Bird v. Carl's Grocery Co. (In re NWFX, Inc.)

864 F.2d 593
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 5, 1989
DocketNos. 88-1140, 88-1244 and 88-1650
StatusPublished
Cited by1 cases

This text of 864 F.2d 593 (Bird v. Carl's Grocery Co. (In re NWFX, Inc.)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bird v. Carl's Grocery Co. (In re NWFX, Inc.), 864 F.2d 593 (8th Cir. 1989).

Opinion

McMILLIAN, Circuit Judge.

Allen W. Bird II, Trustee in Bankruptcy for Northwest Financial Express, Inc., NWFX, Inc., and Gold Financial Express, Inc., (Trustee) appeals from a final judgment entered in the District Court1 for the Western District of Arkansas affirming the orders of the Bankruptcy Court2 for the Western District of Arkansas, Fayetteville Division. The Bankruptcy Court held that certain sums of money collected from money order sales and held in trust for the debtors by Handy Andy Supermarkets, J.V. (Handy Andy) and Carl’s Grocery Co., Inc. (Carl’s) could be used as “equitable setoffs” against post-petition sums paid by the two grocery store creditors from their own funds to their customers who had purchased money orders that were ultimately dishonored. The bankruptcy court also held that Carl’s could retain certain pre-pe-tition sums as an exception to turnover pursuant to 11 U.S.C. § 542(c).

For reversal, the trustee argues (Nos. 88-1140, 88-1650) that the district court erred in affirming the equitable setoff remedy where no mutuality of debt existed and that it misconstrued the § 542(c) exception to turnover. Carl’s cross-appeals (No. 88-1244) from the portion of the order disallowing an equitable setoff for certain sums paid by Carl’s for money orders used to make its beer purchases. For reversal, Carl’s argues that the district court should have applied the common law doctrine of recoupment. For the reasons discussed below, we reverse the judgment of the district court with respect to the direct appeal and affirm the judgment of the district court with respect to the cross-appeal.

Background

These consolidated cases arise out of the bankruptcy of three related corporations, Northwest Financial Express, Inc., NWFX, Inc., and Gold Financial Express, Inc., (debtors). These corporations had sold money orders prior to their bankruptcies. The money orders represented obligations of the debtors to pay the face values of the money orders to the holders of the money orders. Various supermarkets and convenience stores, of which Handy Andy and Carl’s were two, were the agents of the debtors for the sale of these money orders.

Every time a money order was sold, the selling agent would collect the face value of the money order plus a fee. These amounts were held in trust for the debtors pursuant to written trust agreements between the debtors and their agents. From time to time the agents would remit to the debtors the face amount of money orders sold plus a portion of the fees collected. The agents would retain their portions of the fees.

On July 27, 1986, the debtors notified Handy Andy by telephone that no more of their money orders should be sold. Handy Andy immediately quit selling the money orders. This telephone notice was confirmed by mailgram on July 29, 1986. The debtors filed bankruptcy petitions on August 1, 1986, at which time Handy Andy held in a separate account $141,881.34 that it had previously collected from the sale of the debtors’ money orders. Handy Andy received official notice of the bankruptcy on August 13, 1986. Both before and after the filing of debtors’ petitions in bankruptcy, Handy Andy reimbursed its customers for purchases of dishonored money orders. These refunds are in excess of $290,000. The bankruptcy court, pursuant to its § 105 equitable powers, allowed Handy Andy to retain the $141,881.34 still in its possession as an “equitable setoff” against the amounts it had refunded.

[595]*595Carl’s quit selling the debtors’ money orders on July 26, 1986, and was formally notified by mailgram to stop selling the money orders on July 29, 1986. On the date of the filing of the petitions in bankruptcy, Carl’s held $57,075.61 in funds it had collected from the sale of debtors’ money orders. Like Handy Andy, Carl’s chose to make refunds to its customers who held dishonored money orders. A total of $15,277.28 was refunded by Carl’s to its customers from its own funds after the petitions in bankruptcy had been filed.

Carl’s also acted as the collection agent of several utility companies. Carl’s collected the utility payments from its customers and then purchased a money order from the debtors for payment of the utility bills in one lump sum. After money orders it had purchased for this purpose were dishonored, Carl’s paid $5,593.31 of its own funds to the utility companies. The bankruptcy court allowed Carl’s an equitable setoff pursuant to § 105 in the amount of $20,870.59, the sum of the amounts reimbursed to customers and paid to the utility companies.

Additionally, some $1,665.69 had been refunded to customers by Carl’s before Carl’s received notice of the petition in bankruptcy. The bankruptcy court allowed Carl’s to withhold this amount from the monies it held in trust for the debtors pursuant to the § 542(c) exception to turnover.

Finally, Carl’s had purchased money orders for payments to its beer distributors of which $8,349.20 were dishonored. Carl’s later paid the distributors in cash from its own funds. However, the bankruptcy court did not allow setoff of this amount against the sum held in trust by Carl’s. Equitable Setoff

The trustee argues that the full $141,-881.34 held by Handy Andy along with the full $57,075.61 held by Carl’s should be turned over to the trustee as property of the debtors’ estates pursuant to 11 U.S.C. § 542(a). We agree. The bankruptcy court properly held that neither Handy Andy nor Carl’s was entitled to a setoff pursuant to 11 U.S.C. § 553 because such a setoff requires mutuality of debt. In the Matter of Universal Money Order Co., 3 Bankr.Ct.Dec. (CRR) 905, 906 (Bankr.S.D. N.Y.1977). Nevertheless, the bankruptcy court fashioned a so-called “equitable set-off” invoking its § 105 equitable powers.

Generally, the bankruptcy court possesses only the jurisdiction and powers conferred upon it by Congress, and its broad equitable powers may only be used to further the policies and provisions of the Code. Johnson v. First National Bank, 719 F.2d 270, 273 (8th Cir.1983).

Section 105(a) provides:

The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.

Unquestionably, § 105 of the Bankruptcy Code allows the bankruptcy court to exercise broad powers in the administration of its cases. It is even broader than Section 2a(15) of the Bankruptcy Act from which it is derived. 2 Collier on Bankruptcy § 105.01 at 105-1 et. seq. (15th ed.1983). Nevertheless, Chapter 1 of the Bankruptcy Code is essentially procedural. It does not set out substantive rights of the parties. 1978 U.S.Code Cong. & Admin.News, 5790.

Section 105 is comparable to the All Writs Statute, 28 U.S.C. § 1651. Its purpose is to allow the bankruptcy court to issue equitable orders such as injunctions and stays and to punish for contempt in cases where such actions are consistent with the provisions of the Code.

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864 F.2d 593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bird-v-carls-grocery-co-in-re-nwfx-inc-ca8-1989.