In re Andy Frain Services, Inc.

798 F.2d 1113, 1986 U.S. App. LEXIS 28852
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 21, 1986
DocketNo. 85-1610
StatusPublished
Cited by9 cases

This text of 798 F.2d 1113 (In re Andy Frain Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Andy Frain Services, Inc., 798 F.2d 1113, 1986 U.S. App. LEXIS 28852 (7th Cir. 1986).

Opinion

HARLINGTON WOOD, Jr., Circuit Judge.

Thomas G. Wilson, a shareholder of International Total Services (“ITS”), appeals numerous orders entered by the district court and bankruptcy court in the bankruptcy proceedings of Andy Frain Services, Inc. (“AFS”), ITS,. S.A.W. Services, Inc. (“SAW”), and Andy Frain Florida, Inc. (“AFF”) (collectively, the “debtors”). Following numerous hearings before both the district court and the bankruptcy court, the challenged orders culminated in a sale of the assets of AFS, a subsidiary of ITS, to Blair Communications Corporation (“Blair”) for $4.3 million. Wilson now argues that (1) the. district court erred by refusing to dismiss the chapter 11 bankruptcy proceedings; (2) the representation [1114]*1114of multiple parties by one law firm constituted a conflict of interest; (3) the district court erred by appointing Francis D. Frain, a major secured creditor of AFS, a designated agent for AFS; and (4) the district court erred in approving the sale of the assets of AFS to Blair. We affirm the orders of the district court in all respects.1

I.

We summarize only the facts necessary to consider the issues raised on this appeal.2 Wilson, Robert Weitzel, and Richard Starke are the founders and principal shareholders of ITS. ITS is an affiliate of SAW, and the parent company of AFS and AFF. ITS, AFS, and AFF are principally in the business of providing low technology services through thousands of employees. The companies have few tangible assets. The primary assets of the companies are the accounts receivable generated from personal service contracts. The operations of the companies are labor-intensive and the companies borrow essentially all their working capital.

Citicorp Industrial Credit, Inc. (“CIC”), has provided financing for ITS on a revolving credit basis since March 1980, and for AFS since 1982, until AFS’s assets were sold. The debtors gave CIC senior liens on substantially all the assets of ITS and AFS, and a second lien on the assets of AFF, to secure the loans. The terms of the various loan agreements and related documents provided that, among other things, (1) CIC would advance funds against a percentage (determined by CIC) of eligible accounts receivable, (2) all accounts receivable would be paid directly to CIC to reduce the indebtedness, (3) ITS and AFS would borrow all of their operating cash under the agreements, (4) the loans would be payable on demand, and (5) CIC would have no obligation to make further loans and could terminate funding at any time.

The problems in this case began in 1982, when Starke, Weitzel, and Wilson charged each other with misappropriation of corporate assets and other misconduct involving ITS. They ended up suing each other, with Starke and Weitzel on one side and Wilson on the other.3 The three ITS shareholders, in a suit before Judge Parsons, agreed to settle all the litigation by allocating among themselves the assets and liabilities of ITS and its subsidiaries. On November 2,1983, Judge Parsons entered an agreed judgment order providing in broad terms for a division of the assets and liabilities of the various companies, which was supplemented by several subsequent orders refining the shareholders’ agreements (we will refer to the orders collectively as the “Wilson Case Orders”).

Neither the subsidiaries of ITS nor its creditors were parties to the case before [1115]*1115Judge Parsons. Nevertheless, the Wilson Case Orders envisioned the transfer to Wilson of substantially all of the assets, but only some of the liabilities, of AFS and AFF. In order to protect the secured creditors,4 the orders provided that no transfer of assets to Wilson could occur without the secured creditors’ express consent, i.e., the consent of CIC and the Andy Frain Dissolution Trust (“AFDT”).5

While the shareholders quarrelled among themselves, their attention was diverted from the proper management of the companies, which compounded the financial problems the companies were suffering. As early as February 1984, CIC notified ITS and AFS in writing that defaults existed under their loan agreements 6 and CIC demanded full payments. CIC had provided substantial overadvances7 to both companies to cover payroll and other operating expenses, further reflecting the companies’ problems with deteriorating cash flow.

In May 1984, the Internal Revenue Service (“IRS”) threatened to file tax liens against the companies. CIC informed AFS and ITS it would not continue to lend funds to the companies if tax liens were filed because any liens securing the loans would be inferior in priority to the IRS tax liens. Meanwhile, AFDT announced that it would, as a result of defaults by AFS upon the obligations owed to AFDT, foreclose upon its collateral by conducting a public sale of the Andy Frain headquarters and the Andy Frain stock on June 28, 1984. With these and other economic problems confronting them, the companies filed voluntary bankruptcy petitions with the bankruptcy court on June 11, 1984. ITS requested, and received, from CIC advanced funds pursuant to the loan agreement in order to pay the retainer for its lawyers, the firm of Nachman, Munitz & Sweig (“NM & S”).

The companies immediately moved in the bankruptcy court for approval of NM & S as counsel for all four debtors, in part so that AFS and ITS could obtain post-petition financing to continue operations as debtors-in-possession. Bankruptcy Judge Hertz recognized that the companies would have to cease operations absent the entry of [1116]*1116financing orders and approved the retention of NM & S, over Wilson’s objection that it was a conflict of interest for one lawyer to represent both ITS and AFS.

On June 15, 1984, ITS and AFS came before Judge Hertz and presented applications to borrow money from CIC and grant CIC a security interest. Judge Hertz observed that there was no dispute that AFS and ITS required financing to continue in business and no party except CIC was willing to lend funds to AFS or ITS under the terms proposed in the applications. The respective financing orders, entered by Judge Hertz on June 15, 1984, provided, among other things, for CIC to continue to lend funds to the companies on a secured, discretionary basis and to maintain a first lien and security interest on substantially all the assets belonging to AFS and ITS. Under the orders, CIC could cease lending funds to AFS or ITS at any time upon five days’ notice to the respective borrowers and the Official Unsecured Creditors’ Committee (“Committee”).8

Following the entry of the financing orders,9 Wilson notified CIC on June 18,1984, that he would no longer accept management responsibility for AFS and AFF without approval by Judge Parsons, claiming that the bankruptcy proceedings violated the Wilson Case Orders.10 Wilson’s agents also resigned. Because Wilson refused to request funding from CIC for the benefit of AFS, the AFS payroll checks issued to employees on June 15, 1984, appeared destined to bounce. ITS intervened at the last minute and its emergency authorization permitted CIC to advance funds to cover the AFS payroll. Otherwise AFS would have been out of business.

Following Wilson’s resignation,11 Judge Parsons suggested that Francis Frain be appointed designated agent to operate AFS.

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Bluebook (online)
798 F.2d 1113, 1986 U.S. App. LEXIS 28852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-andy-frain-services-inc-ca7-1986.