The subsequent advance exception applies only to the extent that the creditor's advances provide new value that enhances the bankruptcy estate.
A creditor seeks to avoid a preference claim by asserting the subsequent advance exception under the Bankruptcy Code. The creditor argues that the continued availability of leased premises for the debtor's use constitutes new value. The court holds that to qualify for the exception, the creditor must provide a material benefit that enhances the bankruptcy estate. Because the debtor had vacated the premises and made no actual use of the property during the preference period, the creditor's forbearance to terminate the lease did not constitute new value. The exception does not apply when the lease acts as a financial drain on the estate rather than a replenishment of it.
At page 1083 Analyzing subsequent advance exception under section 547(c)(4)17 citing cases“the first objective is to encourage creditors to continue extending credit to financially troubled entities while discouraging a panic-stricken race to the courthouse.”
- TI Acquisition, LLC v. S. Polymer, Inc. (In re TI Acquisition, LLC), 429 B.R. 377 (Bankr. N.D. Ga. 2010).published Co., 930 F.2d at 654 (“The availability of the defense, then, depends on the ultimate effect on the estate”); and In re Jet Fla. Sys., Inc., 841 F.2d at 1084 (“Thus, courts have generally required a transfer which fits within the subsequen…
- Intercontinental Polymers, Inc. v. Equistar Chemicals, LP (In re Intercontinental Polymers, Inc.), 359 B.R. 868 (Bankr. E.D. Tenn. 2005).published(A subsequent advance is excepted because it is reasoned that a creditor who contributes new value in return for payments from the incipient bankrupt, should not later be deemed to have depleted the estate to the disadv…)
- PMCM 2, LLC v. Fabric Sources, Inc., No. 19-04036 (Bankr. N.D. Ga. Mar. 20, 2020).In Charisma Investment Company, N.V. v. Airport Systems, Inc. (In re Jet Florida System, Inc.), 841 F.2d 1082 (11th Cir. 1988), the court stated that the subsequent new value defense generally requires: “(1) that the creditor must have ext…
- Gonzales v. Sun Life Ins. (In re Furr's Supermarkets, Inc.), 485 B.R. 672 (Bankr. D.N.M. 2012).published Id. at 1083-84 (citations and internal punctuation omitted).
- Responsible Person of Musicland Holding Corp. v. Best Buy Co. (In re Musicland Holding Corp.), 462 B.R. 66 (Bankr. S.D.N.Y. 2011).published Jet Florida Sys., Inc., 841 F.2d at 1083-84.
- Moltech Power Sys., Inc. v. Truelove & MacLean, Inc. (In re Moltech Power Sys., Inc.), 326 B.R. 179 (Bankr. N.D. Fla. 2005).publishedCharisma Investment Co., N.V. v. Airport Systems, Inc. (In re Jet Florida System, Inc.), 841 F.2d 1082, 1083 (11th Cir.1988) (citations omitted).
- Phoenix Restaurant Grp., Inc. v. Ajilon Prof'l Staffing LLC (In re Phoenix Restaurant Grp., Inc.), 317 B.R. 491 (Bankr. M.D. Tenn. 2004).publishedCo.), 930 F.2d 648 , 653 (8th Cir.1991) (creditor who has been paid for the new value by the debtor may not assert a new value defense); New York City Shoes, Inc. v. Bentley Inf'l, Inc. (In re New York City Shoes, Inc.), 880 F.2d 679, 680…
- Savage & Assocs., P.C. v. Level(3) Commc'ns (In re Teligent, Inc.), 315 B.R. 308 (Bankr. S.D.N.Y. 2004).published Co.), 930 F.2d 648, 651 (8th Cir.1991)); In re Jet Florida Sys., Inc., 841 F.2d at 1083; see Laker v. Vallette (In re Toyota of Jefferson, Inc.), 14 F.3d 1088, 1091 (5th Cir.1994), and promotes equality of treatment among eredi-tors.
- Grant v. Sun Bank/North Cent. Florida (In re Thurman Constr., Inc.), 189 B.R. 1004 (Bankr. M.D. Fla. 1995).published “The first objective is to encourage creditors to continue extending credit to financially troubled entities while discouraging a panic-stricken race to the courthouse.” Id. at 1083.
- Laker v. Vallette (In re Toyota of Jefferson, Inc.), 14 F.3d 1088 (5th Cir. 1994).publishedCo., N.V. v. Airport Sys., Inc. (In re Jet Florida Sys., Inc.), 841 F.2d 1082, 1083 (11th Cir.1988); In re Prescott, 805 F.2d 719, 731 (7th Cir.1986).
Show 7 more citing cases
- In re Allegheny Int'l, Inc., 136 B.R. 396 (Bankr. W.D. Pa. 1991).publishedE.g., Charisma Investment Co. v. Airport Systems, Inc. *401 (In re Jet Florida System, Inc.), 841 F.2d 1082, 1083-84 (11th Cir.1988).
- Kaye v. Blue Bell Creameries, Inc. (In re BFW Liquidation, LLC), 899 F.3d 1178 (11th Cir. 2018).published See In re Jet Fla. Sys., Inc. , 841 F.2d at 1083 .
- Jones v. Ryder Integrated Logistics, Inc. (In re Jotan, Inc.), 264 B.R. 735 (Bankr. M.D. Fla. 2001).published See Charisma Investment Company, N.V. v. Airport Systems, Inc. (In re Jet Florida, Inc.), 841 F.2d 1082 , 1083 (11th Cir.1988).
- Alfa Mut. Fire Ins. v. Memory (In re Martin), 184 B.R. 985 (M.D. Ala. 1995).published See In re Jet Florida Sys., Inc., 841 F.2d 1082 , 1084 (11th Cir.1988); Matter of Kroh Bros.
- Wolinsky v. Cent. Vermont Teachers Credit Union (In re Ford), 98 B.R. 669 (Bankr. D. Vt. 1989).published Accord, Charisma Investment Company, N.V. v. Airport Systems, Inc. (In re Jet Florida System, Inc.), 841 F.2d 1082, 1083 (11th Cir.1988); Matter of Prescott, 805 F.2d 719, 731 (7th Cir.1986); Remes v. Consumers Power Co. (In re Camelot Mot…
- Fitzpatrick v. Rockwood Water (In re Tennessee Valley Steel Corp.), 201 B.R. 927 (Bankr. E.D. Tenn. 1996).published
- Fitzpatrick v. Cent. Commc'ns & Elec., Inc. (In re Tennessee Valley Steel Corp.), 203 B.R. 949 (Bankr. E.D. Tenn. 1996).published
At page 1084 Determining material benefit from subsequent creditor advances17 citing cases“because its utility is limited to the extent to which the estate was enhanced by the creditor's subsequent advances during the preference period.”
- TI Acquisition, LLC v. S. Polymer, Inc. (In re TI Acquisition, LLC), 429 B.R. 377 (Bankr. N.D. Ga. 2010).published (Thus, courts have generally required a transfer which fits within the subsequent advance exception to provide the debtor with a material benefit)
- Responsible Person of Musicland Holding Corp. v. Best Buy Co. (In re Musicland Holding Corp.), 462 B.R. 66 (Bankr. S.D.N.Y. 2011).published Jet Florida Sys., Inc., 841 F.2d at 1083-84.
- In re Abc-Naco, Inc., Debtor-Appellee, & Off. Comm. of Unsecured Creditors of Abc-Naco, Inc., Appeal Of: Softmart, Inc., 483 F.3d 470 (7th Cir. 2007).published In re Jet Fla. Sys., 841 F.2d at 1084; In re Jones Truck Lines, Inc., 130 F.3d 323, 327 (8th Cir.1997) (noting that “such forbearance [from terminating benefits] is usually not new value”); In re Air Conditioning, Inc., 845 F.2d 293, 298 (…
- Webster v. Harris Corp. (In re NETtel Corp.), 319 B.R. 290 (D.D.C. 2004).published Webster’s reply brief itself cites Charisma Investment Co., N.V. v. Airport Systems, Inc. (In re Jet Florida System, Inc.), 841 F.2d 1082, 1084 (11th Cir.1988), which avoids the issue but cites In re Dick Henley, Inc., 45 B.R. 693, 699 (Ba…
- Savage & Assocs., P.C. v. Level(3) Commc'ns (In re Teligent, Inc.), 315 B.R. 308 (Bankr. S.D.N.Y. 2004).published Co.), 930 F.2d 648, 651 (8th Cir.1991)); In re Jet Florida Sys., Inc., 841 F.2d at 1083; see Laker v. Vallette (In re Toyota of Jefferson, Inc.), 14 F.3d 1088, 1091 (5th Cir.1994), and promotes equality of treatment among eredi-tors.
- Off. Plan Comm. of Omniplex Commc'ns Grp., L.L.C. v. GE Capital Corp. (In re Omniplex Commc'ns Grp., L.L.C.), 297 B.R. 573 (Bankr. E.D. Mo. 2003).publishedAbsent such use, (the lessor’s) forbearance to terminate the lease could not constitute new value.” Jet Florida System, Inc. 841 F.2d at 1084.
- Crews v. Nat'l Coating, Inc. (In re Nat'l Aerospace, Inc.), 219 B.R. 625 (Bankr. M.D. Fla. 1998).publishedJet Florida, 841 F.2d at 1084.
- S. Technical Coll., Inc. v. James W. Hood, S. Technical Coll., Inc. v. Graham Props. P'ship, 89 F.3d 1381 (8th Cir. 1996).published Our decision is supported by the Eleventh Circuit’s decision in the somewhat factually similar ease of In re Jet Florida System, Inc., 841 F.2d 1082 (11th Cir.1988). *1385 In that ease the court of appeals held that the lessee-debtor had n…
- S. Technical v. James W. Hood, No. 95-3832 (8th Cir. July 25, 1996).published In that case the court of -5- appeals held that the lessee-debtor had not received new value, but only because the bankruptcy court found that the lessee-debtor "had made no use of the rental property throughout the preference period." Id.…
- Clark v. Hall (In re Sharoff Food Serv., Inc.), 179 B.R. 669 (Bankr. D. Colo. 1995).publishedId. at 1084.
Show 7 more citing cases
- Angeles Elec. Co. v. Superior Court, 27 Cal. App. 4th 426 (Cal. Ct. App. 1994).published“In such a situation, the creditor pool would not be harmed to the extent of the offset and the fundamental goal of equality of distribution would be preserved.” (Jet Florida, supra, 841 F.2d at p. 1084; Levin, An Introduction to The Trust…
- Hyman v. Stone Lumber Co. (Winter Haven Truss Co.), 154 B.R. 592 (Bankr. M.D. Fla. 1993).publishedJet Florida, 841 F.2d at 1084.
- Mosier v. Ever-Fresh Foods Co. (In re IRFM, Inc.), 144 B.R. 886 (Bankr. C.D. Cal. 1992).publishedSee, In re Gold Coast Seed Co., 30 B.R. 551, 553 (9th Cir. BAP 1983); Manor, 902 F.2d at 259; Jet Florida, 841 F.2d at 1084; Prescott, 805 F.2d at 728 ; In re Fulghum Const. Corp., 706 F.2d 171 , 172 (6th Cir.1983); In re Baumgold Bros., I…
- Friedman v. 1000 Brickell, Ltd. (In re Advert. Assocs., Inc.), 95 B.R. 849 (Bankr. S.D. Fla. 1989).published(landlord’s “forbearance might have constituted new value had Air Florida actually stayed and used the leased property)
- Wolinsky v. Cent. Vermont Teachers Credit Union (In re Ford), 98 B.R. 669 (Bankr. D. Vt. 1989).published Accord, Charisma Investment Company, N.V. v. Airport Systems, Inc. (In re Jet Florida System, Inc.), 841 F.2d 1082, 1083 (11th Cir.1988); Matter of Prescott, 805 F.2d 719, 731 (7th Cir.1986); Remes v. Consumers Power Co. (In re Camelot Mot…
- Aero-Fastener, Inc. v. Sierracin Corp. (In re Aero-Fastener, Inc.), 177 B.R. 120 (Bankr. D. Mass. 1994).published(consideration fitting the definition of “new value” requires receipt by the debtor of a material benefit)
- Hays v. DMAC Investments, Inc. (In re RDM Sports Grp., Inc.), 250 B.R. 805 (Bankr. N.D. Ga. 2000).published
Other citing cases
- S. Technical Coll. v. Graham Props. P'ship (In re S. Technical Coll., Inc.), 199 B.R. 46 (Bankr. E.D. Ark. 1995).published
v.
Airport Systems, Inc., a/k/a Jet Florida System Inc., a/k/a Air Florida, Inc.
Appellant Charisma Investment Company, N.V. (Charisma) received $11,761.33 from appellee Air Florida, Inc. (Air Florida) within the preference period set forth in section 547(b) of the Bankruptcy Code. 11 U.S.C. § 547(b). The district court concluded that the bankruptcy court’s findings of fact were not clearly erroneous and that “new value” had not been extended by Charisma such that the “subsequent advance” exception, 11 U.S.C. § 547(c)(4), should exempt Air Florida’s payments made during the preference period, 68 B.R. 596. We affirm.
Charisma asserts that the district court improperly affirmed a factual determination made by the bankruptcy court. The bankruptcy court found that Air Florida had discontinued actual use of the leased premises as of November 1982, more than 19 months before filing for bankruptcy. While Charisma proffers its property manager’s testimony that Air Florida had utilized the premises well into 1983, it con[*1083]cedes that Air Florida’s former warehouse supervisor testified to the contrary. It is within the exclusive province of the finder of fact to resolve such conflicts of testimony, and since this determination is not clearly erroneous these findings shall not be overturned.
The gravamen of Charisma’s appeal lies in its assertion that the continued availability of the leased premises for Air Florida’s use constituted “new value” and therefore falls within the subsequent advance exception for purposes of section 547(c)(4) of the Bankruptcy Code. 11 U.S.C. § 547(c)(4).
It is undisputed that Air Florida paid an amount in excess of eleven thousand dollars to Charisma within this ninety-day preference period, and that this amount may be recovered by the Trustee unless it falls within the subsequent advance exception set forth in section 547(c)(4). See In re Fulghum Const. Corp., 45 B.R. 112 (Bankr.M.D.Tenn.1984), aff'd, 78 B.R. 146 (M.D.Tenn.1987). A subsequent advance is excepted because it is reasoned that a creditor who contributes new value in return for payments from the incipient bankrupt, should not later be deemed to have depleted the bankruptcy estate to the disadvantage of other creditors. See V. Countryman, The Concept of a Voidable Preference in Bankruptcy, 38 Van.L.Rev. 713, 781-790 (1985). In pertinent part this section of the Bankruptcy Code provides that:
(c) The trustee may not avoid under this section a transfer—
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(4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor—
(A) not secured by an otherwise unavoidable security interest; and
(B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor....
11 U.S.C. § 547(c)(4). This section has generally been read to require: (1) that the creditor must have extended the new value after receiving the challenged payments, (2) that the new value must have been unsecured, and (3) that the new value must remain unpaid. See e.g., In re Fulghum, 45 B.R. at 119; In re Keydata Corporation, 37 B.R. 324, 328 (Bankr.D.Mass.1983); In the Matter of Bishop, 17 B.R. 180, 183 (Bankr.N.D.Ga.1982).
In the instant case, the second and third elements have concededly been satisfied. The rent due Charisma between May and July, 1984 was unsecured and remained unpaid. The only remaining issue is whether the continued availability of the premises for Air Florida’s use constituted “new value” as a matter of law such that Charisma would be entitled to retain the $11,761.33 paid to it by Air Florida during the preference period.
“New value” for purposes of section 547 of the Bankruptcy Code is defined as
money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation.
11 U.S.C. § 547(a)(2). In applying this definition of new value to the subsequent advance exception, courts have consistently looked to the principal policy objectives underlying the preference provisions of the Bankruptcy Code. The first objective is to encourage creditors to continue extending credit to financially troubled entities while discouraging a panic-stricken race to the courthouse. See In re Gold Coast Seed Company, 30 B.R. 551, 553 (Bankr.9th Cir.1983); In re Fulghum, 45 B.R. at 119; In re Philadelphia Light Supply Co., 33 B.R. 734, 739 (Bankr.E.D.Pa.1983). Another related objective of this section is to promote equality of treatment among creditors. See In re Quality Plastics, Inc., 41 B.R. 241, 242 (Bankr.W.D.Mich.1984); see generally H.R.Rep. No. 595, 95th Cong., 1st Sess. 177-79, 372-74 (1978), reprinted in 1978 U.S. Code Cong, and Admin.News, pp. 5787, 5963, 6138-40, 6328-30. The subsequent advance exception promotes these general policy objectives “because its utili[*1084]ty is limited to the extent to which the estate was enhanced by the creditor’s subsequent advances during the preference period.” 4 Collier on Bankruptcy, 11547.12, at 547-49 n. 5 (15th ed. 1987); see also Countryman, Voidable Preference, 38 Vand.L.Rev. at 785.
Thus, courts have generally required a transfer which fits within the subsequent advance exception to provide the debtor with a material benefit. In re Fulghum, 45 B.R. at 120; see also In re Quality Plastics, 41 B.R. at 243. This focus upon whether a material benefit has been conferred has been explained in terms of insulating a preferential transfer to a particular creditor to the extent that that creditor thereafter replenishes the estate. In such a situation, the creditor pool would not be harmed to the extent of the offset and the fundamental goal of equality of distribution would be preserved. See In re Quality Plastics, 41 B.R. at 242; Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am.Bankr.L.J. 173, 187 (1979).
Consideration fitting the definition of “new value” and constituting a material benefit to the debtor has been found in a number of circumstances including: the value of insurance coverage provided after the payment of delinquent premiums, In re Dick Henley, Inc., 45 B.R. 693, 699 (Bankr.M.D.La.1985); the value of leased equipment when the lessor permitted the debtor-lessee to continue using the equipment to produce inventory after default in rental payments, In re Quality Plastics, 41 B.R. at 243; and the value of the electricity supplied by the utility to the debtor after preferential payments, In re Keydata Corp., 37 B.R. 324, 328-29 (Bankr.D.Mass.1983). Each of these cases arguably involved putting the collateral to a materially beneficial use.
On the other hand, the court in In the Matter of Duffy, 3 B.R. 263 (Bankr.S.D.N.Y.1980), without revealing to what use the debtor had put a rented car, held that the lessor gave no new value by forbearing to repossess the car after the debtor defaulted on rental, because the forbearance did “not enhance the value of the debtor’s estate. The debtor s continued right to drive the rented vehicle is not an asset of benefit to his creditors that could reasonably offset the diminution of his estate upon payment of the [preference].” Id. at 266.
Similarly in In the Matter of Lario, 36 B.R. 582 (Bankr.S.D.Ohio 1983), the court held that a lessor of real estate did not give new value under Section 547(c)(4) by forbearing to terminate the lease for defaults beginning in June or by consenting to an assignment of the lease for a price, which produced enough to pay the lessor and other creditors in November before bankruptcy. By forbearing to terminate, the lessor was “merely exercising a pre-exist-ing right, not giving 'new value.’ ” Id. at 584. In exchange, the debtor’s obligation to pay rent was replaced by an obligation to pay an antecedent debt, merely resulting in an obligation substituted for an existing obligation, explicitly excluded from “new value” by section 547(a)(2). Id.; cf. Drabkin v. A.I. Credit Corp., 800 F.2d 1153, 1159 n. 7 (D.C.Cir.1986) (holding that forbearance cannot constitute new value, but declining to rely on In re Duffy).
In the instant case, the bankruptcy court found that Air Florida had made no use of the rental property throughout the preference period. While Charisma’s forbearance might have constituted new value had Air Florida actually stayed and used the leased property, or had Air Florida been able to find a sublessee, the bankruptcy court found that Air Florida vacated the property by November, 1982 and made no further use of it. The district court noted that far from replenishing the estate of the debtor, this lease was, and continued to be, a financial drain on the estate, and the debtor was placed in the financially precarious position of having to pay rent for property it could not beneficially use. Absent such use, Charisma’s forbearance to terminate the lease could not constitute new value. Thus, the order of the district court is
AFFIRMED.