Kaiser v. Wood County National Bank & Trust Co. (In re Loyal Cheese Co.)
Kaiser v. Wood County National Bank & Trust Co. (In re Loyal Cheese Co.)
Opinion of the Court
Lawrence J. Kaiser, the bankruptcy trustee (the Trustee) of the Loyal Cheese Company, Inc. (Loyal), brought this action against Wood County National Bank and Trust Company (the Bank) seeking to avoid certain transfers from Loyal to the Bank, as well as a loan Loyal made to Kickapoo Valley Cheese Corporation (KVCC), a related company. The Trustee alleged that these transactions constituted fraudulent conveyances under either the Bankruptcy Code
I.
On April 25, 1986, Loyal and the Bank entered into an agreement (the Loan Agreement) under which Loyal restructured its existing debt with the Bank and received a new loan of $500,000. The new loan doubled Loyal’s weekly payments to the Bank, to $4,500 per week. In addition, pursuant to the Loan Agreement, Loyal loaned $174,000 of the proceeds to KVCC. The KVCC loan was subordinated to Loyal’s loan from the Bank. KVCC never made any payments on the loan.
In August of 1987, Loyal refinanced the April 25 loan. Loyal obtained an additional $100,000 and executed a new business note (the August Note) in the amount of $347,-688.14 (the remaining principal on the April 25 loan plus the new funds). Loyal kept current on its note to the Bank until it closed down in December of 1988. On December 12, 1988, Loyal authorized the Bank to take the sum of $189,641.20 out of Loyal’s regular operating account to reduce the outstanding balance on the August Note. On March 17, 1989, Loyal filed for bankruptcy protection.
The Trustee for Loyal sought to avoid the loan to KVCC, the $189,000 payment made to the Bank in December of 1988 and “all payments made by the debtor to the bank.” Trustee’s Memorandum at 5 (Dec. 7, 1990). The bankruptcy court found the last of these claims too vague to be ruled on and dismissed it for lack of specificity. As for the KVCC loan and the $189,000 payment, the court found that the Trustee had failed to meet his burden of proof under either the Bankruptcy Code or the Wisconsin Act. The district court affirmed.
In reviewing the decisions of the bankruptcy and district courts, “we must accept findings of fact unless they are clearly erroneous.” In re Longardner & Associates, Inc., 855 F.2d 455, 459 (7th Cir. 1988). We review conclusions of law, however, de novo. Id.
II. BANKRUPTCY CODE
The Trustee argues that all of the payments made by Loyal to the Bank pursuant to the Loan Agreement during the year immediately preceding Loyal’s filing for bankruptcy are voidable under 11 U.S.C. § 548(a)(2). That provision states, in part:
The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily—
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(2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(B)(i) was insolvent on the date that such transfer was made or such obli*517 gation was incurred, or became insolvent as a result of such transfer or obligation; [or]
(ii) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debt- or was an unreasonably small capital. ...
The Trustee contends that the section 548 issue raised in this case is:
[W]hether when a security interest attaches outside the one-year period before filing bankruptcy, do § 548(a)(2) and (d)(1)[3 ] read together mean that the payments made in the year prior to filing constitute avoidable transfers ... when the other elements of § 548(a)(2) are also met.
Br. at 4. The Trustee argues that the answer to this question is yes. The Bank, on the other hand, contends that the answer to this question is no — that is, that the only “transfer” for purposes of section 548(a)(2) took place in April of 1986, when the Bank acquired a security interest in Loyal’s property. That transfer, of course, is outside the one-year limitation of section 548(a)(2).
Both the bankruptcy court and the district court treated the one loan payment that they specifically addressed — the $189,-000 payment made by Loyal in December of 1988 — as a transfer for purposes of section 548. The bankruptcy court, however, denied the Trustee’s claim that this transfer was voidable because the Trustee failed to show that the transfer met the other requirements of section 548(a). Specifically, the court found that the transfer was a payment on a fully secured debt that reduced Loyal’s indebtedness to the Bank by the amount of the payment, and concluded that such a payment “clearly constitutes a ‘reasonably equivalent value’ ” for purposes of section 548(a)(2)(A). Opinion of Bankruptcy Court at 17 (Dec. 13, 1990) (hereinafter Bankr.Op.). The district court affirmed that finding, citing In re B.Z. Corporation, 34 B.R. 546 (Bankr.E.D.Pa. 1983). Memorandum and Order at 6 (Aug. 6, 1991). Neither the bankruptcy court nor the district court decided whether any other payments made by Loyal to the Bank constituted transfers for purposes of section 548(a). Rather, the bankruptcy court found, and the district court agreed, that those claims “lack sufficient specificity for the Court to rule on them.” Bankr.Op. at 14.
We need not decide here whether the loan payments constitute section 548 transfers because, even if they do, the Trustee has not shown that they meet “the other elements of section 548(a)(2).” The Trustee does not challenge the bankruptcy court’s finding, affirmed by the district court, that Loyal’s December 1988 payment of $189,000 decreased Loyal’s indebtedness to the Bank by a corresponding amount, nor does he allege that any other payments made by Loyal under the Loan Agreement failed to decrease the debt pro tanto. The Trustee also fails to cite any cases contradicting the conclusion of the bankruptcy and district courts that a debtor whose payments on a secured debt decrease the debt by the amount of the payments receives reasonably equivalent value for those payments, and offers no argument as to why we should find that conclusion to be erroneous.
Instead, the Trustee seems to argue that Loyal’s payments under the Loan Agreement are avoidable because the Loan Agreement itself — or, more accurately, the grant to the Bank of a security interest in Loyal’s business pursuant to the Loan Agreement — meets the requirements of section 548(a)(2). Thus, the Trustee argues that Loyal did not receive reasonably equivalent value for the obligations it undertook under the Loan Agreement (Br. at 5-7),
III. WISCONSIN FRAUDULENT CONVEYANCE ACT
The Trustee also argues that the Loan Agreement and, in particular, the $174,000 loan from Loyal to KVCC made pursuant to that agreement, constituted fraudulent conveyances under the Wisconsin Act. The Wisconsin Act, of course, does not contain the one-year limitation of the Bankruptcy Code. The bankruptcy court found, and the parties do not appear to dispute, that the applicable statute of limitations under the Wisconsin Act is six years from the time of the accrual of the actions. Thus, the April 25, 1986, transaction between Loyal and the Bank is within the applicable time limit under the Wisconsin Act. Nevertheless, the Trustee’s claim fails.
Under the Wisconsin law in effect at the time of the transaction, a conveyance is fraudulent if it is made without fair consideration and the person making the conveyance (1) “is or will be thereby rendered insolvent”
A. Insolvency
The Trustee argues that the bankruptcy court’s finding as to insolvency,
B. Unreasonably Small Capital
The Trustee also argues that the bankruptcy court erred in finding that the Loan Agreement did not leave Loyal with unreasonably small capital. We are not persuaded. The bankruptcy court found that the evidence on this issue was conflicting but that Loyal had been doing fine with a small capitalization for years and in fact was netting $30,000 per month at the time the parties entered into the Loan Agreement. In addition, the court found that Loyal’s eventual demise was due not to the increased loan payments under the April 25, 1986, agreement but to cutbacks in government cheese programs, which had been a mainstay of Loyal’s business. We agree with the district court that these findings of fact are not clearly erroneous.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is Affirmed.
. 11 U.S.C. §§ 101 et seq. (1988).
. Wis.Stat. §§ 242.01 et seq. (1985-1986).
. 11 U.S.C. § 548(d)(1) provides:
For the purposes of this section, a transfer is made when such transfer is so perfected that a bona fide purchaser from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest in the property transferred that is superior to the interest in such property of the transferee, but if such transfer is not so perfected before the commencement of the case, such transfer is made immediately before the date of the filing of the petition.
. Footnote 2 of In re Bundles, 856 F.2d 815 (7th Cir. 1988), on which the Trustee relies, does not support his position. That footnote states, in essence, that where a mortgagee sells the property of the debtor in a foreclosure sale, it is the sale of the property, not the creation of the mortgagee's security interest in it, that constitutes a “transfer" for purposes of section 548(a)(2). But this principle is of no help to the Trustee. The Bundles court did not refer back to the circumstances surrounding the original mortgage transaction in order to determine whether the later foreclosure sale was avoidable under section 548(a)(2), as the Trustee would have us do here.
. It is unclear whether Loyal appeals the bankruptcy court’s denial, affirmed by the district court, of Loyal’s claim that the $ 174,000 loan from Loyal to KVCC is not avoidable under section 548(a). For the sake of completeness, we note here our agreement with this ruling.
. Wis.Stat. § 242.04 (1985-1986).
. Wis.Stat. § 242.05 (1985-1986).
. Wis.Stat. § 242.02(1) (1985-1986).
. The Trustee argues that, once the plaintiff proves inadequacy of consideration, the defendant has the burden of showing that the plaintiff was not insolvent. The Trustee relies on In re Joshua Slocum, Ltd., 103 B.R. 610 (Bankr.E.D.Pa. 1989), a case from the Eastern District of Pennsylvania interpreting the Pennsylvania Uniform Fraudulent Conveyance Act. We are not persuaded that we should follow this authority rather than Atkinson, a recent case from a district court within the relevant jurisdiction.
Reference
- Full Case Name
- In the Matter of LOYAL CHEESE COMPANY, INC., Debtor. Lawrence J. KAISER, Trustee of Loyal Cheese Company, Inc. v. WOOD COUNTY NATIONAL BANK AND TRUST COMPANY
- Cited By
- 2 cases
- Status
- Published