THOMAS B. DONOVAN, Bankruptcy Judge.
Plaintiff Alberta P. Stahl, in her capacity as the chapter 7 trustee for the bankruptcy estate of Modtech Holdings, Inc. (Modtech or Debtor), seeks to avoid alleged preferential transfers made to Whelan Electric, Inc. (Defendant or Whelan). At the time of the transfers, Modtech was a contractor for various California school districts. Modtech subcontracted with Defendant to provide work, labor and materials to projects for the Palos Verdes Unified School District (Palos Verdes), the Vista Dual Magnet School (Vista Dual) and the Los Angeles Community College (LACC) (collectively, Projects). On October 2, 2008, Defendant received a $75,000 check from Modtech. In addition, Defendant executed and served various stop notices on the Projects and issued several releases of the stop notices in the ninety days prior to Modtech's filing. Modtech filed for bankruptcy on October 20, 2008 (Petition Date).
Plaintiff asserts that Defendant received avoidable preferential transfers on October 2, 2008 that should be avoided pursuant to 11 U.S.C. § 547(b).
Trial was by written declaration and documentation submitted pursuant to a Joint Pretrial Order (JPO) entered on February 14, 2012, with the written consent of both parties. There was no live testimony or cross-examination of any witness. Both sides submitted briefs to the court. Plaintiff filed written evidentiary objections to the Lee Whelan declaration and accompanying trial exhibits. At trial, Plaintiff waived cross-examination of Lee Whelan concerning his written testimony and documentary evidence. Both sides presented closing statements. The court did not grant Plaintiff's evidentiary objections, either to the declaration of Lee Whelan, Defendant's president, or to Defendant's trial exhibits. The court hereby expressly overrules those objections. The court's findings and conclusions follow based on the record.
Plaintiff asserts two separate categories of preferential transfers. The first was $75,000 cash paid by Modtech to Defendant in early October 2008. Plaintiff alleges that the $75,000 was transferred (1) for the benefit of Defendant, (2) on account of antecedent debt owed to Defendant, (3) while Modtech was insolvent, (4) in the 90 days prior to Modtech's bankruptcy, and that (5) Defendant obtained as a result more than it would have if the case had been filed under chapter 7 and the transfer had not been made, as a "preference" as defined in § 547(b).
Defendant rejects Plaintiff's categorization of both the funds and the stop notices as preferential transfers. First, Defendant argues that Plaintiff failed to show that the $75,000 payment caused Whelan to receive a larger share of the estate than if the transfer had not been made. Rather, Defendant asserts that its additional labor, equipment and materials Defendant agreed to provide and did provide to Modtech for the Projects after the October 2 payment, but prior to Modtech's Petition Date, were substantially equal in value to the payment received. Defendant further argues that the payment received in exchange for additional labor, equipment and materials occurred in the ordinary course of business and provided important new value to Modtech and thereby may not be avoided based on § 547(c)(2)(A) and (B) and (c)(4).
Additionally, Defendant argues that the $75,000 transfer was a contemporaneous exchange for the new value furnished by Defendant under § 547(c)(1) because Defendant partially released $20,714.80 of its stop notice for the Vista Dual project and conditionally waived $34,153.40 for the Palos Verdes project at the time of the October 2 payment. Tr. Exs. F and H. Defendant asserts that release of these stop notices constituted the release of a priority interest under Pearlman v. Reliance Ins. Co., 371 U.S. 132, 141, 83 S.Ct. 232, 237, 9 L.Ed.2d 190 (1962). Importantly, Defendant's new value contribution enabled Modtech to complete three public works projects in spite of Modtech's financial distress, and it provided new value to the unsecured creditors of the estate by relieving Modtech's surety, Liberty Mutual, of the responsibility to pay the stop notice amounts pursuant to Liberty Mutual's surety agreement with Modtech.
As to the stop notices themselves, Defendant asserts that the stop notices were served to protect statutory liens and accordingly are exceptions to preference treatment pursuant to § 547(c)(6). See California Civil Code §§ 3103 and 3156-3241.
The first issue is whether Plaintiff has met her burden under § 547(g) of demonstrating an avoidable transfer under § 547(b). The court concludes that Plaintiff has met this burden and has shown that the $75,000 without more would meet requirements for an avoidable transfer under § 547(b).
Section 547(c)(2) prevents the trustee from avoiding a transfer "to the extent that such transfer was in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee, and such transfer was — (A) made in the ordinary course of business or financial affairs of the debtor and the transferee;
Under the pre-BAPCPA statute, the Ninth Circuit focus was on whether the
To meet Ninth Circuit standards for § 547(c)(2)(A) (the subjective test, previously § 547(c)(2)(B)) the creditor must demonstrate that the relevant payments were ordinary in relation to past practices between the debtor and the creditor. Sigma Micro Corp. v. Healthcentral. com (In re Healthcentral. com), 504 F.3d 775, 790 (9th Cir.2007). Effectively, this breaks down into two components. Id. First, the creditor must show a baseline of past practices between itself and the debtor. Id. Second, the creditor must show that the relevant payments were ordinary in relation to these past practices. Id. This is most commonly done by demonstrating that the relevant payments did not differ from past payments in amount or form, were not the result of unusual collection or payment activities, or did not come as a result of the creditor taking advantage of the debtor's deteriorating financial condition. Id. (citing Sulmeyer v. Suzuki (In re Grand Chevrolet, Inc.), 25 F.3d 728, 732 (9th Cir.1994)).
The standard for § 547(c)(2)(B) (the objective test, previously § 547(c)(2)(C)) requires that the creditor demonstrate that the relevant payments were ordinary in relation to prevailing business terms. In re Healthcentral.com, 504 F.3d at 791. As before, this effectively breaks down into two components. Id. First, the creditor must establish the broad range of business terms employed by similarly situated debtors and creditors, including those in financial distress, during the relevant period. Id. Second, the creditor must show that the relevant payments are ordinary in relation to these prevailing business terms. Id. In general, the court in Grand Chevrolet concluded that § 547(c)(2)(C) should not pose a particularly high burden for creditors. Id.
As to whether the transaction between the parties was in their ordinary course of business per § 547(c)(2), the declaration of Lee Whelan provides the following relevant testimony. "In the summer of 2008 Whelan was working on several projects with Modtech." Lee Whelan Decl. ¶ 4. "In the summer of 2008, Modtech still owed some outstanding retention on completed projects to Whelan. I kept in regular contact with Modtech to work out terms for continuing the work of Whelan on the various projects in the ordinary course of our business." Id. "On August 21, 2008, Whelan filed a stop notice...." Id. at ¶ 5. "As a part of my continuing correspondence with Modtech, Whelan agreed to a partial payment of the amount it was currently owed on the various projects...." Id. at ¶ 6. "As a part of the payment process for the partial $75,000 payment from Modtech, Whelan executed several statutory releases, two conditional on progress payment releases and several smaller unconditional on final releases." Id. at ¶ 8. Based on this undisputed evidence, the court concludes that Defendant has met its burden of demonstrating that the transaction between the parties on October 2, 2008 occurred in the ordinary course of business between the Defendant and Modtech.
The next question is whether Defendant has met its burden under the subjective test. Examining the evidence presented by Defendant, the court concludes the standard for § 547(c)(2)(A) is not met. Defendant's compendium of exhibits and the declaration of Lee Whelan do not show a baseline of practices between Modtech and Defendant prior to the transaction date of October 2, 2008. Further, without
This evidence, however, does establish the requirements for the objective test under § 547(c)(2)(B). The declaration of Lee Whelan provides the following additional undisputed evidence: "It is customary in the construction industry to provide statutory releases in return for a payment from the general contractor. It is my understanding that these types of releases release a portion of the unexpended balance of the construction fund to the general contractor because the releases guarantee to the owner of the project that the subcontractor whose money is being held is actually being paid the money. It is my further understanding that the releases also release claims against the surety payment bond for the project." Whelan Decl. at ¶ 7. "As a part of the payment process for the partial $75,000 payment from Modtech, Whelan executed several statutory releases...." Id. at ¶ 8. "I was led to believe that Modtech's surety for the project requested that Whelan do so [that is, execute releases of the stop notices]." Id. "Whelan received the payment from Modtech on October 2, 2008." Id. at ¶ 9.
Based on this undisputed testimony, Defendant has shown that partial payments in exchange for releases of statutory stop notices are ordinary transactions within the construction industry. Further, Defendant's evidence demonstrates that the $75,000 partial payment on October 2, 2008 in exchange for Whelan's execution of the statutory releases was carried out in a fashion consistent with the norms of the construction industry.
The next issue is whether the $75,000 payment is excepted from avoidance under the new value defenses of § 547(c)(1) and (c)(4). "New value" is defined in Title 11 to include "money or money's worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law...." § 547(a)(2). As evidence of new value, Defendant submitted the testimony of Lee Whelan, along with spreadsheets, invoices and time sheets reflecting the labor, equipment and materials provided to Modtech between October 2, 2008 and October 20, 2008. The pretrial record, as the court recalls, indicates that Mr. Whelan exhibited his willingness to back up these spread sheets and time records with original documents. The total amount billed for Defendant's work, labor and services during that period was $74,376.24. Whelan Decl., ¶¶ 3 and 10-14; Tr. Exs. A, B, C and D. Defendant also
Section 547(c)(4) prevents a trustee from avoiding a transfer: "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[.]" § 547(c)(4).
To establish a new-value defense under § 547(c)(4) in the Ninth Circuit, Defendant must show that: (1) it advanced new value to the debtor after the preferential transfer; (2) that the advance of new value was unsecured; and (3) that the advance of new value remains unpaid or, if paid, the payment must also be avoidable. Mosier v. Ever-Fresh Food Co. (In re IRFM, Inc.), 52 F.3d 228, 230 (9th Cir. 1995).
Defendant has provided testamentary evidence that establishes these elements. As to the first requirement, that Defendant provided new value after the preferential transfer, the declaration of Lee Whalen provides the following testimony: "Whelan received the payment from Modtech on October 2, 2008...." Lee Whelan Decl. at ¶ 9. "On October 4, 2008, Whelan began providing labor, materials, equipment and services to the then three ongoing projects it had with Modtech." Id. at ¶ 10. This testimony is supported by Defendant's invoices beginning on October 2, 2008, the date of the transfer, in its documentary evidence.
The next requirement is that the advance of new value be unsecured. There is no evidence before the court showing that Defendant was a secured creditor as
The final element requires that the advance of new value remain unpaid. Defendant's trial brief unequivocally states that in exchange for the new value it provided to Modtech, Defendant "received no further payment from Modtech prior to the petition date." DF Tr. Brief at 3. Defendant's exhibits, specifically Exhibit A, show an unpaid balance for the new value provided in the form of labor, equipment and materials from October 2, 2008, to the petition date in the amount of $74,376.24. Accordingly, the $75,000 transfer on October 2, 2008 is offset by the new value provided by Defendant to Modtech in the amount of $74,376.24. In re IRFM, Inc., 52 F.3d at 233 (adopting the Garland accounting method). Based on this evidence, the court concludes that Defendant has sufficiently shown that the new value it provided to Modtech remains unpaid.
Defendant has met its burden under § 547(g) in demonstrating that it provided Modtech new value in the amount of $74,376.24 for labor, equipment and materials that have not otherwise been repaid. The $75,000 preference payment is offset by $74,376.24 in new value, thereby permitting avoidance of only $623.76 at most. As discussed above, however, the entire $75,000 payment should be excepted from avoidance as a payment in the ordinary course of business under § 547(c)(2)(B).
Section 547(c)(1) prohibits the trustee from avoiding a preferential transfer to the extent the transfer was "(A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange." "New value" for purposes of § 547(c)(1) is measured at the time of the transfer. Janas v. Marco Crane & Rigging Co. (In re JWJ Contracting Co.), 287 B.R. 501, 507 (9th Cir. BAP 2002) (citing In re Grand Chevrolet, Inc., 25 F.3d at 733 (9th Cir. 1994), aff'd, 371 F.3d 1079 (9th Cir.2004)).
Whether a transfer constitutes a contemporaneous exchange for new value under § 547(c)(1) raises a subjective question of fact, requiring a "case-by-case inquiry into all relevant circumstances" including the length of time between the issuance of credit (by the debtor) and the exchange of new value (by the creditor), the nature of the transaction, and the intention of the parties. See Dye v. Rivera (In re Marino), 193 B.R. 907, 913-14 (9th Cir. BAP 1996) (quoting Pine Top Ins. Co. v. Bank of America Nat'l Trust & Savings Ass'n, 969 F.2d 321, 328 (7th Cir.1992)). Furthermore, the Ninth Circuit Bankruptcy Appellate Panel (BAP) has recognized that "[t]he payments made by a general contractor to subcontractors on public works projects are typically exempted by the contemporaneous exchange exception of § 547(c)(1)." In re JWJ Contracting Co., 287 B.R. at 507 (citing O'Rourke v. Coral Constr., Inc. (In re E.R. Fegert, Inc.), 88 B.R. 258, 259 (9th Cir.BAP1988)).
The first issue is whether the transaction between the parties on October 2, 2008 was intended to be a contemporaneous exchange for new value. The agreement between Modtech and Defendant can be broken into three parts: (1) Modtech
At issue here is the October 2, 2008 partial release in the amount of $20,714.80 on the Vista Dual stop notice served on Modtech on August 21, 2008, and the conditional waiver and release upon progress payment on the Vista Dual Project on October 3, 2008.
As to the Vista Dual release, the evidence indicates that Defendant received the $75,000 check from Modtech on October 2, 2008, and also that Defendant signed a Partial Release of Stop Notice for $20,714.80 as to the Vista Dual project on October 2, 2008 and a conditional waiver and release upon progress payment as to the Vista Dual project on October 3, 2008. As explained above, the date assigned to a transfer by check is the date the check was delivered, or October 2, 2008, not the date the check was debited on Modtech's bank account, or October 6, 2008.
Moreover, the evidence establishes the parties' intent that the exchange of the $75,000 check for the releases be substantially contemporaneous and that it was so in fact. The declaration of Lee Whelan provides the following testimony, "As a part of the payment process for the partial $75,000 payment from Modtech, Whelan executed several statutory releases...." Lee Whelan Decl. ¶ 8. Thus, Defendant has established intent to, and execution of, a substantially contemporaneous exchange between itself and Modtech.
The issue, however, is whether new value was given in exchange for the releases of the stop notices. Plaintiff argues that the releases of the stop notice do not equate to new value because: (1) Defendant
The genesis of this argument stems from the holding in Pearlman, 371 U.S. at 141, 83 S.Ct. 232, where the Supreme Court ruled that a surety had the right to construction funds to reimburse it for monies paid to subcontractors when the general contractor had failed to do so. Id. The payment of these claims gives the surety an equitable lien on the funds in the construction account that is superior to the debtor's bankruptcy estate. Id. This holding has been extended in the Ninth Circuit to apply to situations similar to the facts of this case.
In O'Rourke v. Coral Constr., Inc. (In re E.R. Fegert, Inc.), 88 B.R. 258, 259 (9th Cir. BAP 1988) (Fegert I) aff'd, 887 F.2d 955 (9th Cir.1989) (Fegert II), the debtor was a general contractor engaged in a construction project subject to a surety agreement. Fegert I, 88 B.R. at 259. The subcontractors brought suits against the surety, and in exchange for payments made by the debtor the subcontractors released their claims against the surety. Id. The BAP, as affirmed by the Ninth Circuit, found that the release of these claims in exchange for payment constituted new value under § 547(c)(1). Id. at 260. The BAP reasoned that if the debtor had not made the payments to the subcontractors, then the surety would have been required to pay those claims and thereafter exercise its equitable lien rights. Id. The BAP held, "[u]nder these facts, the release of the subcontractors' rights against the surety, which in turn could have exercised its lien rights, constituted `new value' being given in a substantially contemporaneous exchange." Id.
Under both Pearlman and Ninth Circuit precedent, the relevant inquiry appears to focus on the available unexpended balance of the construction fund at the time of the transfer to determine what equitable rights the surety would have received had the payments been made by the surety. As to this point, In re JWJ Contracting Co., 287 B.R. 501 (9th Cir. BAP 2002) is instructive. In JWJ Contracting Co., the BAP examined a number of cases that provide insight into this issue including Newbery Corp. v. Fireman's Fund Ins. Co., 106 B.R. 186 (D.Ariz.1989), and Lubman v. C.A. Guard Masonry Contractor, Inc. (In re Gem Constr. Corp.), 262 B.R. 638 (Bankr.E.D.Va.2000).
In Newbery, the court applied but distinguished Fegert I, as the Fegert I court assumed that there were sufficient identifiable contract proceeds to satisfy the surety's equitable lien. Newbery, 106 B.R. at 187. In the Newbery case, some of the contracts bonded by the surety were operating at a loss, resulting in a deficiency between the equitable lien the surety would have received had it made the payments itself and the contract proceeds available to satisfy the equitable lien. Id. at 187-88. The Newbery court concluded that to the extent the surety's equitable lien would have exceeded the amount of the contract proceeds that could be released to pay the equitable lien, that amount would be tantamount to a release of an unsecured indemnity claim and would not constitute new value. Id. at 188.
The BAP also considered the analysis as set forth in Gem Constr. Corp. where the court examined how a surety's equitable lien rights might be affected when subcontractor claims against the bond exceed the amount of funds held by the owner in the unexpended construction fund. Gem
Accordingly, the JWJ Contracting Co. panel, applying the reasoning from the Newbery and Gem Constr. Corp. cases, held that when applying Fegert II "the appropriate focus is whether the contingent claim of the surety is fully secured. If not, the release of the subcontractor's claim against the bond results in new value for the debtor only to the extent that the surety is secured." JWJ Contracting Co., 287 B.R. at 513.
Here, Defendant filed, as an attachment to the Declaration of Patricia Teunisse, a letter from Vista Unified School District (Vista Unified) to the Debtor, indicating the district's intent to withhold the amount of Defendant's stop notice plus an additional $20,990.42. Tr. Second Ex. J.
This accords with the reasoning in Fegert I, as there is no evidence before the court that the Vista Dual construction fund was operating at a loss at the time of the transfer. In fact, the evidence shows that the owner, Vista Unified, withheld sufficient funds in the construction fund to fully secure Liberty Mutual had it made the payment to Defendant. Moreover, there is no evidence before the court showing that other subcontractors had matured claims against the bond such that at the time of the transfer the Vista Dual construction fund did not have sufficient funds to secure the hypothetical surety lien.
Further, the effect of Liberty Mutual's failure to file its UCC-1 statement on its hypothetical equitable lien rights in the construction fund on October 2, 2008, is seemingly immaterial to this analysis, as the equitable lien arises under Pearlman and other related cases as a common law lien. As discussed above, the relevant inquiry examines whether the surety would be hypothetically secured by the amount held in the construction fund at the time of the transfer given the matured claims against the bond. The court has already concluded that the evidence presented in
Accordingly, the court concludes that the releases executed provided new value to the estate. Defendant has met its burden under § 547(g) of demonstrating an exception to avoidance under § 547(c)(1).
Section 547(c)(6) states that a trustee cannot avoid a transfer: "that is the fixing of a statutory lien that is not avoidable under section 545 of this title." § 547(c)(6).
Plaintiff has argued that the stop notices served by Defendant on August 21, 2008, and October 15, 2008, constitute transfers of interests that are avoidable as preferential transfers in the 90 days before bankruptcy. Defendant counters that the stop notices are statutory liens that fall under an exception in § 547(c)(6).
It is unclear whether § 547(c)(6) is applicable in this case as it appears to involve the avoidance of a payment on a statutory lien rather than avoidance of the actual lien itself.
In re Cocolat, Inc., 176 B.R. at 549.
Assuming, arguendo, that § 547(c)(6) applies to protect payments on a statutory lien rather than the avoidance of the lien itself, the court concludes that the stop notices equate to statutory liens that cannot be avoided under § 545. Statutory liens created before the filing of a bankruptcy
Defendant's above-mentioned stop notices were served (before Modtech's bankruptcy) by virtue of California Civil Code §§ 3103 and 3156-3241. Tr. Exs. E, G and H. Accordingly, the court finds and concludes that Defendant's stop notices fall under the exception to preferential transfer found in § 547(c)(6).
Defendant has put forth successful defenses to rebut Plaintiff's claim that the $75,000 check was a preferential transfer that should be avoided under § 547(b). First, Defendant has demonstrated by a preponderance of the evidence that the $75,000 payment was not a preferential transfer based on its defense pursuant to § 547(c)(2). Second, Defendant has demonstrated by a preponderance of the evidence that it provided important new value in releases of the stop notice and money or money's worth in goods and services to Modtech in the amount of approximately $74,376.24 following delivery of the $75,000 but prior to Modtech's bankruptcy filing. Defendant is entitled to exceptions to § 547(b). The October 2 payment should not be avoided based upon § 547(c)(1) and (c)(4) as well.
Under all the circumstances of this inexplicably protracted litigation arising out of Modtech's 2008 demise, it seems to the court that the preponderance of the evidence leads to judgment in favor of Defendant. Judgment will be entered in favor of Defendant, with its costs.
