Bezanson v. Atlantic Battery Co. (In re Surrette Storage Battery Co.)

109 B.R. 544, 1989 Bankr. LEXIS 2354
CourtUnited States Bankruptcy Court, D. New Hampshire
DecidedDecember 28, 1989
DocketBankruptcy No. 87-74; Adv. No. 88-91
StatusPublished
Cited by1 cases

This text of 109 B.R. 544 (Bezanson v. Atlantic Battery Co. (In re Surrette Storage Battery Co.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bezanson v. Atlantic Battery Co. (In re Surrette Storage Battery Co.), 109 B.R. 544, 1989 Bankr. LEXIS 2354 (N.H. 1989).

Opinion

MEMORANDUM OPINION

JAMES E. YACOS, Bankruptcy Judge.

This chapter 11 adversary proceeding involves a complaint filed by the trustee against the defendants for turnover of property, trustee “strong-arm” recapture, fraudulent conveyances, preferential transfers, and equitable subordination. Defendants Atlantic Battery Co., Inc., Bruce Mi-gell and Tilton Trust have moved for summary judgment on all counts primarily on the grounds of res judicata. This opinion [545]*545decides the res judicata issue. This Court has jurisdiction under 28 U.S.C. § 157(b)(2)(E), (F), (H), and (0), and the general reference order dated February 1, 1985 by the U.S.District Court for the District of New Hampshire. This matter came on for a hearing on August 1, 1989, and I then took the matter under submission.

STATEMENT OF FACTS

1. On February 24, 1987, an involuntary petition was filed against debtor Surrette Storage Battery, Inc. Surrette was a Massachusetts corporation in the business of manufacturing and selling lead acid storage batteries until it sold most of its assets on November 28, 1986 to Atlantic Battery Co., Inc. Surrette’s principal place of business was Northfield, New Hampshire.

2. Clark Neill was the President of Sur-rette until the November 28, 1986 sale. Then, he became a consultant of Atlantic until December 31, 1987.

3. Atlantic is a Massachusetts corporation in the business of manufacturing and selling storage batteries.

4. Bruce Migell is the President of Atlantic. Migell’s family owns all of the stock of Atlantic.

5. Migell is the trustee of Tilton Trust. The beneficiaries of the trust are not a matter of public record.

6. On December 20,1985, Atlantic entered into an agreement with Surrette for capital contributions of up to $100,000 in exchange for 75 percent of the stock of Surrette. Neill and Migell now characterize this as a “stock option” agreement.

7. Between December 20, 1985 and March 1986, Atlantic transferred $100,000 in cash to Surrette, which was originally recorded in the books as a capital contribution.

8. Between December 20, 1985 and November 28, 1986, Atlantic shipped approximately $94,000 worth of batteries to Sur-rette for which Atlantic may not have received payment.

9. Sometime in 1986 the cash paid by Atlantic was changed in the bookkeeping of Surrette from a capital contribution to debt. Neill states this was because Migell decided not to exercise the “stock option.”

10. On October 9, 1986, a mortgage purportedly securing a note of $200,000 was given by Surrette to Atlantic.

11. For several months before the November 28, 1986 sale of assets it is disputed whether Migell exercised any control over the business of Surrette.

12. On November 28, 1986, most of the assets of Surrette were exchanged to Atlantic for an assumption of all secured debt.

a. The secured debt was as follows:
Indian Head Bank $229,399.00
SBA Loans $124,982.00
Revolving Loan $141,661.00
Company Car Loan $ 1,581.00
Atlantic Loan $198,500.00
$696,131.00
b. The first Bill of Sale in the transaction conveyed all accounts receivable, the tradename, and machinery and equipment in exchange for secured indebtedness in the amount of $204,641.79.
c. The second Bill of Sale conveyed all inventory with the exception of that listed in an attached schedule A in exchange for secured indebtedness in the amount of $106,488.77. The percentage of the inventory conveyed is a matter of dispute, but this Court determined in a prior hearing it was 48 percent of Surrette’s total inventory.
d. By a separate agreement, all of Sur-rette’s real estate was transferred to the Tilton Trust by Warranty deed.
e. Migell agreed to indemnify Clark and Joyce Neill for any claims or liability arising out of their personal guarantees of the debt of Surrette to Indian Head Bank and the SBA.

13. The November 28, 1986 transaction did not expressly convey the goodwill or trade secrets of Surrette. However, Neill states he believed the transaction conveyed with it the goodwill.

14. Since the November 28, 1986 transaction, Atlantic has not caused an assignment of Surrette’s tradename and related trade[546]*546marks to be filed with the U.S. Patent and Trademark Office.

15. On May 27, 1987, the prior trustee sued the current defendant under the Bulk Sales Act to avoid the transfer of inventory in the November 28, 1986 transaction. See Adversary No. 87-108. On March 1, 1989, this Court denied the trustee’s motion for summary judgment and granted Atlantic’s motion for summary judgment. On June 2, 1988, this Court denied certain petitioning creditors’ motion to reopen. No appeal was taken of any of these orders.

TRUSTEE’S COMPLAINT

On February 8, 1989, the successor trustee brought a 21 count amended complaint against the named defendant. Count 1 seeks a turnover of the goodwill and trade secrets of Surrette pursuant to § 542(a), which allegedly were not conveyed to Atlantic. Count 2 seeks turnover of the tradename and trademark “Surrette” which allegedly could not be conveyed to Atlantic without the goodwill. Count 3 seeks to obtain the tradename/trademark “Surrette” under § 544(a)(1) because a filing of the transfer to Atlantic has never been made with the U.S. Patent and Trademark Office. Count 4 seeks recovery of the tradename/trademark under § 548(a)(2) because “reasonably equivalent value” was not given for it in the November 28, 1986 transaction. Count 5 seeks recovery of the tradename/trademark under § 547 because the transfer was allegedly made on account of the antecedent debt Surrette owed Atlantic. Count 6 seeks to avoid the mortgage granted Atlantic as a preferential transfer under § 547(b). Count 7 claims the mortgage to Atlantic was a fraudulent transfer under § 548(a)(2). Count 8 claims that the transfer of tangible personalty on November 28, 1986 was a preferential transfer. Count 9 asserts that the sale of inventory was a fraudulent conveyance. Count 10 claims the transfer of the equipment and machinery was a fraudulent conveyance.

Count 11 alleges that the real estate conveyed to Tilton Trust was a fraudulent transfer under § 548(a)(1) because it was made with an intent to defraud creditors. Count 12 claims the real estate transfer is a fraudulent conveyance under § 548(a)(2). Count 13 alleges the transfer of the real estate is voidable under § 544(b) because an unsecured creditor could avoid the transaction under N.H.Rev.Stat.Ann. § 545-A:5(II), which is the state fraudulent transfer law. Count 14 seeks to avoid the transfer of assets under § 548(a)(1) as a transfer of an insider (Atlantic) with the intent to defraud creditors. Count 15 states that the transfer of assets is voidable under § 544(b). Count 16 claims that the indemnity agreement the Neills received is a dividend under Massachusetts law which the creditors should receive under § 544(b).

Count 17 seeks to equitably subordinate Atlantic’s claims pursuant to § 510(c).

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Bluebook (online)
109 B.R. 544, 1989 Bankr. LEXIS 2354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bezanson-v-atlantic-battery-co-in-re-surrette-storage-battery-co-nhb-1989.