Turner v. Small Business Administration (In re Turner)
Opinion of the Court
This case involves the United States’ setoff of Agricultural Stabilization and Conservation Service (“ASCS”) payments due the Debtors Curtis and Rita Turner against the Turners’ delinquent debt to the Small Business Administration.
The SBA argues that the bankruptcy court misapplied § 553(b).
The SBA contends both that the setoff occurred 132 days before the petition filing and that it did not improve its position as a result of the setoff. We choose not to address the issue of when the setoff occurred because we hold that even had it occurred within ninety days of the petition filing, the SBA did not improve its position as a result. Ninety days before the petition was filed the Turners owed the SBA $199, 551.58. On the same day the United States owed the Turners $24,599.35 for ASCS payments.
Finally, the Turners argue that the State National Bank of Marlow (the “Bank”), a Turner creditor, had a security interest in the ASCS payments. They reason that allowing the SBA to set off the ASCS payments would in effect allow the SBA’s claim to take priority over the Bank’s secured claim. They base this argument on a security agreement between the Bank and the Turners in which the Turners agreed to assign all their rights in ASCS payments to the Bank as security for a loan. Appellant’s App. at 6. The Bank and the Turners, however, failed to comply with 7 C.F.R. part 1404, which sets forth the conditions under which an assignment of ASCS payments may occur when another governmental agency has setoff rights. The Turners’ statement that there are no “special procedures in the ASCS ... requiring filings other than those required by state law” is plainly incorrect. Appellees’ Brief at 27. Thus, any claim which the Bank may have does not defeat the SBA’s right to set off the ASCS payments.
. Subsequent to the filing of this petition, the Department of Agriculture was reorganized. As a result, the ASCS was abolished and the new Consolidated Farm Service Agency ("CFSA”) assumed the previously performed functions of the former ASCS. See 60 Fed.Reg. 1710 (1995). The CFSA was later renamed the Farm Service Agency. See 60 Fed.Reg. 64297 (1995). We continue to refer to the ASCS in this opinion for ease of reference and because it was in existence at all relevant times.
. To the extent the parties raise issues under 11 U.S.C. § 553(a), those issues were addressed by the court in Turner II.
. Section 553(b)(1) provides:
[I]f a creditor offsets a mutual debt owing to the debtor against a claim against the debtor on or within 90 days before the date of the filing of the petition, then the trustee may recover from such creditor the amount so offset to the extent that any insufficiency on the date of such setoff is less than the insufficiency on the later of—
(A) 90 days before the date of the filing of the petition; and
(B) the first date during the 90 days immediately preceding the date of the filing of the petition on which there is an insufficiency.
. Section 553(b)(2) defines insufficiency as the "amount, if any, by which a claim against the debtor exceeds a mutual debt owing to the debt- or by the holder of such claim.”
. It is not clear from the record whether the amounts due to the Turners from the ASCS were liquidated or fixed as of ninety days prior to the filing of the petition. An insufficiency can exist, however, even if a claim or debt is unliquidated or contingent. Section 553(b)(2) defines insufficiency as the “amount, if any, by which a claim against the debtor exceeds a mutual debt owing to the debtor by the holder of such claim.” "Debt” is defined as “liability on a claim” and "claim” is defined as a "right to payment, whether or not such right is ... liquidated, unliquidat-ed, fixed, contingent, matured, [or] unma-tured. ...” 11 U.S.C. § 101(5)(A) (claim) & (12) (debt).
Here, the ASCS had a contractual duty prior to the ninety-day prepetition period to pay the Turners for withholding farmland from production and for maintaining soil conservation practices. Ninety days before the petition was filed this duty to pay may have been unliquidated, or even contingent, but it still represented a right to payment from which an insufficiency could later be calculated. See, e.g, In re Hecht, 41 B.R. 701, 705 (Bankr.S.D.N.Y. 1984) (insufficiency calculable for date on which loan had not yet matured); United States through Agric. Stabilization and Conservation Serv. v. Gerth, 991 F.2d 1428, 1433-34 (8th Cir. 1993) (holding that right of payment from ASCS arose prepetition for purposes of 11 U.S.C. § 553(a) even though the right of payment was contingent and unliquidated at the relevant time).
Reference
- Full Case Name
- In re Curtis Lawayne TURNER and Rita Gail Turner, Debtors. Curtis Lawayne TURNER and Rita Gail Turner, Appellees/Cross-Appellants v. SMALL BUSINESS ADMINISTRATION, The Administrator of the Small Business Administration, an Agency of the Government of the United States of America, Appellant/Cross-Appellee
- Cited By
- 3 cases
- Status
- Published