Business Lawyer Blog: Ponzi Schemes and Preference Claims in Bankruptcy
The Current Status in Utah Bankruptcy Courts of the “Ordinary Course of Business” Defense to Preference Claims Brought by the Bankruptcy Trustee where the Debtor was Running a Ponzi Scheme.
© J. David Milliner; November 23, 2011
I. Introduction.
A “Ponzi” scheme is usually described as a fraudulent arrangement whereby one or more promoters take money from “investors” under the pretense of being able to generate significant profits, and therefore high returns for the investors, by using their money in a business venture of some sort, but where in reality virtually all of the returns paid out to investors are derived from the investments of subsequent investors and not from any legitimate underlying business venture. High returns are typically paid out to early investors in order to attract new investors, and new money, into the scheme. Once the money starts flowing, the promoter begins taking a nice cut for himself. At some point, however, the Ponzi scheme runs out of new investors, the money stops flowing, and the house of cards comes crashing down. See, e.g., In re Vaughn, 429 B.R. 14, 26-27 (Bankr. D. N.M. 2010), citing, inter alia, Sender v. Heggland Family Trust (In re Hedged-Invetment Assocs., Inc.), 48 F.3d 470, 471 n.2 (10th Cir. 1995).
The recent and unfortunate proliferation and collapse of “Ponzi” schemes has given rise to a phenomenon where the innocent investor who was duped by the Ponzi scheme’s promoter is not only likely to lose the balance of his/her investment when the Ponzi scheme ultimately collapses and is taken into bankruptcy, but the investor may also be exposed to a claim by the bankruptcy trustee to disgorge as “preferences” under Section 547 of the Bankruptcy Code (11 U.S.C. §547) any payments received from the bankruptcy debtor (i.e., the Ponzi scheme) on the investor’s investment during the 90 days immediately prior to the bankruptcy filing.
Once the bankruptcy trustee has shown that the debtor/Ponzi scheme made the payments during the 90 days prior to the bankruptcy filing, the burden shifts to the investor/creditor to either overcome the presumption of Section 547(f) that the debtor was insolvent (i.e., prove that its assets were greater than its liabilities) when the payments were made – a difficult showing to make when dealing with any company heading toward bankruptcy, let alone a Ponzi scheme –, or prove that one or more of the defenses enumerated in Section 547(c) applies. If the investor/creditor can’t prove either solvency or a complete defense under Section 547(c), then he/she must disgorge the unprotected preference period payments to the trustee, and hope that some small portion of that money remains after paying the “administrative expenses” of the bankruptcy estate, including paying the trustee and his/her attorneys, and gets distributed pro rata to unsecured creditors.
Given that a Ponzi scheme is virtually always insolvent, unless the creditor has provided new money or property to the debtor during the 90-day preference period sufficient to act as a full offset of the trustee’s claim under one of the “new value” defenses of Section 547(c), the creditor is pretty much left trying to prove the “ordinary course of business” defense under Section 547(c)(2). The purpose of this article is to describe the current state of the “ordinary course of business” defense in the Utah bankruptcy courts, which fall within the jurisdiction of the Tenth Circuit Court of Appeals, especially where the debtor was a Ponzi scheme.
II. The Evolution of Bankruptcy Code Section 547(c)(2).
As originally enacted in 1978, Section 547(c)(2) of the Bankruptcy Code read:
(c) The trustee may not avoid under this section a transfer –
. . .
(2) to the extent that such transfer was –
(A) in payment of a debt incurred in the ordinary course of business or financial affairs of the
debtor and the transferee;
(B) made not later than 45 days after such debt was incurred;
(C) made in the ordinary course of business or financial affairs of the debtor and the transferee;
and
(D) made according to ordinary business terms.
11 U.S.C. §547(c)(2) (1978) (emphasis added).
The “not later than 45 days” requirement of 547(c)(2)(B) was “generally [] interpreted as indicating Congress’ intent to limit application of the ordinary course of business exception to payments for trade credit.” Fidelity Savings & Inv. Co. v. New Hope Baptist (In re Fidelity Savings), 880 F.2d 1172, 1175 (10th Cir. 1989).
The Bankruptcy Amendment and Federal Judgeship Act of 1984, Pub. L. No. 98-353, 98 Stat. 333, however, removed the “not later than 45 days” requirement, so Section 547(c)(2) then read:
(c) The trustee may not avoid under this section a transfer –
. . .
(2) to the extent that such transfer was –
(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial
affairs of the debtor and the transferee;
(B) made in the ordinary course of business or financial affairs of the debtor and the transferee;
and
(C) made according to ordinary business terms.
11 U.S.C. §547(c)(2) (1984) (emphasis added).
It is significant that the 2005 amendment deleted the conjunctive connector “and” from the prior version of 547(c)(2), and replaced it with the disjunctive connector “or,” to make it even easier for a creditor to avail itself of the “ordinary course of business” defense to a preference claim. See, e.g., Ryan v. Foxworth – Galbraith Lumber Co. (In re Jack’s Constr.), 2011 Bankr. Lexis 1224, No. 7-07-11967, Adv. No. 09-1117, (Bankr. D. N.M. 2011) at n.1 (“The [BAPCPA] substituted “or” for “and” between subsections 547(c)(2)(A) and (B), thereby considerably lightening the creditor’s burden in defeating a preference claim.”); Rocin Liquidation Estate v. Alta A, H & L (In re Rocor Int’l, Inc.), 352 B.R. 319, n.7 (Bankr. W.D. Okla 2006) (The “2005 amendments make it easier to [successfully] invoke the ordinary course of business defense [] in a preference action.”). See also, Bruno Mach. Corp. v. Troy Die Cutting Co. (In re Bruno Mach. Co.), 435 B.R. 819, 839 (Bankr. N.D.N.Y. 2010) (“Significantly, BAPCPA amended §547(c)(2) by changing the “and” between subsections (B) and (C) to “or,” thus making it easier for preference defendants to make out an ordinary course defense.”) quoting Rifken v. Entec Distribution, LLC (In re Felt Mfg. Co.), 2009 WL 3348300, No. 05-13724, Adv. No. 07-1170 (Bankr. D.N.H. 2009) at 6, n.16. C.f., Jagow v. Grunwald (In re Allied Carriers’ Exch., Inc.), 375 B.R. 610, 615 n.3 (10th Cir. BAP 2007) (After BAPCPA, defendant would have had only “to demonstrate either the subjective [ordinary as between the parties] test or the objective [ordinary business terms] test for the defense to apply.”).
III. Federal District of Utah and Tenth Circuit Case Law Prior to the 2005 Amendment of Section 547(c)(2).
A. The Independent Clearing House Cases in the Utah Bankruptcy and District Courts.
Merril v. Abbott (In re Independent Clearing House Co.), 41 B.R. 985 (Bankr. D. Utah 1984), aff’d in part and rev’d in part, 62 B.R. 118 (D. Utah 1987), involved some 918 adversary complaints filed by the trustee to recover allegedly preferential transfers to investors in a Ponzi scheme, and was decided under the original 1978 version of Section 547(c)(2). In that case, Bankruptcy Judge Allen addressed the question of whether the ordinary course of business defense can be raised by a defendant to a preference recovery action brought by the trustee in the context of a Ponzi scheme. See id. at 1013-1015.
In granting the trustee’s motion for summary judgment on that issue, Judge Allen: (1) interpreted the original 1978 legislative history as indicating that the “purpose of Section 547(c)(2) was to protect from preference liability ordinary trade credit transactions that are kept current;” (2) reasoned that “it is clear that Congress did not intend to protect [later] investors in a ‘Ponzi’ scheme over the rest;” (3) found that “[t]here is nothing in the evidence to indicate that these payments were in the ordinary course of business of the debtors and the defendants and made according to ordinary business terms;” and (4) concluded that “[a]ll of the transactions were unusual, extraordinary, and unrelated to any business enterprise that was intended by the drafters [to be covered by] Section 547(c)(2).” Id. at 1014-1015.
On appeal to the District Court for the District of Utah, Chief Judge Jenkins, writing for a three-judge panel, took issue with parts of Judge Allen’s analysis. See Merrill v. Abbot (In re Independent Clearing House Co.), 77 B.R. 843, 870-875 & 887 (D. Utah 1987). Judge Jenkins started by looking at the purposes of Section 547, which he described as “to discourage creditors ‘from racing to the courthouse to dismember the debtor during his slide into bankruptcy’ and to further the fundamental bankruptcy policy of treating creditors equally by preventing a debtor from preferring one creditor over others on the eve of bankruptcy.” Id. at 871, quoting H.R. Rep. No. 595, 95th Cong., 1st Sess. 177-78 (1977). He then questioned the wisdom of having Section 547 apply at all in the Ponzi scheme setting where “[a]ll investors are creditors of the same class, so in theory all should be treated equally,” but Section 547 gives preference to the earlier investors, who recoup more, or perhaps all, of their initial investment “because the transfers [to them] were made outside the statutory period, while [later investors] are hurt the most,” and “bear a disproportionate share of the loss.” Id. at 871, 874-875. (Exactly the opposite of Judge Allen’s reasoning.) “Thus, applying the statute as written, the court is ‘compelled to take part in a farce whose result is . . . to take away from those who have little, the little they have.’” Id., quoting Jan. 13, 1878 letter from Justice Samuel F. Miller to William P. Ballinger (as quoted in C. Fairman, Reconstruction and Reunion 1864-88, Part I at 1069, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States vol. 6, 1971). “The equitable solution,” Judge Jenkins reasoned, would be “either to apply the statute to all transfers to investors in a Ponzi scheme – without regard to when the transfers were made – or to apply the statute to none of the transfers.” Id. Ultimately, however, he was resigned to the fact that the court could not rewrite the statute, and must “apply [it] as written” in the hope that it would “approximate justice.” Id. at 871, 887.
In applying Section 547(c)(2) “as written,” the District Court held that the Bankruptcy Court had interpreted Section 547(c)(2) “too narrowly,” and stated that “[j]ust because a debtor does not have a legitimate [] business does not mean that transfers he makes in the course of that business may not be made in the ‘ordinary course of business.’” Id. at 874. In so holding, the District Court looked to the statutory purpose of discouraging “unusual action by either the debtor or his creditors during the debtor’s slide into bankruptcy;” noted that there “is nothing to indicate that the transfers were not in conformity with the prior dealings of the parties;” and observed that “[t]he race to the courthouse would have started sooner if the debtors had not made the payments in question.” Id. The District Court also reiterated its previously observed fundamental unfairness of having later investors bear a disproportionate share of the losses as a basis to more broadly interpret the ordinary course of business defense. See id. at 874-875.
Ultimately, the District Court reversed the Bankruptcy Court’s granting of summary judgment to the trustee reasoning that “[o]n the state of the record before the bankruptcy court, the trustee was not entitled to a judgment as a matter of law” because “[a] transfer does not fall outside the scope of section 547(c)(2) simply because it was made in furtherance of a Ponzi scheme.” Id. at 875. It further reasoned that “by leaving open the possibility of an exception to the trustee’s preference actions, all creditors are put on a more equal footing.” Id. On remand, however, the defendants still had the burden of showing that the transfers in question met all of the requirements actually set forth in Section 547(c)(2). See id.
B. The Tenth Circuit Court of Appeals Weighs In.
Some eight years later, Judge Allen was partially, but only partially, vindicated by the Tenth Circuit Court of Appeals. In Sender v. Heggland Family Trust (In re Hedged-Investments Assocs., Inc.), 48 F3d 470 (10th Cir. 1995), the Tenth Circuit took up the question of whether the ordinary course of business defense could be successfully invoke by a defendant to a preference action brought by the trustee of a bankrupt Ponzi scheme. The debtor in Hedged-Investments solicited money from investors by guaranteeing substantial returns from stock options trading. See id. at 471. However, “[d]espite making some profitable trades, [the debtor] amassed approximately $136 million in trading losses over the thirteen-year life of the scheme” and filed a voluntary bankruptcy petition in August 1990, after which the bankruptcy trustee brought some 180 adversary proceedings to collect alleged “preferential payments, avoidable transfers and overpayments of . . . capital accounts.” Id. at 472. The trustee’s complaint in this particular adversary proceeding sought to avoid as a preference a single $50,000.00 payment made by the debtor to the Heggland Family Trust during the preference period. See id.
Although the Tenth Circuit eventually affirmed the bankruptcy and district courts’ rulings that the payment was not covered by the “ordinary course of business” defense of Section 547(c)(2), in the process of doing so it expressly rejected the Ninth Circuit’s blanket holding in Graulty v. Brooks, 819 F.2d 214 (9th Cir. 1987), that the 547(c)(2) defense simply “does not apply to [any] transfers made in the ordinary course of a Ponzi scheme.” Id. at 475 – 476. In so doing, the Tenth Circuit examined the cases relied upon by the Ninth Circuit in Grualty, starting with Judge Allen’s opinion in Independent Clearing House, and held that this line of cases “supports only the narrower proposition that transfers to [Ponzi scheme] investors are not entitled to the ordinary course of business exception.” Id. (emphasis in original). This ruling was “not based, however, on the grounds that Congress did not intend to cover illegitimate businesses under §547(c), but on the grounds that transfers to investors in a Ponzi scheme are not transfers made ‘according to ordinary business terms,” and thus failed to meet the “ordinary business terms” requirement of prior Section 547(c)(2)(C) because:
The ordinary business terms of investment companies does not include payment of fraudulent ‘profits’ to
early investors [that] are made possible only by the investments of later investors – the sine qua non of
a Ponzi scheme. Thus, the literal terms of §547(c)(2)(C) preclude application of the ordinary course of
business defense to transfers made to investors in the course of a Ponzi scheme.
Id. at 476 (some emphasis added, some in original).
A little over a year later, in Jobin v. McKay (In re M&L Bus. Mach. Co.), 84 F.3d 1330. 1339-1340 (10th Cir. 1996), cert. denied, 519 U.S. 1040, 136 L. Ed. 2d 534, 117 S. Ct. 608 (1996), a different panel of the Tenth Circuit reached the same conclusion, and for the same reason. This time, however, rather than simply looking at prior Ponzi scheme cases, the Tenth Circuit relied on its ruling in Clark v. Balcor Real Estate Fin. (In re Meridith Hoffman Partners), 12 F.3d 1549 (10th Cir. 1993), cert denied, 512 U.S. 1206, 129 L. Ed. 2d 812, 114 S. Ct. 2677 (1994), a non-Ponzi scheme case, as its primary authority on “ordinary business terms.” See M&L Bus. Mach., 84 F.3d at 1339. The Meridith Hoffman Partners decision held that “’ordinary business terms’ under §547(c)(2)[(C)] ‘are those used in normal financing relations, the kinds of terms that creditors and debtors use in ordinary circumstances, when debtors are healthy.” M&L Bus. Mach. at 1399, quoting Meridith Hoffman Partners at 1553. Thus, the M&L Bus. Mach. case makes it clear that rulings in non-Ponzi scheme cases also apply in the Ponzi scheme setting.
C. How is the Subjective “Ordinary Course of Business” Requirement Met?
As previously alluded to by Judge Jenkins in the District Court’s opinion in Independent Clearing House, in the Tenth Circuit the question of whether a transaction occurred “in the ordinary course of business,” irrespective of whether it was “according to ordinary business terms,” is a subjective inquiry that looks at the prior dealings between the parties. See Independent Clearing House, 77 B.R. at 874. This interpretation was plainly adopted by the District Court for the District of Utah in Styler v. Landmark Petroleum (In re Peterson Distrib.), 197 B.R. 919 (D. Utah 1996), but in so doing Judge Winder also included an ancillary to the primary rule. In Peterson Distributing, the bankruptcy court had granted summary judgment to the trustee ruling that where there were no dealings between the parties prior to the ninety-day preference period, and all five payments made during the preference period were not paid when due, the creditor could not, as a matter of law, introduce evidence of the prior dealings of the debtor and the creditor with third parties as substitute evidence in support of the subjective leg of its ordinary course of business defense. See id. at 921-922. In reversing the bankruptcy court on appeal, the District of Utah held that:
Subsection 547(c)(2)[(B)] is subjective in that it requires a more particularized showing that the
payments at issue comport with the ordinary course of business as established between the parties
before the preference period or, absent such a relationship, with the ordinary course of business as
established between the creditor and third parties and the debtor and third parties.
Peterson Distrib., 197 B.R. at 926 (emphasis added; mistake in original corrected).
The district court further justified its holding by referring to the purpose of the Section 547(c) defenses, as stated by the Tenth Circuit, “’to encourage trade creditors and other suppliers of goods and services to continue dealing with troubled businesses without fear of the trustee’s avoidance powers.’” Id. at 927, quoting Johnson v. Barnhill (In re Antweil), 931 F.2d 689, 693 (10th Cir. 1991), aff’d, 503 U.S. 393, 118 L.Ed. 2d 39, 112 S. Ct. 1386 (1992). Moreover, if “only creditors with significant pre-preference period relations with debtors can make a showing that late payments are ordinary, then [new] creditors would be deterred from establishing new relationships with troubled debtors,” id., increasing the likelihood that they will end up in bankruptcy.
Two years later, the Tenth Circuit Bankruptcy Appellate Panel also adopted the “ordinary as between the parties” interpretation of the 1984 version of 547(c)(2)(B) in Payne v. Clarendon Nat’l Ins. Co. (In re Sunset Sales, Inc.), 220 B.R. 1005 (10th Cir. BAP 1998), aff’d, 195 F.3d 568 (10th Cir. 1999). In interpreting Section 547(c)(2), the Sunset Sales BAP stated that “[s]ubsection (B) of this section creates a subjective test, i.e., whether the transfers were ordinary as between the parties, and subsection (C) [the “ordinary business terms” component] creates an objective test, i.e., whether the transfers were ordinary in the industry.” Sunset Sales, 220 B.R. at 1020 (emphasis added), citing In re Midway Airlines, Inc., 69 F.3d 792, 797-98 (7th Cir. 1995). To determine whether transfers were “ordinary as between the parties,” the Sunset Sales BAP stated that courts should look to: (1) the length of time the parties were engaged in the transaction[s] in issue; (2) whether the amount or form of tender differed from past practices; (3) whether the debtor or creditor engaged in any unusual collection or payment activity; and (4) the circumstances under which the payment was made.” Id. at 1020-1021. “These factors are typically considered by comparing pre-preference period transfers with preference period transfers.” Id. at 1021, citing Sulmeyer v. Suzuki (In re Grand Chevrolet, Inc.), 25 F.3d 728, 732 (9th Cir. 1994); Logan v. Basic Distribution Corp. (In re Fred Hawes Org., Inc.), 957 F2d 239, 244 (6th Cir. 1992). The BAP also noted that “[i]n the absence of any prior transactions, courts typically look to see if the debtor complied with the payment terms of its contract;” and that “[l]ate payments are typically not ‘ordinary’ unless the creditor establishes that a pattern of late payments was ordinary between the parties.” Id. at 1021, citing Jones Truck Lines, Inc. v. Full Serv. Leasing Corp, 83 F.3d 253, 257 (8th Cir. 1996); Grand Chevrolet, 25 F.3d at 732; Fred Hawes Org., 957 F.2d 244. By contrast, the Sunset Sales BAP noted that “ordinary business terms” under former 547(c)(2)(C) means “’normal financing relations:’ the kinds of terms that creditors and debtors use in ordinary circumstances when debtors are healthy.” Id., citing Meridith Hoffman Partners, 12 F.3d at 1553.
Some nine years later, a different panel of the Tenth Circuit BAP revisited this issue in the case of Gonzales v. Conagra Grocery Prods. Co. (In re Furr’s Supermarkets, Inc.), 373 B.R. 691 (10th Cir. BAP, Aug. 15, 2007, as amended November 6, 2007). Although it paid lip service to the Peterson Distributing and Sunset Sales “ordinary as between the parties” inquiry as determining the subjective “ordinary course of business” requirement of the 1984 version of 547(c)(2)(B) (the current version was not effective when the case was filed), the Furr’s Supermarkets BAP injected some uncertainty when it stepped outside of the Tenth Circuit and cited a Seventh Circuit case for the proposition that the debtor’s internal irregularities during the preference period, such as “holding checks, then voiding and reissuing them at later dates, [and] having daily meetings to determine which vendors to pay” should also be considered when examining the factor of “whether the debtor or creditor engaged in any unusual collection or payment activity” in connection with the payments. Furr’s Supermarkets, 373 B.R. at 705-706, citing In re Milwaukee Cheese Wis., Inc., 112 F.3d 845, 848 (7th Cir. 1997) (for the proposition that “the transfers should be ordinary both from the transferee’s perspective and the debtor’s perspective”).
This approach, however, seemingly flies in the face of the “ordinary as between the parties” interpretation adopted by District of Utah in Peterson Distributing, the Sunset Sales BAP and the 1990 decision of the District of Kansas in Morris v. Kan. Drywall Supply Co. (In re Classic Drywall, Inc.), 121 B.R. 69 (D. Kan. 1990), which the Furr’s Supermarkets court actually quoted and purported to follow:
[t]he relations of the debtor and the creditor are placed in a vacuum, and the transfer in question is
assessed for its consistency with those relations. What is subjectively ordinary between the parties is
answered from comparing and contrasting the timing, amount, manner and circumstances of the
transaction against the backdrop of the parties’ traditional dealings. The transaction is scrutinized for
anything unusual or different.
Furr’s Supermarkets, 373 B.R. at 706, quoting Classic Drywall, 121 B.R. at 75 (emphasis added).
Without any outward manifestation, how can the internal workings of the debtor possibly be relevant to the inquiry of whether the dealings between the parties changed during the preference period? The Furr’s Supermarkets BAP didn’t need to create this uncertainty because the evidence also showed that ConAgra’s collection efforts became significantly more aggressive during the preference period. See id. That alone was sufficient to uphold the bankruptcy court’s ruling that the payments were not made in the ordinary course of business, without any reference to how the debtor’s internal operations may have changed as it approached bankruptcy. Indeed, it’s hard to imagine any debtor not changing its internal operations as it slides into bankruptcy!
The uncertainty that was injected by the Furr’s Supermarkets case, however, appears to have been resolved by subsequent decisions of the Tenth Circuit BAP that effectively ignored it in favor of the straight forward language of Classic Drywall, Peterson Distributing and Sunset Sales. Indeed, it appears that Furr’s Supermarkets has never even been cited, much less followed, by another published opinion within the Tenth Circuit on the issue of whether changes in a debtor’s internal operations, without outward manifestation, can serve to defeat the “ordinary course of business” requirement of the 1984 version of Section 547(c)(2)(B).
On September 4, 2007, hot on the heels of the Furr’s Supermarkets decision, another panel of the Tenth Circuit BAP addressed this issue in Jagow v. Grunwald (In re Alliance Carriers’ Exch., Inc.), 375 B.R. 610 (10th Cir. BAP 2007). Without even noting the Furr’s Supermarkets case, the Alliance Carriers BAP cited back to Sunset Sales and held simply that “[t]he subjective test examines whether the transfers at issue were ‘ordinary as between the parties.’” Alliance Carriers at 616, quoting Sunset Sales at 220 B.R. 1020-21. Likewise, the 2008 case of Milk Palace Dairy, LLC v. L&N Pump, Inc. (In re Milk Palace Dairy, LLC), 385 B.R. 765 (10th Cir. BAP 2008), decided by yet another panel of the Tenth Circuit BAP, ignored the Furr’s Supermarkets case and cited back to Sunset Sales for the proposition that the subjective ordinary business requirement of Section 547(c)(2)(B) focused on ordinariness “as between the parties.” Milk Palace Dairy, 385 B.R. at 768-771, citing Sunset Sales, 220 B.R. at 1020-1021. Significantly, Milk Palace Dairy, which involved a single alleged preference payment of $10,000.00, see id. at 768, turned on the fact that there was no “apparent change in the parties’ dealings with respect to that payment.” Id. at 769. In upholding the bankruptcy court’s finding of a valid “ordinary course of business” defense, the Milk Palace Dairy BAP further noted that:
Although the disputed payment could be described as “delayed,” it was made more quickly than at least
one previous payment had been, and included less interest than previously had been paid by Debtor to L&N.
The single fact that Debtor, once again, chose to take advantage of L&N’s payment terms is simply
insufficient to overcome the other evidence that the disputed payment was ordinary between the parties.
Milk Palace Dairy, 385 B.R. at 769-770 (emphasis added, citations omitted).
IV. Case Law Within the Tenth Circuit under Current Version Of §547(c)(2).
As noted above, the 2005 BAPCPA amendments took the 1984 version of subsection 547(c)(2)(A) and added it onto the end of the first clause of subsection 547(c)(2), added the words “and such transfer was” to the end of that consolidated clause, renumbered prior subsections 547(c)(2)(B) and (C) as new subsections (A) and (B), and replaced the prior conjunctive connector “and” with the new disjunctive connector “or.” As a result, the current version of Section 547(c)(2) of the Bankruptcy Code now reads:
(c) The trustee may not avoid under this section a transfer –
. . .
(2) to the extent that such transfer was in payment of a debt incurred by the debtor in the ordinary
course of business or financial affairs of the debtor and the transferee, and such transfer was –
(A) made in the ordinary course of business or financial affairs of the debtor and the transferee; or
(B) made according to ordinary business terms.
11 U.S.C. 547(c)(2) (2005) (emphasis added).
As also mentioned above, starting with the Bankruptcy Court for the Western District of Oklahoma in its 2006 Rocor Int’l case, courts in the Tenth Circuit (and elsewhere) have consistently noted, even while ruling under the 1984 version of Section 547(c)(2), that after the 2005 Amendment a defendant no longer needs to prove both the subjective “ordinary course of business” prong of current 547(c)(2)(A) and the objective “ordinary business terms” prong of current Section 547(c)(2)(B) to prevail on an ordinary course of business defense. Aside from this one clear observation, it is hard to say that any other significant changes in interpreting Section 547(c)(2) should result. Because the language of the new statute is virtually identical to the language of the prior statute, with the one significant exception, it seems pretty clear that no further change in the interpretation of Section 547(c)(2) is warranted.
It appears, however, that the 2005 amendment has caused trustees to place a new emphasis on whether the payments in question were made in connection with “a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee” under the newly consolidated first clause of Section 547(c)(2). This issue was not widely addressed under the 1984 version of 547(c)(2) because there was usually either no dispute over whether the debt was “incurred” in the ordinary course of business, or there was little discussion of that issue because the “ordinary business terms” requirement wasn’t met. See e.g., Meridith Hoffman Partners, 12 F.3d at 1553 (because payments not made “according to ordinary business terms,” other two requirements of 1984 version of 547(c)(2) not discussed); Hedged Investments, 48 F.3d at 476 (defense failed because Ponzi scheme payments can’t be made “according to ordinary business terms”); M&L Bus. Mach., 84 F.3d at 1339 (because “ordinary business terms” requirement not met, requirements of former subsections (A) and (B) not discussed); Peterson Distributing, 197 B.R. at 923 (no dispute that debt was incurred in ordinary course); Sunset Sales, 220 B.R. at 1021 (even assuming that requirements of former subsections (A) and (B) were met, defense failed because “ordinary business terms” requirement of former subsection (C) not met); Allied Carriers’ Exch., 375 B.R. at 616 (trustee did not dispute that transfers met requirements of former subsection (A)); Rocor Int’l, 352 B.R. at 334-336 (defense failed because defendant didn’t sustain burden on “ordinary business terms” requirement). C.f. Milk Palace Dairy, 385 B.R. 765 (no separate discussion regarding whether “debt incurred” in ordinary course of business);
A recent example of a bankruptcy court within the Tenth Circuit struggling to interpret the “debt incurred” requirement of Section 547(c)(2) is Wild West World, LLC v. Village Charters, Inc. (In re Wild W. World, LLC, 2009 Bankr. Lexis 4193 (Bankr. D. Kan. 2009). The Wild West World court correctly noted that after the 2005 BAPCPA amendment to Section 547(c)(2), the part of the holding in Sunset Sales requiring satisfaction of both the subjective and objective tests is no longer applicable. See id. at note 12, citing Norton Bankruptcy Law and Practice §66:19, at pp. 66, 78-79 (3d ed. 2008). However, the Wild West World court stated that before it could get to either the subjective or objective tests, it “must [first] determine whether the debt itself was incurred in the ordinary course of the business or financial affairs of the debtor [] and the transferee [].” Id. at 12. In addressing the “debt incurred” requirement, the court first looked at the subjective prior pattern of dealing between the parties and found this transaction to be “atypical” of the parties’ prior dealings. See id. But seemingly as part of that same inquiry, the court also found the transaction to be “atypical” “of commercial loans in general,” and additionally noted the absence of evidence of whether “such an arrangement and a late payment would be typical of extensions of credit made in either the travel or the amusement park industry” – both of which are objective inquiries. Id. One gets the sense that the Wild West World court was flailing around trying to apply a standard to the “debt incurred” requirement that it, itself, didn’t really understand, and that by also considering objective factors in connection with the “debt incurred” requirement this court risked undoing what Congress had just done when it made the objective “ordinary business terms” element an alternative to the subjective “ordinary as between the parties” element.
The Bankruptcy Court for the District of Utah briefly addressed the “debt incurred” issue in Rushton v. Standard Indus. (In re C.W. Mining Co.), 2009 Bankr. Lexis 2372, 69 U.C.C. Rep. Serv. 2d 830 (Bankr. D. Utah 2009). When considering whether the ordinary course of business defense of current Section 547(c)(2) applied to certain recorded conveyances of security interests in real property from the debtor to the defendants during the 90-day preference period, Judge Boulden found that the conveyances were made as part of a forbearance agreement following the debtor’s default on a prior debt and thus were “not in accordance with the Debtor’s ordinary course of business with these creditors” and “not a payment of a debt.” Id. at 55-57. On that basis, Judge Boulden held that the conveyances “were not [in payment of a debt] ‘incurred by the debtor in the ordinary course of business or financial affairs of the debtor.’” Id. at 56, quoting §547(c)(2). Somewhat inexplicably, Judge Boulden also held that the conveyances were not made “according to ‘ordinary business terms.’” Id. It is important to note, however, that the primary basis for Judge Boulden’s ruling appears to be her finding that the forbearance agreement was not ordinary as between these parties – exactly the same inquiry used for preference period payments under former subsection 547(c)(2)(B), now 547(c)(2)(A).
This is consistent with the approach taken in 2008 by the Milk Palace Dairy BAP when it functionally disregarded the “debt incurred” element under former subsection 547(c)(2)(A) as creating a distinct area of inquiry and included it under an expansive “subjective (as between the parties)” inquiry along with former Section 547(c)(2)(B). See Milk Palace Dairy at 769. In so doing, it somewhat restated the four factors set out in Sunset Sales to more fully encompass entire “transactions” as opposed to just the “transfers” or “payments” made during the preference period. This strongly suggests that the Milk Palace Dairy BAP was applying the same subjective “ordinary as between the parties” standard to both the “debt incurred” and the “payment made” legs of Section 547(c)(2). See also, Tolz v. Gawlick (In re Forex Fid. Int’l), 222 Fed. Appx. 806, 809 (11th Cir. 2007) (“the first two elements of the [ordinary course of business] defense pertain to the conduct of the parties toward one another”), citing In re Issac Leaseco, Inc., 389 F.3d 1205, 1210 (11th Cir. 2004). Cf. Rocor Int’l, 352 B.R. 333-336 & n.7 (noting that current version of 547(c)(2) has three prongs, but applying a functional analysis recognizing only a “subjective element” and an “objective element); Jack’s Constr., 2011 Bankr. Lexis 1224 (effectively subsuming “debt incurred” element into over-all subjective “ordinary as between the parties” inquiry).
V. Conclusion.
It seems pretty clear that after the 2005 BAPCPA amendments to Section 547(c)(2) of the Bankruptcy Code there is no longer a blanket prohibition against the use of the “ordinary course of business” defense to payments received by an innocent investor from a Ponzi scheme during the ninety-day pre-bankruptcy preference period. This is because it is no longer necessary to prove that such payments were made according to objectively “ordinary business terms” under subsection 547(c)(2)(B), in addition to proving that the payments were subjectively “ordinary as between the parties” under the case law interpreting subsection 547(c)(2)(A).
A new battleground has opened up, however, as trustees are focusing more closely on the requirement of the first clause of Section 547(c)(2) that the payments must be made “in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee.” Despite some indication that evidence suggesting that the debt was not incurred in an objectively ordinary manner (i.e., not pursuant to “ordinary business terms”) might be relevant to this question, the better, and apparently emerging, view is that because the descriptive language of the initial “debt incurred” requirement is identical to that of the “payment made” requirement of subsection 547(c)(2)(A), the same subjective “ordinary as between the parties” standard should be used to decide both questions.