Silverman Consulting, Inc. v. Canfor Wood Products Marketing

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1777
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In re: Payless Cashways, Inc. *
*
Debtor *
________________________ *
*
Silverman Consulting, Inc., *
Chapter 11 Trustee for Payless *
Cashways, Inc., * Appeal from the United States
* Bankruptcy Appellate Panel.
Appellant, *
* [PUBLISHED]
v. *
*
Canfor Wood Products Marketing, *
doing business as Canadian Forest *
Products Ltd., doing business as *
Canfor U.S.A. Corp., doing business *
as Canfor Panel & Fibre Marketing *
Ltd., *
Appellee. *
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Submitted: December 13, 2004
Filed: January 18, 2005
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Before MELLOY, BRIGHT, and BENTON, Circuit Judges.
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PER CURIAM.
 In this bankruptcy action, plaintiff-appellant Silverman Consulting, Inc.
(Silverman), the Chapter 11 trustee for debtor Payless Cashways, Inc. (Payless),
sought to recover, as preferential, four payments Payless made to defendant-appellee
Canfor Corp. and Canfor Wood Products Marketing Ltd. (collectively Canfor).
Canfor asserted the defense of contemporaneous exchange for new value under 11
U.S.C. § 547(c)(1). The bankruptcy court1 ruled that Silverman cannot recover the
transfers made to Canfor, because Canfor met its burden of proof to establish that the
transfers were for new value in a contemporaneous exchange transaction and thus
were not avoidable. In re Payless Cashways, Inc., Case No. 01-42643 (Bankr. W. D.
Mo. Aug. 13, 2003). The Bankruptcy Appellate Panel (BAP)2 affirmed the
bankruptcy court’s decision. In re Payless Cashways, Inc., 306 B.R. 243 (8th Cir.
BAP 2004).

Silverman appeals contending that the parties intended the transfers to be credit
transactions. Silverman also contends no contemporaneous exchange occurred and
that new value was not given upon delivery of the lumber orders.

The bankruptcy court and the BAP analyzed the transactions in question
between debtor Payless and Canfor and both courts agreed that Silverman cannot
avoid the transfers.

We review the bankruptcy court’s findings of fact for clear error and review de
novo the legal conclusions of the bankruptcy court and the BAP. Blackwell v. Lurie

1
The Honorable Arthur B. Federman, Chief Judge, United States Bankruptcy
Court for the Western District of Missouri.
2
The Bankruptcy Appellate Panel consisted of the Honorable Barry S.
Schermer, United States Bankruptcy Appellate Panel, Eighth Circuit; the Honorable
Nancy C. Dreher, United States Bankruptcy Appellate Panel, Eighth Circuit; and the
Honorable Timothy J. Mahoney, United States Bankruptcy Appellate Panel, Eighth
Circuit. The Honorable Nancy C. Dreher wrote the opinion for the panel.

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(In re Popkin & Stern), 223 F.3d 764, 765 (8th Cir. 2000). After carefully reviewing
this case, we see no clearly erroneous findings and conclude the BAP thoroughly
analyzed the issues and properly applied the law. The BAP has written a
comprehensive, well-reasoned opinion covering all issues presented on this appeal,
with which we agree. Our elaboration on that opinion would serve no purpose.
Accordingly, we affirm on the basis of the BAP’s published opinion.
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