In Re: Interpictures Inc., Debtor. Eliezer Miller v. Generale Bank Nederland, N v. Interpictures Inc., Debtor-Appellee

217 F.3d 74, 44 Collier Bankr. Cas. 2d 400, 2000 U.S. App. LEXIS 14575, 36 Bankr. Ct. Dec. (CRR) 73, 2000 WL 827307
CourtCourt of Appeals for the Second Circuit
DecidedJune 26, 2000
DocketDocket 99-5055
StatusPublished
Cited by18 cases

This text of 217 F.3d 74 (In Re: Interpictures Inc., Debtor. Eliezer Miller v. Generale Bank Nederland, N v. Interpictures Inc., Debtor-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re: Interpictures Inc., Debtor. Eliezer Miller v. Generale Bank Nederland, N v. Interpictures Inc., Debtor-Appellee, 217 F.3d 74, 44 Collier Bankr. Cas. 2d 400, 2000 U.S. App. LEXIS 14575, 36 Bankr. Ct. Dec. (CRR) 73, 2000 WL 827307 (2d Cir. 2000).

Opinion

PER CURIAM:

Eliezer Miller appeals from Judge Kor-man’s affirming of a bankruptcy court order denying appellant’s motion to abandon an asset of the debtor to him pursuant to 11 U.S.C. § 554(b). We hold it was not an abuse of discretion to deny appellant’s motion on the ground that he lacks a posses-sory interest in the asset, a civil claim arising under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, and various common law claims (collectively, “the RICO claim” or just “the claim”). We also affirm the bankruptcy court’s order that the RICO claim not revest in the debtor upon the close of the bankrupt estate.

BACKGROUND

This appeal arises out of nearly fourteen years of bankruptcy proceedings involving appellant and the debtor, Interpictures Inc. See Miller v. Generale Bank Nederland, N.V. (In re Interpictures Inc.), No. 99-5055, 2000 WL 232149, at *1 (2d Cir. Feb.3, 2000) (unpublished table decision) (providing a procedural history). We summarize here only that portion of the procedural history relevant to our disposition.

Appellant is a creditor of Interpictures and also claims to own a majority of its shares. In November 1986, creditors commenced an involuntary Chapter 7 bankruptcy proceeding against Interpictures and its wholly owned subsidiaries, which Interpictures quickly converted into a voluntary bankruptcy under Chapter 11. In September 1987, based on appellant’s allegations of fraud in the conduct of the debtor’s estate, the bankruptcy court appointed an operating trustee. Alleging that the fraud continued even after the trustee’s appointment, appellant filed a lawsuit in December 1987 on behalf of the debtor asserting common law fraud and RICO claims against former principals of the debtor, the former trustee, the predecessor to creditor-appellee Generate Bank, Nederland, N.V. (the “Bank”) and several other creditors, and counsel to the trustee and Bank. Appellant’s action was dismissed on the grounds that: (i) appellant, as an alleged holder of stock in the debtor, lacked standing to bring a derivative lawsuit on the debtor’s behalf; and (ii) the RICO claim had not been abandoned to appellant pursuant to 11 U.S.C. § 554, and, absent abandonment, only the trustee could bring it on the debtor’s behalf.

The instant motion is the most recent in a series of appellant’s unsuccessful attempts to have the RICO claim abandoned to him. The bankruptcy court denied the motion and ordered that the RICO claim not revest in the debtor at the close of the bankrupt estate, and the district court affirmed the bankruptcy court’s order. We remanded the matter to the district court for a more complete statement of its reasons for denying abandonment of the claim to appellant because we were “unable to determine on what ground or grounds the courts below denied [appellant’s] motion.” Miller, 2000 WL 232149, at *1.

On remand, the district court gave alternative reasons for denying abandonment of the RICO claim to appellant: (i) appellant impermissibly sought to have the claim abandoned to him to prosecute in his personal capacity, not to prosecute on behalf of the bankrupt estate; and (ii) appellant lacks a possessory interest in the claim. Appellant thereafter restored jurisdiction in this court pursuant to our remand order and the procedures described in United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994).

DISCUSSION

Section 554(b) of the Bankruptcy Code provides, in pertinent part, as follows:

*76 On request of a party in interest ..., the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.

11 U.S.C. § 554(b). The parties agree that, for purposes of Section 554(b), the RICO claim is “of inconsequential value and benefit to the” debtor, id. See In re Interpictures, Inc., 168 B.R. 526, 536 (Bankr.E.D.N.Y.1994) (finding that RICO claim “has no value”). The predicate facts for abandonment having been established, the issue is whether the district court abused its discretion in denying appellant’s motion to have the claim abandoned to him. See Johnston v. Webster (In re Johnston), 49 F.3d 538, 540 (9th Cir.1995) (“Once a bankruptcy court has determined that the factual predicates for abandonment ... are present, the court’s decision to authorize or deny abandonment is reviewed for abuse of discretion.”).

Section 554(b) gives the district court discretion to order abandonment of a debt- or’s worthless or burdensome property, but does not specify to whom such property may be abandoned. See 11 U.S.C. § 554(b). Several courts, citing the legislative history to Section 554(b), have held that property, should be abandoned only to a holder of a possessory interest in it. See, e.g., In re Pilz Compact Disc, Inc., 229 B.R. 630, 642 (Bankr.E.D.Pa.1999) (“[A]bandonment must be to an entity with a possessory interest in the property.”); In re Popp, 166 B.R. 697, 700 (Bankr.D.Neb.1993) (“Abandonment may be to any party with a possessory interest in the property abandoned.” (quoting S.Rep. No. 95-989, at 92 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5878)); see also 5 Collier on Bankruptcy ¶ 554.02[3], at 554-5 (Lawrence P. King ed., 15th ed. 1999) (“Although section 554 does not specify to whom property is abandoned, property may be abandoned by the trustee to any party with a possessory interest in it.”). The rationale for this rule is that once the debtor’s property is abandoned in bankruptcy, the property should be treated as though no bankruptcy proceedings had occurred and therefore revert to the party that held a pre-petition interest in it. See In re Popp, 166 B.R. at 700; see also Dewsnup v. Timm (In re Dewsnup), 908 F.2d 588, 590 (10th Cir.1990) (“Following abandonment, whoever had the possessory right to the property at the filing of bankruptcy again reacquires that right.” (citation and internal quotation marks omitted)), aff 'd, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992).

We need not, and do not, decide whether property should be abandoned only to a holder of a possessory interest. It is enough to dispose of this appeal that, in our judgment, the district court did not abuse its discretion in relying on this rationale as a ground for denying abandonment of the RICO claim to appellant.

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Bluebook (online)
217 F.3d 74, 44 Collier Bankr. Cas. 2d 400, 2000 U.S. App. LEXIS 14575, 36 Bankr. Ct. Dec. (CRR) 73, 2000 WL 827307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-interpictures-inc-debtor-eliezer-miller-v-generale-bank-ca2-2000.