United States v. 2005-12-05 | 04-15180 | SALAZAR VFLORES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 In re: FRANK SALAZAR; In re:
MARGARET SALAZAR,
Debtors,
No. 04-15180FRANK SALAZAR; MARGARET
SALAZAR, BAP No.
Appellants, NV-03-01199-RyBK
v. OPINION
KATHLEEN A. MCDONALD;
ARMANDO FLORES; CHRISTINE
FLORES,
Appellees. 
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Ryan, Brandt, Klein, Bankruptcy Judges, Presiding
Submitted October 17, 2005*
San Francisco, California
Filed December 5, 2005
Before: Robert R. Beezer, Alex Kozinski, and
Ferdinand F. Fernandez, Circuit Judges.
Opinion by Judge Fernandez
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
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COUNSEL
Christopher P. Burke, Las Vegas, Nevada, for the appellants.
Christine Flores, Las Vegas, Nevada, (pro se) for the appel-
lees.
OPINION
FERNANDEZ, Circuit Judge:
Frank and Margaret Salazar, the debtors in a Chapter 131
bankruptcy proceeding, appeal the decision of the bankruptcy
appellate panel which affirmed the bankruptcy court’s deter-
111 U.S.C. §§ 1301-1330.
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mination that Armando and Christine Flores have a priority
claim in bankruptcy.2 We affirm.
BACKGROUND
The Salazars owned a swimming pool contracting business,
and the Floreses hired them to build a pool at the Floreses’
residence. The Floreses agreed to and did pay the full amount
of the purchase price — $30,829 — at the time that they
entered into the contract, and the Salazars commenced work.3
They never finished the job. By the time they filed for bank-
ruptcy some 17 months later, the project was just 50-70 per-
cent complete. The Floreses, acting pro se, filed an answer to
the petition in bankruptcy on March 22, 2002. That was filed
within the time for filing a claim, but they did not file a for-
mal proof of claim until later.
In their formal proof of claim, the Floreses sought to have
their claim treated as secured. The Salazars ultimately
objected to the claim, and the bankruptcy court determined
that the claim was not secured at all. But, said the court, it was
a priority claim to the extent of $2,100. See 11 U.S.C.
§ 507(a)(6) (consumer deposit).4
The Salazars appealed that determination, and the BAP
affirmed. This appeal followed.
2The Salazars have also raised a number of other issues. We have
addressed those in an unpublished memorandum disposition filed this
date.
3The contract itself appears to contemplate an ultimate payment of
$50,000, but after the Floreses paid the $30,829, the Salazars gave a
receipt for payment in full.
4The statutory amount was adjusted to $2,225, effective April 1, 2004,
but that does not affect this case.
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JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 158(d).
We review the BAP’s decision de novo. See Ehrenberg v.
Cal. State Univ., Fullerton Found. (In re Beachport Entm’t),
396 F.3d 1083, 1086 (9th Cir. 2005); Carrillo v. Su (In re Su),
290 F.3d 1140, 1142 (9th Cir. 2002). More specifically, we
review the bankruptcy court’s decision without according any
deference to the BAP. See, e.g., Classic Auto Refinishing, Inc.
v. Marino (In re Marino), 181 F.3d 1142, 1144 (9th Cir.
1999). Accordingly, we independently review the bankruptcy
court’s rulings. See Miller v. Cardinale (In re DeVille), 361
F.3d 539, 547 (9th Cir. 2004); Havelock v. Taxel (In re Pace),
67 F.3d 187, 191 (9th Cir. 1995).
We review the bankruptcy court’s conclusions of law de
novo and its factual findings for clear error. Neilson v. United
States (In re Olshan), 356 F.3d 1078, 1083 (9th Cir. 2004).
We review its interpretation of the bankruptcy code as a ques-
tion of law and, therefore, review it de novo. Bunyan v.
United States (In re Bunyan), 354 F.3d 1149, 1150 (9th Cir.
2004).
DISCUSSION
The issue before us is the question of whether the consumer
deposit priority provision can apply where the consumer has
paid the whole contract price, rather than only a portion of
that price.
[1] Congress has provided that level 6 priority is accorded
to:
allowed unsecured claims of individuals, to the
extent of [$2,100] for each such individual, arising
from the deposit, before commencement of the case,
of money in connection with the purchase, lease, or
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rental of property, or the purchase of services, for the
personal, family, or household use of such individu-
als, that were not delivered or provided.
11 U.S.C. § 507(a)(6). There can be no doubt that what was
paid over by the Floreses to the Salazars was for the purchase
of property and services for personal, family and household
use. The dispute before us is over whether the payment of the
whole amount ($30,829) took that payment out of the “depos-
it” realm.
We think it highly unlikely that in drafting this consumer
protection provision, Congress intended to protect consumers
who had been induced to pay over a portion of the purchase
price in advance, but not those who were induced to pay over
the whole amount.
[2] We cannot ignore the plain and ordinary meaning of the
words actually used by Congress. See Sutton v. United Air
Lines, Inc., 527 U.S. 471, 491, 119 S. Ct. 2139, 2150-51, 144
L. Ed. 2d 450 (1999); United States v. 144,774 Pounds of
Blue King Crab, 410 F.3d 1131, 1134 (9th Cir. 2005). In fact,
if the language of a statute is clear, we look no further when
we seek to ascertain its meaning. See Or. Natural Res. Coun-
cil, Inc. v. Kantor, 99 F.3d 334, 339 (9th Cir. 1996).
[3] Black’s refers to a deposit as “[m]oney placed with a
person as earnest money or security for the performance of a
contract.” Black’s Law Dictionary 471 (8th ed. 2004). Web-
ster’s Second referred to a deposit as, among other things, an
amount given as earnest money or forfeit. Webster’s Second
Int’l Dictionary 702 (1958). Webster’s Third says the same,
but adds that it can also be a “partial and first payment on
account of the purchase price of property.” Webster’s Third
New Int’l Dictionary 605 (1986). And still another definition
is to “give a sum of money as part payment or security.”
Encarta World English Dictionary 485 (1999). Thus, while a
part payment is what one often thinks of when one hears the
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word “deposit,” nothing in that word precludes handing over
more than a mere portion of the whole price. In fact, it is not
unusual to see requests for the full price where unique or per-
sonalized goods are to be made for the customer or where a
contract for services to be performed over time — for exam-
ple, a payment in advance for newspaper delivery or for a
home security system — is involved. In short, on its face the
meaning of the word is clear.
[4] For the most part, courts that have considered the issue
agree with our intuition that full payment by a consumer for
goods or services to be rendered over time is a deposit within
the meaning of the law. When a full payment had been made,
one court noted, as we have, that deposit is not defined in the
code; expressed doubt about the proposition that while partial
payment was a deposit, full payment could not be; and
referred to the already noted report. See In re Terra Distrib.,
Inc., 148 B.R. 598, 600-01 (Bankr. D. Idaho 1992). That court
then added that there was “no reason to assume that ‘deposit’
includes full payment for services, but not full payment for
goods.” Id. at 601. When faced with prepaid extended war-
ranty contracts, another court merely agreed with Terra Dis-
tributing, Inc. and held that 507(a)(6) priority did obtain. In
re Tart’s T.V., Furniture & Appliance Co., Inc., 165 B.R. 171,
173 (Bankr. E.D.N.C. 1994).
Yet another court confronted a situation where claimants
had forwarded money to the debtor for the purchase of gold
and silver coins. In re DeAngelis Tangibles, Inc., 238 B.R. 96,
97 (Bankr. M.D. Pa. 1999). There was no discussion about the
other elements of § 507(a)(6), but as to “deposit” the court
had this to say:
The word deposit has several ordinary meanings.
One such understanding can be found in Comment
a to Section 44 of the Restatement of Contracts
wherein the term deposit refers to money or other
property transferred by an offeror to the account of
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the offeree in conjunction with an offer. Certainly,
this reference to deposit is not subject to any limita-
tion as to the percentage of the total consideration.
While the circumstances surrounding the transfer of
funds from the claimants, precious metal investors,
to the Debtor, precious metal supplier, are uncertain,
what is beyond question is these funds were trans-
ferred to the Debtor as part of an agreement to pur-
chase coins or precious metals.
Id. at 98 (internal citation omitted). The court went on to
opine that “funds advanced in furtherance of a purchase order
comport with the common understanding of the term deposit
without expansive maneuvering.” Id. at 99.
And in another case, the debtor had sold gift certificates to
the public and then went bankrupt before those were
redeemed for merchandise. In re WW Warehouse, Inc., 313
B.R. 588, 590 (Bankr. D. Del. 2004). The court had little dif-
ficulty in determining that there is nothing to suggest that,
“when applied to a consumer purchase, a deposit must only be
a partial payment of a purchase price and for specific mer-
chandise. A down-payment, generally thought to be a partial
payment, is only one of the definitions.” Id. at 592. In fact, the
court pointed out that the section itself was created to obviate
the kind of problems that had occurred when a large retailer
issued scrip to be used for the purpose of buying merchandise
from it, but then became bankrupt before the scrip was actu-
ally redeemed. Id. at 594-95. The court held that there was
priority.
The Salazars point to one case to the contrary. See Bonner
v. Allman (In re Heritage Vill. Church & Missionary Fellow-
ship, Inc.), 137 B.R. 888 (Bankr. D.S.C. 1991). That case
presented most peculiar facts. A tele-evangelist did what is
known as premium-driven fundraising. People donated to the
cause and got something in return. Id. at 890-91. Before
financial bankruptcy caught up with the evangelist (perhaps
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moral bankruptcy came earlier), the donations were referred
to as gifts or investments, and certificates and benefits were
delivered. Id. at 891. Thereafter, some of the donors asserted
that the donations were actually deposits for benefits to be
received in the future. Id. at 890. At best, that claim was at the
outer limit of anybody’s notion of a “deposit.”
[5] Still and all, the court partially rested its opinion that the
gifts were not deposits on the difference between partial and
full payment. Id. at 895-96. In so doing, the court took an
unduly crabbed view of what a deposit can be. Perhaps, it did
so because the issue was somewhat obscured by the tele-
evangelist’s clever mixing of gift and investment opportuni-
ties for the faithful, a situation that, again, seemed rather anti-
thetical to the meaning of a deposit. In any event, we see no
reason to limit “deposit” in a situation where, as here, the
funds were given by a consumer for property or services to be
provided by the debtor and those were not forthcoming before
bankruptcy.
[6] Merchants’ violation of consumers’ expectations and
trust is precisely what Congress responded to when it passed
the statute in question. That Congress’s concern had bounds
is shown by its express limitation of the amount of the prior-
ity. There is no reason to think that it buried a further limita-
tion in the word “deposit.” In fine, the money paid over by the
Floreses for the creation of a swimming pool was a deposit.
CONCLUSION
Perhaps nobody should be credulous enough to give a con-
tractor or a merchant the whole payment for goods and ser-
vices up front, rather than some fraction of the payment. But
people do. We can be certain that Congress was concerned
about consumers who were induced to make deposits. But did
that concern end when a consumer made the bevue of deposit-
ing the full payment? We see no reason to say that it did, and
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Congress’s use of the word “deposit” does not compel a con-
trary answer.
[7] Thus, we hold that “deposit” as used in 11 U.S.C.
§ 507(a)(6) may include the advance handing over of full pay-
ment for consumer goods or services, and that it did include
the Floreses’ payment to the Salazars.
AFFIRMED.
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