In re Crown Oil & Wax Co.

8 B.R. 964, 1981 Bankr. LEXIS 4912
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedFebruary 12, 1981
DocketBankruptcy No. 74-1099 (Reopened)
StatusPublished

This text of 8 B.R. 964 (In re Crown Oil & Wax Co.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Crown Oil & Wax Co., 8 B.R. 964, 1981 Bankr. LEXIS 4912 (Pa. 1981).

Opinion

OPINION

THOMAS M. TWARDOWSKI, Bankruptcy Judge.

This Court, on its own motion, and pursuant to findings of fact and conclusions of law rendered from the Bench, after hearing on November 28, 1979, and formally adopted by this Court on December 11, 1979, reopened the bankruptcy estate of Crown Oil & Wax Company of Delaware [hereinafter referred to as Crown], Matters considered on reopening were: (1) the validity of the mortgages held by one of the creditors, Farmers and Mechanics National Bank, [hereinafter referred to as F & M], on real estate owned by the debtor, and (2) what adverse effect, if any, the alleged invalidity of those mortgages may have had on (a) the rights, inter se, of Crown and F & M and (b) the rights of general unsecured creditors of this estate.1 For reasons hereinafter given, we conclude that this estate should be closed without further judicial action.2

On November 15,1980, John J. Gilece, Jr., then purporting to act on behalf of Crown, filed an application to reopen the Crown estate, as well as objections to the claim of F & M.3 The estate was reopened pursuant to Rules 515 and 11-60 of the Rules of Bankruptcy Procedure.4 Rule 515 “authorizes reopening of closed bankruptcy cases in a purposely broadened conferral of jurisdiction .... ” 12 Collier on Bankruptcy, Chapter 515 at 5-113 (14th ed. 1978).

Although there was discussion and argument about whether Bankruptcy Rule 11-41 could be applied under these circumstances, no participant in these proceedings requested relief thereunder.5 See Notes of Testimony at 161-164 [hereinafter cited as N.T.]; Memorandum of Wexler, Weisman, [966]*966Maurer & Forman, P.C. in Support of Court’s Jurisdiction to Reopen Estate and Grant Relief to Debtor at 2-5. We conclude that the passage of time since confirmation (i. e., almost four years), combined with the absence of any circumstances constituting fraud, precludes this Court from granting any relief pursuant to Bankruptcy Rule 11-41.

After formally reopening this estate, further hearings were held on February 13 and March 3, 1980, the focus of which was to determine whether F & M, at the time of the confirmation of Crown’s plan, was in fact a secured creditor of Crown, as it purported to be and as evidenced by the filing of its proof of claim as a secured creditor in the amount of $995,807.74.

F & M claims that the debt owed to it by Crown, founded on a series of notes executed in F & M’s favor, is secured by two indemnifying mortgages covering certain Crown real estate.6 Certain “parties in interest” have come forward and assert that those mortgages held by F & M were and are invalid under applicable (Maryland) state law, thereby causing F & M’s claim, then and now, to be unsecured.7

On December 10, 1980, pursuant to written opinion, this Court, in a separate but related proceeding, granted F & M relief from the stay imposed by 11 U.S.C. § 362 (1979), to permit F & M to “pursue its remedies under state law with respect to [John J. Gilece, Jr.’s] interest in [all outstanding and issued shares of Crown stock] ...,” in which F & M, we concluded, held a valid perfected security interest.8 The notes secured by the Crown stock were also secured (purportedly) by the so-called “indemnifying mortgages” given to F & M by Crown. The nature of the asserted defect is that the documents fail to contain, on their face, the stated principal amount, repayment of which they secured.9

[967]*967I

This Court’s primary concern and focus is as stated in the Bench Order reopening this estate and setting a hearing:

That hearing will enable all creditors and parties in interest, including the parties and counsel present today, to participate in a full and open hearing of the mortgage validity question and how, if at all, creditors may have been adversely affected thereby. In this matter, all interests will have been fully noticed, fully heard and fully protected including the interest of this Court in upholding the integrity of the Court’s own proceedings and orders.

Partial Transcript at 10 (November 28, 1979).

The impetus for the Court’s reopening this estate on its own motion was the concern, not only that F & M’s “security” may be invalid under state law, but the allegations “(a) that Farmers & Mechanics National Bank knew, prior to November 30, 1976, when applicant’s arrangement was confirmed, that its mortgage was fatally defective, and (b) that it concealed that fact from applicant, from other creditors, and from the Court” [emphasis added].10 We conclude, based on the entire (and voluminous) record before this Court, that there has been no showing by any participant(s) in these reopening proceedings that F & M or its officers either knew or concealed the “fact” that the mortgages on which its secured claim rested were defective under state law. Therefore, we do not reach the issue of whether the mortgages involved are, in fact, fatally defective under state law.

All of the participants, including the proponents of the reopening, had available to them at the time of the original Chapter XI proceeding, the documents now under scrutiny. All had equal opportunity, indeed, the obligation, to call to this Court’s attention such alleged defects in the mortgage prior to confirmation of the plan, a plan which has now been consummated. The parties involved proceeded on the assumption that F & M’s security was valid and the plan was confirmed and performance by the debtor concluded on that basis. We find nothing in the record before us which suggests 1) knowledge by any person(s) of the alleged defects (until 1979); 2) concealment of any such knowledge; or 3) any affront to the integrity of this Court or to the judicial process. In view of this, we decline to disturb this fait accompli.

II

Alternatively, we will discuss the other purpose for the reopening: to determine who, if anyone, would have been injured, if in fact F & M’s claim were unsecured by virtue of the alleged defects in the mortgages. Assuming, but not deciding, that F & M’s security was defective, we conclude that no creditor would have been adversely affected at confirmation or is now adversely affected by virtue of our determination to permit to stand the status quo.11

In determining whether any injury would have been visited upon the general creditors had the mortgages been fatally defective, we look first to the remedies suggested by “the moving parties,” as set forth in footnote 7, supra.12 Essentially, the Court is being asked to declare invalid the mortgages held by F & M, reclassify F & M’s claim [968]*968as an allowed unsecured claim, and direct the debtor to pay and F & M to accept in full satisfaction of the F&M debt, 13Vk% of its claim, the same percentage payment made to all unsecured creditors under the previously confirmed Plan. Wexler Supplemental Memorandum at 21.

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8 B.R. 964, 1981 Bankr. LEXIS 4912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-crown-oil-wax-co-paeb-1981.