Dorholt v. Linquist (In Re Dorholt, Inc.) , 239 B.R. 521 ( 1999 )

SCOTT, Bankruptcy Judge.

The Trustee brought an action against Marjorie Dorholt to avoid a transfer that the Debtor made to her within the ninety day preference period. The bankruptcy court avoided the transfer and Dorholt appeals. We reverse the decision of the bankruptcy court on an issue of law.

BACKGROUND

Within ninety days preceding the filing of the Debtor’s Chapter 7 case, Marjorie Dorholt loaned the Debtor $100,950.00. At the time of the loan, the Debtor signed and delivered to Dorholt a security agreement, granting a security interest in the Debtor’s inventory, accounts receivable, fixtures, and equipment. Due to an error by Do-rholt’s agent in filing the Uniform Commercial Code’s financing statement referencing the transaction, it was not properly recorded until sixteen days after the loan was made.

The trustee brought an action under 11 U.S.C. § 547 to avoid the transfer of the security interest to Dorholt. Dorholt acknowledged that the trustee could prove each of the elements of preference, under 11 U.S.C. § 547(b), but asserted the contemporaneous exchange for new value defense of 11 U.S.C. § 547(c)(1). Because Dorholt did not perfect her security interest in the Debtor’s property for sixteen days after the grant of the security interest, the bankruptcy court held that the ten day requirement of section 547(e)(2) had not been met and avoided the transfer.

The parties agree that no material facts are in dispute. The issues before us are legal and not factual, and accordingly, our standard of review is de novo. See In re O’Brien, 178 F.3d 962, 966 (8th Cir.1999).

DISCUSSION

Section 547 of the Bankruptcy-Code establishes the trustee’s right to avoid preferences made to creditors prior to bankruptcy. Section 547(b) establishes the elements required to be proved by the trustee in order to avoid the transfer of an interest in property. Subsection (c) establishes a number of defenses to the avoidance powers. Section 547(c)(1) provides that the trustee may not avoid an otherwise preferential transfer:

(1) to the extent such transfer was—

(A) intended by the debtor and creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debt- or; and

(B) in fact a substantially contemporaneous exchange.

Thus, to establish a defense under section 547(c)(1), the recipient of the transfer must show by a preponderance of the evidence that both parties intended the transfer to be a contemporaneous exchange for new value and that the exchange was, in fact, contemporaneous. Bergquist v. Fidelity Mortgage Decisions Corp. (In re Alexander), 219 B.R. 255, 260 (Bankr.D.Minn.1998). Cf. Official Plan Committee v. Expeditors Int’l of Washington, Inc. (In re Gateway Pacific Corp.), 158 F.3d 915, 917 (8th Cir.1998). Although the parties agree that they intended the transfer to be a contemporaneous exchange for new value, their intention is insufficient to permit Dorholt to prevail under section 547(c)(1) if the exchange is not actually or “in fact” substantially contemporaneous. Jones Truck Lines v. Central States, Southeast and Southwest Areas Pension Fund (In re Jones Truck Lines, Inc.), 130 F.3d 323, 327 (8th Cir.1997).

In addition, section 547(e) establishes certain rules for determining when a transfer or perfection occurs:

(e)(2) For purposes of this section, except as provided in paragraph (3) of this subsection, a transfer is made — * * *

(B) At the time such transfer is perfected, if such transfer is perfected after such 10 days.* * *

(3) For the purposes of this section, a transfer is not made until the debtor has acquired rights in the property transferred.

Thus, section 547(e)(2)(B) establishes that if perfection occurs more than ten days after the transfer takes effect, the transfer occurs at the time of perfection.

At the time the Debtor signed and delivered its security agreement to Dorholt, the Debtor made a transfer of an interest in its property. 11 U.S.C. § 101(54). In exchange, Dorholt transferred $100,950.00 of value to the Debtor. This transfer of cash was not for or on account of an antecedent debt, and accordingly, was not a preferential transfer. However, sixteen days later, when Dorholt recorded the financing statement in order to perfect her lien, another transfer of an interest in the Debtor’s property took place. It was at this time that perfection of the lien became effective as to third parties, i.e., at the time of recordation. This second transfer was for or on account of an antecedent debt unless otherwise protected. That is the effect of section 547(e). Section 547(e) defines the date of the transfer and serves to clarify that the perfection is on account of an antecedent debt. Under section 547(e)(2)(A), had the security interest been recorded within ten days of its delivery, the date upon which it became effective between the parties (i.e., between the Debtor and Creditor), the transfer (perfection) would have been deemed made on the date of the loan and, thus, not on account of an antecedent debt and no defense is required.¹ Since the perfection occurred sixteen days after the loan, however, it constituted a transfer on account of an antecedent debt and a defense to overcome this presumption must be made and proved. That is, section 547(c)(1) may-then be analyzed to determine whether the transfer is excepted from the trustee’s avoidance powers.

The question before the Court, therefore, is whether a transfer of a non-purchase money security interest² that is not perfected within ten days is, as a matter of law, precluded from being a “substantially contemporaneous exchange.” In the instant case, there is no dispute that the elements of the trustee’s avoidance action under section 547(b) and the first element of the defense, that the parties intended the transfers to be contemporaneous, have been met.

Two conflicting lines of authority have developed to answer this question. Ray v. Security Mutual Finance Corp. (In re Arnett), 731 F.2d 358 (6th Cir.1984), holds that an exchange involving* a security transaction cannot be substantially contemporaneous unless perfection occurs within the ten day grace period of section 547(e)(2). The other line of authority, led by the Seventh Circuit’s decision in Pine Top Insurance Co. v. Bank of America Nat’l Trust Savings Ass’n, 969 F.2d 321 (7th Cir.1992), holds that substantially contemporaneous is a flexible term and that case by case analysis is required. Alexander, 219 B.R. at 260. We believe that the case authority, reflected by Pine Top Insurance Co., 969 F.2d 321 (7th Cir.1992), and Dye v. Rivera (In re Marino), 193 B.R. 907 (9th Cir. BAP 1996), aff'd, 117 F.3d 1425, 1997 WL 362117 (9th Cir.1997) to be the better reasoned analysis of the law.³

The courts addressing this issue have found the statute to be somewhat ambiguous in the context of factual situations similar to the one before the court and have thus turned to a review of the legislative intent, the overall statutory context, and the purposes of the statute. Although there is room for argument, the statute is not quite so ambiguous when each word is given meaning. Section 547(c)(1)(B), the prong of the defense in issue, simply states that the transfer must be a substantially contemporaneous exchange in fact. The ambiguity arises when one imports into this element the definition of transfer in section 547(e)(2)(B). As a matter of statutory interpretation, the fact that if perfection occurs more than ten days after the transfer, then the transfer occurs at the time of perfection, does not logically require that substantially contemporaneous be confined to that ten day period. Rather, section 547(e)(2) establishes that if perfection occurs more than ten days beyond the date of transfer, it is in fact an antecedent debt. It does not necessarily follow that because it is an antecedent debt the transfer cannot be substantially contemporaneous. Section 547(c)(1), including paragraph (B) of that subsection, may then be applied.

The construction placed upon the statute in Ray v. Security Mutual Finance Corporation (In re Arnett), 731 F.2d 358 (6th Cir.1984), has the effect of nullifying the language of section 547(c)(1)(B). Section 547(c)(1) uses the language “substantially” contemporaneous. Substantially is, as indicated by the Seventh Circuit, a flexible term, rendering the contemporaneity of section 547(c)(1)(B) a flexible concept requiring a case by case inquiry into all relevant circumstances of the transfer. Pine Top Insurance Company, 969 F.2d at 328. To require as a matter of law that perfection must occur within ten days in order for a defense of contemporaneous exchange to apply, creates a definition of “substantially” that not only does not exist in the statute, but also is at odds with any conventional definition of the term. The use of a subjective term such as “substantially” would seem to preclude rather than warrant application of a specific, objective time limitation. Had Congress intended that “substantially” be the equivalent of ten days, it would have provided that, as it did, for example, in the defenses established by paragraphs 547(c)(3) and (5).

Moreover, neither policy concerns, the legislative history nor the statutory context require such a result. Any ambiguity appears to arise from the policy concerns raised by Ray v. Security Mutual Finance Corporation (In re Arnett), 731 F.2d 358 (6th Cir.1984), rather than the language in the statute.⁴ Indeed, Arnett appears to ignore the statutory language and determines that a ten day restriction must be applied because of “evidentiary problems,”⁵ and because of a concern for discouraging secret liens.⁶ The policy concerns raised by Arnett and its line of cases áre adequately addressed by implementing the language of the statute. A court determination of whether a transaction is “substantially contemporaneous,” for example, necessarily takes into account the concerns regarding secret liens. The inquiry into “substantially contemporaneous” includes evidence of the length of the delay, the reason for the delay, the nature of the transactions, the intention of the parties, and the possible risk of fraud. Pine Top, 969 F.2d at 328. If there is any intent of the parties to secrete a lien, that is a relevant circumstance to be considered by the court in the factual determination. See Marino, 193 B.R. 907, 915 (9th Cir. BAP 1995)(“The concern over lack of an objective standard is illusory.. .The concern over secret liens should also be allayed by a court’s examination and consideration of the reasonableness of a delay in perfection. Where there is a reasonable and plausible explanation for the delay, there should be no concern that a creditor was recording a secret lien in anticipation of a bankruptcy.”).

Section 547(e) does not serve the purpose of defining the limit of time for “substantially contemporaneous.” Rather, as stated by the dissent in Arnett:

Whether a transaction is “substantially contemporaneous” contemplates factors other than a ten day limitation, it calls for consideration of the intention of the parties and other surrounding circumstances, including the equities of the particular case. I disagree with ... [the] conclusion that “Congress has clearly struck the balance in favor of repose in this area...” This area of the law is far from “clear,” and the better authority.. .indicates precisely to the contrary.

Arnett, 731 F.2d at 864 (Wellford, J., dissenting). Accordingly, we reverse the decision of the bankruptcy court.

1 . Section 547(e) is also important in that by establishing the date of a transfer, it affects the calculation of the preference period. Indeed, under this subsection, transfers actually occurring between the parties outside the preference period may be deemed to have been made within the preference period.

2 . If the security is a purchase money security interest, section 547(c)(1) is generally considered not to apply. Rather, section 547(c)(3), which establishes a specific time limit for perfection of such interests, applies. See generally Bergquist v. Fidelity Mortgage Decisions Corp. (In re Alexander), 219 B.R. 255 (Bankr.D.Minn.1998).

3 . There is also a line of authorities suggesting that the statute is, or should be, limited to check or other cash transactions. "This construction of the statute has been overwhelmingly rejected.” Bergquist v. Fidelity Mortgage Decisions Corp. (In re Alexander), 219 B.R. 255, 261 n. 10 (Bankr.D.Minn.1998).

4 . A court should not search for hidden intent or read meaning that was not intended, United States v. Cheely, 814 F.Supp. 1430 (D.Alaska 1992), aff'd, 21 F.3d 914 (9th Cir.1994), and judicial perception that a particular result is unreasonable does not justify disregard of what Congress provided, see Comm'r v. Asphalt Products Co., 482 U.S. 117, 107 S.Ct. 2275, 96 L.Ed.2d 97 (1987). Rather, in divining the intent of Congress, the courts look first to the language of the statute and the plain meaning of the statute is, except in rare cases, conclusive. Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993); Norfolk and Western Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S. 117, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991).

5 . Arnett's apparent concern that litigation may occur and a court would be required to make a determination of the concept "substantially contemporaneous.” Arnett, 731 F.2d 358 at 362, is a particularly restrictive view of a trial court's duties. Parties have the right to litigate factual disputes and it is the trial court’s function to decide those disputes. The fact that litigation may ensue, trial on factual issues be required, or that the determination may be a subjective one are not "eviddentiary problems” justifying disregard of the plain language of a statute.

6 . It is ironic, given the conclusion reached by other courts following Ray v. Security Mutual Finance Corporation (In re Arnett), 731 F.2d 358 (6th Cir.1984), that Arnett quotes the legislative history specifically approving a thirty day delay as "substantially contemporaneous.” See id. at 360. In Arnett the delay was 33 days. In the instant case, it is a mere 16 days. Even section 547(c)(3) permits a twenty day lapse of time between the transfer and the perfection.