Deprizio Cant Be Invoked to Apply the Insider Preference Period to Outside Creditors Period
In response to Deprizio, Congress passed §202 of the Bankruptcy Reform Act of 1994. Through Bankruptcy Code §550(c), Congress precluded a trustee's ability to recover from a non-insider creditor transfers made more than 90 days before filing.1 See 11 U.S.C. §550(c). The legislative history to §550(c) indicates that Congress added §550(c) to "overrule the Deprizio line of cases and clarify that non-insider transferees should not be subject to the insider preference provisions of the Bankruptcy Code beyond the 90-day statutory period." Legislative History to §550; 140 Cong. Rec. H:10, 752-01, H:10,767 (daily ed. Oct. 4, 1994) (submission of Rep. Brooks).
Courts and commentators acknowledge congressional intent, but disagree over whether §550(c) precludes a trustee from invoking the Deprizio doctrine to avoid, rather than recover, a creditor's lien perfected within the year-long insider preference period under Bankruptcy Code §547(b). One camp believes that §550(c) does not prevent a court from applying the insider preference period under §547(b) to an outside creditor to avoid a lien, and that the lien is automatically preserved for the benefit of the estate under §551, without the aid of §550 recovery provisions. See In re Williams, 234 B.R. 801, 804-05 (Bankr. D. Or. 1999); Josephson, Richard C., "The Deprizio Override, Don't Kiss the Waivers Goodbye Yet," 4-Jun Bus. L. Today 40 (1995); Carlson, David Gray, "Tripartite Voidable Preferences," 11 Bankr. Dev. J. 219, 303 (1995).
The other view is that Deprizio was wrongly decided and that the 1994 Act confirms congressional intent to free non-insiders from the effects of the extended preference period under §547(b) for avoidance and recovery actions. At least two commentors adopt this view. See Lawniczak, James M., "Did Congress Always Say What It Meant in the Bankruptcy Reform Act of 1994?" 101 Com. L. J. 372, 383 (1996) (asserting that §547 does not allow for the Deprizio court's application of the insider preference period to outside creditors); Lewis, Adam A., "Did It or Didn't It? The Deprizio Dilemma," Am. Bankr. Inst. J. 20, 42 (1995) (arguing that the legislative history to §550 and policy confirm that a non-insider creditor should not be at risk for insider preference period transfers). Lewis and Lawniczak present the better view for at least two reasons.
First, a literal reading of §547 invalidates the rationale underlying the Deprizio decision. The Supreme Court held that, when faced with a question of statutory interpretation, the plain meaning of an unambiguous statute is to be given effect. See United States v. Ron Pair Enterprises Inc., 489 U.S. 235, 242 (1989). In the context of Deprizio, there is no debate that §547 is unambiguous, and that the plain meaning of §547 should be given effect. Nevertheless, the Deprizio court relied on an unnatural reading of §547 to apply the insider preference period to outside creditors. As Lawniczak correctly reasons, it is impossible for the lien transfer (i.e., the perfection of a lien) to meet all of the elements of a §547 preferential transfer. See Lawniczak, 101 Com. L. J. at 372, 382. Section 547 does not allow "the creditor" in §547(b)(1) to be a different creditor than "such creditor" in §547(b)(4) or (5), which requires that the creditor receive something. Id. Instead, §547(b) only examines one creditor at a time and further requires that such creditor be an insider and receive more than it would receive in a chapter 7 case. Id. Therefore, the grant of a lien or another transfer to a creditor with an insider guaranty is not avoidable under §547(b) if made within the insider preference period. Id.
In addition, the §550(c) amendment further dismantles the basis of the Deprizio decision. Deprizio was based on the language of §550(a)(1). Specifically, alongside the unnatural reading of §547(b), the Deprizio court relied heavily on §550 to explain why the transfer to the outside creditor should be subject to the insider preference period. See, e.g., In Re V.N. Deprizio Constr., 874 F.2d. at 1195-1196, 1197 n.9 ("It is not the "benefit" language of §547(b)(1)...that makes the change; it is the novel text of §550(a)(1), allowing recovery from either transferee or beneficiary, that underlies the trustee's claim"); see, also, e.g., Lawniczak, 101 Com. L. J. at 372, 382 (identifying Deprizio's reliance on §550(a)(1)). Congress's amendment to §550 makes it clear that the trustee can no longer recover from a non-insider transferee. Therefore, the Deprizio court's rationale based on §550 crumbles.
As a final note, the shaky rationale of Deprizio provides courts with ample grounds to decline to avoid an outside creditor's lien perfected within the insider preference period. Nevertheless, the legislative history subsequent to the 1994 Act reveals that a stalemate over the consumer amendments of the Bankruptcy Code have allowed the Deprizio decision to continue to fester. Congress has sought twice unsuccessfully to pass legislation amending §547 to clearly indicate that the Deprizio doctrine should not be applied in avoidance actions. See H.R. 833, 106th Cong. §1116 (1999); S. 625, 106th Cong. §1114 (1999); H.R. Rep. No. 107-617, §1213 (2002). Unsurprisingly, Congress is awed that Deprizio still haunts creditors.
The Deprizio court's unnatural reading of §547(b) does not reconcile with the rules of statutory interpretation espoused by the Supreme Court. Moreover, Congress's amendment to §550 is enough to shred the rationale underlying the Deprizio doctrine. Therefore, even in light of perceived inadequacies of the 1994 Act and the current political law jam, the Deprizio doctrine can be laid to rest.