In re Frailey

144 B.R. 972, 1992 Bankr. LEXIS 1486, 1992 WL 233512
CourtDistrict Court, W.D. Pennsylvania
DecidedSeptember 22, 1992
DocketBankruptcy No. 92-2835-BM
StatusPublished

This text of 144 B.R. 972 (In re Frailey) is published on Counsel Stack Legal Research, covering District Court, W.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 Frailey, 144 B.R. 972, 1992 Bankr. LEXIS 1486, 1992 WL 233512 (W.D. Pa. 1992).

Opinion

MEMORANDUM OPINION

BERNARD MARKOVITZ, Bankruptcy Judge.

Alleged debtor Leo C. Frailey seeks to have an involuntary chapter 7 petition brought against him dismissed and also seeks to recover costs and attorney’s fees and compensatory and punitive damages from petitioning creditors. Frailey denies that petitioning creditors have standing to bring the petition and asserts that the claim of each petitioning creditor is subject to bona fide dispute.

Petitioning creditors maintain that all requirements for bringing an involuntary petition have been met.

The involuntary petition will be dismissed for reasons set forth below. However, alleged debtor’s request for costs, attorney’s fees, and damages will be denied.

I

FACTS

Alleged debtor is in the business of hauling goods and materials. At one time, he owned twenty-six (26) vehicles and engaged twenty-seven (27) independent contractors who hauled in their own vehicles under a license issued to Frailey Trucking, Inc., a corporation owned by Mr. Frailey.

In March of 1990, alleged debtor financed the purchase of several tractors and trailers through Mid-State Bank. He also obtained a line of credit from Mid-State.

In November of 1991, alleged debtor and Frailey Trucking, Inc. brought suit in state court against Mid-State alleging that Mid-State had misapplied funds from checking accounts they had at the bank by honoring checks issued on those accounts that were obvious forgeries. Damages in excess of $1,000,000.00 are sought. The case has not been resolved or adjudicated.

On January 28, 1992, alleged debtor refinanced his debt with Mid-State and executed a judgment note in its favor in the amount of $693,609.17 plus annual interest of 11.5%. Judgment on the note subsequently was entered in state court in that amount. Alleged debtor thereafter filed a motion on May 7, 1991 to strike or to reopen the judgment and to stay execution. The present status of the motion is not known.

Alleged debtor opened a credit account in 1989 with Martin Oil Company, Inc. for purchasing diesel fuel and other supplies for his vehicles from a truck stop owned by Martin Oil. Only vehicles owned by alleged debtor himself were to be serviced under the account.

[975]*975Martin Oil brought suit in state court against debtor and his former wife in 1991 for the unpaid balance on the account of $59,644.79. Alleged debtor answered the complaint and denied any liability to Martin Oil. He denied that the charges for which Martin Oil seeks to be paid were made by him, by his agents, or by any other party with authority to make such charges to his account. The case has not been resolved or adjudicated.

Alleged debtor also purchased diesel fuel and supplies from L & B Garage, which was owned by the Poormans. On October 31, 1989, alleged debtor and the Poormans executed an article of agreement whereby alleged debtor agreed to purchase L & B Garage from the Poormans. The specifics of the article of agreement are not known. Alleged debtor operated the facility from October of 1989 until May of 1990, when a dispute of unknown origin arose between the Poormans and alleged debtor. A closing on the sale never took place.

Christoff Oil Company, Inc. supplied diesel fuel to L & B Garage from October of 1989 through May of 1990, the period when debtor operated the facility. In 1991, Christoff Oil brought suit in state court against alleged debtor and L & B Garage to recover the unpaid balance of $104,-974.20 for deliveries made during that period. According to Christoff Oil, alleged debtor had ordered the fuel and had agreed to pay for it. Alleged debtor answered the complaint and denied any liability. He denied that he, as opposed to L & B Garage, had ordered fuel from Christoff Oil. The case has not been resolved or adjudicated.

Alleged debtor also opened a credit account with Good Brothers Tire and Service, Inc. in 1989 and began purchasing tires for vehicles he owned. As of March 26, 1991, alleged debtor owed Good Brothers a total of $22,036.00. On April 22, 1991, alleged debtor executed an installment note with Armstrong Consumer Discount in the amount of $22,036.00. The proceeds of the loan were applied towards the debt owed to Good Brothers as of March 26, 1992. Alleged debtor continued thereafter to purchase tires from Good Brothers. Many of the tires thus purchased were recaps.

Good Brothers brought suit against alleged debtor in state court seeking to recover $24,900.98 for tires purchased by alleged debtor for which it had not been paid. Alleged debtor answered the complaint and denied liability. He responded that the tires at issue were defective and claimed that Good Brothers had refused to adjust his account accordingly and had failed to replace them with tires which were merchantable and fit for the purpose for which they had been sold. The case has not been resolved or adjudicated.

On April 20, 1992, alleged debtor executed three (3) deeds conveying various interests in real property held exclusively by him to himself and to his second wife as tenants by the entirety. He also conveyed at that time another parcel of real property owned exclusively by him to himself and to his son. All four (4) conveyances were duly recorded on May 5, 1992.

On June 24, 1992, an involuntary chapter 7 petition was brought by Mid-State Bank, Christoff Oil, Martin Oil, and Good Brothers Tire and Service as petitioning creditors. Mid-State claims that it is owed $713,000.00 for money loaned to alleged debtor. Christoff Oil claims that it is owed $104,974.00 for fuel sold to alleged debtor. Martin Oil claims that it is owed $59,644.00 for fuel sold to alleged debtor. Good Brothers claims that it is owed $24,400.00 for tires sold to alleged debtor.

Alleged debtor answered the involuntary petition on July 2, 1992. He asserts that it should be dismissed because the requirements set forth at 11 U.S.C. § 303 for bringing an involuntary petition have not been met. According to alleged debtor, it should be dismissed because the debts purportedly owed to petitioning creditors are all subject to bona fide disputes. Alleged debtor also has brought a “counterclaim” pursuant to 11 U.S.C. § 303(i) in which he seeks to recover costs and attorney’s fees and compensatory and punitive damages.

A hearing on the matter was held on August 28, 1992, at which time petitioning [976]*976creditors and alleged debtor were permitted to offer evidence.

II

ANALYSIS

The involuntary petition in this instance has been brought pursuant to 11 U.S.C. §§ 303(b)(1) and (h)(1), which provide as follows:

(b) An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title—

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Bluebook (online)
144 B.R. 972, 1992 Bankr. LEXIS 1486, 1992 WL 233512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-frailey-pawd-1992.