FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter came on for trial on the adversary complaint of the plaintiff, Rocin Liquidation Estate (the “Estate”), seeking avoidance of certain alleged preferential transfers and recovery of their monetary value. The transfers in question were payments made by the debtor Rocor International, Inc. (“Rocor” or “debtor”) to the defendant, Alta AH & L (“Alta”) for the purpose of providing health benefits for independent contractors engaged by the debtor to haul freight. For the reasons herein stated, the court concludes that the payments are avoidable in part.
Following the presentation of witnesses and exhibits in open court, the court granted leave to permit counsel to designate as evidence portions of certain deposition testimony and to file post-trial briefs on evi-dentiary issues. Thereafter, closing arguments were presented, after which the court took the matter under advisement.
Now, having considered the evidence, arguments of counsel and the applicable law, the court issues the following findings of fact and conclusions of law in accordance with Fed.R.CivP. 52, which is made applicable to this proceeding by Fed. R.Bankr.P.7052.
Jurisdictional Statement
This court has jurisdiction over the parties and the subject matter of this proceeding pursuant to 28 U.S.C. § 157 and 1334 and the order of the District Court autho *325 rizing referral of proceedings to the bankruptcy judges. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(F) and, to the extent the proceeding may be non-core, the parties have consented to the entry of final judgment by this court.
Findings of Fact
1. On August 5, 2002 (the “petition date”), Rocor filed its voluntary chapter 11 bankruptcy petition.
2. On July 24, 2003, the bankruptcy court confirmed the Debtor’s First Amended Plan of Liquidation. The Estate was created pursuant to the Plan of Liquidation and confirmation order, and all rights and causes of action previously held by the debtor vested in the Estate. Thus, the Estate has authority to pursue this and all other actions that could have been pursued by the debtor.
3.Within ninety (90) days prior to the petition date (the “preference period”), Alta received the following transfers from the debtor, which total $126,797.81:
Wire Transfer 5/7/02 $ 5,977.49
Wire Transfer 5/14/02 $33,336.48
Wire Transfer 5/21/02 $10,674.24
Wire Transfer 6/4/02 $ 4,124.09
Wire Transfer 6/11/02 $41,574.06
Wire Transfer 6/18/02 $ 5,935.91
Check 6/21/02 $ 7,044.11
Wire Transfer 6/25/02 $14,241.33
Check 6/26/02 $ 2,914.60
Wire Transfer 7/9/02 $ 975.50 1
See Final Pretrial 2. )rder, Stipulated Fact
4.Each of the above transfers was paid from funds on deposit in the debtor’s account number 209037536 at Bank of Oklahoma, N.A., entitled “Rocor International Control Disbursement Account” (the “Account”). See the Estate’s Exhibit 2 which was identified in the Final Pretrial Order as “ ‘Bank of Oklahoma Records Relating to Rocor International, Inc.,’ (May through August of 2002).” The court’s review of this exhibit reveals that these transfers were but a few of thousands of transfers drawn on the Account during the 90-day preference period.
5. The defendant is a creditor of the debtor.
6. The debtor was insolvent during the entire ninety (90) day period preceding the petition date.
7. In November of 2000, Rocor and Alta entered into two insurance contracts: a self-funded health insurance contract (the “Minimum Premium Payment Plan”) and a life and accident insurance contract (“Life Insurance Contract”). (The Minimum Premium Payment Plan and the Life Insurance Contract are referred to collectively as the “Plan”).
8. The Plan was established for the benefit of truckers (“owner-operators”) engaged by the debtor to haul freight and who were independent contractors and not employees of the debtor.
9. The Plan was funded by Rocor’s deduction from compensation otherwise due to the owner-operators who were participating in the plan (the “Plan participants”) those sums required to pay premiums and other amounts due under the Plan (collectively, the “Plan payments”). The Plan payments were then made to Alta by Ro-cor by wire transfers from, and checks drawn on, the Account.
10. Under the Minimum Premium Payment Plan, Alta provided claims paying and administrative services and stop-loss insurance for the Plan participants.
*326 11. Pursuant to the terms of the Minimum Premium Payment Plan, Alta paid health care claims of Plan participants (“health claims”) directly to the health care providers.
12. While the terms of the Minimum Premium Payment Plan provided for payment within 10 days after billing, in actual practice, Alta initiated a weekly wire transfer by accessing the Account. With exceptions hereafter noted, Rocor made funds available to cover the wire transfers so that Alta would receive reimbursement of the health claims it had paid.
13. The reimbursements were made each Tuesday, and covered health claims Alta had paid during the previous week.
14. During the 90-day preference period, Rocor paid $116,839.10 2 to Alta by the weekly wire transfers under the Minimum Premium Payment Plan for reimbursement of health claims paid to providers by Alta on behalf of Plan participants.
15. In addition, under the Minimum Premium Payment Plan, Alta provided stop-loss insurance. This stop-loss insurance protected Plan participants from health claims in excess of a pre-determined amount.
16. Under the Life Insurance Contract, in exchange for Rocor’s making monthly premium payments, Alta provided life and accident insurance for Plan participants.
17. During the 90-day preference period, Alta received two checks from Rocor in the respective amounts of $7,044.11 and $2,914.60 for premium payments and fees due under the Life Insurance Contract.
18. Rocor did not transfer nor segregate any funds in connection with the deduction from compensation due the owner-operators for Plan payments. Rocor merely made an accounting entry to reflect the amount of the deduction.
19. All Plan payments made to Alta were from unrestricted funds on deposit in the Account of Rocor at Bank of Oklahoma.
20. The Minimum Premium Payment Plan agreement specifically provided that the insureds were independent contractors and their dependents.
21. The Plan was in effect at all times pertinent to this adversary proceeding.
22. Rocor’s owner-operators were provided with a booklet describing the Plan as having been established under the provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”). 29 U.S.C. § 1001 et seq. See Defendant’s Exhibit 15.
23. The requests for group coverage submitted by Rocor to Alta, however, specified that those eligible to participate in the Plan were independent contractors. See Defendant’s Exhibits 1 and 8.
24. All of the Plan participants were independent contractors of Rocor and not employees.
25. During the preference period, certain of the wire transfers from Rocor’s Account which Alta attempted were not successful because of a lack of sufficient funds on deposit in the Account.
26. Alta terminated the Plan due to the debtor’s default under the Plan agreements, as of June 2, 2002.
27. Alta continued to pay health claims after Rocor failed to reimburse Alta.
28. After each premium payment, Alta provided stop-loss benefits and life and *327 accident benefits for Plan participants. Further, Alta continued its claims paying services, making weekly payments to providers on behalf of Plan participants, regardless of Rocor’s lack of reimbursement.
29. Alta remains unpaid for certain health claims, premium payments and administrative fees associated with the Plan.
30. Alta has filed a priority unsecured claim in the amount of $186,366.03 for alleged contributions to an employee benefit plan and a general unsecured claim in the amount of $34,774.35, for post-petition health claims it allegedly paid.
31. Unsecured creditors are unlikely to receive any distribution at all from the estate. Any distribution to priority claim creditors is contingent on potential preference recoveries.
Conclusions of Law and Discussion
Section 547
3
of the Bankruptcy Code permits the trustee to recover certain payments made to creditors shortly prior to filing bankruptcy. The purpose of the § 547 avoidance statute is to place all unsecured creditors on an equal basis for purposes of distribution of the debtor’s assets.
See Bailey v. Big Sky Motors, Ltd. (In re Ogden),
(1) there must be a transfer of an interest of the debtor in property;
(2) on account of an antecedent debt;
(3) to or for the benefit of a creditor;
(4) made while the debtor was insolvent;
(5) made within 90 days before the date of the filing of the petition, if the creditor at the time of the transfer was not an insider; and,
(6) that left the creditor better off than it would have been if the transfer had not been made and the creditor had asserted its claim in a Chapter 7 liquidation.
Id.
(citing
Jobin v. McKay (In re M & L Business Mach. Co., Inc.),
Alta takes issue with whether there was a transfer of an interest of the debtor in property, the first requirement of an avoidable preference. Simply stated, Alta’s position is that the transfers in question were not transfers of the debtor’s funds; rather, the funds belonged to the owner-operators who were Plan participants. Alta argues, without dispute from the plaintiff, that Rocor withheld from the compensation earned by the owner-operators for freight hauling, those amounts necessary to make the Plan payments. The parties also agree that the debtor did not place into a separate account, or otherwise segregate, the amounts by which the owner-operators’ compensation was reduced for the Plan payments. The debtor merely deducted the amount of the Plan payments from the truckers’ compensation and then made an accounting entry to reflect the transaction. There was no actual transfer of funds. Rocor then made the Plan payments by wire transfers from, and checks drawn, on the Account at Bank of Oklahoma.
In the Tenth Circuit, the presumption is that “deposits in a bank to the credit of a bankruptcy debtor belong to the entity in whose name the account is established.”
Amdura Nat’l Dist. Co. v. Amdura Corp., Inc. (In re Amdura Corp.),
The Account was titled in the name of the debtor. The checks and wire transfers were but a few of thousands of such transfers that were drawn on the Account during the 90-day preference period. Although there was no evidence presented regarding the identities of the other thousands of payees, the court can infer from the evidence that the debtor had legal title to the funds in the bank account and control over their use, including making payments to other creditors. The burden thus shifts to the defendant to make the requisite showing.
In defense, Alta submits that the amounts by which the debtor reduced the compensation paid to the owner-operators constituted withholdings made pursuant to an employee benefit plan under ERISA, citing 29 C.F.R. § 2510.3-102(a), and thus are not property of the debtor’s estate.
*329
Alta is correct that funds withheld by an employer for contribution to an ERISA plan are deemed to be held in trust and are not property of the debtor’s estate, even if the funds have not been contributed to the plan.
In re College Bound, Inc.
Alta also suggests, with little elaboration, that the transferred funds were subject to a constructive trust and thus not property of the estate, citing
Southmark,
However, Alta avers it is unable to trace the funds in the Account because of the plaintiffs loss of bank records which it should have retained. Alta did not provide the court with legal support for the proposition that it should be excused from its burden to trace the funds. Furthermore, in order for a constructive trust to be imposed there must be fraud, either actual or constructive. Id. at 1118. There is no evidence of either type of fraud present here. Without such evidence, defendant cannot prove the existence of a constructive trust, even if it could trace the funds.
In determining whether funds transferred were property of a debtor’s estate, it is fundamental to inquire whether the transfer of the funds diminished or depleted the debtor’s estate.
Payne v. Clarendon National Insurance Co. (In re Sunset Sales, Inc.)
For the foregoing reasons, the court finds that the funds transferred were property of the estate. Therefore, the court rules that the transfers were of an interest of the debtor in property.
It is unclear whether Alta contests any other element of the plaintiffs
prima facie
case. It does not appear so in its trial brief or closing argument. Yet, it does stress throughout that it holds a priority unsecured claim of $186,366.03 for alleged contributions to an employee benefit plan. Assuming that such assertion bears on the element of the hypothetical liquidation test of § 547(b)(5), the court will address it. That subsection requires the plaintiff to prove as part of its
prima facie
case that the defendant received
*330
more by the transfer than it would have received in a chapter 7 liquidation if the transfer had not been made. In order to make this determination, the court must decide the transferee’s creditor class and determine what distribution that class would have received if the transfer had not been made. 5 Collier on Bankruptcy, § 547.03[7] (15th ed. rev.2006). Generally, so long as the distribution to unsecured creditors in a bankruptcy case is less than 100%, “any payment on account to an unsecured creditor during the preference period will enable that creditor to receive, for preference-avoidance purposes, more than it would have received in a hypothetical chapter 7 liquidation had the payment not been made.”
Jacobs v. Matrix Capital Bank (In re AppOnline.com, Inc.),
Between secured claims and unsecured claims are priority claims. A debtor’s payment to a creditor with a priority claim would not constitute a preference if the creditor would have received the same distribution in a chapter 7 liquidation case.
Id.
Statutory priority is narrowly construed in the Tenth Circuit.
State Ins. Fund v. Southern Star Foods, Inc. (In re Southern Star Foods, Inc.),
Failing to establish that it has a priority claim, Alta has only a general unsecured claim. The court has found, as Alta admitted in its proposed findings of fact, that it was unlikely that any distribution would be made to unsecured creditors. The Liquidation Trustee, Janice Loyd, testified that the Estate was administratively insolvent. She opined that even if the Estate were successful in pending adversary litigation, priority claims would not be paid in full, with the consequence that there would be no distribution at all to unsecured claimants. In any event, Ms. Loyd’s testimony leaves little doubt that unsecured creditors would receive less than a 100% distribution. Alta offered no controverting evidence. Therefore, the court finds that the Estate has satisfied this remaining element of its § 547(b) prima facie case.
The court will now consider Alta’s defenses. First to be addressed are the defenses of contemporaneous exchange for new value under § 547(c)(1), and subsequent new value under § 547(c)(4). The purpose of both defenses is to protect transactions that do not adversely affect other creditors because the estate has received new value. The creditor bears the burden of establishing all elements of these affirmative defenses. § 547(g).
An element of both defenses is that the creditor gave “new value” to the debtor. See § 547(c)(1)(A) and § 547(c)(4). *331 The term “new value” is defined in § 547(a)(2).
“[N]ew value” means 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,
Id.
Alta contends that the new value it provided consisted of its continued payment of the health claims of the Plan participants and the continued provision of insurance for those participants. It argues that providing such benefits to the participants was a benefit to the debtor and hence “new value” because it encouraged the retention of the owner-operators as freight haulers and also assisted in the recruitment of new owner-operators. The transfers were merely reimbursements to Alta for the new value it provided and thus did not deplete the bankruptcy estate to the detriment of creditors. In support of this proposition, Alta cites
Peltz v. Hartford Life Ins. Co. (In re Bridge Information Systems, Inc.),
The Bridge court made a puzzling deduction. Surely, the payments by Bridge to Hartford “depleted Bridge’s financial position”. Undoubtedly, its bank account was reduced by the amount of the transfers, without receiving anything tangible in return. What the court must have meant, but does not articulate, is that the value to the debtor of the employee benefits which the creditor provided to the employees was such that the payment made by debtor to reimburse the creditor for those benefits did not diminish the value of the debtor’s estate. It is that apparent conclusion which must be examined here to determine whether the benefits Alta provided in this case constitute “new value”.
There is no doubt that Rocor’s owner-operators who participated in the Plan benefitted from Alta’s payment of their health claims and the insurance coverage. The question is whether that constitutes “new value” to the debtor.
Jones
is the leading authority for the proposition that the provision of employee benefits for the debtor’s employees constitutes new value. That case held that the debtor-employer received new value in exchange for (under § 547(c)(1)) and/or subsequent to (under § 547(c)(4)) the payments made by the debtor to its employees benefit fund in the form of the continued services of the employees.
Jones,
Jones also ruled that absent contrary evidence, the value of the employee services was presumed to equal the wages and benefits the employer contracted to *332 pay. Thus the creditor was not required to quantify the new value. Id. at 328, n. 4.
The Tenth Circuit has not addressed directly whether the continued services of a debtor’s employees (or independent contractors) could constitute new value under either § 547(c)(1) or (c)(4). However, the circuit has considered, with somewhat mixed results, whether there must be some correlation between the value of the “new value” and the value of the preferential transfer. In
Kenan v. Fort Worth Pipe Co. (In re George Rodman, Inc.),
In
Lowrey v. U.P.G. Inc. (In re Robinson Bros. Drilling, Inc.),
A similar result was reached in
Electronic Metal Prods., Inc. v. Bittman (In re Electronic Metal Prods., Inc.),
In
Sunset Sales,
In the present case, while Alta claims that the “new value” to the debtor included the continued employment of the owner-operators, it failed to prove how many, if any, of the Plan participants in fact remained engaged in hauling freight for the debtor subsequent to the transfers. Alta also failed to show how the recruiting of new owner-operators was enhanced. *333 More important, Alta made no attempt to place a value on this “new value.”
While an apparent incongruity exists between the holdings of the Rodman case and the other Tenth Circuit cases that followed, it would seem that the latter cases not only represent this circuit’s current view of the subject, but are consistent with the wording of the statutory definition of “new value”. Defining the term to mean “money or money’s worth” surely suggests that the “new value” must be measured in such terms. Thus, this court follows the holdings of Robinson Bros, and its progeny that, in order to establish a “new value” defense, a creditor must prove the specific valuation in “money or money’s worth” of the new value. Since Alta made no attempt to prove the specific valuation of the purported “new value” provided by it, it cannot maintain its “new value” defenses. 6
Alta also claims it provided subsequent new value to the debtor by paying health claims and providing insurance to the Plan participants after the petition date. However, post-petition advances of new value may not be included in the subsequent new value analysis.
Clark v. Frank B. Hall & Co. (In re Sharoff Food Service, Inc.),
For the foregoing reasons, the court concludes that Alta has failed to establish a defense under either § 547(c)(1) or § 547(c)(4).
The court now turns to the last defense asserted by the defendant, the ordinary course of business defense. This defense provides that the Estate may not avoid a preferential transfer:
(2) to the extent 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.
§ 547(c)(2)(C). 7
The Bankruptcy Appellate Panel for the Tenth Circuit has held, in accordance with other circuit courts, that the ordinary course exception contains both subjective and objective elements.
*334
Sunset Sales,
The ordinary course of business exception is an affirmative defense.
Clark v. Balcor Real Estate Fin., Inc. (In re Meridith Hoffman Partners),
The court will first address the objective element of the ordinary course defense found at § 547(c)(2)(C), which requires that the transfer must have been according to “ordinary business terms.” A defendant need only establish that its own dealings with the debtor fall “within the outer limits of normal industry practice.”
Barber v. Golden Seed Co., Inc.,
In order to establish the “ordinary business terms” in the industry, a defendant must show that the disputed transfer was “made according to terms that are ordinary when compared to those employed by other firms in the same industry.”
Tolona Pizza,
Courts have permitted such evidence to come from a variety of sources, including from a defendant’s own corporate representatives.
See, e.g., Tolona Pizza,
On the other hand, other courts have determined the relevant industry standard as a result of expert witness testimony on the issue.
See, e.g., Fitzpatrick v. Rockwood Water, Wastewater & Nat. Gas Sys. (In re Tennessee Valley Steel Corp.),
Having considered these evi-dentiary options, this court is of the view that a preference defendant may choose, as part of its trial strategy, whether to attempt to satisfy its § 547(c)(2)(C) burden either by (a) expert witness testimony, (b) testimony from the defendant’s own corporate representatives or employees or (c) testimony of a fact witness not connected with the defendant. If a defendant chooses options (b) or (c), however, the court may deem such evidence sufficient only if the defendant’s witnesses can demonstrate sufficient experience in the relevant industry and personal knowledge of the defendant’s competitors’ credit practices with other debtors. Such personal knowledge must be based on specific data regarding the defendant’s competitors’ credit practices. Vague or general testimony from these non-expert witnesses which is unsupported by such specific data is insufficient. And, given the likelihood that a lack of disinterestedness might affect an employee-witness’ testimony, the court will also weigh such witness’ potential interest in the outcome of the preference action against the quality and reliability of the testimony.
Here, Alta produced only scant evidence of the industry standard. Rick Bailey, a manager of group underwriting for Alta’s parent company, Great West Life Insurance Company, testified about his knowledge of the health benefit plans of Alta’s competitors. His knowledge was based on proposals given to potential customers of Alta by competing insurance companies. Bailey’s testimony was limited to the type of payment plans offered by the competing companies, in general, and how the plans were set up. He confessed *336 no knowledge of the credit terms of the other companies nor their default rates. He offered no opinion on the actual credit or collection practices of any Alta competitors. He had no independent knowledge of actual credit or collection practices of Alta, either, his testimony being based solely on his review of Alta’s files. Because Bailey’s testimony was not based on knowledge of the actual credit practices of Alta’s competitors and was vague and general in nature, it cannot serve as a basis for establishing an industry standard under § 547(c)(2)(C).
Alta’s witness, David Rhoades, an insolvency consultant, opined that the manner of handling payments and the billing practices of the debtor, as described by Bailey in his testimony, were consistent with industry standards. Rhoades’ opinion was based on recent interviews he had conducted with some nine persons in the insurance industry and research he did on the internet. Rhoades admitted he had never worked in the insurance industry. Nor did he testify about any experience he had gained in the industry. It is clear to the court that Rhoades did not have sufficient knowledge nor expertise to render an opinion on the insurance industry standards. Alta’s other witness, Deanna Sweet, testified regarding Alta’s practices, but she did not opine concerning industry standards. Thus, Alta has failed to sustain its burden of proof with regard to objective ordinariness, one of the elements of the ordinary course of business defense. Accordingly, its § 547(c)(2) defense fails.
The parties disagree about the amount of the transfers in controversy. In the stipulations contained in the Final Pretrial Order, Alta admitted receiving payments totaling $126,797.81, including one wire transfer on July 9, 2002, of $975.50. In its contentions in the same order, the Estate asserted, in addition to the stipulated transfers, an additional transfer to Alta in the amount of $16,959.53, on or about July 9, 2002. This is consistent with the Estate’s proposed findings of fact. Yet, in its closing argument, the Estate’s counsel urged that Alta had received four additional transfers by checks which cleared the debtor’s account during the preference period, so that there were a total of 15 avoidable transfers at issue, aggregating $224,158.50. As proof, counsel cited Rocor’s bank records which were in evidence. Alta vigorously objected to the inclusion of these four additional transfers, arguing that it had no prior notice of the plaintiffs claim as to such transfers.
Alta’s argument is well taken. Even if the four additional transfers are shown in the voluminous pages of the debtor’s bank records in evidence, Alta had no advance notice that the plaintiff was seeking their avoidance. Certainly, there is no indication in the Final Pretrial Order, nor in the plaintiffs proposed findings of fact, that it was seeking such. To allow the plaintiff to include these four additional transfers in its claim at this late date seems patently unfair and will not be permitted.
There is a further issue concerning the transaction on July 9, 2002. The Estate contends that the debtor transferred $16,959.53 to Alta on or about July 9, 2002, while Alta alleges that the payment was only $975.50. 8 Alta admits it was paid the $16,959.53 by wire transfer on July 9, 2002, but argues that there was a credit later made on the wire transfer of $15,980.03, so that the net effect of the transfer was $975.50 (sic). The plaintiff pointed to debtor’s bank statement (Plaintiffs Exhibit 2), Bates stamp 0632, as evidence of the $16,959.53 payment. Yet, the following page of the Exhibit, Bates stamp 0363 *337 shows the credited amount of $15,980.03, a fact verified by witness Janice Loyd. Thus, the court concludes that the plaintiffs claim as to the July 9, 2002 transaction is limited to the stipulated amount of $975.50 and does not include the $16,959.53 which the plaintiff seeks. Thus, the total amount of the avoidable transfers is $126,797.81.
There were numerous arguments made by counsel for the parties. To the extent such arguments are not addressed in this opinion, the court concludes that they were unnecessary or inapposite for the resolution of this case. To the extent the court took under advisement the admission of exhibits, such exhibits are admitted.
Based on the preceding, the court finds that the transfers from the debtor to Alta in the 90 days prior to the petition date, in the amount of $126,797.81, are avoidable as preferences under § 547(b). Judgment in favor of the Estate shall issue accordingly.
JUDGMENT
Pursuant to the Findings of Fact and Conclusions of Law entered herein this day, IT IS ORDERED, ADJUDGED and DECREED that judgment is entered in favor of the plaintiff, Rocin Liquidation Estate (the “Estate”), and against the defendant, Alta AH & L (“Alta”), on the Estate’s adversary complaint. Accordingly, the Estate is entitled to avoidance of the preferential transfers, as sought by the adversary complaint, and to recover from Alta the amount of $126,797.81, upon all of which post-judgment interest as provided by law shall accrue until paid, plus costs of this action.
Notes
. As later noted, this amount is the slightly miscalculated difference between a wire transfer of $16,959.03 made on July 9, 2002 and a partial charge back of $15,980.03. While the actual difference is $979.50, the erroneous calculation has a de. minimus effect.
. Due to the miscalculation described in Footnote 1 herein, the actual amount paid was $116,843.10.
. Unless otherwise specified, all references to sections herein are to Title 11 of the United States Code.
. The language of the statute provides:
(b) Except as provided in subsection (c) of this section, the trustee may avoid 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 date of the filing of the petition; or
(B)between 90 days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(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.
§ 547(b).
. While the issue in Amdura was determining what property constituted property of the estate under § 541, the § 541 inquiry and the § 547 preference inquiry are substantially similar.
. In closing argument, Alta’s counsel alludes to what this court had "held” regarding "new value” in another case, Rocin Liquidation Estate v. Pan America Life Ins. Co., Adv. No. 04-1270-WV (Bankr.W.D. Okla. filed Aug. 31, 2002). Having ruled in that case that the plaintiff had failed to prove a necessary element of its preference claim, and thus resort to § 547(c) defenses was unnecessary, this court’s comments regarding new value was mere dicta. Further, as noted in the court's opinion, the plaintiff failed to support its opposition to the new value defense and thus the issue was not thoroughly briefed.
. This section of the statute was amended pursuant to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, ("BAPCPA”) Pub.L. No. 109-8, § 409 (2005), and is effective in cases commenced on or after October 17, 2005. Unlike the prior version of the statute, applicable in the instant case, which requires the defendant to prove all three prongs of the "ordinary course of business” defense, the amended statute requires merely that the defendant prove the first prong and then prove either that the transfer was made "in the ordinary course of business or financial affairs of the debtor and the transferee” or that it was made according to "ordinary business terms.” Thus, ”[t]he 2005 amendments make it easier to invoke the ordinary course of business defense successfully in a preference action.” 5 Collier on Bankruptcy ¶ 547.04[2] (15th ed. rev.2005). However, the 2005 amendments do not apply in the present case since the Debtor filed its bankruptcy petition before the October 17, 2005 effective date.
. As was earlier pointed out, this amount should have been $979.50.