JOAN N. FEENEY, Bankruptcy Judge.
The matter before the Court is the Motion of the Defendant, George R. Roberts Company (the "Defendant" or "GRRC"), for Partial Summary Judgment with respect to the Complaint filed by Gary W. Cruickshank, the Chapter 7 Trustee (the "Plaintiff" or the "Trustee") of Boston Grand Prix, LLC (the "Debtor" or "BGP") to avoid two allegedly preferential transfers made by checks payable to GRRC in the total amount of $278,326.63, both of which cleared the Debtor's bank on April 25, 2016, less than ninety days prior to the petition date. Pursuant to its Motion, the Defendant seeks partial summary judgment with respect to two defenses it has raised to the Plaintiff's preferential transfer claims: 1) whether, pursuant to 11 U.S.C. § 547(c)(4), the Defendant's delivery of concrete race blocks with a value of $99,330.00 constituted "new value" to the Debtor after its receipt of Check No. 1051 and Check No. 1042 from the Debtor on April 22, 2016; and 2) whether, pursuant to 11 U.S.C. § 547(c)(2), Check No. 1051 in the amount of $128,326.63 from the Debtor to GRRC was in payment of a debt incurred by the Debtor in the ordinary course of business and was made in the ordinary course of business between the Debtor and GRRC.
For the reasons set forth below, the Court shall enter an order granting the Motion for Partial Summary Judgment in part with respect to GRRC's new value defense and denying it in part with respect to its ordinary course of business defense. With respect to the latter defense, the Court concludes that there are genuine issues of material fact that preclude entry of summary judgment.
On July 5, 2016, the Debtor filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. Gary W. Cruickshank, Chapter 7 Trustee of BGP, commenced this Adversary Proceeding against GRRC by filing the Complaint on September 13, 2017. Pursuant to 11 U.S.C. §§ 547, 550, and 551, the Plaintiff through his Complaint seeks to avoid and recover two allegedly preferential transfers made by the Debtor to GRRC in the amounts of $128,326.63 (Check No. 1051) and $150,000.00 (Check No. 1042), for a total of $278,326.63. GRRC filed its Answer to the Complaint on October 10, 2017 and moved for partial summary judgment on May 18, 2018.
GRRC is located in Alfred, Maine. It manufactures precast and custom concrete products for residential and commercial customers. It has operated for more than 50 years and has 35-40 employees. Steve Ray ("Ray") is the President of GRRC and oversees GRRC's day-to-day business operations. He was responsible for overseeing its business relationship with the Debtor. Before entering into a contract with the Debtor, GRRC had never fabricated or sold race barriers.
In May 2015, the Debtor entered into agreements with the City of Boston and IndyCar, pursuant to which the Debtor agreed to organize and operate a car race for a five-year period. The Debtor intended to construct a 2.2 mile racetrack on the South Boston Waterfront encircling the Boston Convention Center. The race was scheduled to run each Labor Day weekend beginning in 2016. John F. Casey ("Casey") was the Debtor's chief executive officer.
In late 2015, according to Ray, the Debtor began negotiating to purchase custom-made concrete race blocks from GRRC (the "Race Blocks" and, each individually, a "Race Block"). The Race Blocks were intended to be used for the Debtor's construction of the anticipated Boston Grand Prix race track. In late 2015, GRRC submitted a proposal to the Debtor (the "Proposal") setting forth terms for the sale of Race Blocks. The Debtor executed a purchase order affirming the terms of the Proposal (the "Purchase Order"). Ray determined the invoice price for the Race Blocks based upon his knowledge of the precast industry and from quotes received from vendors for the items to be used to fabricate the barriers.
Through the Proposal and Purchase Order, the Debtor agreed to purchase, and GRRC agreed to manufacture and deliver, three types of custom-made Race Blocks in varying quantities: 2,200 "straight" Race Blocks; 100 "radius" Race Blocks; and 110 "pit" Race Blocks. According to the Proposal and Purchase Order, the Debtor agreed to pay to GRRC $944.00 for each straight Race Block; $979.00 for each radius Race Block; and $675.00 for each pit Race Block. GRRC's contract with the Debtor represented over 25% of GRRC's projected revenue in 2016. It had never entered into a contact of that magnitude before.
During the course of its relationship with the Debtor, GRRC maintained a "shipping log" (the "Shipping Log"), the accuracy of which the Plaintiff does not admit,
GRRC also maintained contemporaneous "pick tickets," the accuracy of which the Plaintiff does not admit,
According to the Defendant, during its relationship with BGP, it typically invoiced the Debtor on a weekly basis for all of the Race Blocks that it had delivered in the prior week. GRRC issued 14 invoices to the Debtor with dates ranging from January 29, 2016 to April 30, 2016 as follows:
The invoices sent to the Debtor for Race Blocks delivered between April 25, 2016 and April 29, 2016 were issued with a "NET DUE 30" payment term, meaning that payment was required within 30 days of receipt of the invoice. Indeed, all of GRRC's invoices to the Debtor contained the "NET DUE 30" payment term. The 30-day payment term also was included in the Proposal and Purchase Order, and all invoices included the same per-Race Block cost agreed to in the Proposal and Purchase Order, namely $944.00 per straight Race Block, $979.00 per radius Race Block, and $675.00 per pit Race Block.
The Debtor made the following payments to GRRC:
The payments represented by Check Numbers 1051 and 1042 cleared the Debtor's bank account within the preference period.
On March 23, 2016, GRRC received Check No. 1005, dated March 22, 2016, by mail from the Debtor in the amount of $48,144.00. GRRC applied Check No. 1005 to Invoice No. 56213, dated March 7, 2016. The length of time between the invoice date and the check delivery date was 16 days; the length of time between the invoice date and the date the check cleared was 17 days. At the time GRRC applied this payment to invoice number 56213, there were five older invoices outstanding totaling $196,588.00 (56138, 56148, 56157, 56147 [sic], and 56197).
On April 2, 2016, GRRC received Check No. 1025, dated March 31, 2016, from the Debtor by mail in the amount of $133,399.00. GRRC applied Check No. 1025 to Invoice No. 56267 in the amount of $133,399.00, dated March 28, 2016. The length of time between the invoice date and the check delivery date was 5 days; the length of time between the invoice date and the date the check cleared was 8 days. At the time that GRRC applied this payment to invoice number 56267, there were seven older unpaid GRRC invoices totaling $461,900.63 (invoice numbers 56138, 56148. 56147 [sic], 56197, 56213, 56231, and 56246).
According to Ray, he communicated by email and telephone with Casey in order to encourage Casey to make payments on outstanding invoices before Check No. 1005 and Check No. 1025 were received. Ray contacted Casey by email on March 18, 2016, before Casey sent Check No. 1005, and Ray called Casey on March 29, 2016, to request payment shortly before Casey sent GRRC Check No. 1025.
During this period when Ray was calling and emailing Casey about past-due payments, GRRC needed the money for its cash flow. Indeed, the Debtor's failure to pay GRRC in a timely manner had a significant effect on its cash flow and caused it problems in paying its own vendors on time.
The Debtor issued Check No. 1051, dated April 20, 2016, in the amount of $128,326.63. GRRC received Check No. 1051 in the mail on April 22, 2016, and GRRC deposited Check No. 1051 in GRRC's bank account that same day. Casey, on behalf of the Debtor, included Invoice No. 56343 in the amount of $128,326.63 in the package he sent containing Check No. 1051 in the same amount. Thus, the amount of Check No. 1051 matched the amount of Invoice No. 56343 dated April 13, 2016.
According to GRRC, although it discussed applying Check No. 1051 in the amount of $128,326.63 to Invoice No. 56246 (dated March 19, 2016 in the sum of $136,928.63), it ultimately allocated Check No. 1051 to Invoice No. 56343, which was dated April 13, 2016 in the amount of $128,326.63, for purposes of its internal accounts-receivable.
If Check No. 1051 were applied to invoice 56246 dated March 19, 2016 as the Plaintiff contends, the length of time between the invoice date and the check delivery date was 34 days; the length of time between the invoice date and the date the check cleared was 37 days. If Check No. 1051 were applied to Invoice No. 56343 in the amount of $128,326.63, dated April 13, 2018, as the Defendant now contends, the length of time between the invoice date and the check delivery date was 9 days and the length of time between the invoice date and the date the check cleared was 12 days.
The Debtor issued Check No. 1042, dated April 21, 2016, in the amount of $150,000.00. Ray picked up Check No. 1042 from the Debtor's office in Boston, Massachusetts, on April 22, 2016, and GRRC deposited Check No. 1042 in its bank account that same day. Check No. 1042 cleared the Debtor's bank account on April 25, 2016. GRRC applied the $150,000 to the oldest unpaid invoices as follows:
Before receiving Check No. 1051, as noted above, Ray emailed Casey on April 20 and 21, 2016 regarding payment on various outstanding invoices, and he left a voicemail for Casey on April 20, 2016. On April 21, 2016 at 4:49 p.m., Ray re-sent his 1:22 p.m. email from April 20, 2016 to Casey, reproduced above, with the note "John, please see email below and respond accordingly." On April 21, 2016 at 5:21 p.m., Ray re-sent his 1:22 p.m. email from April 20, 2016 to Casey.
Before receiving Check No. 1051, Ray spoke on the phone to Casey on the evening of April 21, 2016, when Casey called Ray to discuss the Debtor making upcoming payments, including Check No. 1051, shortly after Ray's follow up email. Ray told Casey during the call that GRRC was going to stop production of the Race Blocks unless they worked something out. During their call on April 21, 2016, Casey told Ray that he had put a check in the mail to GRRC in the amount of approximately $128,000. Ray responded to Casey that $128,000 was not enough money, and that GRRC needed an additional $150,000. Casey said he would cut a check for $150,000 and mail it to GRRC. Ray asked Casey not to mail the $150,000 check, and stated that he would drive to Boston to pick it up. Ray drove to Boston the next morning, on Friday, April 22, 2016, and arrived at the Debtor's office at approximately 8:00 a.m., which was when he was told that the BGP office would open. When Ray arrived, no one was at the BGP office. At 8:15 a.m., a woman arrived, although John Casey was not there and she did not know where he was. Ray informed the employee that John Casey was supposed to cut him a check for $150,000. She looked around until she found it, and gave it to Ray.
While Ray was intent on obtaining payment for the Race Blocks it had manufactured and delivered, Casey, according to Michael G. Morris, formerly a managing member of Outside In Advisors, LLC, which provided consulting services to the Debtor, represented that "on or about April 12, 2016, Casey indicated via email that he had decided to move the race from Boston to Las Vegas" due to exorbitant costs associated with fees, force accounts and letters of credit required by various agencies of the Commonwealth. Nevertheless on April 12, and April 13, 2016, Casey, on behalf of the Debtor, signed contracts with the City of Boston, the Massachusetts Port Authority, the Massachusetts Convention Center Authority, the Massachusetts Department of Transportation, and the Massachusetts Bay Transportation Authority which required expenditures exceeding $13 million, although its bank balance on April 22, 2016 was $1,303,048.87.
Between April 25, 2016, and April 29, 2016, GRRC delivered 105 Race Blocks to the Debtor with a value of $99,330.00. The Race Blocks delivered from April 25, 2016, to April 29, 2016, were not secured by an otherwise unavoidable security interest, and the Debtor did not make any other transfers on account of the delivered Race Blocks.
On May 3, 2016, Ray sent an email and a letter to Casey attaching copies of all invoices with a note on each invoice indicating the due date, the amount paid and the amount due. In the May 3, 2016 email and letter, Ray also stated that: (i) Check No. 1051 in the amount of $128,326.63 was applied to invoice #56246 in the amount of $136,928.63; and (ii) Check No. 1042 in the amount of $150,000 was applied to the GRRC's oldest unpaid invoices. Ray also disclosed that after the cancelation of the race, GRRC had in its inventory 80 straight Race Blocks, 15 radius Race Blocks and 28 pit Race Blocks. Thus, following cancellation of the race, GRRC had 123 Race Blocks remaining at its business premises which it attempted to sell. On October 21, 2016, it sold 28 pit Race Blocks for $100 per Race Block; on October 31, 2016, it sold 9 straight Race Blocks for $200 per Race Block; on May 31, 2017, it sold 60 straight Race Blocks for $280 per Race Block; and on September 27, 2017, it sold 5 radius Race Blocks for $280 per Race Block.
The Chapter 7 Trustee engaged Paul E. Saperstein Co., Inc. ("Saperstein") to conduct an auction of the Debtor's assets including 1,100 Race Blocks. Despite extensive marketing efforts, Saperstein was able to sell only 324 Race Blocks to Watkins Glen International, which runs NASCAR races at its facility, for $25 per Race Block for a total price of $8,100. Saperstein was unable to sell 776 Race Blocks.
As noted above, the Defendant seeks partial summary judgment with respect to its defenses to the Plaintiff's complaint seeking the avoidance and recovery of preferential transfer, arguing that (1) it is undisputed that GRRC delivered $99,330.00 in "new value," measured by the total invoice price of the Race Blocks that GRRC delivered to the Debtor between April 25, 2016, and April 29, 2016, after it received Check No. 1051 and Check No. 1042 from the Debtor on April 22, 2016, see 11 U.S.C. § 547(c)(4); and (2) that it is undisputed that Check No. 1051 in the amount of $128,326.63 from the Debtor to GRRC was in payment of a debt incurred by the Debtor in the ordinary course of business and was made in the ordinary course of business between the Debtor and GRRC. See 11 U.S.C. § 547(c)(2).
GRRC prefaces its argument that it provided new value to the Debtor by observing that 1) when payment is tendered by check, the relevant date under § 547(c)(4) for determining when the payment occurs is the time at which the creditor received the check, see
GRRC states that it received Check Nos. 1051 and 1042 on April 22, 2016 and that based on the Shipping Log, Purchase Order and Proposal, invoices, and "pick tickets," it delivered 105 Race Blocks to the Debtor at invoice costs of $944.00 for straight Race Blocks, and $979.00 for radius Race Blocks between April 25 and April 29, 2016 with a value of $99,300.00.
The Plaintiff argues that the new value defense is unsupported by the facts and that "the appropriate measure of any new value provided to the Debtor after the Preferential Payments were made is not the invoice value of the concrete race barriers that Roberts' delivered, but rather, the amount by which Roberts' product replenished the Estate—a question of fact." The Plaintiff adds:
The Plaintiff, citing
According to the United States Bankruptcy Appellate Panel of the First Circuit in
"Payments by a debtor to a creditor `for or on account of an antecedent debt' made during the ninety days immediately preceding the filing of a bankruptcy petition are preferential transfers or `preferences'" that the trustee can avoid if the debtor was insolvent and if the payment enabled the creditor to receive more than such creditor would receive if the case were a case under Chapter 7, the payment had not been made, and the creditor was able to receive payment of such debt to the extent provided by title 11. See 11 U.S.C. § 547(b). See also
"The subsequent new value defense has two interrelated purposes, first, "to encourage trade creditors to continue dealing with troubled businesses, and second. . . to treat fairly a creditor who has replenished the estate after having received a preference."
11 U.S.C. § 547(a)(2). See also
According to the United States Bankruptcy Appellate Panel for the First Circuit, "Whether something is new value presents a question . . . of fact."
For purposes of this decision, the Court assumes that the Plaintiff has sustained his burden under 11 U.S.C. § 547(b). See 11 U.S.C. § 547(f) and (g). Section 547(c)(4) provides:
11 U.S.C. § 547(c)(4).
The dispute between the parties revolves around the measure of new value delivered by GRRC to the Debtor. The Court concludes that there is no dispute of material fact that GRRC delivered 105 Race Blocks to the Debtor after the April 22, 2016 payments; that the Race Blocks were not secured by an otherwise unavoidable security interest; and that the Debtor did not make an otherwise avoidable transfer to, or for the benefit of GRRC.
In
The requirement that new value replenish the estate must be determined at the time the new value is delivered to the Debtor. Were new value to be determined at a later time using a liquidation value, the fundamental purpose of the exception, which is to discourage creditors from dismembering a debtor that is sliding into bankruptcy and to encourage creditors to supply and work with troubled businesses, would be eviscerated. As GRRC recognizes, "no creditor with any commonsense (or half-decent counsel) would continue delivering to a debtor upon the slightest whiff of financial trouble." It supports its argument by observing that creditors would have no certainty about the postpetition value of their goods for purposes of the defense, adding that the liquidation value often will be less than the prepetition value particularly in Chapter 7 cases. Accordingly, GRRC properly rejects any notion that cancellation of the race or its cessation of deliveries following cancellation of the race, has any bearing on the the new value defense it asserts. Additionally, it correctly contends the new value should be determined with reference to its proposal and purchase order pricing, relying upon
In view of the discrepancy in the evidence regarding application of Check No. 1051 to Invoice No. 56246 in the amount of $136,928.63 or to Invoice No. 56343 in the amount of $128,326.63, the Court concludes that a genuine issue of material fact exists that precludes entry of summary judgment.
In view of the foregoing, the Court grants GRRC's Motion for Partial Summary Judgment in part and denies it in part. The Court shall enter partial summary judgment in favor of GRRC with respect to its new value defense under 11 U.S.C. § 547(c)(4) in the amount of $99,330.00.
The Plaintiff asserted that by email dated May 3, 2016 and letter dated May 3, 2016, Ray again informed Casey that Roberts applied Check No. 1051 to Invoice 56246 [in the amount of $136,928.63]."
The Defendant contends that the dispute is immaterial. The Court disagrees.