            United States Bankruptcy Appellate Panel
                          FOR THE EIGHTH CIRCUIT

                               _________________

                                  No. 12-6033
                               _________________

In re: HovdeBray Enterprises          *
                                      *
      Debtor                          *
                                      *
David G. Velde, Trustee               *   Appeal from the United States
                                      *   Bankruptcy Court for the
      Plaintiff - Appellee            *   District of Minnesota
                                      *
            v.                        *
                                      *
Border State Bank                     *
                                      *
      Defendant - Appellant           *

                               _________________

                                  No. 12-6035
                               _________________

In re: HovdeBray Enterprises          *
                                      *
      Debtor                          *
                                      *
David G. Velde, Trustee               *   Appeal from the United States
                                      *   Bankruptcy Court for the
      Plaintiff - Appellant           *   District of Minnesota
                                      *
            v.                        *
                                      *
Border State Bank                     *
                                      *
      Defendant - Appellee            *
                                  _____________

                           Submitted: October 23, 2012
                             Filed: December 3, 2012
                                 _____________


Before FEDERMAN, VENTERS, and SALADINO, Bankruptcy Judges

FEDERMAN, Bankruptcy Judge

      This is a preference action under 11 U.S.C. § 547 by David G. Velde, the
Chapter 7 Trustee, to recover a payoff payment to Border State Bank from the
proceeds of the Debtor’s liquidation sale. The Bankruptcy Court1 denied the Bank’s
motion for summary judgment, holding that the perfection of the Bank’s lien was
within the perfection period under § 547(b) and that the “floating lien” defense in §
547(c)(5) did not provide a defense to a security interest that was actually perfected
during the preference period. Following a trial, the Court entered judgment in the
Trustee’s favor as to $242,824.04, after giving the Bank a credit for $13,579.98 which
had been in the Debtor’s account at the Bank before the liquidation began. Both sides
appeal. For the reasons that follow, we AFFIRM in all respects, except that we
REVERSE the Court’s giving the Bank credit against the judgment for $1,403.07 in
consulting fees incurred by the Bank. The case is REMANDED for entry of
judgment in the amount of $244,227.11.

                           FACTUAL BACKGROUND

      On September 11, 2007, Debtor HovdeBray Enterprises executed a promissory
note for $350,000 in favor of Border State Bank of Roseau in connection with an


      1
         The Honorable Dennis D. O’Brien, United States Bankruptcy Judge for
the District of Minnesota.
                                          2
operating loan for the Debtor to purchase inventory for its Ben Franklin Store. The
Debtor granted the Bank a security interest in essentially all of its personal property
including inventory, accounts, fixtures and proceeds. The Bank did not file a
financing statement with the Minnesota Secretary of State’s office at that time and,
therefore, the parties agree that the Bank’s lien was not properly perfected at the time
of the loan.

       Sometime mid-year in 2010, the Bank received financial information from the
Debtor which raised concerns. At that point, the Bank hired Dan Schults d/b/a Retail
Consulting Services to give the Bank an analysis of the status of the business. Mr.
Schults issued a written analysis to the Bank dated June 14, 2010. The Debtor then
stopped making payments. On July 6, 2010, the Bank demanded immediate payment
of the $251,104,73 then outstanding on the loan.

      According to the Debtor’s principal, Michael Allen Hovde, the Bank gave him
no option but to liquidate. By agreement dated July 7, 2010, the Debtor and Bank
agreed that the Debtor would retain a liquidation service and conduct a going-out-of-
business sale. The Bank then filed its UCC financing statement with the Secretary
of State on July 13, 2010, for the first time perfecting its lien in the inventory,
accounts, fixtures, and proceeds.

      The going-out-of-business sale occurred between July 21, 2010 and August 27,
2010. Gross proceeds from the sale were $426,571.79. All of those funds went into
the Debtor’s account at the Bank. Of those funds, the Bank says that $256,672.02
went to pay its note in full. An additional $6,403.07 was paid to the Bank as
reimbursement for the services of the liquidation company. The balance went to pay
other expenses of the liquidation, including payroll and taxes. According to the
Bank, after payment of the Bank’s Note, the Debtor had $41,353.15 remaining.




                                           3
       As of July 13, 2010 – the day the financing statement was filed with the
Secretary of State – the amount owed to the Bank, including unpaid principal and
interest, was $251,517.03 and the value of the inventory was estimated to be in excess
of $450,000. Thus, the Bank asserts it was oversecured on July 13, 2010.

      Also as of July 13, 2010, the balance in the Debtor’s deposit account was
$13,579.98. The Bank asserts that it had setoff rights to this account, regardless of
whether it had a validly perfected security interest in other assets of the Debtor.

      An involuntary Chapter 7 petition was filed against the Debtor on October 11,
2010, and David G. Velde was appointed as Chapter 7 Trustee. The Chapter 7
Trustee sought to avoid the payment of the Bank’s debt as a preference. The
Bankruptcy Court denied the Bank’s motion for summary judgment, holding that the
perfection of the lien was within the perfection period under § 547(b) and that §
547(c)(5) did not provide a defense to a security interest that was actually perfected
during the preference period. The Court then had a trial, and entered judgment in the
Trustee’s favor on the merits as to all but the $13,579.98 which was in the account
before the liquidation. Both sides appeal.

                                    DISCUSSION

      Section 547(b) permits the Trustee to recover certain transfers made within the
90 days prepetition. Specifically, that statute provides, in relevant part:

      (b) Except as provided in subsection (c) and (i) 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;

                                           4
              (3) made while the debtor was insolvent;

              (4) made –

                    (A) on or within 90 days before the filing of the petition .
                    . . ; 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.2

The Bank did not contest that the transfer of funds amounting to $256,422.02 was
made within the 90 days prior to the Debtor’s involuntary bankruptcy filing or that
the transfer otherwise met the definition of a preference under § 547(b); rather, the
Bank asserted that it had defenses to the preference.

                                I. The Bank’s Appeal

           A. The Floating Lien Defense - Denial of Summary Judgment

      The Bank asserts that it had a “floating lien” or “inventory/accounts receivable”
defense under § 547(c)(5). This was the subject of its summary judgment motion,
which the Court denied.




      2
          11 U.S.C. § 547(b).
                                          5
      Section 547(c) provides that the trustee may not avoid under § 547 a transfer
–
      (5) that creates a perfected security interest in inventory or a receivable
      or the proceeds of either, except to the extent that the aggregate of all
      such transfers to the transferee caused a reduction, as of the date of the
      filing of the petition and to the prejudice of other creditors holding
      unsecured claims, of any amount by which the debt secured by such
      security interest exceeded the value of all security interests for such debt
      on the later of –

              (A)   (i) with respect to a transfer to which subsection (b)(4)(A)
                    of this section applies, 90 days before the date of the filing
                    of the petition; or

                    (ii) with respect to a transfer to which subsection (b)(4)(B)
                    of this section applies, one year before the date of the filing
                    of the petition; or

              (B) the date on which new value was first given under the security
              agreement creating such security interest.3

       Thus, 547(c)(5) generally provides a defense to a creditor which holds a
floating lien – i.e., one that automatically attaches to inventory and receivables
acquired by an obligor after the loan is made. The mere fact that such assets are
acquired during the preference period does not make the automatic lien attachment
a preference. The “improvement of position” test is a limitation on the floating lien
defense. If a creditor begins the preference period with collateral worth less than the
amount owed it, and as a result of after-acquired inventory and receivables the
amount of any such deficiency is thereafter reduced, the floating lien defense is not
available to the extent of such reduction (improvement in the creditor’s position).4


      3
          11 U.S.C. § 547(c)(5).
      4
          See In re Qualia Clinical Service, Inc., 652 F.3d 933, 937-938 (8th Cir.
2011).
                                           6
       The Debtor’s bankruptcy case was commenced by the filing of the involuntary
petition on October 11, 2010. The parties agree that the relevant 90-day period for
calculating the improvement of position period started on July 13, 2010, which was
the day the Bank perfected its security interest in the Debtor’s inventory.5 Since the
Bank’s security interest in the Debtor’s inventory and accounts receivable became
perfected on that date, the Bank asserts it was fully secured at the beginning of the
preference period, and therefore did not improve its position during that period. In
focusing on the “improvement in position” test, however, the Bank misses the first
step in asserting the § 547(c)(5) defense, namely the need to prove that it held a
validly-perfected floating lien which automatically attached to Debtor’s inventory.

       The Eighth Circuit in Qualia emphasized that, for purposes of the § 547(c)(5)
defense, the focus is on the creditor’s position at the moment it enters the preference
period:

      Inova seeks to gain the benefit, under the “improvement in position”
      test, of an unrecorded (and thus unperfected) lien of which other
      would-be creditors were unaware. Its argument pre-supposes that
      Congress meant the term “all security interests” in the 547(c)(5)(A) test
      to include unperfected security interests. We reject that supposition.
      Recognizing the reason why Congress enacted the “improvement in
      position” test, and the great prejudice to other creditors inherent in
      Inova’s position, we hold that the statutory “improvement in position”
      tests presuppose a creditor holding a perfected security interest as of the
      date of the first testing point. A creditor who, like Inova, enters the test
      period unperfected is properly deemed, for purposes of section
      547(c)(5), to have an interest of zero value.6


      5
        Fed. R. Bankr. P. 9006(a). See In re Raynor, 617 F.3d 1065, 1070 (8th
Cir. 2010) (holding that the statute of limitations for bringing a fraudulent transfer
action under § 546 was subject to Rule 9006).
      6
          652 F.3d at 939 (emphasis added).
                                           7
       This holding is entirely consistent with § 547(b)(4)(A), which avoids transfers
“on or within 90 days before the filing of the petition.” Here, the Bank entered the
preference period (July 13, 2010) unperfected. The transfer in question – the
perfection of its security interest – was made “on” the 90th day prior to the petition.
Once the Bank perfected its lien, it did not improve its position since it became
oversecured and remained oversecured until its loan was paid in full. But the
perfection itself was avoidable as a preference. The fact that the Bank perfected its
security interest during the preference period cannot be used to bootstrap itself into
asserting that it did not improve its position during that period. Since the Bank has
not established that it held a properly perfected floating lien at the outset of the test
period, the § 547(c)(5) floating lien defense is not available to it.

      Consequently, the Bankruptcy Court did not err in holding that § 547(c)(5) did
not apply and in thus ruling in favor of the Trustee on the Bank’s motion for summary
judgement.

                   B. The Ordinary Course of Business Defense

      Next, the Bank asserts that the payments it received during the going-out-of-
business sale were made in the ordinary course of business and/or according to
ordinary business terms under § 547(c)(2). The “ordinary course of business” defense
in 11 U.S.C. § 547(c)(2) provides:

      (c) The trustee may not avoid under this section a transfer—

             (2) to the extent that such transfer was in payment of a debt
             incurred by the debtor in the ordinary course of business or
             financial affairs of the debtor and the transferee, and such transfer
             was –




                                           8
                      (A) made in the ordinary course of business or financial
                      affairs of the debtor and the transferee; or

                      (B) made according to ordinary business terms.7

       The Bank does not take issue with the Bankruptcy Court’s conclusion that
payment from the liquidation was not within the ordinary course as between the
parties. Rather, pointing out that the ordinary course defense is disjunctive, the Bank
asserts that the Court ignored the second alternative, namely whether the payments
made pursuant to the store closing agreement were made according to ordinary
business terms. It asserts that based on business difficulties the Debtor encountered,
the Bank and the Debtor mutually agreed to retain the services of a liquidation
company to conduct a liquidation sale for the Debtor. Further, the terms of the
contract were customary for this type of liquidation situation and the payments made
to the Bank were in accord with the terms of the store closing contract. Accordingly,
the Bank says, the liquidation payments were made “according to ordinary business
terms” under § 547(c)(2)(B).

       Although courts have held that the acceptance of late payments and payments
under a restructuring agreement are not per se outside the ordinary course of business
exception,8 we fail to see how payment in full from a going-out-of-business sale
resulting in the cessation of the business itself could be considered ordinary course
in any business or industry. The Bankruptcy Court did not err in holding that
liquidation as part of the cessation of the Debtor’s business was not “ordinary
course.”




      7
          11 U.S.C. § 547(c)(2).
      8
        See In re U.S.A. Inns of Eureka Springs, Arkansas, Inc., 9 F.3d 680 (8th
Cir. 1993); In re Kaypro, 218 F.3d 1070 (9th Cir. 2000).
                                           9
                              C. The New Value Defense

      Third, the Bank asserts that § 547(c)(4)’s new value defense applies.9 That
section provides that the trustee may not avoid under this section a transfer—

      (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.

The term “new value” is defined as:

      (2) “new 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.10

       According to the Bank, § 547(c)(4) provides that any preferential payment or
transfer received by a creditor is to be set off against any subsequent unsecured
transfer the creditor makes to the debtor. In other words, a creditor who receives a
preference, but who subsequently gives new value that is unsecured, has a
nonavoidable preference to the extent that the debtor’s estate, temporarily depleted



      9
        The Bank does not appeal from the Court’s rejection of its new value
defense under § 547(c)(3).
      10
           11 U.S.C. § 547(a)(2)

                                          10
by the transfer to the creditor, is subsequently replenished by unsecured new value.11
In this case, the Bank says it replenished the Debtor’s estate by the sum of $6,403.07
as payment to the liquidation company and some $164,000 in funds released from the
account in which it had setoff rights to allow the Debtor to conduct the going-out-of-
business sale in an attempt to maximize revenues – those sums constituting new value
under § 547(c)(4).

        First, as the Bankruptcy Court pointed out, the Bank bases its new value
defense on the fact that it released money in which it had a security interest by virtue
of its setoff rights. Section 553 does provide that an account with setoff rights is a
secured claim in a bankruptcy case.12 However, as the Court held, the liquidation
proceeds transferred into the Debtor’s account at the Bank were transferred within the
preference period while the Debtor was insolvent and for the express purpose of
satisfying the entire antecedent debt to the Bank.

      To determine if funds were acquired by a bank for the purpose of
      obtaining a right of setoff courts consider whether the deposit was made
      in good faith, in the regular course of business and subject to withdrawal
      at the will of the depositor. The set-off exception does not apply where
      a deposit is accepted by a bank with an intent to apply it on a preexisting
      claim against the depositor. If the deposit was made with the purpose
      of effecting payment to the bank § 553(a)(3)(C) is met and setoff is not
      allowed. If either the depositor or the bank intends that a deposit may
      not be withdrawn but must be used to satisfy the bank's claim, the



      11
        Citing In re Armstrong, 291 F.3d 517 (8th Cir. 2002); Southern Technical
College, Inc. v. Hood, 89 F.3d 1381 (8th Cir. 1996) (holding that lessee received
new value for purposes of § 547(c)(4) when it continued to use and occupy leased
property rent free, enabling it to continue operations and to generate income which
replenished the estate).
      12
           11 U.S.C. § 553(a).
                                          11
      deposit constitutes a voidable preference when other elements of that
      statute are met.13

Since the purpose of the liquidation, and deposit into the account, was to pay the
Bank’s debt, the Court properly found that the Bank did not obtain a setoff right
against the liquidation proceeds. Moreover, although the Bank says it did not get
paid until after the new value money had been released, the money was not released
for purposes of allowing the Debtor to continue its business; rather, the evidence was
that the Bank approved all disbursements during the liquidation period and that it
only approved payment of expenses actually incurred in connection with the sale. In
other words, the Bank did not release any of the liquidation proceeds, other than
expenses associated with the sale, until it was satisfied that it was going to be paid in
full. Indeed, no other creditors were paid on preexisting debts. The new value
exception is not intended to apply to a situation where the creditor is, in effect,
conducting a liquidation of the Debtor so that it can be paid in full. The Bankruptcy
Court did not err in rejecting the Bank’s new value defense.

                          II. The Trustee’s Cross-Appeal

                   A. The Bank’s Setoff Defense as to the Money
                    in the Account Before the Preference Period

      At the start of the preference period, the Debtor had on deposit with Defendant
Bank the sum of $13,579.98. Those funds were included in the total received by the
Bank along with other proceeds from liquidation of its collateral. The Bankruptcy
Court held that the $13,579.98 was subject to the Bank’s setoff rights under § 553(a),
and that therefore the receipt of such funds was not a preference. Section 553(a)


      13
        Kroh Bros. Development Co. v. Commerce Bank of Kansas City, N.A., 86
B.R. 186, 191-192 (Bankr. W.D. Mo. 1988) (citations and internal quotation
marks omitted).
                                           12
preserves, with certain exceptions, the right of setoff of mutual debts owed
prepetition between a debtor and a creditor. The Trustee argues in his cross-appeal
that since the Bank did not actually exercise any setoff rights against the Debtor’s
account on the 90th day prior to the bankruptcy filing, the benefit of § 553 is not
available to it.

       However, the issue here is not whether the Bank set off the funds on the 90th
day; rather, the proper focus should be that the Bank held a security interest in such
funds at the start of the preference period, by virtue of its setoff rights under the loan
documents and state law, and maintained that security interest until the funds were
paid to it. The Trustee does not dispute that the Bank held a duly perfected security
interest in the Debtor’s funds on deposit at the Bank and, therefore, held setoff rights
against those funds.14

       Instead, the Trustee relies on Formtech Industries, LLC15 for the proposition
that any setoff rights must actually be exercised to be effective under § 553.
However, even if § 553 were applicable, it contains an exception for sales under §
363, and Formtech involved such a sale. He also relies on Baker v. National City
Bank of Cleveland,16 which dealt with the steps a bank must take to effectuate a setoff
of a customer’s account. That case is not relevant here because the issue is not
whether the Bank actually effectuated a setoff; instead, since the Bank held a security
interest in those funds, it did not receive a preference by receipt of such funds. For
these reasons, payment to the bank of funds which were held in Debtor’s account at


      14
         The Bank’s loan and security agreement clearly provides the Bank a
security interest in all such funds on deposit, which security interest is
automatically perfected by virtue of the depository bank having control over the
account. See Minn. Stat. Ann. §§ 336.9-314(a) and 336.9-104(a).
      15
           439 B.R. 352, 361-62 (Bankr. D. Del. 2010).
      16
           511 F.2d 1016 (6th Cir. 1975).
                                            13
the Bank at the start of the liquidation period was not a preferential transfer or an
improper setoff.

                 B. The Deduction of $1,403.07 in Consulting Fees

       Finally, the Trustee argues that the Bankruptcy Court committed clear error in
its mathematical calculation of the judgment amount.

       Specifically, the amount paid to the Bank during the preference period was
$262,825.09. After deducting the $13,579.98 in the Debtor’s account before the
liquidation, the Court gave the Bank credit for an additional $6,403.07 which was
paid to the Bank on July 23 and 26, 2010, $5,000 of which represented a deposit to
the retail liquidator for his services. The Bank officer testified, however, that the
other $1,403.07 for which credit was given was paid by the Bank for the consulting
fee the retail liquidator charged the Bank for originally assessing the situation at the
Bank’s request. This was a service ordered by the Bank for the primary purpose of
informing it on the best chance it would have to recover on its entire indebtedness.
The Court did not include any mathematical calculation details in its Order, but based
on the Court’s judgment amount, it appears that the Court gave the Bank credit for
the full $6,403.07. The Trustee appears to concede that the Court should have
deducted the $5,000 deposit, but asserts that Court should not have deducted the
$1,403.07.

       We agree. The Bank should be required to pay for the services it hired to
analyze its own best strategy, and the Court committed clear error in giving it credit
for that expenditure. Therefore, the amount of the judgment against the Bank should
be increased by $1,403.07.

      ACCORDINGLY, the Bankruptcy Court’s decision is AFFIRMED in all
respects except as to the deduction of $1,403.07, which is REVERSED. The net

                                          14
amount of the preferential transfer is $244,227.11. The case is REMANDED to the
Bankruptcy Court for entry of judgment in that amount.




                                      15
