According to Thorholm, this was a departure from past practice, because Murray and Lamar normally did not become involved in payables issues at Schwinn Bicycle Co. Based on his discussions with Lamar and Murray, Thorholm testified that he was concerned that the Defendant would not ship anymore product to Debtors unless the Debtors sent some payments to the Defendant on the outstanding invoices. Debtors’ payables situation during the Preference Period was very poor; schwinn dealers most vendors were not being paid. According to Thorholm, collection calls on the part of a vendor could cause a vendor to get paid ahead of other vendors. This was a period when the squeaky wheel did indeed get greased. As a result of his discussions with Lamar during the Preference Period, Thorholm caused the Debtors to send payments to the Defendant on outstanding invoices during the Preference Period in order to keep shipments coming from the Defendant.
Furthermore, to prevail on an ordinary course of business defense, a preference defendant must prove all of the elements of the defense. Midway Airlines, 69 F.3d at 797. As a result, the appropriate method of valuing the Defendants’ alleged subsequent new schwinn beach cruiser value defense yields a reduced preference exposure of $107,152.76. In sum, the judicial estoppel doctrine does not apply here because the Committee has not taken inconsistent positions and the facts at issue were not the same as at the insolvency trial.
In Schwinn Bicycle the estates were substantively consolidated; during a subsequent trial on the issue of the debtors’ insolvency during the preference period, the estate representative proved insolvency on a consolidated basis. The Defendant’s argument here that an order of substantive consolidation can affect the manner in which the schwinn dealers Defendant and the Debtors conducted business during the Preference Period is likewise misplaced. The Bankruptcy Code looks to events during the preference period, and has no room for some metaphysical transmutation of the corporate nature of parties during that period by the stroke of a judicial pen after a bankruptcy case is filed.
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Stallings, on behalf of True Fitness, filed proofs of claim with the Court, seeking to recover this amount. Stallings testified that he first called Lamar to inquire about Schwinn’s financial condition only several weeks before the Petition Date. During this conversation, Lamar confided in Stallings that Schwinn’s finances were “getting very tight.” Stallings expressed concern and stated he needed to know what was happening with Schwinn so he could protect True Fitness. As no time, however, did Stallings ever indicate to Lamar any forms of protection which True Fitness was considering. 8, p. 32 (line 16)p.