In re Asset Control Co. of North Carolina

90 B.R. 192, 1988 Bankr. LEXIS 1484, 1988 WL 94538
CourtDistrict Court, E.D. South Carolina
DecidedAugust 10, 1988
DocketBankruptcy No. 88-01287
StatusPublished
Cited by1 cases

This text of 90 B.R. 192 (In re Asset Control Co. of North Carolina) is published on Counsel Stack Legal Research, covering District Court, E.D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Asset Control Co. of North Carolina, 90 B.R. 192, 1988 Bankr. LEXIS 1484, 1988 WL 94538 (southcarolinaed 1988).

Opinion

MEMORANDUM AND ORDER

J. BRATTON DAVIS, Chief Judge.

Before the court are two motions of the Attorney General for the State of North Carolina (the state): one motion is for relief from the automatic stay pursuant to 11 U.S.C. § 362(b)(4)1, or, in the alternative, for relief from the automatic stay under § 362(d); and the other motion is for abandonment pursuant to § 554(b).

[193]*193Asset Control Company of North Carolina (the debtor) and Charles H. Powers, a creditor, filed objections to the state’s motions.

FACTS

1. On January 6, 1987, the state filed in a state court in North Carolina a civil suit against the debtor for violation of the state’s prohibitions against usurious lending and unfair or deceptive commercial practices. Following the entry of a temporary restraining order, a preliminary injunction was entered and remains in force. The state was subsequently allowed to amend its complaint to bring in its Commissioner of Banks as a plaintiff and the debt- or’s officers and directors, including George Edgar Joyner, Jr., and Charles H. Powers, as well as its local managers and affiliated companies, as defendants.

2. In its suit, the state contends that the defendants engaged in a consumer loan business through used car dealerships in Raleigh, Durham, Greensboro and Charlotte, North Carolina whereby they would lend amounts, typically up to $1,000. at a minimum interest rate of 240 percent per annum in violation of N.C.Gen.Stat. § 24-1.1 (which allows a maximum interest rate on loan contracts of 16 percent per annum) and N.C.Gen.Stat. §§ 53-166 and 176. As security for the loan, the defendants would hold the borrower’s motor vehicle title along with a signed but, otherwise, blank power of attorney. In some instances, the defendants would record a lien on the borrower’s title; and upon the borrower’s failure to repay his loan, the defendants would seize his car, sell it, and retain all of the proceeds.

Pursuant to N.C.Gen.Stat. § 53 — 166(d), the state contends that the loan contracts are void ab initio, and that the defendants are not entitled to collect or retain either interest, or principal, or to hold any property as a lien or security therefor.

In its North Carolina civil lawsuit, the state has requested the following relief: an injunction, forfeiture of the loan principal and interest, return of the borrowers’ property, civil penalties and attorney’s fees, as well as the dissolution and liquidation of the debtor to be carried out under state law by a receiver.

3. On March 17, 1988, a default judgment was entered against the debtor for its failure to answer the complaint.

4. The debtor, on April 28, 1988, filed a petition for relief pursuant to chapter 7 of the Bankruptcy Code.

5. George Edgar Joyner, Jr. owns 50 percent of the debtor’s common stock and Charles H. Powers (Powers) owns the remaining 50 percent of the debtor’s common stock; and each has served as the president of the debtor and as a director of the debtor.

6. On the basis of unsecured promissory notes, Powers loaned to the debtor approximately $650,000. which the debtor in turn loaned to consumers. A large portion of the promissory notes have been converted to preferred stock.

7. The only assets which appear on the debtor’s schedule are office equipment and supplies that are valued at $1,000. The debtor’s schedules indicate that the debtor holds a contingent and unliquidated claim in “approximately one thousand pawn contracts rendered void by State of North Carolina”, which claim is valued as “N/A”.

8. The debtor’s schedules list Powers as a secured creditor holding a claim of $87,-000 without describing the security for the debt except for the statement that the debt was incurred pursuant to “promissory notes”. The schedules also list Powers as an unsecured creditor with a claim of $500,-000. on the basis of “promissory notes preferred stock”. Other unsecured debts scheduled by the debtor include a $40,000. default judgment for attorney’s fees incurred in the defense of the state’s suit, and $400,000. which the debtor estimates the state seeks, in its suit, by way of civil penalties and restitution for deceptive trade practices.

9. The City of Raleigh has impounded many of the motor vehicles that were once in the debtor’s possession but were abandoned by the debtor after it was evicted from its place of business.

[194]*19410. In its motion for relief from the automatic stay, the state seeks a declaration, pursuant to § 362(b)(4), that the automatic stay does not apply to the state in the pursuit of its state court action, or, in the alternative, for relief from the stay pursuant to § 362(d), so that, in either event, it can obtain a final judgment in the state court action: (1) declaring the automobile loan contracts void; (2) releasing any property or security interest unlawfully acquired by the debtor as a result of the void contracts; (3) fixing the amount of restitution, civil penalties, and attorney’s fees; and (4) granting injunctive relief. The state, in addition, requests this court to order the trustee to abandon motor vehicle titles, motor vehicles, and other personal property not listed in the petition for relief, in order that they may be returned to their rightful owners.

The state does not request relief from the stay in order to pursue dissolution and liquidation of the debtor pursuant to state law. Nor does the state seek to collect a money judgment.

QUESTIONS

1. Is the state’s civil action against the debtor, pursuant to § 362(b)(4), exempt from the automatic stay afforded by § 362?

2. If the state’s civil action is not exempt, should relief from the stay, pursuant to § 362(d), be granted?

3. Should the court grant the state’s motion to require the trustee to abandon, pursuant to § 554, certain property of the estate and other property, not owned by the debtor but in its possession, which is listed in an exhibit accompanying the motion which was filed on June 10, 1988.

DISCUSSION

I

S 362(b)(4)

Section 362(b)(4) provides that the filing of a petition for relief does not operate as a stay “of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power.”

The articulated purpose of Congress in adopting § 362(b)(4) is:

Paragraph (4) [of Section 362(b) ] excepts commencement or continuation of actions and proceedings by governmental units to enforce police or regulatory powers. Thus, where a government unit is suing a debtor to prevent or stop violation of fraud, environmental protection, consumer protection, safety or similar police or regulatory laws, or attempting to fix damages for violation of such law, the action or proceeding is not stayed under the automatic stay.
Paragraph (5) makes clear that the exception extends to permit an injunction and enforcement of an injunction, and to permit the entry of a money judgment, but does not extend to permit enforcement of a money judgment.

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Bluebook (online)
90 B.R. 192, 1988 Bankr. LEXIS 1484, 1988 WL 94538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-asset-control-co-of-north-carolina-southcarolinaed-1988.