(2) ] exception only applies to `payment of ordinary trade credit.'... Indeed, the natural reading of the phrase in section 547(c)(2)(A) speaks of the `payment of a debt incurred by the debtor in the ordinary course of business[.]'" (emphasis in original)).
Moreover, DC Media's unilateral act of recording its Notice of Judgment Lien "cannot be characterized as being within the ordinary course of business of both the debtor and the creditor as required by section 547(c)(2)." In re Four Winds, 100 B.R. at 25 (rejecting the application of the section 547(c)(2) defense to a transferee's belated recordation of its UCC-1 statement). Thus, Transfer One is not a payment of a debt and the section 547(c)(2) defense does not apply.
Therefore, the Court denies summary judgment as to DC Media's second affirmative defense.
In summary, the Court holds as follows:
With respect to Transfer One, IFS is entitled to Summary Adjudication of the following issues: (1) Transfer One was a transfer of an interest in IFS in property; (2) on account of the antecedent Judgment; (3) for the benefit of DC Media, creditor of IFS; (4) while IFS was insolvent. IFS is not entitled to summary judgment on the
With respect to Transfer Two summary judgment is denied.
With respect to Transfer Three, the Court holds that the transfer is avoidable as a matter of law and IFS is entitled to summary judgment in its favor on Transfer Three.
Finally, DC Media is not entitled to summary judgment on its second and fifth affirmative defenses.
A separate order consistent with this amended memorandum of decision will be entered.
