223 F.3d 1064 | 9th Cir. | 2000
Lead Opinion
Opinion by Judge O’SCANNLAIN; Dissent by Judge HAWKINS
How do we count the time within which a preferential transfer in bankruptcy occurs when the 90th day before the filing date of the petition falls on a Saturday?
I
On February 29, 1996, Thomas A. Greene and Bobby Jean Greene (collectively, “the Greenes”) tendered a check for $21,998.71 to MBNA America (“MBNA”). The check cleared the Greenes’ bank on March 8, 1996, which was a Friday. On June 7, 1996, the Greenes filed a petition for relief under Chapter 7 of the Bankruptcy Code. On August 29, 1996, Jeffry G. Locke, trustee of the Greenes’ bankruptcy estate (“the Trustee”), filed a complaint against MBNA in bankruptcy court, seeking to recover the Greenes’ payment to MBNA as a preferential transfer capable of being avoided by the Trustee under 11 U.S.C. § 547(b). MBNA moved for summary judgment, arguing that the transfer could not be avoided because it fell outside the 90-day preference period of § 547(b). The bankruptcy court granted MBNA’s motion.
The Trustee appealed to the district court. In determining whether the Greenes’ payment to MBNA fell within the 90-day preference period, the district court counted backward from June 7, 1996, and concluded that the 90th day was March 9, 1996, a Saturday. Because the 90th day fell on a non-business day, the district court counted back to the previous
MBNA filed this timely appeal.
II
This case requires us to answer two closely related questions. First, we must determine whether Federal Rule of Bankruptcy Procedure 9006(a)-—which extends an applicable period to include the next business day where the last day falls on a Saturday, Sunday, or legal holiday—by its terms applies to the 90-day period for avoidance of a preferential transfer under 11 U.S.C. § 547(b)(4)(A). Second, we must decide whether such application would be permissible under the Rules Enabling Act, 28 U.S.C. § 2075.
A
We begin our analysis, as we must, with the governing provisions of the Bankruptcy Code and Rules. Section 547 of the Bankruptcy Code provides, subject to exceptions not relevant here, as follows:
(b) [T]he trustee may avoid [i.e., rescind and recover for the bankruptcy estate] any transfer of an interest of the debtor in property —
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made —■
(A)on or within 90 days before the filing date of the petition ...
(5) that enables such creditor to receive more than such creditor would receive if —
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
11 U.S.C. § 547 (emphasis added).
As the Supreme Court made clear in Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993), with respect to interpretation of the Bankruptcy Code, “[w]here the statutory language is clear, our ‘sole function ... is to enforce it according to its terms’.” Id. at 471, 113 S.Ct. 2187 (citation omitted); see also Gardenhire v. United States Internal Revenue Service (In re Gardenhire), 209 F.3d 1145, 1148 (9th Cir.2000) (“Close adherence to the text of the relevant statutory provisions and rules is especially appropri
B
The Trustee attempts to avoid the plain language of the preference statute by invoking Federal Rule of Bankruptcy Procedure 9006(a). Rule 9006(a), which essentially applies Federal Rule of Civil Procedure 6(a) in the bankruptcy context,
In computing any period of time prescribed or allowed by these rules ... or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday ... in which event the period runs until the end of the next day which is not one of the aforementioned days.
Fed. R. Bankr.P. 9006(a) (emphasis added). The Trustee argues that because the ninetieth day before the filing of the petition, March 9, 1996, was a Saturday, Rule 9006(a) applies to make the last day of the preference period Friday, March 8, 1996. According to the Trustee, because the transfer to MBNA took place on March 8, it can be recoverable as a preferential transfer.
To evaluate the Trustee’s argument, we must determine whether § 547(b)(4)(A), in providing for a 90-day preference period, constitutes an “applicable statute” within the meaning of Rule 9006(a).
In determining what statutes are “applicable” and, hence, to be construed in light of Rule 9006(a), it is necessary to consider the scope of the rules themselves. Rule 1001 provides that the Bankruptcy Rules “govern procedure in eases under title 11 of the United States Code.”.... It follows, then, that Rule 9006(a) does not provide a general rule of statutory construction which the courts are bound to apply to all time periods mentioned in any statute that*1069 may come before the court, nor does the rule apply to time periods mentioned in other documents, such as contracts.
10 Collier on Bankruptcy ¶ 9006.03 (Lawrence P. King ed., 15th ed. rev.2000). We also take note of the Advisory Committee Notes to Rule 9006, which explain that Rule 9006(a) “governs the time for acts to be done and proceedings to be had in cases under the Code and any litigation arising therein.” Fed. R. Bankr.P. 9006(a) advisory committee’s note (emphases added).
Applying the foregoing observations about Rule 9006(a) to the case before us, we conclude that § 547(b)(4)(A) does not constitute an “applicable statute” under the Rule. The occurrence and timing of a pre-petition transfer that later becomes the subject of a § 547 action do not constitute “procedure in [a case] under title 11 of the United States Code,” since the transfer is made independently of any judicial action and thus is not an “act[ ] to be done [or] proceeding! ] to be had” in a bankruptcy case. Most importantly, a transfer can take place on any day of the week, including a weekend or holiday, and therefore does not require the bankruptcy court to be open for business. A transfer thus does not implicate the purpose of Rule 9006(a), which is “to encourage courts to read the Code’s sometimes draconian catalogue of time limits in a manner that is fair to the party against whom the time limit is running, i.e., to guarantee that no party is shortchanged by an unfortunately-positioned weekend or holiday.” Smith v. United States (In re Smith), 96 F.3d 800, 802 (6th Cir.1996).
We recognize that several courts have either applied or suggested the applicability of Rule 9006(a) or its predecessor to the preference period of § 547(b)(4).
In finding Rule 9006(a) inapplicable to calculation of the 90-day preference period, we draw support from the Sixth Circuit’s carefully reasoned decision in Smith v. United States (In re Smith), 96 F.3d 800 (6th Cir.1996). The issue in Smith was whether the bankrupt plaintiffs tax debt to the federal government was dis-chargeable in bankruptcy. Under § 523(a)(l)(B)(ii), income tax debts are not dischargeable if, inter alia, the tax return “was filed ... after two years before the date of the filing of the [bankruptcy] petition.” The period two years before the filing of Smith’s bankruptcy petition began on November 23, 1991, and his tax return
The Sixth Circuit rejected Smith’s argument, and in doing so offered an insightful analysis of Rule 9006(a) and its true purpose:
We do not believe that Rule 9006 can be put to the purpose Smith proposes. The Rule contemplates a deadline given to a party to take some action. The reason for the rule is to encourage courts to read the Code’s sometimes draconian catalogue of time limits in a manner that is fair to the party against whom the time limit is running, i.e., to guarantee that no party is shortchanged by an unfortunately-positioned weekend or holiday.
What Smith asks us to do with Rule 9006 is quite different. Here we are not dealing with bankruptcy procedural rules but with the legal status of a debt at the time of the filing of the petition. There is no claim that Smith did not have adequate time to accomplish something. ... For these reasons, the district court correctly held that Rule 9006 did not apply [to the two-year period of § 523].
Id. (emphases added).
The analysis of our sister circuit, rejecting an attempt to apply Rule 9006(a) to a statute quite similar to § 547(b), strongly supports the conclusion we reach today. Bankruptcy Rule 9006(a) is strictly procedural, and it simply lacks relevance in determining “the legal status of a [transfer] at the time of the filing of the petition.” The Greenes’ transfer to MBNA thus fell outside the preference period, and the transfer cannot constitute a preference under § 547 as a matter of law. The bankruptcy court correctly so held, and the district court erred in holding otherwise.
C
Even if Bankruptcy Rule 9006(a) could be construed as applying, by its terms, to the 90-day preference period of § 547(b)(4)(A), our ultimate conclusion would not change. Under the Rules Enabling Act, the Supreme Court’s power to promulgate the Bankruptcy Rules is limited by the provision that “[s]uch rules shall not abridge, enlarge, or modify any substantive right.” 28 U.S.C. § 2075. Applying Rule 9006(a) to extend the 90-day preference period in the manner urged by the Trustee would be inconsistent with this express condition.
We reach this conclusion based on the persuasive reasoning offered by the Bankruptcy Appellate Panel in Research Group 80-21 v. Kendall (In re Bergel), 185 B.R. 338 (9th Cir. BAP 1995), which we now adopt in part as set forth below:
In order to resolve [whether Rule 9006(a) may be used to extend the 90-day preference period of § 547(b)(4)(A) ], we must determine whether the “90 day” element of § 547(b) is procedural or substantive. If it is merely procedural, then Rule 9006(a) would allow the 90 days to be extended, as argued by the trustee. If, however, it is a substantive element of § 547(b), then 28 U.S.C. § 2075 precludes its extension beyond 90 days.
A substantive element differs from a procedural requirement for an act to be done such as the filing of a complaint or a motion prior to a certain deadline. In fact, unlike a complaint or motion that must be filed with the court while the clerk’s office is open, a transfer can occur at any time.
With this question in mind, we will now discuss the above referenced cases [cited] by the [parties]. [W]e conclude that none of those cases are dispositive, because they all involve situations in which affirmative acts were required to*1071 be performed, i.e., In re Butcher, 829 F.2d 596, 601 (6th Cir.1987) (filing a complaint); In re Victoria Station, Inc., 840 F.2d 682 (9th Cir.1988) (filing a motion); and Hart v. United States, 817 F.2d 78 (9th Cir.1987) (filing a complaint). Therefore, the time requirements in those cases were clearly procedural.
However, we agree with the reasoning of In re Enterprise Fabricators, Inc., 36 B.R. 220 (Bankr.M.D.Tenn.1983), which involved the identical issue before us, namely the trustee’s substantive rights under § 547(b)(4).
It is clear that the power to avoid any preferential transfer within 90 days before the date the petition was filed is a substantive element of a cause of action under § 547(b). Section 547(b) does not require any affirmative act by the trustee. Rather, it creates a statutory period in which certain transfers are voidable by the trustee.
We therefore hold that the use of Rule 9006(a) to extend the preference period beyond the limitations set forth in § 547(b)(4)(A) is an impermissible enlargement of the trustee’s substantive right to avoid transfers....
Id. at 341 (emphases added) (footnotes omitted).
The Bergel court’s analysis of the distinction between substantive and procedural elements is firmly grounded in the Rules Enabling Act as interpreted by the Supreme Court. In Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), the Court explained that in determining whether a rule is substantive or procedural for purposes of the Act, the controlling inquiry is “whether a rule regu-. lates procedure, — the judicial process for enforcing rights and duties recognized by the substantive law and for justly administering remedy and redress for disregard or infraction of them.” Id. at 464, 85 S.Ct. 1136 (quoting Sibbach v. Wilson & Co., 312 U.S. 1, 14, 61 S.Ct. 422, 85 L.Ed. 479 (1941)). The Hanna Court contrasted such procedural rules, which are valid even if they have some “incidental” impact upon litigants’ rights, with substantive rules that impermissibly “operate to abridge, enlarge or modify the rules of decision by which [a] court imll adjudicate [a litigant’s] rights.” Id. at 465, 85 S.Ct. 1136 (quoting Mississippi Publ’g Corp. v. Murphree, 326 U.S. 438, 446, 66 S.Ct. 242, 90 L.Ed. 185 (1946) (emphasis added)).
Under the Hanna analysis, the timing of a transfer between two private parties is not procedural because it is independent of “the judicial process for enforcing rights and duties recognized by the substantive law.” Id. at 464, 85 S.Ct. 1136. Rather, the statutory mandate that a transfer, in order to be avoidable, be made “on or within 90 days before the filing date of the petition” is a “rule[ ] of decision” by which a court will adjudicate a bankruptcy trustee’s substantive right to avoid a transfer. In other words, the preference statute’s transfer timing requirement does not affect “the process of enforcing litigants’ rights,” but instead determines the existence of “the rights themselves.” Burlington Northern R.R. Co. v. Woods, 480 U.S. 1, 8, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987). Applying Rule 9006(a) to § 547(b)(4)(A) would bestow upon the Trustee an avoidance power greater than what he is entitled to under the statute. The judicial frustration of congressional intent under the guise of regulating “procedure,” or legislation masked as mere “judicial housekeeping,” is the very evil against which the Rules Enabling Act’s caveat is directed.
Noting that changes to procedural rules “may and often do affect the rights of litigants,” Hanna, 380 U.S. at 465, 85 S.Ct. 1136, the Trustee argues that applying Rule 9006(a) to extend the preference period does not violate the Rules Enabling Act because any effect upon substantive rights is, according to the Trustee, “minimal.” What the Trustee fails to recognize, however, is that the' difference between substance and procedure is not one of degree, but of kind. For purposes of the Rules Enabling Act, a procedural rule is one that governs “the judicial process
In sum, because Bankruptcy Rule 9006(a) does not, and in any event cannot, apply to extend the 90-day period of § 547(b)(4), the Greenes’ transfer to MBNA fell outside the time period provided for by statute. Like the Bergel court, we conclude that “[bjecause the alleged preference was made 91 days prior to the date of the filing of the petition, ... the transfer cannot be avoided by the trustee pursuant to § 547(b)(4)(A).” 185 B.R. at 341.
Ill
MBNA offers an additional argument to support reversal of the district court. MBNA contends that even if Rule 9006(a) could apply to extend the § 547 preference period, the district court nevertheless erred in calculating the 90-day period by counting backward from the date the bankruptcy petition was filed.
A great deal of ink has been spilt over the rather difficult and obscure question of whether preference periods should be calculated by counting backward or forward, and the courts that have struggled with the issue have reached divergent results.
In essence, our holding avoids introduction of a “useless step[ ]” into the preference period analysis, namely, determination of whether to employ a forward or a backward count; “we slice [this] off with Occam’s Razor and leave a more functional rule.” Bonded Fin. Servs., Inc. v. European Am. Bank, 838 F.2d 890, 894 (7th Cir.1988). That our interpretation of § 547(b)(4)(A) and Rule 9006(a) yields a clear, straightforward, and easily admin-istradle framework for calculating the preference period provides additional confirmation of the correctness of our conclusion.
IV
Section 547(b)(4) of the Bankruptcy Code requires that a transfer, in order to be avoidable as a preference, must take place “within 90 days before the date of the filing of the petition.” Although this requirement might be described as “technical” and “arbitrary,” these qualities do not by themselves render it “procedural.” “Procedural” and “technical,” while often found in each other’s company, should not be confused and are by no means synonymous. Accordingly, we reiterate that, despite its technical aspect, the timing requirement of § 547(b)(4)(A) does not imphcate Bankruptcy Rule 9006(a), which is strictly procedural. To the extent that Rule 9006(a) could be construed as capable of expanding the preference period beyond the statutorily-specified time, it runs afoul of the Rules Enabling Act.
The plain language of 11 U.S.C. § 547(b)(4)(A) and the purpose of Bankruptcy Rule 9006(a) both compel the same conclusion: Rule 9006(a) does not and cannot extend the 90-day preference period. Accordingly, because the payment to MBNA occurred outside the preference period, it was not avoidable by the Trustee.
REVERSED and REMANDED.
. For purposes of § 547(b), a transfer occurs when the check is honored by the debtor's bank. See Barnhill v. Johnson, 503 U.S. 393, 395, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992).
. In deciding this appeal, "[w]e independently review the bankruptcy court's decision and do not give deference to the district court’s determinations.” Preblich v. Battley, 181 F.3d 1048, 1051 (9th Cir.1999). Grants of summary judgment are reviewed de novo. See Paulman v. Gateway Venture Partners III, L.P. (In re Filtercorp, Inc.), 163 F.3d 570, 578 (9th Cir.1998).
. Subsequent references to statutory sections or procedural rules refer to the Bankruptcy Code (11 U.S.C.) and the Federal Rules of Bankruptcy Procedure, unless otherwise indicated.
. There are some minor differences, not relevant here, between Rule 9006(a) and Rule 6(a) with respect to when intermediate Saturdays, Sundays, and legal holidays are to be excluded in the computation of short time periods.
. Although MBNA did not specifically argue that § 547(b)(4)(A) is not an "applicable statute,” it did raise the issue of Rule 9006(a)'s applicability with respect to the Rules Enabling Act. In light of MBNA’s general contention that a distinction must be drawn between "situations in which the expansion of time by operation of [Rule 9006(a) ] is applicable, and situations in which such an expansion of time is both inappropriate and inapplicable,” we are untroubled by MBNA’s failure to ground its argument more firmly in the Code’s "applicable statute” language. Indeed, it is well-established that "[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law, even where the proper construction is that a law does not govern.” United States Nat’l Bank v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 446, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (alteration in original).
. See, e.g., Nelson Co. v. Counsel for the Official Committee of Unsecured Creditors (In re Nelson Co.), 959 F.2d 1260, 1265 (3d Cir.1992); Harbor Nat'l Bank v. Sid Kumins, Inc., 696 F.2d 9, 10 & n. 1 (1st Cir.1982); Prior v. Farm Bureau Oil Co. (In re Prior), 176 B.R. 485, 496 n. 9 (Bankr.S.D.Ill.1995); Levinson v. Security Sav. Bank, SLA (In re Levinson), 128 B.R. 365, 368 (Bankr.S.D.N.Y.1991); Pineo v. Charley Bros. Co. (In re J.A.S. Markets, Inc.), 113 B.R. 193, 197-98 (Bankr.W.D.Pa.1990); Wilmington Nursery Co., Inc. v. Burkert (In re Wilmington Nursery Co.), 36 B.R. 813 (Bankr.E.D.N.C.1984); Meister v. State Nat'l Bank (In re Mailbag Int’l, Inc.), 28 B.R. 905, 909 (Bankr.D.Conn.1983) (applying Bankruptcy Rule 906(a), precursor to Rule 9006(a), to the preference period); Grimaldi v. John A. Ruell, Inc. (In re Grimaldi), 3 B.R. 533, 535 (Bankr.D.Conn.1980) (same).
. MBNA also argues that the district court erroneously granted summary judgment to the Trustee even though the Trustee had not established all elements necessary to avoid a transfer under § 547(b). In light of our reversal based on the inapplicability of Rule 9006(a), we need not and do not reach this contention.
. Compare Wilmington Nursery Co., Inc., 36 B.R. at 816 (employing a forward count); Poston v. Ford (In re Ford), 34 B.R. 93, 94-95 (Bankr.W.D.Va.1983); Meister, 28 B.R. at 909, with Nelson Co., 959 F.2d at 1266 (employing a backward count); Prior, 176 B.R. at 495; Carl Subler Trucking, Inc. v. Kingsville-Ninety Auto/Truck Stop, Inc. (In re Carl Subler Trucking, Inc.), 122 B.R. 318, 321 (Bankr.S.D.Ohio 1990); Pineo, 113 B.R. at 198; Rafoth v. First Nat’l Bank (In re Baker & Getty Fin. Servs., Inc.), 98 B.R. 300, 307 (Bankr.N.D.Ohio 1989); Johnson v. Keller (In re Antweil), 97 B.R. 63, 64 (Bankr.D.N.M.1988); Newton v. Andrews Distrib. Co. (In re White), 64 B.R. 843, 847 (Bankr.E.D.Tenn.1986); Deutscher v. O’Neal Steel Corp. (In re Enter. Fabricators, Inc.), 36 B.R. 220, 223 (Bankr.M.D.Tenn.1983).
. Cf. Gardenhire, 209 F.3d at 1152 ("[Tjhis language means just what it says. A 180-day period is a 180-day period.”).
Dissenting Opinion
dissenting:
This is an issue about which reasonable minds can differ. I take a different view than the majority because I believe that the rule established today will make the job of bankruptcy trustees measurably more difficult. I also think that some entirely meritorious claims against those who engage in fraudulent transfers will be lost as a result
The majority concludes that Rule 9006(a) cannot be used to extend the preference period because 11 U.S.C. § 547(b) is not an “applicable statute” and because application of the rule to the preference period would violate the Rules Enabling Act. As to the first point, I simply note that every court to consider the issue has assumed or concluded that section 547(b) is an “applicable statute” under Rule 9006(a). See e.g., In re Nelson, 959 F.2d 1260, 1266 (3rd Cir.1992); Harbor Nat’l Bank of Boston v. Sid Kumins, Inc., 696 F.2d 9, 10 (1st Cir.1982); In re Prior, 176 B.R. 485, 497 (Bankr.S.D.Ill.1995); In re Levinson, 128 B.R. 365, 366 (Bankr.S.D.N.Y.1991); In re J.A.S. Markets, Inc., 113 B.R. 193, 197 (Bankr.W.D.Pa.1990); In re Mailbag International, Inc., 28 B.R. 905, 909 (Bankr.D.Conn.1983); In re Grimaldi, 3 B.R. 533, 535 (Bankr.D.Conn.1980).
Even' the appellant in this case appears to concede that section 547(b) is an “applicable statute.” MBNA has argued only that application of Rule 9006(a) to the preference period would violate the Rules Enabling Act, not that section 547(b) is not an “applicable statute.” The majority has raised this issue on its own. And while the majority’s analysis is certainly plausible, I do not find it strong enough to overcome the consensus among the courts that section 547(b) is an “applicable statute” under Rule 9006(a).
The majority argues that section 547(b) is different because it does not require any affirmative act by the trustee, but rather creates a statutory period within which certain transfers are avoidable. I find this distinction unpersuasive. Rule 9006(a) and Federal Rule of Civil Procedure 6(a) ensure that parties will not be frustrated by an inconveniently placed weekend or holiday. And like the trustee in this' case, a party can be frustrated by an inconveniently placed weekend or holiday regardless of whether he is required to perform an affirmative act.
The majority also argues that unlike the filing of a complaint or motion, a transfer can occur at any time, including a weekend. But under Barnhill v. Johnson, 503 U.S. 393, 396, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992), a transfer does not occur until the check is honored by the debtor’s bank. Thus, unless a debtor’s bank is open on a weekend, it is unlikely that transfers will occur between Friday and Monday.
I would reverse the summary judgment grant and remand, through the district court, back to the bankruptcy court to resolve the Trustee’s claim on the merits.