In re Gretag Imaging, Inc.
In re Gretag Imaging, Inc.
Opinion of the Court
MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT OF CHAPTER 7 TRUSTEE AND SUPERVALU INC.
This matter came before me for a hearing on cross motions for summary judgment filed by David Ostrander, the chapter 7 trustee of the estate of the debtor in this case, and Supervalu Inc. in connection with the trustee’s further amended objection [# 833] to the proof of claim of Albert-son’s, Inc., successor in interest to American Stores Company and predecessor in interest to Supervalu Inc.
Facts
The salient facts are briefly summarized here. A more expansive factual recitation may be found in Gretag I.
Gretag manufactured photofinishing mi-nilabs, the one-hour photo processing machines found in many supermarkets and drugstores. Effective November 1, 1996, American Stores, which at that time owned a nationwide chain of drug stores, entered into a master lease with Qualex, Inc., an affiliate of Eastman Kodak, to lease such minilabs. As is typical, the master lease provided that separate lease schedules for each minilab would be appended to the master lease and that each lease schedule was to be deemed a separate contract under the master lease. The master lease does not mention Gretag by name. By an omnibus amendment to the master lease dated November 30, 1999, lease schedules for Gretag machines were added to the master lease.
In the late fall of 1998, a meeting took place in Salt Lake City, Utah between representatives of American Stores and Gretag to discuss how American Stores could acquire updated minilabs at a reasonable cost. Following the meeting Gre-tag’s representative sent American Stores a letter offering to pay American Stores a rebate of $200 per month for each Gretag-made minilab with the APS technology leased or retrofitted by American Stores. The letter provided that the rebates for the retrofitted and new minilabs would be paid monthly over a period that would be “coterminous with the remaining Lease,” which the parties agree refers to the master lease between American Stores and Qualex. American Stores accepted Gre-tag’s proposal, although not in writing, and during 1999 its minilabs were upgraded or replaced with units incorporating the APS technology. In total, Supervalue leased 513 minlabs that qualified for Gretag’s rebate plan. Between November 1, 2000 and July 19, 2002, Gretag paid Supervalu a total of $1,835,400 in rebates. Then the rebate payments stopped.
On January 13, 2003, Gretag filed a voluntary petition under chapter 7 of the Bankruptcy Code (11 U.S.C. § 101 et seq.) commencing this case. Gretag listed Su-pervalu on its schedule of creditors holding unsecured non-priority claims as holding an undisputed, non-contingent but unliqui-dated unsecured claim in the amount of
The trustee objected to Supervalu’s proof of claim on a number of grounds,
Positions of the Parties
The trustee has objected to the allowance of Supervalu’s claim for several reasons in addition to the threshold identity objection addressed in Gretag I. First, asserting that Utah law is applicable to the dispute between the parties, the trustee claims that the rebate agreement is void under the Utah statute of frauds, Utah Code Ann. § 25-5-4 (2004), and that Utah law does not recognize partial performance of a contract as an exception to the statute of frauds in an action at law. Second, he alleges that Supervalu’s proof of claim lacks adequate supporting documentation. Third, he argues that Bankruptcy Code § 502(b) requires that Supervalu’s claim, which includes post-petition damages, must be present-valued as of Gretag’s bankruptcy petition date. Finally, he alleges that the claim should be disallowed under § 502(d) of the Bankruptcy Code because $1,220,400 of the rebates paid to Supervalu within one year of the debtor’s filing for bankruptcy constituted fraudulent transfers under Bankruptcy Code § 548(a)(1)(B).
In his motion for summary judgment the trustee pressed only his arguments with respect to the statute of frauds and the reduction of the claim to its present value as of the petition date. In his opposition to Supervalu’s cross motion for summary judgment, however, he raised Supervalu’s failure to provide sufficient evidence as to its entitlement to the rebates, specifically alleging that Supervalu had not demonstrated that it made its equipment lease payments to Qualex on all 513 minilabs. In a status report filed on November 15, 2011, the trustee expressly waived his objection to the allowance of the proof of claim under § 502(d).
Supervalu, while agreeing to the applicability of Utah law, disputes the trustee’s assertion that the rebate agreement runs afoul of the statute of frauds. Supervalu maintains that the testimony and exhibits introduced into evidence at the prior evi-dentiary hearing in this matter established that Qualex had delivered to Supervalu’s predecessors 513 minilabs which qualified for the rebate program and that those machines remained at their locations through at least October 31, 2006. Super-valu notes that its right to receive rebates was in no way conditioned on its making equipment lease payments to Qualex but in any event asserts that, in fact, it had made all of the lease payments. Finally, Super-valu challenges the trustee’s argument that Bankruptcy Code § 502(b) mandates that its claim be reduced to its present value and further suggests that even if the
Summary Judgment Standard
Summary judgment is appropriate if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of a material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), made applicable by Fed. R. Bankr.P. 7056.
Discussion
Statute of Frauds
The parties agree that Utah law applies in determining the enforceability of the rebate agreement.
In relevant part, Utah’s statute of frauds provides that:
The following agreements are void unless the agreement, or some note or memorandum of the agreement, is in writing, signed by the party to be charged with the agreement:
(a) Every agreement that by its terms is not to be performed within one year from the making of the agreement. ...
Utah Code § 25-5-4(1). There is no dispute that the rebate program was to proceed longer than one year from the November 1998 letter. The letter contemplated that Gretag’s financial commitment of $200 per month for all new and upgraded equipment was to continue through the term of the Qualex master lease, namely October 31, 2006. Therefore, to be enforceable the rebate agreement must be memorialized in a writing that satisfies the Utah statute of frauds.
“It is fundamental that the memorandum which is relied upon to satisfy the statute of frauds must contain all the essential terms and provisions of the contract.” Birdzell v. Utah Oil Refining Co., 121 Utah 412, 416, 242 P.2d 578, 580 (1952). The trustee argues that the 1998 letter agreement lacks an essential term, the number of units for which rebates would be paid. Although the November 1998 letter does not supply the exact num
Documentation Supporting the Proof of Claim
A proof of claim filed pursuant to the Federal Rules of Bankruptcy Procedure represents prima facie evidence of the validity of the claim. Fed. R. Bank. P. 3001(f); see also In re Long, 353 B.R. 1, 13 (Bankr.D.Mass. 2006). The party objecting to the claim must provide “substantial evidence” to refute its prima facie validity. Id. citing United States v. Clifford (In re Clifford), 255 B.R. 258, 262 (D.Mass. 2000). If the objecting party successfully rebuts the prima facie validity of the claim, the burden then shifts to the claimant to demonstrate that the claim is valid. In re Long, 353 B.R. at 13 citing Juniper Dev. Group v. Kahn (In re Hemingway Transp., Inc.), 993 F.2d 915, 925 (1st Cir. 1993). The claimant must so demonstrate by a preponderance of the evidence. In re MacMillan, 02-11808-JMD, 2003 WL 22454871 (Bankr.D.N.H. Oct. 20, 2003) citing In re Colonial Bakery, Inc., 108 B.R. 13, 15 (Bankr.D.R.I. 1989).
Albertson’s timely filed a proof of claim signed by an individual purporting to be the company’s vice president and assistant treasurer. A copy of Gretag’s November 25, 1998 letter to American Stores is attached along with a list that bears the following heading:
“Albertson’s Inc. and It’s [sic] Subsidiaries
Upaid Rebates Through Ending Date
November 1, 2006
$200.00 per Period per Store
9 Periods 2002; 12 Periods 2003, 2004, & 2005; 9 Periods 2006 Each Store Total= $10,800.”
What follows is a list of 513 stores, identified by store number, where a minilab which qualified for the rebate program was located and the date on which the qualifying equipment was installed. All of the qualifying equipment was installed prior to July 19, 2002 when Gretag stopped making the rebate payments. According to the list and its heading, Gretag owed $200 a month for 54 months for 513 locations for a total of $5,540,400.
Since Supervalu’s proof of claim enjoys prima facie validity, the burden shifts to
Present-Valuing the Claim
The trustee argues that all rebate payments which would have been due post-petition must be discounted to their present value as of the bankruptcy petition date. Citing In re Loewen Group Int'l, Inc., 274 B.R. 427 (Bankr.D.Del. 2002), the trustee maintains that courts uniformly require that post-petition payments included in a creditor’s bankruptcy proof of claim be reduced to present value
Bankruptcy Code § 502(b) requires the court to determine the amount of a claim to which an objection has been interposed “as of the date of the filing of the petition.” Based upon this phrase, many courts, including the court in Loewen, 274 B.R. at 432, have concluded that a bankruptcy proof of claim which includes a component for future damages or payments must be discounted to present value as of the bankruptcy petition date. Pension Benefit Guaranty Corp. v. Belfance (In re CSC Industries, Inc.), 232 F.3d 505 (6th Cir. 2000) (“prudent investor rate” appropriate rate to use to present value PBGC’s claim for unfunded benefit liabilities).
Supervalu, citing In re Oakwood Homes, Corp., 449 F.3d 588 (3d Cir. 2006), argues that discounting its claim by present-valuing post-petition payments would be inappropriate. In Oakwood the Third Circuit Court of Appeals, in a two to one decision, reversed the district court’s order affirming the bankruptcy court’s present-valuing the claims of certain certificate holders. The bankruptcy court applied the present value discount in addition to disallowing the holder’s claims for unmatured interest in accordance with Bankruptcy Code § 502(b)(2). In reversing, the Third Circuit undertook an examination of the language of § 502(b) and concluded that it did not contain a clear directive to present-value all future claims.
Stated simply, 11 U.S.C. § 502(b) speaks in terms of determining the “amount” of a claim “as of’ the petition date. However, given that the remainder of the Bankruptcy Code uses the term “value, as of’ to signify discounting to present value, and “amount” and “value” are not synonymous, we cannot say that § 502(b) clearly and unambiguously requires discounting to present value in all situations.
Id. at 595. Section 502(b) contains a series of exceptions to the statute’s general mandate that the court value claims as of the petition date and allow them in such amounts. Excluded from allowance are, among other things, claims for unmatured interest (§ 502(b)(2)), claims for certain lease rejection damages (§ 502(b)(6)), and certain employment contract termination damage claims (§ 502(b)(7)). If § 502(b) required all claims to be present-valued, there would be no need for these exceptions. Indeed, as the Third Circuit observed in Oakwood, requiring both present valuing claims and disallowing unmatured interest would amount to impermissible “double discounting.” Id. at 601.
Oakwood involved a claim on an interest-bearing financial instrument and so § 502(b)(2) applied to the claim. While Supervalu’s claim is non-interest-bearing, the reasoning of the Third Circuit is equally compelling. Had Supervalu sued Gre-tag prior to its bankruptcy filing for breach of the rebate agreement, Supervalu would have been entitled to seek judgment for the entire stream of payments contemplated under the agreement, not just the payments missed up to the date of suit. Had Supervalu obtained a final judgment for all amounts, both overdue and to be due, under the contract it would have been entitled to file a claim in Gretag’s ensuing bankruptcy and have that claim allowed in full because that would have been the amount of its claim on the bankruptcy petition date. The fact that Supervalu did not sue Gretag for breach of contract and obtain judgment pre-petition should not alter the treatment of Supervalu’s claim. I will therefore overrule the trustee’s objection insofar as it seeks a reduction of Supervalu’s claim based on discounting its value as of Gretag’s bankruptcy petition date.
Having concluded that § 502(b) does not mandate present-valuing Supervalu’s claim, it is not necessary to address Super-valu’s fallback argument that equity warrants not imposing a time value discount on its claim.
Conclusion
For the reasons stated above, the trustee’s motion for summary judgment is DENIED and Supervalu’s motion for summary judgment is GRANTED.
Separate orders shall issue.
. Sometime in late 1998 or early 1999 Albert-son's, Inc. acquired or merged with American Stores resulting in a national chain of approximately 1800 drug and grocery stores. Throughout this proceeding the names American Stores and Albertson’s have been used interchangeably. American Stores/Albert-son's apparently has merged with or other
. The schedule attached to the omnibus amendment lists over 800 pieces of equipment the overwhelming majority of which are described as "Gretag 740+.”
. The trustee filed the original objection [# 528] on September 8, 2009, followed by an amended objection [#743] on June 7, 2010, and a farther amended objection [# 833] on March 5, 2010.
. The claim objection is a contested matter under Fed. R. Bankr.P. 9014 to which Fed. R. Bankr.P. 7056 applies. See Fed. R. Bankr.P 9014(c).
. Trial testimony of Michael Masten, Volume 1 at 149: 19-22 attached as exhibit 32 to Albertson’s Statement of Material Facts [document # 1203]. Trial testimony of Brian Bethke, Volume 2 at 48:14-25 to 49: 1-23.
. As the court in Matter of Fi-Hi Pizza, Inc., 40 B.R. 258, 261-62 (Bankr.D.Mass. 1984) explained:
Present value is not necessarily a legal concept, but rather a term of art used by the economic and financial communities. One author has defined it as: the value today of a future payment or stream of payments, discounted at the appropriate discount rate. Put another way, present value reflects the financial reality that a dollar that is received in the future, is not worth the same as a dollar in hand today. Not only does inflation deflate the value of what a dollar may purchase in the future, but a party that has a dollar today may invest it in a variety of investments that would yield a return.
. The prudent investor rate has been rejected by courts in this circuit. See In re Wolverine, Proctor & Schwartz, 436 B.R. 253, 259 (D.Mass. 2010).
Reference
- Full Case Name
- In re GRETAG IMAGING, INC., Debtor
- Status
- Published