               United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3023
                        ___________________________

                          In re: Genmar Holdings, Inc.

                             lllllllllllllllllllllDebtor

                           ------------------------------

                           Michael S. Dietz, Trustee

                            lllllllllllllllllllllAppellee

                                         v.

                              Michael Calandrillo

                            lllllllllllllllllllllAppellant
                                   ____________

                 Appeal from the United States Bankruptcy
                   Appellate Panel for the Eighth Circuit
                              ____________

                          Submitted: October 7, 2014
                            Filed: January 28, 2015
                                ____________

Before LOKEN, BEAM, and COLLOTON, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.
       The bankruptcy trustee for Chapter 7 debtor Genmar Holdings, Inc.
commenced this adversary proceeding seeking to avoid as preferential a $65,000
payment made to Michael Callandrillo within ninety days of bankruptcy. See 11
U.S.C. § 547(b). The bankruptcy court1 granted the trustee summary judgment. The
Bankruptcy Appellate Panel (BAP) affirmed. Calandrillo appeals, arguing the
payment was a “contemporaneous exchange for new value” that may not be avoided
under § 547(c)(1).2 Reviewing the grant of summary judgment de novo, we agree
with the BAP that Calandrillo failed to prove the parties to the transaction intended
a contemporaneous exchange and therefore affirm. See Contemporary Indus. Corp.
v. Frost, 564 F.3d 981, 984 (8th Cir. 2009) (standard of review).

       The relevant facts are undisputed. In April 2007, Calandrillo purchased a boat
manufactured by Hydra-Sports, a subsidiary of Genmar Tennessee, a subsidiary of
Genmar Holdings. Calandrillo claimed the boat was defective and commenced an
arbitration proceeding. On February 19, 2009, Calandrillo entered into a settlement
agreement with “Genmar Tennessee, Inc. . . . together with its . . . parents [and]
subsidiaries.” Calandrillo agreed to convey title to the boat to Genmar Tennessee,



      1
       The Honorable Dennis D. O’Brien, United States Bankruptcy Judge for the
District of Minnesota.
      2
        At oral argument, Calandrillo raised two other issues. First, he contends that
the $65,000 payment should be deemed to have been made outside the § 547(b)(4)(A)
ninety-day preference period. We decline to consider this fact-intensive issue
because it was not raised either to the bankruptcy court or to the BAP. See Singleton
v. Wulff, 428 U.S. 106, 120-21 (1976). Second, he argues the bankruptcy court erred
in ruling that the trustee’s amended complaint adding Calandrillo as a defendant
related back to the date of the original complaint because the applicable statute of
limitations does not expressly allow relation back. See Fed. R. Civ. P. 15(c)(1)(A);
11 U.S.C. § 546(a). We decline to consider this issue because it was not argued in
Calandrillo’s brief on appeal, and the contention appears to be contrary to the
alternative provisions in Rule 15(c)(1)(A)-(C), as the BAP discussed.

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free of liens and encumbrances; Hydra-Sports agreed to pay Calandrillo $205,000 in
the following manner:


      A. Hydra-Sports shall pay to the Bank (which currently holds a lien on
      the Boat) such amounts as necessary to obtain a discharge of the Bank’s
      lien on the Boat, and it is an express condition of this agreement that
      Hydra-Sports is to receive a lien waiver from the Bank immediately
      upon payment to the Bank . . .

      B. The remainder of the Settlement Payment shall be paid to the trust
      account of [Calandrillo’s attorneys], in trust for and on behalf of
      [Calandrillo], no sooner tha[n] 15 days after Genmar Tennessee receives
      the lien waiver confirming the Bank’s discharge of the lien and all title
      assignment documents . . . for the Boat.

The next day, the bank received $140,000 from a Genmar entity and issued a lien
waiver. On February 25, Calandrillo executed a bill of sale conveying the boat to
Genmar Tennessee. On March 4, he sent documents assigning title to Genmar
Tennessee. On March 23, Genmar Holdings sent Calandrillo a check for the $65,000
settlement balance. On June 1, 2009, Genmar Holdings and twenty-one subsidiaries,
including Genmar Tennessee, filed for bankruptcy. The trustee brought this suit
seeking recovery of the $65,000 payment from Calandrillo as a preferential transfer.
The $140,000 payment to the bank a month earlier was outside the ninety-day
preference period in § 547(b).

       The avoidance of preferential transfers under § 547 “is intended to discourage
creditors from racing to dismember a debtor sliding into bankruptcy and to promote
equality of distribution to creditors in bankruptcy.” In re Jones Truck Lines, Inc., 130
F.3d 323, 326 (8th Cir. 1997). Contemporaneous new value exchanges are excepted
from avoidance because they “encourage creditors to continue doing business with
troubled debtors who may then be able to avoid bankruptcy altogether,” and “because
other creditors are not adversely affected if the debtor’s estate receives new value.”

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Id. To qualify for this exception, the creditor transferee must prove that an otherwise
preferential transfer was “(A) intended by the debtor and the creditor . . . to be a
contemporaneous exchange for new value given to the debtor; and (B) in fact a
substantially contemporaneous exchange.” § 547(c)(1).

       Calandrillo claims that the § 547(c)(1) exception applies to the $65,000
payment because he provided new value to the debtor when he conveyed the boat in
a contemporaneous exchange. “The critical inquiry in determining whether there has
been a contemporaneous exchange for new value is whether the parties intended such
an exchange.” In re Gateway Pac. Corp., 153 F.3d 915, 918 (8th Cir. 1998).
Calandrillo bears the burden of proving this fact. § 547(g); Jones Truck Lines, 130
F.3d at 328. Here, the BAP affirmed the bankruptcy court’s conclusion that
Calandrillo presented no evidence permitting a reasonable fact-finder to find that the
parties to the settlement agreement intended a contemporaneous exchange for new
value. We agree.

       Calandrillo’s conveyance of the boat was completed on March 4, when he sent
executed title documents to Genmar Tennessee. He received payment of the $65,000
settlement balance on March 23. This time lag, by itself, does not resolve whether
the transaction was intended to be a “contemporaneous exchange.” See 5 Resnick &
Sommer, Collier on Bankruptcy ¶ 547.04[1][a] at 547-44 (16th ed. 2014) (“the
passage of time does not necessarily negate that intent”). Many exchanges the parties
intend to be contemporaneous cannot be completed instantly, or even within a few
days. For example, in In re Lewellyn & Co., Inc., 929 F.2d 424, 428 (8th Cir. 1991),
we upheld the bankruptcy court’s finding that the parties intended stock purchases
settled seven business days later to be contemporaneous exchanges. In cases where
contemporaneous intent was found after trial, or conceded by the trustee, even a
substantial delay in one part of the exchange has not defeated the § 547(c)(1)
exception if the creditor explained why a reasonable delay was consistent with the
requisite intent. See In re Dorholt, 239 B.R. 521, 525 (B.A.P. 8th Cir. 1999) (sixteen

                                         -4-
days to perfect a security interest; summary judgment for trustee reversed), aff’d 224
F.3d 871 (8th Cir. 2000); In re Kerst, 347 B.R. 418, 424 (Bankr. D. Colo. 2006)
(delayed car refinancing); 4 William L. Norton Jr., Norton Bankruptcy Law &
Practice § 66:35 (3d ed. 2014). “[C]ontemporaneity is a flexible concept which
requires a case-by-case inquiry into all relevant circumstances.” Dorholt, 224 F.3d
at 874 (quotation omitted).

       In this case, the essential question of the parties’ intent is not conceded or
obvious. Calandrillo argues the requisite intent can be found in the settlement
agreement. The settlement agreement provided that Genmar Tennessee would make
two payments to re-acquire clear title to the allegedly defective boat. First, the bank
holding a substantial lien would be paid and provide a lien waiver. Initially satisfying
an existing lien creditor is not inconsistent with the parties intending a
contemporaneous exchange. Second, after Calandrillo transferred the necessary title
documents to Genmar Tennessee, he would be paid the $65,000 balance of the
“purchase” price. Again, providing a reasonable time for the buyer to review title
documents is a type of delay that, if reasonable, would not be inconsistent with the
parties intending a contemporaneous exchange. But here, the settlement agreement
provided that the final $65,000 payment would be made to Calandrillo no sooner than
fifteen days after Genmar Tennessee received the lien waiver and title documents.
Thus, on its face, the settlement agreement reflected that what might have been a
contemporaneous exchange of a boat for $205,000 was instead a short-term loan of
$65,000 to the debtor. A debtor’s repayment of a loan within ninety days of
bankruptcy is an avoidable preference.

      Calandrillo produced no evidence explaining the reason for this open-ended
payment delay in the settlement agreement. The absence of an explanation why a
mandatory delay of at least fifteen days was reasonably necessary brings this case
squarely within the purview of our decision in In re Armstrong, 291 F.3d 517, 525
(8th Cir. 2002). In Armstrong, a casino provided chips to a gambler in exchange for

                                          -5-
“markers” that would be paid out of the gambler’s bank account when deposited by
the casino. But while the casino would deposit a customer’s personal check when
received, it agreed to hold the gambler’s markers for fourteen days before making the
deposits, later extended to thirty days. We upheld the bankruptcy court’s conclusion
there was no evidence of an intended contemporaneous exchange. Instead, the
gambler incurred debts when the markers were signed that did not become due for
thirty days. Agreeing not to deposit the markers until a certain date “convert[ed] a
negotiable instrument into a loan.” Id. at 524. Likewise here, a reasonable fact-finder
could only conclude that the settlement agreement’s unexplained fifteen-day holding
period evidenced the intent to provide the debtor a short-term loan.

        For this reason, we conclude the bankruptcy court and the BAP properly
granted summary judgment to the trustee because there was no evidence the parties
intended a contemporaneous exchange, a critical issue on which Calandrillo had the
burden of proof. Given our resolution of this issue, we need not -- and do not --
address other issues disputed by the parties, including whether there was new value
within the meaning of § 547(c)(1)(A), whether the discrepancy between $65,000 and
the total amount paid for the boat would affect the § 547(c)(1) analysis, whether there
was “in fact a substantially contemporaneous exchange” for purposes of
§ 547(c)(1)(B), and whether debtor Genmar Holdings could have the requisite intent
in a transaction between Calandrillo and Genmar Tennessee.

      The judgment of the BAP is affirmed.
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