               By order of the Bankruptcy Appellate Panel of the Sixth Circuit,
                 the precedential effect of this decision is limited to the case
                  and the parties pursuant to 6th Cir. BAP LBR 8013-1(b).
                            See also 6th Cir. BAP LBR 8010-1(c).

                                  File Name: 05b0012n.06

           BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT

In re: GREEN VALENTINE, INC., )
                                  )
             Debtor.              )
                                  )
                                  )
P. PRESTON WILSON,                )
                                  )
             Plaintiff-Appellant, )
                                  )
         v.                       )                No. 05-8010
                                  )
JOHN CHAMNESS,                    )
                                  )
            Defendant-Appellee. )
                                  )

                      Appeal from the United States Bankruptcy Court
            for the Western District of Tennessee, Western Division, at Memphis.
                       Case No. 01-34950; Adversary No. 03-00330

                                   Argued: August 3, 2005

                           Decided and Filed: September 8, 2005

         Before: AUG, GREGG, and PARSONS, Bankruptcy Appellate Panel Judges.



                                         COUNSEL

ARGUED: Russell W. Savory, GOTTEN, WILSON, SAVORY & BEARD, Memphis, Tennessee,
for Appellant. Jack F. Marlow, WYATT, TARRANT & COMBS, Memphis, Tennessee, for
Appellee. ON BRIEF: Russell W. Savory, GOTTEN, WILSON, SAVORY & BEARD, Memphis,
Tennessee, for Appellant. Jack F. Marlow, WYATT, TARRANT & COMBS, Memphis, Tennessee,
for Appellee.
                                              OPINION


        JAMES D. GREGG, Bankruptcy Appellate Panel Judge. Preston Wilson, Chapter 7 Trustee
(the “Trustee”), sought recovery of a payment made to John Chamness (“Chamness”) during the
preference period. The bankruptcy court found that the payment was not an avoidable preferential
transfer because the earmarking doctrine was applicable. The bankruptcy court dismissed the
adversary proceeding.

                                     I. ISSUES ON APPEAL

        The Trustee, as appellant, presents two issues on appeal. First, whether the “earmarking
doctrine” is a valid defense to an action to recover a preferential transfer. Second, whether the
earmarking doctrine is applicable to the facts of the present case, where the sole shareholder of the
debtor corporation loaned funds to the corporation and directed the payment of certain corporate
debts with those funds.

                     II. JURISDICTION AND STANDARD OF REVIEW

        The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal.
The United States District Court for the Northern District of Ohio has authorized appeals to the
BAP. A final order of a bankruptcy court may be appealed by right under 28 U.S.C. §158(a)(1).
For purposes of appeal, an order is final if it “ends the litigation on the merits and leaves nothing for
the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794,
798, 109 S. Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted).

        Conclusions of law are reviewed de novo. See Nicholson v. Isaacman (In re Isaacman), 26
F.3d 629, 631 (6th Cir. 1994). “De novo review requires the Panel to review questions of law
independent of the bankruptcy court’s determination.” In re Eubanks, 219 B.R. 468, 469 (B.A.P.
6th Cir. 1998) (citation omitted). However, “application of the earmarking doctrine is inherently
fact based.” Emerson v. Fed. Sav. Bank (In re Brown), 209 B.R. 874, 879 (Bankr. W.D. Tenn. 1997)
(citation omitted). The BAP must affirm the underlying factual determinations unless they are

                                                   2
clearly erroneous. See Nat’l City Bank v. Plechaty (In re Plechaty), 213 B.R. 119, 121 (B.A.P. 6th
Cir. 1997). A factual determination is clearly erroneous “when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Bailey v. Bailey (In re Bailey), 254 B.R. 901, 903 (B.A.P 6th Cir.
2000) (citations omitted).

                                              III. FACTS

       The Debtor, Green Valentine, Inc. (“Green Valentine”), was a licensed used car dealership
specializing in antique and classic automobiles. Harriette Coleman was the sole shareholder of
Green Valentine. Her husband, George Coleman, was the president.

       In June 2001, Green Valentine brokered the sale of Appellee Chamness’s 1947 Ford
Sportsman. Chamness delivered the automobile to Green Valentine but was not paid for the vehicle.
George Coleman sent several Green Valentine checks to Chamness but later asked that Chamness
not deposit the checks. Replacement checks were later dishonored. Chamness then hired an
attorney, Jack Marlow, to collect the debt.

       Attorney Marlow contacted Mrs. Coleman regarding the debt. Mrs. Coleman confirmed the
existence of the debt with her husband and learned of other financial problems with Green
Valentine.

       Mrs. Coleman obtained a $406,000 loan from Nashoba Bank, mortgaging the home she
owned individually as collateral to secure this loan. A preexisting loan from Nashoba Bank and
Chamness were paid off with the proceeds of the loan. The remaining funds were deposited into
Green Valentine’s corporate checking account.

       On October 1, 2002, an involuntary chapter 7 bankruptcy petition was filed on behalf of
Green Valentine. On April 9, 2003, the Trustee filed an adversary proceeding against Chamness for
the avoidance and recovery of preferential transfers. The bankruptcy court held a trial on December
14, 2004. On December 22, 2004, the bankruptcy court gave its oral decision setting forth its
findings of fact and conclusions of law. The bankruptcy court then entered an order dismissing the
adversary proceeding.

                                                  3
                                         IV. DISCUSSION

                                                  A.

         The Trustee’s first argument, that the earmarking doctrine is not valid law, is devoid of any
merit. The Trustee asserts that the earmarking doctrine is contrary to the plain language of 11
U.S.C. § 547 and serves no legitimate bankruptcy purpose. However, the Trustee also acknowledges
Sixth Circuit authority that has adopted the so-called earmarking doctrine.

         [T]here is an important exception to the general rule that the use of borrowed funds
         to discharge the debt constitutes a transfer of property of the debtor: where the
         borrowed funds have been specifically earmarked by the lender for payment to a
         designated creditor, there is held to be no transfer of property of the debtor even if
         the funds pass through the debtor’s hands in getting to the selected creditor. See
         Hartley, 825 F.2d at 1070; Smith, 966 F.2d at 1533; In re Bohlen Enterprises, Ltd.,
         859 F.2d 561, 564-66 (8th Cir. 1988). “The courts have said that even when the
         lender’s new earmarked funds are placed in the debtor’s possession before payment
         to the old creditor, they are not within the debtor’s ‘control.’” Bohlen, 859 F.2d at
         565 (citing cases).

McLemore v. Third Nat’l Bank in Nashville (In re Montgomery), 983 F.2d 1389, 1395 (6th Cir.
1993). See also Lyon v. Contech Constr. Prods., Inc. (In re Computrex), 403 F.3d 807, 810-11 (6th
Cir. 2005); Mandross v. Peoples Banking Co. (In re Hartley), 825 F.2d 1067, 1069-70 (6th Cir.
1987).

                  The court in Bohlen then established a three part test to determine whether
         a transaction qualified for the earmarking doctrine:
         (1) the existence of an agreement between the new lender and the debtor that the new
         funds will be used to pay a specified antecedent debt,
         (2) performance of that agreement according to its terms, and
         (3) the transaction viewed as a whole (including the transfer in of the new funds and
         the transfer out to the old creditor) does not result in any diminution of the estate.

Gold v. Interstate Fin. Corp. (In re Schmiel), 319 B.R. 520, 526 (Bankr. E.D. Mich. 2005) (citing
In re Bohlen Enters. Ltd., 859 F.2d 561, 566 (8th Cir. 1988)).




                                                   4
       The Trustee’s argument that the earmarking doctrine is not a valid defense to a preference
action fails in accordance with binding Sixth Circuit precedent.1

                                                  B.

       The Trustee’s second argument is that the earmarking doctrine does not protect the transfer
in the present adversary proceeding because the funds in question were within Green Valentine’s
dominion and control. At trial, the bankruptcy court properly reviewed all of the evidence and found
that the funds were not within the debtor’s control. Therefore, the transfer did not diminish the
bankruptcy estate. The Panel may reverse the bankruptcy court only if it finds that the bankruptcy
court’s factual findings are clearly erroneous.

       There was some evidence that could have supported a finding that Green Valentine was in
control of the funds. Specifically, the loan proceeds (minus the payment of closing costs and the
payment to Nashoba Bank) were placed into a Green Valentine bank account. A cashier’s check
was then issued from those funds to Chamness, with Green Valentine listed as the remitter.
Additionally, Mr. Coleman testified that he directed the payment of those funds to Chamness and
that he singled Chamness out because of his collection activities. Mr. Coleman’s testimony
regarding whether Mrs. Coleman required him to pay Chamness was somewhat vague. Mr.
Coleman testified that she “knew [he] wanted to pay Mr. Chamness” and that he “did agree to pay
Chamness out of the proceeds.” (J.A. at 159.) Also, in response to a question of whether Nashoba
Bank directed how the proceeds were to be disbursed, Mrs. Coleman responded that Green
Valentine/George Coleman directed how they were to be disbursed. (J.A. at 109.)

       However, the greater weight of the evidence demonstrates that Mrs. Coleman would not have
individually procured the loan and mortgaged her house, unless Nashoba Bank and Chamness were



       1
         Similarly, we reject the Trustee’s argument that the earmarking doctrine should be limited
to instances where the new lender is either a guarantor or codebtor on the debt that is being paid.
While there is support for this argument in other circuits, see, e.g., McCuskey v. Nat’l Bank of
Waterloo (In re Bohlen Enters., Ltd), 859 F.2d 561, 566 (8th Cir. 1988), the Sixth Circuit Court of
Appeals in its holdings on the doctrine has not adopted any such limitation. See In re Montgomery,
983 F.2d at 1395; In re Hartley, 825 F.2d at 1069-70.

                                                  5
paid. When asked what solution she and Mr. Coleman decided upon in response to the bad checks
written to Chamness, Mrs. Coleman testified, “Well, there was nothing to decide . . . . George
confirmed to you earlier that he owed the money to Mr. Chamness. And I had no other recourse but
my house, and it was at that point that I got a home equity loan.” (J.A. at 99.) Mrs. Coleman
testified that “it was understood that the bank would be paid off and that Chamness would be paid
off.” (J.A. at 99.) Mrs. Coleman also testified that “[o]ne of the purposes of this was to enable
Green Valentine to pay Mr. Chamness.” (J.A. at 102.) Mrs. Coleman explained that the funds were
placed into Green Valentine’s account to pay off Chamness and that those checks were issued in
connection with the loan closing. (J.A. at 103.) Additionally, a letter from Attorney Marlow was
entered into evidence as Exhibit 1. That letter indicates that, based on assurances from Mrs.
Coleman and the bank that Chamness would be paid at the time of closing on the loan, Chamness
would take no further action toward the collection of the unpaid debt at that time. (J.A. at 111.)
Finally, Mrs. Coleman’s testimony reflects that she, not Mr. Coleman, delivered the cashier’s check
to the office of Chamness’s attorney. (J.A. at 105-06.)

       The bankruptcy court found that “[t]hrough the bank [Mrs. Coleman] advanced these funds
to Green Valentine, Inc. for a special purpose, namely to pay the bank and Mr. Chamness although,
as noted, she owed neither.” (J.A. at 182.) The bankruptcy court considered Mrs. Coleman’s
testimony that Mr. Coleman directed how the funds would be disbursed but concluded that “it is
abundantly clear to the court that Mr. Chamness received good funds via the hundred and twenty-
five thousand dollar cashier’s check only because Ms. Coleman instructed, directed and strictly
controlled that payment be earmarked and effectively made to Mr. Chamness.” (J.A. at 183)
(emphasis added).

       The bankruptcy court’s factual finding is not clearly erroneous. Mrs. Coleman obtained the
loan and gave the funds to Green Valentine for the express purpose that the bank and Chamness
would be paid. The fact that Mr. Coleman testified that he wanted Chamness to be paid because of
the pressure he was feeling is not contradictory to the bankruptcy court’s findings, rather it supports
the court’s conclusion. When Mrs. Coleman was made aware of the debt owed to Chamness, she
placed pressure on Mr. Coleman to pay the debt and then provided him the means to do so. The
parties’ testimony that Mr. Coleman directed disbursement of the funds to Chamness at closing does

                                                  6
not foreclose the valid finding that Mrs. Coleman made the funds available so that Chamness would
be paid. The fact that the funds obtained by Mrs. Coleman were very temporarily in Green
Valentine’s bank account before being paid to Chamness does not mandate a finding that Green
Valentine exercised control over the funds. See Grubb v. Gen. Contract Purchase Corp., 94 F.2d
70, 72 (2d Cir. 1938) (finding that debtor had no control of loan funds even though the funds went
through debtor’s account where lender delivered cashier’s check directly to third party in payment
of debt owed to third party by debtor).

                                                  C.

       Finally, in his reply brief, the Trustee asserts that the earmarking doctrine is not applicable
because Mrs. Coleman is not a third party. The Trustee asserts that Mrs. Coleman and Green
Valentine were essentially one in the same because Mrs. Coleman was the sole shareholder.
However, the Trustee did not raise any sort of piercing the corporate veil argument before the
bankruptcy court.2 In the absence of piercing the corporate veil, Mrs. Coleman and Green Valentine
are, and remain, separate entities. Mrs. Coleman did not owe any debt to Chamness. Accordingly,
she is a third party, and the Trustee’s tardily-raised argument is rejected.

                                          V. CONCLUSION

       For the reasons stated, the judgment of the bankruptcy court is AFFIRMED.




       2
         Arguments not raised below are waived on appeal. Hood v. Tenn. Student Assistance Corp.
(In re Hood), 319 F.3d 755, 760 (6th Cir. 2003) (“It is well-settled that this court will not consider
arguments raised for the first time on appeal unless our failure to consider the issue will result in a
plain miscarriage of justice. Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566,
578 (6th Cir. 2002) (quoting Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 143 (6th
Cir.1997))”).

                                                  7
