Frank v. Benzel Bretzel Bakery, Inc. (In re Clintondale Mills, Inc.)

216 B.R. 742, 1998 Bankr. LEXIS 123
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedFebruary 2, 1998
DocketBankruptcy No. 5-95-01097; Adversary No. 5-96-00362A
StatusPublished

This text of 216 B.R. 742 (Frank v. Benzel Bretzel Bakery, Inc. (In re Clintondale Mills, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frank v. Benzel Bretzel Bakery, Inc. (In re Clintondale Mills, Inc.), 216 B.R. 742, 1998 Bankr. LEXIS 123 (Pa. 1998).

Opinion

OPINION AND ORDER1

JOHN J. THOMAS, Bankruptcy Judge.

The instant Adversary was initiated by Plaintiff, Lawrence G. Frank, in his capacity as Trustee for the Debtor, Clintondale Mills, Inc. The Complaint requests the Court to enter judgment in favor of the Plaintiff and against the Defendant in the amount of Fifty-Eight Thousand Three Dollars and Fifty-Seven Cents ($58,003.57) which is the outstanding balance due and owing the Debtor [744]*744by the Defendant for the prepetition delivery of flour. The Defendant responded it does not owe a balance to the Plaintiff. Rather, primarily, because of breach of a prepetition contract, the Debtor owes the Defendant Eighty-Five Thousand Three Hundred Twenty-Six Dollars and Forty-Three Cents ($85,326.43). The facts have been stipulated to by the parties and are as follows:

1. On May 22, 1995, David E. Johnson, owner of Clintondale Mills, wrote a letter to Keith Natoli, the general manager of Benzel Bretzel Bakery, confirming the price quoted for delivery of loads of flour at a certain dollar amount per CWT (per hundred weight) for the months of August, 1995 through June, 1996. This letter is attached as exhibit “A” to the Answer and Counterclaim of the Defendant.

2. From May 25, 1995 through June 27, 1995, the Debtor made various deliveries of flour to the Defendant which deliveries are evidenced by invoices attached as Exhibit “A” to the Complaint. Those invoices total $58,003.57 and were not paid by the Defendant at the time of the filing of the petition.

3. By letter dated June 29,1995 (attached as Exhibit “B” to the answer and counterclaim) from Ernest J. Cimadamore, president of Clintondale Mills to Keith Natoli, the Debtor confirmed that it would compensate the Defendant for such cost of flour, over the price that the Defendant had previously contracted with the Debtor for that period from June 28,1995 until July 17,1995.

4. Attached as Exhibit “C” to the Answer and Counterclaim is a letter dated July 7, 1995 signed by Keith Natoli to Ernest Cimadamore confirming various issues raised at a meeting the prior day, July 6, 1995, at Clintondale Mills. The letter, inter alia, confirmed a credit of Nine Thousand Two Hundred Ninety-Five Dollars ($9,295.00) representing the market difference from the contract price and the purchase price for ten loads of flour from the time period of June 28,1995 to July 17, 1995. The letter further confirmed that Clintondale Mills would hon- or the contract of May 22, 1995 and would cover the difference in the contract price and the replacement purchase price, if necessary. The contract represented a purchase of 131 loads of flour to be delivered at times between August 1, 1995 and June 30, 1996 for a total credit of $134,035.00.

5. On July 18, 1995 debtor filed a Chapter 11 petition.

6. On March 22, 1996, the Chapter 11 case was converted to one under Chapter 7.

7. The May 22, 1995 contract was not assumed by the Debtor and therefore was deemed rejected by the Debtor under the provisions of 11 U.S.C. § 365(g)(1).

Based upon these facts, the Plaintiff seeks turnover of the Fifty-Eight Thousand Three Dollars and Fifty-Seven ($58,003.57) and further argues that pursuant to 11 U.S.C. § 553 the Defendant improved its position as a creditor to the Debtor during the ninety (90) day period prior to the Bankruptcy by exercising its setoff rights.

The Defendant’s response can be summarized as follows. The Defendant properly exercised its rights of setoff during the ninety (90) day period but, nevertheless, did not owe the Plaintiff any debt during that same time. As an alternative argument, the Defendant urges the equitable doctrine of recoupment should disallow the Plaintiffs Complaint against the Defendant. Finally, the Defendant asserts a second setoff as a counterclaim to the Plaintiffs Complaint.

DISCUSSION

The Bankruptcy Code does not contain a recoupment provision. The common law doctrine of recoupment provides an exception to setoff in bankruptcy cases. Recoupment “is setting up of a demand arising from the same transaction as the plaintiffs claim or cause of action, strictly for the purpose of abatement or reduction of such claim.” 4 COLLIER ON BANKRUPTCY § 553.03, at 553-15-17 (emphasis added). This doctrine is justified on the grounds that “where the creditor’s claim against the debtor arises from the same transaction as the debtor’s claim, it is essentially a defense to the debtor’s claim against the creditor rather than a mutual obligation, and application of the limitations on setoff in bankruptcy would be [745]*745inequitable.” Lee [v. Schweiker], 739 F.2d [870] at 875 [(1984)]. Thus, so long as the creditor’s claim arises out of the identical transaction as the debtor’s, that claim may be offset against the debt owed to the debtor, without concern for the limitations put on the doctrine of setoff by Code section 553. [In re] Davidovich, 901 F.2d [1533] at 1537 [(1990)]. In the bankruptcy context, recoupment has often been applied where the relevant claims arise out of a single contract “that provide[s] for advance payments based on estimates of what ultimately would be owed, subject to later correction.” InreB & L Oil Co., 782 F.2d 155, 157 (10th Cir.1986). However, an express contractual right is not necessary to effect a recoupment. See In re Holford, 896 F.2d 176, 178 (5th Cir.1990). Nor does the fact that a contract exists between the debtor and creditor automatically enable the creditor to effect a recoupment. In re University Medical Center, 973 F.2d 1065 (3rd Cir.1992).

Based upon the facts and the above quoted language from the Third Circuit, the Court finds that the equitable doctrine of recoupment does not apply and cannot serve as a defense for the Defendant. This is so, primarily, because the facts present a series of separate contracts for the delivery and purchase of flour rather than a single transaction.

11 U.S.C. § 553 (Setoff) provides in its entirety as follows:

(a) Except as otherwise provided in this section and in sections 362 and 363 of this title, this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case, except to the extent that—
(1) the claim of such creditor against the debtor is disallowed;
(2) such claim was transferred, by an entity other than the debtor, to such creditor—
(A)after the commencement of the case; or
(B)(i) after 90 days before the date of the filing of the petition; and
(ii) while the debtor was insolvent; or

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Cite This Page — Counsel Stack

Bluebook (online)
216 B.R. 742, 1998 Bankr. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-benzel-bretzel-bakery-inc-in-re-clintondale-mills-inc-pamb-1998.