11 U.S.C. § 546 — Limitations on avoiding powers

Page 169 TITLE 11—BANKRUPTCY § 546 the Internal Revenue Code of 1954 [title 26]. As a result of this modification, section 545(b) of the Senate amendment is deleted as unnecessary. Statutory liens: The House amendment retains the provision of section 545(2) of the House bill giving the trustee in a bankruptcy case the same power which a bona fide purchaser has to take over certain kinds of personal property despite the existence of a tax lien covering that property. The amendment thus retains present law, and deletes section 545(b) of the Senate amendment which would have no longer allowed the trustee to step into the shoes of a bona fide purchaser for this purpose. SENATE REPORT NO. 95–989 This section permits the trustee to avoid the fixing of certain statutory liens. It is derived from subsections 67b and 67c of present law [section 107(b) and (c) of former title 11]. Liens that first become effective on the bankruptcy or insolvency of the debtor are voidable by the trustee. Liens that are not perfected or enforce- able on the date of the petition against a bona fide pur- chaser are voidable. If a transferee is able to perfect under section 546(a) and that perfection relates back to an earlier date, then in spite of the filing of the bank- ruptcy petition, the trustee would not be able to defeat the lien, because the lien would be perfected and en- forceable against a bona fide purchaser that purchased the property on the date of the filing of the petition. Finally, a lien for rent or of distress for rent is void- able, whether the lien is a statutory lien or a common law lien of distress for rent. See proposed 11 U.S.C. 101(37); Bankruptcy Act § 67(c)(1)(C). The trustee may avoid a lien under this section even if the lien has been enforced by sale before the commencement of the case. To that extent, Bankruptcy Act § 67c(5) is not followed. Subsection (b) limits the trustee’s power to avoid tax liens under Federal, state, or local law. For example, under § 6323 of the Internal Revenue Code [Title 26]. Once public notice of a tax lien has been filed, the Gov- ernment is generally entitled to priority over subse- quent lienholders. However, certain purchasers who ac- quire an interest in certain specific kinds of personal property will take free of an existing filed tax lien at- taching to such property. Among the specific kinds of personal property which a purchaser can acquire free of an existing tax lien (unless the buyer knows of the ex- istence of the lien) are stocks and securities, motor ve- hicles, inventory, and certain household goods. Under the present Bankruptcy Act (§ 67(c)(1)) [section 107(c)(1) of former title 11], the trustee may be viewed as a bona fide purchaser, so that he can take over any such des- ignated items free of tax liens even if the tax authority has perfected its lien. However, the reasons for ena- bling a bona fide purchaser to take these kinds of as- sets free of an unfiled tax lien, that is, to encourage free movement of these assets in general commerce, do not apply to a trustee in a title 11 case, who is not in the same position as an ordinary bona fide purchaser as to such property. The bill accordingly adds a new sub- section (b) to sec. 545 providing, in effect, that a trustee in bankruptcy does not have the right under this sec- tion to take otherwise specially treated items of per- sonal property free of a tax lien filed before the filing of the petition. Editorial Notes REFERENCES IN TEXT Section 6323 of the Internal Revenue Code of 1986, re- ferred to in par. (2), is classified to section 6323 of Title 26, Internal Revenue Code. AMENDMENTS 2005—Par. (2). Pub. L. 109–8 inserted before semicolon at end ‘‘, except in any case in which a purchaser is a purchaser described in section 6323 of the Internal Rev- enue Code of 1986, or in any other similar provision of State or local law’’. 1984—Par. (1)(A). Pub. L. 98–353, § 460(1), struck out ‘‘is’’ after ‘‘is’’. Par. (1)(C). Pub. L. 98–353, § 460(2), substituted ‘‘ap- pointed or authorized to take’’ for ‘‘apponted’’. Par. (2). Pub. L. 98–353, § 460(3), substituted ‘‘at the time of the commencement of the case’’ for ‘‘on the date of the filing of the petition’’ in two places. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. § 546. Limitations on avoiding powers (a) An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be com- menced after the earlier of— (1) the later of— (A) 2 years after the entry of the order for relief; or (B) 1 year after the appointment or elec- tion of the first trustee under section 702, 1104, 1163, 1202, or 1302 of this title if such ap- pointment or such election occurs before the expiration of the period specified in subpara- graph (A); or (2) the time the case is closed or dismissed. (b)(1) The rights and powers of a trustee under sections 544, 545, and 549 of this title are subject to any generally applicable law that— (A) permits perfection of an interest in prop- erty to be effective against an entity that ac- quires rights in such property before the date of perfection; or (B) provides for the maintenance or continu- ation of perfection of an interest in property to be effective against an entity that acquires rights in such property before the date on which action is taken to effect such mainte- nance or continuation. (2) If— (A) a law described in paragraph (1) requires seizure of such property or commencement of an action to accomplish such perfection, or maintenance or continuation of perfection of an interest in property; and (B) such property has not been seized or such an action has not been commenced before the date of the filing of the petition; such interest in such property shall be per- fected, or perfection of such interest shall be maintained or continued, by giving notice with- in the time fixed by such law for such seizure or such commencement. (c)(1) Except as provided in subsection (d) of this section and in section 507(c), and subject to the prior rights of a holder of a security interest in such goods or the proceeds thereof, the rights and powers of the trustee under sections 544(a), 545, 547, and 549 are subject to the right of a sell- er of goods that has sold goods to the debtor, in Page 170 TITLE 11—BANKRUPTCY § 546 the ordinary course of such seller’s business, to reclaim such goods if the debtor has received such goods while insolvent, within 45 days before the date of the commencement of a case under this title, but such seller may not reclaim such goods unless such seller demands in writing rec- lamation of such goods— (A) not later than 45 days after the date of receipt of such goods by the debtor; or (B) not later than 20 days after the date of commencement of the case, if the 45-day pe- riod expires after the commencement of the case. (2) If a seller of goods fails to provide notice in the manner described in paragraph (1), the seller still may assert the rights contained in section 503(b)(9). (d) In the case of a seller who is a producer of grain sold to a grain storage facility, owned or operated by the debtor, in the ordinary course of such seller’s business (as such terms are defined in section 557 of this title) or in the case of a United States fisherman who has caught fish sold to a fish processing facility owned or oper- ated by the debtor in the ordinary course of such fisherman’s business, the rights and powers of the trustee under sections 544(a), 545, 547, and 549 of this title are subject to any statutory or com- mon law right of such producer or fisherman to reclaim such grain or fish if the debtor has re- ceived such grain or fish while insolvent, but— (1) such producer or fisherman may not re- claim any grain or fish unless such producer or fisherman demands, in writing, reclamation of such grain or fish before ten days after receipt thereof by the debtor; and (2) the court may deny reclamation to such a producer or fisherman with a right of rec- lamation that has made such a demand only if the court secures such claim by a lien. (e) Notwithstanding sections 544, 545, 547, 548(a)(1)(B), and 548(b) of this title, the trustee may not avoid a transfer that is a margin pay- ment, as defined in section 101, 741, or 761 of this title, or settlement payment, as defined in sec- tion 101 or 741 of this title, made by or to (or for the benefit of) a commodity broker, forward contract merchant, stockbroker, financial insti- tution, financial participant, or securities clear- ing agency, or that is a transfer made by or to (or for the benefit of) a commodity broker, for- ward contract merchant, stockbroker, financial institution, financial participant, or securities clearing agency, in connection with a securities contract, as defined in section 741(7), commodity contract, as defined in section 761(4), or forward contract, that is made before the commence- ment of the case, except under section 548(a)(1)(A) of this title. (f) Notwithstanding sections 544, 545, 547, 548(a)(1)(B), and 548(b) of this title, the trustee may not avoid a transfer made by or to (or for the benefit of) a repo participant or financial participant, in connection with a repurchase agreement and that is made before the com- mencement of the case, except under section 548(a)(1)(A) of this title. (g) Notwithstanding sections 544, 545, 547, 548(a)(1)(B) and 548(b) of this title, the trustee may not avoid a transfer, made by or to (or for the benefit of) a swap participant or financial participant, under or in connection with any swap agreement and that is made before the commencement of the case, except under section 548(a)(1)(A) of this title. (h) Notwithstanding the rights and powers of a trustee under sections 544(a), 545, 547, 549, and 553, if the court determines on a motion by the trustee made not later than 120 days after the date of the order for relief in a case under chap- ter 11 of this title and after notice and a hear- ing, that a return is in the best interests of the estate, the debtor, with the consent of a creditor and subject to the prior rights of holders of se- curity interests in such goods or the proceeds of such goods, may return goods shipped to the debtor by the creditor before the commence- ment of the case, and the creditor may offset the purchase price of such goods against any claim of the creditor against the debtor that arose before the commencement of the case. (i)(1) Notwithstanding paragraphs (2) and (3) of section 545, the trustee may not avoid a warehouseman’s lien for storage, transportation, or other costs incidental to the storage and han- dling of goods. (2) The prohibition under paragraph (1) shall be applied in a manner consistent with any State statute applicable to such lien that is similar to section 7–209 of the Uniform Commer- cial Code, as in effect on the date of enactment of the Bankruptcy Abuse Prevention and Con- sumer Protection Act of 2005, or any successor to such section 7–209. (j) Notwithstanding sections 544, 545, 547, 548(a)(1)(B), and 548(b) the trustee may not avoid a transfer made by or to (or for the benefit of) a master netting agreement participant under or in connection with any master netting agree- ment or any individual contract covered thereby that is made before the commencement of the case, except under section 548(a)(1)(A) and ex- cept to the extent that the trustee could other- wise avoid such a transfer made under an indi- vidual contract covered by such master netting agreement. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2597; Pub. L. 97–222, § 4, July 27, 1982, 96 Stat. 236; Pub. L. 98–353, title III, §§ 351, 393, 461, July 10, 1984, 98 Stat. 358, 365, 377; Pub. L. 99–554, title II, §§ 257(d), 283(l), Oct. 27, 1986, 100 Stat. 3114, 3117; Pub. L. 101–311, title I, § 103, title II, § 203, June 25, 1990, 104 Stat. 268, 269; Pub. L. 103–394, title II, §§ 204(b), 209, 216, 222(a), title V, § 501(b)(4), Oct. 22, 1994, 108 Stat. 4122, 4125, 4126, 4129, 4142; Pub. L. 105–183, § 3(c), June 19, 1998, 112 Stat. 518; Pub. L. 109–8, title IV, § 406, title IX, § 907(e), (o)(2), (3), title XII, § 1227(a), Apr. 20, 2005, 119 Stat. 105, 177, 182, 199; Pub. L. 109–390, § 5(b), Dec. 12, 2006, 120 Stat. 2697.) HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS Section 546(a) of the House amendment is derived from section 546(c) of the Senate amendment. Section 546(c) of the House amendment is derived from section 546(b) of the Senate amendment. It applies to receipt of goods on credit as well as by cash sales. The section clarifies that a demand for reclamation must be made in writing anytime before 10 days after receipt of the goods by the debtor. The section also permits the court Page 171 TITLE 11—BANKRUPTCY § 546 to grant the reclaiming creditor a lien or an adminis- trative expense in lieu of turning over the property. SENATE REPORT NO. 95–989 The trustee’s rights and powers under certain of the avoiding powers are limited by section 546. First, if an interest holder against whom the trustee would have rights still has, under applicable nonbankruptcy law, and as of the date of the petition, the opportunity to perfect his lien against an intervening interest holder, then he may perfect his interest against the trustee. If applicable law requires seizure for perfection, then per- fection is by notice to the trustee instead. The rights granted to a creditor under this subsection prevail over the trustee only if the transferee has perfected the transfer in accordance with applicable law, and that perfection relates back to a date that is before the com- mencement of the case. The phrase ‘‘generally applicable law’’ relates to those provisions of applicable law that apply both in bankruptcy cases and outside of bankruptcy cases. For example, many State laws, under the Uniform Commer- cial Code, permit perfection of a purchase-money secu- rity interest to relate back to defeat an earlier levy by another creditor if the former was perfected within ten days of delivery of the property. U.C.C. § 9–301(2). Such perfection would then be able to defeat an intervening hypothetical judicial lien creditor on the date of the filing of the petition. The purpose of the subsection is to protect, in spite of the surprise intervention of a bankruptcy petition, those whom State law protects by allowing them to perfect their liens or interests as of an effective date that is earlier than the date of perfec- tion. It is not designed to give the States an oppor- tunity to enact disguised priorities in the form of liens that apply only in bankruptcy cases. Subsection (b) [enacted as (c)] specifies that the trustee’s rights and powers under the strong arm clause, the successor to creditors provision, the pref- erence section, and the postpetition transaction section are all subject to any statutory or common-law right of a seller, in the ordinary course of business, of goods to the debtor to reclaim the goods if the debtor received the goods on credit while insolvent. The seller must de- mand reclamation within ten days after receipt of the goods by the debtor. As under nonbankruptcy law, the right is subject to any superior rights of secured credi- tors. The purpose of the provision is to recognize, in part, the validity of section 2–702 of the Uniform Com- mercial Code, which has generated much litigation, confusion, and divergent decisions in different circuits. The right is subject, however, to the power of the court to deny reclamation and protect the seller by granting him a priority as an administrative expense for his claim arising out of the sale of the goods. Subsection (c) [enacted as (a)] adds a statute of limi- tations to the use by the trustee of the avoiding pow- ers. The limitation is two years after his appointment, or the time the case is closed or dismissed, whichever occurs later. Editorial Notes REFERENCES IN TEXT The date of enactment of the Bankruptcy Abuse Pre- vention and Consumer Protection Act of 2005, referred to in subsec. (i)(2), is the date of enactment of Pub. L. 109–8, which was approved Apr. 20 2005. AMENDMENTS 2006—Subsec. (e). Pub. L. 109–390, § 5(b)(1), inserted ‘‘(or for the benefit of)’’ before ‘‘a commodity broker’’ and ‘‘or that is a transfer made by or to (or for the ben- efit of) a commodity broker, forward contract mer- chant, stockbroker, financial institution, financial par- ticipant, or securities clearing agency, in connection with a securities contract, as defined in section 741(7), commodity contract, as defined in section 761(4), or for- ward contract,’’ after ‘‘securities clearing agency,’’. Subsec. (f). Pub. L. 109–390, § 5(b)(2), struck out ‘‘that is a margin payment, as defined in section 741 or 761 of this title, or settlement payment, as defined in section 741 of this title,’’ after ‘‘avoid a transfer’’ and inserted ‘‘(or for the benefit of)’’ before ‘‘a repo participant’’. Subsec. (g). Pub. L. 109–390, § 5(b)(3), inserted ‘‘(or for the benefit of)’’ before ‘‘a swap participant’’. Subsec. (j). Pub. L. 109–390, § 5(b)(4), inserted ‘‘(or for the benefit of)’’ before ‘‘a master netting agreement participant’’. 2005—Subsec. (c). Pub. L. 109–8, § 1227(a), amended sub- sec. (c) generally. Prior to amendment, subsec. (c) con- sisted of pars. (1) and (2) relating to reclamation of goods sold to an insolvent debtor. Subsec. (e). Pub. L. 109–8, § 907(o)(3), inserted ‘‘finan- cial participant,’’ after ‘‘financial institution,’’. Subsec. (f). Pub. L. 109–8, § 907(o)(2), inserted ‘‘or fi- nancial participant’’ after ‘‘repo participant’’. Subsec. (g). Pub. L. 109–8, § 907(e)(1), struck out ‘‘under a swap agreement’’ after ‘‘avoid a transfer’’, substituted ‘‘under or in connection with any swap agreement’’ for ‘‘in connection with a swap agree- ment’’, and inserted ‘‘or financial participant’’ after ‘‘swap participant’’. Pub. L. 109–8, § 406(1), redesignated subsec. (g) relating to return of goods as (h). Subsec. (h). Pub. L. 109–8, § 406(2), inserted ‘‘and sub- ject to the prior rights of holders of security interests in such goods or the proceeds of such goods’’ after ‘‘consent of a creditor’’. Pub. L. 109–8, § 406(1), redesignated subsec. (g) relating to return of goods as (h). Subsec. (i). Pub. L. 109–8, § 406(3), added subsec. (i). Subsec. (j). Pub. L. 109–8, § 907(e)(2), added subsec. (j). 1998—Subsecs. (e) to (g). Pub. L. 105–183 substituted ‘‘548(a)(1)(B)’’ for ‘‘548(a)(2)’’ and ‘‘548(a)(1)(A)’’ for ‘‘548(a)(1)’’. 1994—Subsec. (a)(1). Pub. L. 103–394, § 216, amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘two years after the appointment of a trustee under section 702, 1104, 1163, 1302, or 1202 of this title; or’’. Subsec. (b). Pub. L. 103–394, § 204(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘The rights and powers of a trustee under sec- tions 544, 545, and 549 of this title are subject to any generally applicable law that permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of such perfection. If such law requires seizure of such property or commencement of an action to accomplish such perfection, and such property has not been seized or such action has not been commenced before the date of the filing of the petition, such interest in such prop- erty shall be perfected by notice within the time fixed by such law for such seizure or commencement.’’ Subsec. (c)(1). Pub. L. 103–394, § 209, amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘such a seller may not reclaim any such goods unless such seller demands in writing reclamation of such goods before ten days after receipt of such goods by the debtor; and’’. Subsec. (e). Pub. L. 103–394, § 501(b)(4)(A), substituted ‘‘section 101, 741, or 761’’ for ‘‘section 101(34), 741(5), or 761(15)’’ and ‘‘section 101 or 741’’ for ‘‘section 101(35) or 741(8)’’. Subsec. (f). Pub. L. 103–394, § 501(b)(4)(B), substituted ‘‘section 741 or 761’’ for ‘‘section 741(5) or 761(15)’’ and ‘‘section 741’’ for ‘‘section 741(8)’’. Subsec. (g). Pub. L. 103–394, § 222(a), added subsec. (g) relating to return of goods. 1990—Subsec. (e). Pub. L. 101–311, § 203, inserted ref- erence to sections 101(34) and 101(35) of this title. Subsec. (g). Pub. L. 101–311, § 103, added subsec. (g) re- lating to trustee’s authority to avoid transfer involving swap agreement. 1986—Subsec. (a)(1). Pub. L. 99–554, § 257(d), inserted reference to section 1202 of this title. Subsec. (e). Pub. L. 99–554, § 283(l), inserted a comma after ‘‘stockbroker’’. Page 172 TITLE 11—BANKRUPTCY § 547 1984—Subsec. (a)(1). Pub. L. 98–353, § 461(a), sub- stituted ‘‘; or’’ for ‘‘; and’’. Subsec. (b). Pub. L. 98–353, § 461(b), substituted ‘‘a trustee under sections 544, 545, and’’ for ‘‘the trustee under sections 544, 545, or’’. Subsec. (c). Pub. L. 98–353, §§ 351(1), 461(c)(1)–(4), sub- stituted ‘‘Except as provided in subsection (d) of this section, the’’ for ‘‘The’’, substituted ‘‘a trustee’’ for ‘‘the trustee’’, struck out ‘‘right’’ before ‘‘or common- law’’, inserted ‘‘of goods that has sold goods to the debtor’’ after ‘‘seller’’, and struck out ‘‘of goods to the debtor’’ after ‘‘business,’’. Subsec. (c)(2). Pub. L. 98–353, § 461(c)(5)(A), inserted ‘‘the’’ after ‘‘if’’ in provisions preceding subpar. (A). Subsec. (c)(2)(A). Pub. L. 98–353, § 461(c)(5)(B), sub- stituted ‘‘a claim of a kind specified in section 503(b) of this title’’ for ‘‘an administrative expense’’. Subsec. (d). Pub. L. 98–353, § 351(3), added subsec. (d). Former subsec. (d) redesignated (e). Subsec. (e). Pub. L. 98–353, §§ 351(2), 461(d), redesig- nated former subsec. (d) as (e) and inserted ‘‘financial institution’’ after ‘‘stockbroker’’. Subsec. (f). Pub. L. 98–353, § 393, added subsec. (f). 1982—Subsec. (d). Pub. L. 97–222 added subsec. (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Amendment by Pub. L. 109–390 not applicable to any cases commenced under this title or to appointments made under any Federal or State law, before Dec. 12, 2006, see section 7 of Pub. L. 109–390, set out as a note under section 101 of this title. EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1998 AMENDMENT Amendment by Pub. L. 105–183 applicable to any case brought under an applicable provision of this title that is pending or commenced on or after June 19, 1998, see section 5 of Pub. L. 105–183, set out as a note under sec- tion 544 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–394 effective Oct. 22, 1994, and not applicable with respect to cases commenced under this title before Oct. 22, 1994, see section 702 of Pub. L. 103–394, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 257 of Pub. L. 99–554 effective 30 days after Oct. 27, 1986, but not applicable to cases commenced under this title before that date, see sec- tion 302(a), (c)(1) of Pub. L. 99–554, set out as a note under section 581 of Title 28, Judiciary and Judicial Procedure. Amendment by section 283 of Pub. L. 99–554 effective 30 days after Oct. 27, 1986, see section 302(a) of Pub. L. 99–554. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. § 547. Preferences (a) In this section— (1) ‘‘inventory’’ means personal property leased or furnished, held for sale or lease, or to be furnished under a contract for service, raw materials, work in process, or materials used or consumed in a business, including farm products such as crops or livestock, held for sale or lease; (2) ‘‘new value’’ means money or money’s worth in goods, services, or new credit, or re- lease by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, in- cluding proceeds of such property, but does not include an obligation substituted for an existing obligation; (3) ‘‘receivable’’ means right to payment, whether or not such right has been earned by performance; and (4) a debt for a tax is incurred on the day when such tax is last payable without penalty, including any extension. (b) Except as provided in subsections (c) and (i) of this section, the trustee may, based on rea- sonable due diligence in the circumstances of the case and taking into account a party’s known or reasonably knowable affirmative de- fenses under subsection (c), avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year be- fore the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. (c) The trustee may not avoid under this sec- tion a transfer— (1) to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contempora- neous exchange; (2) to the extent that such transfer was in payment of a debt incurred by the debtor in the ordinary course of business or financial af- fairs of the debtor and the transferee, and such transfer was— (A) made in the ordinary course of busi- ness or financial affairs of the debtor and the transferee; or (B) made according to ordinary business terms; (3) that creates a security interest in prop- erty acquired by the debtor— (A) to the extent such security interest se- cures new value that was—