                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 17-1794
                                    _____________


       In re: AE LIQUIDATION, INC., f/k/a Eclipse Aviation Corporation, et al,
                                                  Debtors


                      JEOFFREY L. BURTCH, Chapter 7 Trustee

                                           v.

          PRUDENTIAL REAL ESTATE & RELOCATION SERVICES, INC.;
                     PRUDENTIAL RELOCATION, INC.,
                                          Appellants
                            _______________

                    On Appeal from the United States District Court
                              for the District of Delaware
                              (D. Del. No. 1-16-cv-00252)
                     District Judge: Honorable Leonard P. Stark
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 12, 2018

      Before: JORDAN, ROTH, Circuit Judges and MARIANI*, District Judge.

                                  (Filed: May 4, 2018)




      *
         Honorable Robert D. Mariani, United States District Court Judge for the Middle
District of Pennsylvania, sitting by designation.
                                     _______________

                                        OPINION
                                     _______________


MARIANI, District Judge.

       Creditors Prudential Real Estate and Relocation Services, Inc. and Prudential

Relocation, Inc. (collectively “Prudential”) appeal from a decision arising from the

bankruptcy proceeding of AE Liquidation, Inc., f/k/a Eclipse Aviation Corporation

(“Eclipse”). Prudential appeals two orders of the District Court of Delaware, which

affirmed the Bankruptcy Court’s decision to (1) deem payments made to Prudential

during the Preference Period as outside the ordinary course of business under 11 U.S.C. §

547(c)(2)(A), and (2) reduce the amount of Prudential’s new value defense under 11

U.S.C. § 547(c)(4). We will affirm.

                                    I.     Background

       Prudential is a company that provides relocation benefits to its clients’ employees.

[App. at 262-263.] On May 1, 2006, Prudential and Eclipse entered into a contract

called the Relocation Services Agreement (the “Agreement”), in which Prudential agreed

to provide various relocation services for Eclipse’s employees. [App. at 2481-2509.]

Under the Agreement, Eclipse was to pay for Prudential’s services within 30 days of each

invoice issued by Prudential. [App. at 2495.]



       
         This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

                                              2
       From 2006 to the summer of 2007, Prudential did not encounter any problems in

its relationship with Eclipse. [App. at 276.] However, from the summer of 2007

onwards, Eclipse began to fall behind on its payment of invoices from Prudential. [App.

at 276.] By November 2007, Eclipse owed $1.7 million to Prudential in accounts

receivable that were over 60 days old. [App. at 276.] In response, Prudential imposed

special measures to reduce the accounts receivable, such as requiring a payment plan of

approximately $200,000 per week and requiring Eclipse to pay off a lump sum of

approximately $900,000 by December 2007. [App. at 276-277.] The Bankruptcy Court

referred to these measures as the “First Payment Plan.” (App. at 2.) In addition to these

measures, Prudential put Eclipse on billing review, which was described by a Prudential

witness as a procedure in which Prudential does not “accept[] any new business [from the

client], and everything is monitored before we move forward.” (App. at 276.) From

November 26, 2007 to January 2008, Eclipse made weekly payments of approximately

$200,000 under the new payment plan, as well as a lump sum payment of approximately

$900,000 on January 4, 2008. [App. at 277-279.] As a result of Eclipse reducing its

accounts receivable, Prudential took Eclipse off of billing review around mid to late

January. [App. at 286.] However, Eclipse began “to fall back again in March of 2008.”

(App. at 286.)

       On August 28, 2008, Eclipse’s accounts receivable balance had grown to

$800,000, approximately $600,000 of which was overdue. [App. at 405.] Around the

same time, Prudential learned that Eclipse had discharged approximately 650 employees

and instructed those employees to submit certain pending relocation expenses to

                                            3
Prudential for reimbursement. [App. at 313.] Prudential also learned directly from

Eclipse that Eclipse would be conserving its cash for the next 8 to 12 weeks. [App. at

1177.] Prudential employees discussed the situation in numerous internal emails in the

weeks following August 28, 2008. [App. at 1175-79, 1187-89.] Prudential decided to

put Eclipse back on billing review. [App. at 288.] In addition, Prudential put Eclipse on

a new payment plan that required a weekly payment of $50,000 and requested a lump

sum payment in full from Eclipse. [App. at 289-290.] The Bankruptcy Court referred to

the new weekly payment plan and lump sum request as the “Second Payment Plan.”

[App. at 3-4.]

       Eclipse filed its bankruptcy petition on November 25, 2008. [App. at 4.] Within

the 90 days preceding the petition date (the “Preference Period”), Eclipse made twelve

payments to Prudential totaling $781,702.61. [App. at 489.] These payments included

five payments made in September 2008 of approximately $50,000 each, pursuant to the

Second Payment Plan. [App. at 489.] On September 24, 2008, Prudential requested an

increase of the weekly payments to $75,000. [App. at 338-339.] When Prudential did

not hear back from Eclipse, it emailed Eclipse again on September 30, 2008 stating: “[i]t

is critical that we receive a response to our request to increase the weekly payments or to

bring the account current. If we do not receive a response by close of business tomorrow,

10/1/08, Prudential will need to re-evaluate our options, up to and including termination.”

(App. at 1648.) That same day, Eclipse agreed to pay $75,000 a week. [App. at 1645.]

The Bankruptcy Court defined this increased payment plan as the “Amended Payment

Plan.” [App. at 4.] In addition to the Amended Payment Plan, Prudential also began

                                             4
sending a weekly billing summary to Eclipse and required payment in full based on the

summary; Prudential only issued the complete invoice to Eclipse after Eclipse paid in full

the charges on the summary. [App. at 358-359.] This procedure had never been

imposed by Prudential before the Preference Period. [App. at 353.] In October and

November of 2008, Eclipse made seven more payments of approximately $75,000 each

to Prudential. [App. at 489.] In its appeal, Prudential argues that these twelve payments

made during the Preference Period were in the ordinary course of business and therefore

were not preferential transfers under 11 U.S.C. § 547(c)(2). [Opening Br. at 14-24.]

       Separately, Prudential appeals the Bankruptcy Court’s order on remand reducing

its new value defense. [Opening Br. at 24-26.] In the original proceeding before the

Bankruptcy Court, Prudential asserted two defenses: “(i) that the Transfers were made in

the ordinary course of business under section 547(c)(2), and (ii) that Prudential gave new

value after the Transfers to or for the benefit of Eclipse under section 547(c)(4).” (App.

at 9.) With respect to the second defense, the parties agreed at the outset “that new value

exist[ed] and only dispute the amount.” (App. at 26.) In its initial opinion, the

Bankruptcy Court agreed with Prudential’s argument that it is entitled to a new value

defense of $128,379.40, based on evidence that Prudential provided new services

rendered during and after the Preference Period totaling that amount. [App. at 25-28.]

On September 10, 2015, the District Court of Delaware affirmed the Bankruptcy Court’s

ruling on the ordinary course of business issue, but remanded on the new value issue.

[App. at 76-88.] Citing this Court’s reasoning in In re Friedman’s Inc., 738 F.3d 547

(3d Cir. 2013), the District Court noted that “only services provided prior to the petition

                                             5
date [should be] included in the § 547(c)(4) new value defense.” (App. at 86.) Because

the Bankruptcy Court’s original opinion “[did] not distinguish between pre-petition and

post-petition payments for the purpose of calculating Prudential’s new value defense,”

the District Court directed the Bankruptcy Court to recalculate the new value defense.

(App. at 86.) On remand, the Bankruptcy Court reduced the value of Prudential’s new

value defense to $56,571.37, consistent with the District Court’s ruling that services

rendered after the petition date should not be taken into account in calculating the new

value defense (the “Remand Order”). [App. at 95.] On March 30, 2017, the District

Court affirmed the Bankruptcy Court’s Remand Order. [App. at 101.] Prudential argues

that the Bankruptcy Court erred in its decision on remand, because the Court denied

Prudential’s request to reopen the record before proceeding with the recalculation of the

new value defense. [Opening Br. at 25-26.] Upon review of this appeal, we will affirm

on both issues.

II.    Discussion1

       A.     The Ordinary Course of Business Defense




       1
         The District Court had jurisdiction over the appeal of the Bankruptcy Court’s
orders pursuant to 28 U.S.C. § 158(a)(1). We have jurisdiction to review the District
Court’s decision pursuant to 28 U.S.C. § 158(d)(1). “Our review of the District Court’s
decision effectively amounts to review of the bankruptcy court’s opinion in the first
instance,” In re Hechinger Inv. Co. of Del., 298 F.3d 219, 224 (3d Cir. 2002), because
our standard of review is “the same as that exercised by the District Court over the
decision of the Bankruptcy Court,” In re Schick, 418 F.3d 321, 323 (3d Cir. 2005).
       We review the Bankruptcy Court’s findings of fact for clear error and exercise
plenary review over questions of law. In re Fruehauf Trailer Corp., 444 F.3d 203, 209-
10 (3d Cir. 2006).
                                             6
          We agree with the Bankruptcy Court’s analysis and conclusion that Prudential

failed to prove that the twelve payments made in the Preference Period fell within the

ordinary course business affirmative defense under 11 U.S.C. § 547(c)(2). That provision

states:

          (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—
          (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.

“Neither ‘ordinary course of business’ nor ‘ordinary business terms’ is defined in the

Bankruptcy Code.” In re Hechinger Inv. Co. of Del., Inc., 489 F.3d 568, 576 (3d Cir.

2007) (citing In re J.P. Fyfe, Inc., 891 F.2d 66, 70 (3d Cir. 1989)). “[O]rdinary terms are

those which prevail in healthy, not moribund, creditor-debtor relationships.” In re

Molded Acoustical Prods., Inc., 18 F.3d 217, 227 (3d Cir. 1994). In determining whether

payments are made in the “ordinary” course of the parties’ business, “each fact pattern

must be examined to assess ‘ordinariness’ in the context of the relationship of the parties

over time.” Id. at 576-77.

          In its original opinion, the Bankruptcy Court concluded that Prudential had not

established an ordinary course of business defense, because its collection efforts during

the Preference Period, namely the Second Payment Plan and the Amended Payment Plan,

were not reflective of the parties’ dealings in the ordinary course of business. [App. at

25.] Prudential takes issue with the Bankruptcy Court’s conclusion, arguing that the


                                                7
twelve transfers were only paid “nineteen days faster during the Preference Period,”

which was within the normal range of the historical relationship between Prudential and

Eclipse, and that there is no need to require “absolute uniformity” in payment frequency

between the Preference Period and the pre-Preference Period. (Opening Br. at 15.)

       However, while Prudential is correct that no absolute consistency is required, the

fact that payments to Prudential were made nineteen days faster during the Preference

Period was only one of several salient facts considered by the Bankruptcy Court. In this

case, the parties had an original agreement in which Eclipse was to pay Prudential for its

services within 30 days of each invoice. [App. at 2495.] That term was changed by

Prudential when it requested a faster payment term, i.e. weekly payments instead of

monthly payments, and a lump sum payment in full during the Preference Period. [App.

at 289-290.] The Bankruptcy Court properly found the faster payment rate to be

“significant,” in light of the fact that Prudential only “insisted on a quicker payment

schedule as it became aware of Eclipse’s financial troubles.” (App. at 16.)

       The relationship between Prudential and Eclipse became more financially stable

after the First Payment Plan. [App. at 361-362.] However, as of the start of the

Preference Period, the relationship took a turn for the worse. On August 28, 2008,

Prudential learned that Eclipse had discharged approximately 650 employees and

instructed them to submit pending relocation expenses to Prudential, and separately

learned that Eclipse would be conserving its cash for the following 8 to 12 weeks. [App.

at 313, 1177.] After learning of these changes, Prudential implemented the Second

Payment Plan which required a $50,000 payment every week and requested a lump sum

                                              8
payment in full from Eclipse. [App. at 289-290.] Additionally, a month after initiating

the Second Payment Plan, Prudential issued an ultimatum to Eclipse via email: acquiesce

to Prudential’s request to either increase the weekly payment plan to $75,000 per week or

“bring the account current,” and, if Prudential did not receive a response by the next day,

it would consider terminating the parties’ relationship. (App. at 1648.)

       The Bankruptcy Court properly found that “Prudential’s threatening Eclipse into

making increased payments to bring the [accounts receivable] current during the

Preference Period was not in the ordinary course of business,” since “[t]his type of

ultimatum never occurred in the pre-Preference Period (even in connection with the First

Payment Plan).” (App. at 19-20.) The Bankruptcy Court also found that a $75,000

required weekly payment, which was imposed during the Preference Period, was

“significantly different from the original credit terms” of the parties’ relationship, which

only required payment within 30 days of invoice. (App. at 24.) Furthermore,

Prudential’s own internal emails revealed a concern about Eclipse’s liquidity, with a

Prudential employee commenting that “[Eclipse is] in financial instability and [we are]

very concerned about our exposure. … [L]ast year they also hit hard times with us but

eventually got caught up after we cut them off, though that nearly ended our relationship

with them.” (App. at 1178.)

       In other words, the Bankruptcy Court did not consider the faster payment rate in

isolation. Rather, it considered the nineteen day difference in the context of the parties’

relationship, similarity of transactions, the manner in which payment was tendered,

Prudential’s new and unusual collection efforts during the Preference Period, and

                                              9
Prudential’s actions after learning of Eclipse’s financial hardship. [App. at 12-25.] We

agree with the Bankruptcy Court’s analysis that, taken as a whole, Prudential’s conduct in

the Preference Period deviated from the parties’ ordinary course of business practices.

Cf. In re Hechinger Inv., 489 F.3d at 578 (noting that the Bankruptcy Court “properly

considered” factors such as “the length of time the parties had engaged in the type of

dealing at issue, the way the payments were made, whether there appeared to be any

unusual action by either the debtor or creditor to collect or pay on the debt, and whether

the creditor did anything to gain an advantage in light of the debtor’s deteriorating

financial condition”) (citing In re Logan Square E., 254 B.R. 850, 855 (Bankr. E.D. Pa.

2000)).

       Prudential also argues that the Second Payment Plan did not constitute unusual

business practice because it bore similarities to the First Payment Plan. [Opening Br. at

21-24.] However, that argument is unpersuasive. As discussed above, the Bankruptcy

Court based its ruling in part on the email ultimatum Prudential issued to Eclipse in

September 2008, which “never occurred in the pre-Preference Period (even in connection

with the First Payment Plan).” (App. at 19-20.) Furthermore, we agree with the

Bankruptcy Court’s reasoning that “the fact that Eclipse was placed on a similar

accelerated payment plan for three months at sometime in the past does not make the

payment plans ordinary. … The First Payment Plan and the Second Payment Plan were

not simply a renegotiation of the contract, they were unilateral pressure [tactics] by

Prudential on Eclipse to assure future payment.” (App. at 24-25.) Thus, the Bankruptcy

Court did not err in finding that payments made pursuant to Prudential’s collection efforts

                                             10
during the Preference Period were outside the parties’ ordinary course of business

practices.

          B.    New Value Defense

          Prudential also argues that the Bankruptcy Court erred in denying a request to

reopen the record before the Court ruled on the new value issue on remand. [Opening

Br. at 25-26.] A new value defense “allows a creditor to retain an otherwise voidable

preference if the creditor gave the debtor new value after the preferential transfer.” In re

New York City Shoes, Inc., 880 F.2d 679, 679 (3d Cir. 1989) (citing 11 U.S.C. §

547(c)(4)). In its original opinion, the Bankruptcy Court relied on the testimony of Rene

Williams-Varner, Prudential’s Director of Accounting, and a new value analysis chart she

created that detailed all “new services rendered during and after the Preference Period

and the corresponding invoices…totaling $128,379.40.” (App. at 26.) Crediting the

Williams-Varner testimony and the new value analysis chart, the Bankruptcy Court

“[found] that Prudential ha[d] a new value defense in the amount of $128,379.40.” (App.

at 28.) On September 10, 2015, the District Court remanded for a recalculation of the

new value defense because “only services provided prior to the petition date [should be]

included in the § 547(c)(4) new value defense.” (App. at 86.) Because the Bankruptcy

Court’s original opinion “[did] not distinguish between pre-petition and post-petition

payments,” the District Court instructed the Bankruptcy Court to “reexamine those

invoices to determine the appropriate amount of Prudential’s new value defense.” (App.

at 86.)



                                              11
       Prudential argues that on remand, the Bankruptcy Court erred by denying its

request to reopen the factual record, which was necessary to clarify the record because

Prudential was not given a chance to present more thorough testimony in the original

proceeding. [Opening Br. at 25.] Prudential contends that in the original trial, the

Bankruptcy Court “expressed its preference to not go through each individual invoice in

detail” during Williams-Varner’s testimony, and thus, Prudential had “to summarize the

new value analysis without going through each individual invoice.” (Opening Br. at 25.)

However, there is no reason to believe that any additional evidence was necessary for the

Bankruptcy Court to recalculate the new value defense on remand. In the original

proceeding, there had been extensive testimony from Rene Williams-Varner regarding

the services Prudential provided to Eclipse, which the Bankruptcy Court credited as

“persuasive and uncontested.” (App. at 27.) Prudential also introduced into evidence a

new value analysis chart created by Williams-Varner, which included all invoices

reflecting the value of new services it provided to Eclipse. [App. at 2590-2652.] The

chart includes not only a summary of the invoices, but also detailed information from

each invoice. [App. at 2590-2652.] Thus, there was no reason for the Bankruptcy Court

to reopen the factual record when it had the Williams-Varner testimony and the new

analysis chart at its disposal. The District Court’s direction to the Bankruptcy Court on

remand was simple and straightforward: the new calculation of Prudential’s new value

defense should not include the value of any services rendered by Prudential after the

petition date. [App. at 86.] The sole issue on remand entailed applying the District

Court’s guidance to the dates and value of the invoices reflected in the new analysis

                                            12
chart. Thus, the Bankruptcy Court did not err in declining to reopen the factual record

after remand from the District Court.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s Orders affirming the

Bankruptcy Court’s ruling on the ordinary course of business defense and the District

Court’s order affirming the Bankruptcy Court’s Remand Order reducing the new value

defense to services rendered pre-petition.




                                             13
