Chapter 7

Re: Docket No. 51

OPINION

Sontchi, J.

INTRODUCTION

Southern Steel & Supply, L.L.C. ("Southern Steel" or "Defendant") is a defendant in a preference action brought by the Chapter 7 Trustee ("Trustee") of Conex Holdings, LLC, Conex International, and Advantage Blasting & Coating, Inc. (the "Debtors"). Through the preference action, Trustee seeks to recover six preferential transfers paid to Defendant by the Debtors. Defendant filed a motion for summary judgment, seeking a finding that the transfers are not avoidable under the ordinary course of business defense. Trustee filed a cross-motion for summary judgment, arguing that Defendant does not qualify for the ordinary course of business defense.

On October 14, 2014, the Court entered an Opinion and Order denying both motions with prejudice. In the Opinion, the Court found that Southern Steel established neither that the transfers were made in the ordinary course of business of the Debtors and Defendant, nor that they were made according to ordinary business terms. But, the Court also found that the record was insufficient to support Trustee's cross-motion for summary judgment. Rather, the Court found that there is a genuine issue of material fact as to the applicability of both prongs of the ordinary course of business defense that will need to be decided after a trial on the merits.

Southern Steel has filed a motion for reconsideration of the Court's finding that the transfers were not made according to ordinary business terms.1 In support of its motion, Defendant argues that the Court committed error by not accepting an uncontroverted affidavit filed by Defendant in support of its motion as definitive proof that the transfers were made under ordinary business terms. Summary judgment should be granted only if the movant shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,"2 after considering the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits."3 Even an uncontroverted affidavit must meet the applicable legal standard on the merits. In this case, the Court found that the affidavit, on its face, was insufficient to establish the ordinary business terms in the industry and, thus, Defendant was not entitled to judgment as a matter of law that the transfers at issue were made according to such terms.

Thus, the Court will deny the motion for reconsideration.

JURISDICTION AND VENUE

This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. Venue is proper in this District pursuant to 28 U.S.C. §§ 1408 and 1409. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(F) and this Court has the judicial power to enter a final order.

GOVERNING STANDARD

Federal Rule of Civil Procedure 59(e), made applicable to this adversary proceeding by Rule 9023 of the Federal Rules of Bankruptcy Procedure, governs motions for reconsideration.4 A motion for reconsideration may be granted where (i) there has been an intervening change in controlling law; (ii) new evidence has become available; or (iii) there is a need to prevent manifest injustice or to correct a clear error of law or fact.5 Defendant argues that the Court committed a clear error of law or fact in denying its motion for summary judgment.

THE MOTION FOR RECONSIDERATION MUST BE DENIED6

Southern Steel has filed a motion for reconsideration of the Court's finding that the transfers were not made according to ordinary business terms under section 547(c)(2)(B) of the Bankruptcy Code.7 In support of its motion, Defendant argues that the Court committed error by not accepting an uncontroverted affidavit filed by Defendant in support of its motion as definitive proof that the transfers were made under ordinary business terms.

The phrase "ordinary business terms" looks to general norms within the creditor's industry.8 As the Third Circuit has held, transfers may be avoided only if they are "so idiosyncratic as to fall outside that broad range" of practices customary in the creditor's industry.9 This Court and others within the Third Circuit have frequently characterized "ordinary business terms" as embracing a "broad range" of credit practices that are "in harmony with the range of terms prevailing as some relevant industry norms."10 While expert testimony is not necessarily required, a defendant must provide admissible, non-hearsay testimony related to industry credit, payment, and general business terms in order to support its position.11

In support of its argument that the transfers were made under ordinary business terms, Southern Steel submitted the Affidavit of John Alford in order to set forth the industry standard for the payment of invoices such as those at issue and to demonstrate that the transfers meet those standards. In the motion for reconsideration, Southern Steel asserts:

Southern Steel goes on to note that "the Trustee has offered no evidence, by affidavit or otherwise, to contradict the Affidavit of John Alford."13 Rather, Southern Steel argues that Trustee's evidence is limited to conclusory, unsworn statements in Trustee's brief that "are insufficient to contest the contents of Mr. Alford's Affidavit and do not create genuine issues of material fact with respect to the `ordinary business terms' in the industry, and ... Trustee's allegations are therefore insufficient to controvert the summary judgment evidence of Southern Steel, i.e., the Affidavit of John Alford."14 Finally, Southern Steel concludes that "[c]onsidering that John Alford's Affidavit is uncontested, this Court is bound to accept his declarations as true for purposes of Southern Steel's Motion for Summary Judgment."15

In denying Southern Steel's motion for summary judgment, the Court found that the affidavit, on its face, was insufficient to establish the ordinary business terms in the industry and, thus, Defendant was not entitled to judgment as a matter of law that the transfers at issue were made according to such terms. More specifically, the Court held that:

In order to be entitled to summary judgment, Southern Steel was required to establish that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."17 The basis for the Court's ruling was not that there was a genuine issue of material fact. It was that, even if Mr. Alford's uncontroverted allegations were accepted as true, they were insufficient to meet the applicable legal standard.18 While it may be true that courts generally accept allegations in an uncontroverted affidavit as true for purposes of deciding a motion for summary judgment, that is not to say they are bound to accept movant's assertion that those allegations satisfy the legal standard that must be met to find "movant is entitled to judgment as a matter of law."19 In this case, the Court found that Mr. Alford's allegations were insufficiently detailed and lacking in an objective basis or any statistical analysis. Those allegations were insufficient under the controlling case law to establish the industry practice, which is required in order to support the affirmative defense under section 547(c)(2)(B) of the Bankruptcy Code.20

Southern Steel's secondary argument in support of its motion for reconsideration is that the Court erred in evaluating the credibility of the affiant in its review of whether the record supported a finding that the transfers were made under ordinary business terms. That is not what occurred here. The Court's use of the word "credibility" in this instance was inaccurate. The Court was not considering the affiant's credibility, i.e., "the quality that makes something (as a witness or some evidence) worthy of belief."21 It was considering whether the allegations in the affidavit were sufficient to meet the legal standard. In making that determination, the Court considered the fact that the affidavit, as a whole, contained numerous errors and conflicting allegations. Moreover, the Court's reference to the affiant's credibility was not the sole or even primary basis of its determination that Defendant was not entitled to summary judgment. The primary basis for the Court's finding was that the affidavit consisted merely of undetailed allegations lacking any objective basis or statistical analysis that were insufficient to meet the legal standard. Thus, even if the Court improperly considered the affiant's credibility (which it did not), that error does not affect the basis for the Court's finding that Defendant is not entitled to summary judgment.

CONCLUSION

For the reasons set forth above, the Court will deny Southern Steel's motion for reconsideration. An order will be issued.