Parker North American Corp. v. Resolution Trust Corp. (In re Parker North American Corp.)

Opinion by Judge HALL; Concurrence by Judge FLETCHER

The Resolution Trust Corporation, as receiver for Sooner Federal Savings and Loan Association, appeals a district court order reversing the bankruptcy court’s holding that it lacked subject-matter jurisdiction over chapter 11 debtor Parker North American Corporation’s action to recover preferential transfers. We affirm and remand to the bankruptcy court for a hearing on the merits.

I.

In 1988, Parker North American Corporation (“PNA”) and Sooner Federal Savings and Loan Association (“Old Sooner”) executed a sale and leaseback agreement under which Old Sooner lent $10 million to PNA. In March 1989, after repaying $4.65 million to Old Sooner, PNA filed a petition under chapter 11 of the Bankruptcy Code (the “Code”), 11 U.S.C. §§ 101-1330 . Shortly thereafter, PNA commenced in bankruptcy court an adversary proceeding against Old Sooner to recover the $4.65 million as a preferential transfer under § 547(b) of the Code. Old Sooner subsequently filed proofs of claim against PNA for the balance of the $10 million and for other sums arising from the sale and leaseback transaction. In sum, Old Sooner sought approximately $14 million…

concurring.

I concur separately because I believe this case can be resolved on grounds far narrower than those relied on by the majority. The majority states in conclusion that FIRREA’s exhaustion requirement does not apply “where the RTC has filed a proof of claim that exceeds the amount sought to be recovered by the debtor,” and where the claim against the RTC “arise[s] only incidentally to the bankruptcy court’s determination of the RTC’s claim against the debtor.” Majority op. at 5311. But in these situations, any claim on the part of the debtor is in the nature of an affirmative defense, and we held in RTC v. Midwest Fed. Sav. Bank, 4 F.3d 1490, 1496-97 (9th Cir.1998), that affirmative defenses of this kind are not subject to FIR-REA’s exhaustion requirement. We need go no further to resolve this case.

Most notably, we need not decide whether all preference actions are exempt from the sway of FIRREA. Certain preference actions may not be “incidental” to the RTC’s collection efforts: a debtor may seek affirmative recovery of the preference, rather than simply a setoff. Compare 11 U.S.C. § 550 (a) (affirmative recovery of a preferential transfer) with 11 U.S.C. § 502 (d)…