Maclean Oddy Assoc v. Sherman

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
September 27, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10303
Summary Calendar
In The Matter Of: Walter G. Berry, III
Debtor,
MACLEAN ODDY & ASSOCIATES, INC.,
Appellant,
versus
DANIEL SHERMAN, CHAPTER 7 TRUSTEE
Appellee.
Appeal from the United States District Court
for the Northern District f Texas, Dallas Division
C.A. No. 3:03-CV-1557-K
Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
The United States Bankruptcy Court for the Northern
District of Texas granted summary judgment in favor of the debtor
upon finding that the debtor’s pre-petition payment to Maclean Oddy
constituted an avoidable preference because Maclean Oddy was an
unsecured creditor at the time the payment was made. The district
court affirmed.

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2
On appeal, Maclean Oddy asserts that the pre-petition
payment was not an avoidable preference because: (1) it created a
security interest by filing a judicial lien, an abstract of
judgment, outside of the 90-day preference period; (2) a subsequent
escrow agreement continued the security interest created by the
abstract of judgment; (3) a new trial order (in the case that
spawned the lien) did not void ab initio its security interest
because the escrow agreement was executed prior to the entry of the
new trial order; and (4) it did not receive more than it would have
received had the transfer not occurred. In the alternative,
Maclean Oddy argues that its contemporaneous release of the
security interest in exchange for the escrow payment pursuant to a
settlement agreement entered into with the debtor constituted a
contemporaneous exchange for value or new value so as to avoid the
transfer.
Maclean Oddy has failed to cite, and we have been unable
to find, federal or Texas state authority in support of Maclean
Oddy’s contentions. Thus, after careful review of the briefs and
record, we find no reason to reverse the bankruptcy court’s
judgment or the district court’s affirmance. The judgments of
those courts are
AFFIRMED.

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