A third party bought cattle and shipped them to a feedyard for feeding and care until they were sold on the third party's behalf to various buyers. The feedyard deposited the sale proceeds with a creditor for application against its line of credit. The feedyard would then pay the third party an amount equal to the sales proceeds less the feed cost. Several payments to the third party occurred during the year immediately preceding the feedyard's bankruptcy filing during which time the feedyard was insolvent. The bankruptcy trustee motioned to recover the payments made to the third party within a year of the bankruptcy filing, and the bankruptcy court ruled in the trustee's favor. On appeal, the third party claimed that the proceeds were not a "transfer of an interest of the debtor in property" as required by 11 U.S.C. Sec. 547(b) because the funds were not the debtor's property but were held in trust by the feedyard as bailee for the third party. In addition, the third party claimed that the proceeds were not traceable to the funds transferred to the third party because the feedyard used the proceeds to pay its debts and, as such, the state (NE) "swollen assets" doctrine imposed a constructive trust on the funds. On appeal, the court determined that the third party was purportedly a bailor whose bailment property was misused by the debtor-bailee which led to the inability of the third party to recover under the bailment agreement alone. Accordingly, the court determined that genuine issues of material fact remained with respect to the existence of a bailment under NE law that would extend to the proceeds of the cattle sales and, thus, whether the proceeds were the debtor's property. On remand, the bankruptcy court determined that the trustee was entitled to the proceeds as preferential transfers upon finding that the proceeds were the property of the feedlot. The court reached that conclusion based on the fact that the creditor had a security interest in any funds in any of the feedyard's deposit accounts and could apply the funds against any loans or other of the feedlot's obligations. The court also determined that neither the feedlot nor the creditor obtained the funds by fraud or misrepresentation and, thus, a constructive trust could not be imposed. Because there was no conversion, the "swollen assets" doctrine was inapplicable. The transactions also did not occur in the ordinary course of business. In re Big Drive Cattle, L.L.C. v. Overcash, No. BK11-42415, 2015 Bankr. LEXIS 991 (Bankr. D. Neb. Mar. 30, 2015), on remand from, No. 4:14CV3064, 2014 U.S. Dist. LEXIS 80853 (D. Neb. Jun. 13, 2014).
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