In re PMC Marketing Corp.

501 B.R. 17, 2013 Bankr. LEXIS 3690, 58 Bankr. Ct. Dec. (CRR) 103, 2013 WL 4735736
CourtUnited States Bankruptcy Court, D. Puerto Rico
DecidedSeptember 4, 2013
DocketNo. 09-02048
StatusPublished
Cited by4 cases

This text of 501 B.R. 17 (In re PMC Marketing Corp.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re PMC Marketing Corp., 501 B.R. 17, 2013 Bankr. LEXIS 3690, 58 Bankr. Ct. Dec. (CRR) 103, 2013 WL 4735736 (prb 2013).

Opinion

OPINION & ORDER

BRIAN K. TESTER, Bankruptcy Judge.

Before this court is Creditor’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) [Dkt. No. 1164]; Trustee’s Opposition to Creditor’s Motion for Prepetition Administrative Expenses [Dkt. No. 1171]; and Creditor’s Reply to Trustee’s Opposition [Dkt. No. 1175]. For the reasons set forth below, Creditor’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9) is DENIED.

[19]*19I. Factual Background

Debtor, PMC Marketing Corporation, filed a voluntary Chapter 11 bankruptcy case on March 18, 2009. Debtor’s Chapter 11 bankruptcy case was converted to Chapter 7 on May 21, 2010. Noreen Wis-covitch Rentas was appointed as the Chapter 7 trustee on the same day. Subsequently, creditor P.R. Electric Power Authority (“PREPA”) filed a Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C. § 503(b)(9).

In the Motion presently before the Court, PREPA argues that it is entitled to prepetition administrative expenses. PREPA points out that during the twenty (20) days before the date of the commencement of Debtor’s bankruptcy case, the period of February 26 to March 17, 2009, Debtor received from PREPA electricity sold by PREPA to Debtor in the ordinary course of Debtor’s business. The services amounted to a total value of $154,023.52 and at least $89,336.42 from the total value remains unpaid by Debtor. PREPA contends that the difference between the two amounts is the result of the application of the payments made by Debtor’s prepetition surety pursuant to the prepetition bond issued by said security to jointly guarantee payment by Debtor of its obligations to PREPA. PREPA further argues that the electricity supplied by PREPA to Debtor is moveable and was identifiable at the time that it passed through Debtor’s meters. PREPA argues that pursuant to 11 U.S.C. § 503(b)(9), “After notice and a hearing, there shall be allowed, administrative expenses ... [for] the value of any goods received by the debtor within 20 days before the date of commencement of a case under this title in which the goods have been sold to the debtor in the ordinary course of such debt- or’s business.” Citing In re Grede Foundries, Inc., 435 B.R. 593, 595 (Bkrtcy.W.D.Wis.2010).

PREPA further points out that when courts are determining if a thing is a “good” for purposes of section 503(b)(9), courts apply the definition of “good” from the Uniform Commercial Code (the “UCC”). Therefore, because the UCC defines “goods” as “all things that are moveable at the time of identification to a contract for sale,” electricity is a “good” under the UCC definition of such term. Further, because electricity is identifiable to the consumer’s contract at the time it is metered at the consumer’s place and is moveable at the time that it is metered and afterwards, a utility that provides electricity to a debtor during the twenty days before the commencement of debtor’s bankruptcy case is entitled to administrative expense priority for the invoiced amount. Summarily, since PREPA supplied electricity to Debtor, in the Debtor’s ordinary course of business, during the twenty (20) day period prior to the commencement of Debtor’s bankruptcy case on March 18, 2009, PREPA is entitled to an administrative expense claim for the value of that electricity that remains unpaid pursuant to 11 U.S.C. § 503(b)(9) in the amount of $89,336.42.

In opposition, Trustee argues that PREPA’s Motion is actually a belated proof of claim in “disguise,” which cannot be filed three years after the deadline set by this Court. Pursuant to Fed.R.Bankr. P., Rule 3003, the Court can set the deadlines to file proof of claims pursuant to § 501 of the Bankruptcy Code. Under the then active Local Rule 3003-1, “Proofs of claim in Chapter 11 cases must be filed: (a) on or before ninety (90) days from the date first set for the § 341 meeting of creditors; and, (b) for governmental units, within one hundred and eighty (180) days after the date of the order for relief, unless [20]*20otherwise ordered by the court.” Trustee further points out that there were three opportunities to file a proof of claim yet PREPA failed to do so. These three instances were:

(1) The first deadline was established by a “Notice of Chapter 11 Bankruptcy Case, Meeting of Creditors, & Deadlines” sent by the Court on March 20, 2009. Pursuant to said Notice, the bar dates were set as July 27, 2009 for regular creditors and September 16, 2009 for governmental units. See Dkt. 8. This Court gave notice of said bar dates to all creditors and parties in this case, including PREPA, on March 22, 2009. See Certificate of Service at Dkt. 9.
(2) The second deadline was established by an Order entered by this Court on February 19, 2010. Dkt. 588/ 663. In such Order, this Court stated that “[t]he cut-off date for administrative claims is 4/20/2010.” See Dkt. 588-p. 3, ¶ 11; Dkt. 663-p. 3, ¶ 11. This Court gave notice of said bar dates to all creditors and parties in this case, including the Movant who was notified through CM/ ECF on February 19, 2010, and March 26, 2010 through its counsel and twice by mail. See Certificate of Service at Dkt. 666.
(3) The third deadline that established the filing of proof of claims was notified when the case was converted to Chapter 7. The new bar dates were set as September 28, 2010 for regular creditors, and November 17, 2010 for governmental units. See Dkt. 866. The Court gave notice of said bar dates to all creditors and parties in this case, including the Movant who was notified through CM/ECF on May 21, 2010 through its counsel and twice by mail. See Certificate of Service at Dkt. 873.

Trustee contends that because PREPA had ample opportunities to file this instant claim, and PREPA on several occasions filed other similar claims, PREPA should be barred from filing this particular claim. Trustee points out several instances to which PREPA had filed such similar claims: (1) PREPA filed a regular proof of claim in this case on July 7, 2009. See Claim 94-1. PREPA later amended its claim on January 20, 2010. See Claim 94-2. (2) PREPA also filed a “Motion for Allowance of Administrative Claim” on March 29, 2010 in response to this Court’s Order of February 19, 2010 [Dkt. No. 668]. The court granted PREPA’s Motion for Allowance of Administrative Claim on April 15, 2010 [Dkt. No. 710], That Motion filed on March 29, 2010 [Dkt. No. 668] makes no mention of this new requested administrative claim. Trustee further points out that although Fed.R.Bankr.P., Rule 3003(c)(3) and § 503(a) provide that the court may extend the time within which proofs of claim or interest may be filed, this extension must be based on “cause shown” such as excusable neglect. Trustee argues that PREPA has failed to show excusable neglect because PREPA received the notice of the filing of the case along with all creditors. Conclusively, the Trustee asks the court to deny PREPA’s Motion for Prepetition Administrative Expenses Pursuant to 11 U.S.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Escalera Resources Co.
563 B.R. 336 (D. Colorado, 2017)
In re NE Opco, Inc.
501 B.R. 233 (D. Delaware, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
501 B.R. 17, 2013 Bankr. LEXIS 3690, 58 Bankr. Ct. Dec. (CRR) 103, 2013 WL 4735736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pmc-marketing-corp-prb-2013.