In re Wayne Bailey, Inc.

598 B.R. 389
Procedural entryThis page is a short order in In re Wayne Bailey, Inc.. Read the opinion of the Court — 592 B.R. 79
United States Bankruptcy Court, E.D. North Carolina·Decided February 14, 2019·No. CASE NO. 18-00284-5-SWH·Published

Opinion

Stephani W. Humrickhouse, United States Bankruptcy Judge

The matter before the court is the debtor's Objection to PACA Claim No. 79 filed *391by Southern Roots Farming Company, LLC on June 6, 2018, Dkt. 379 (the "Debtor's Objection"), Castellini Company, LLC's and SP Funding, LLC's Omnibus Objections to Asserted PACA Claims filed on June 4, 2018, Dkt. 360 ("SPF Objection"), the Objection to PACA Claim [Southern Roots Farming Company, LLC] filed by CFG Financial Services, LLC ("CFG") on May 15, 2018, Dkt. 314 ("CFG Objection") and Supplement to Objection of CFG Financial Services, LLC in Objection to PACA Claim No. 79 filed by Southern Roots Farming Company, LLC filed on October 23, 2018, Dkt. 685 ("CFG Supplemental Objection"). A response to the Objection was filed by Southern Roots Farming Company, LLC ("Southern Roots") on June 14, 2018, Dkt. 401 (the "Response"). Bench briefs were supplied to the court by CFG and Southern Roots on October 24, 2018. Hearings were held in Raleigh, North Carolina on October 25, 2018 and on November 5, 2018, after which the court took the matter under advisement. After a review of the case record and consideration of the parties' arguments, the Objection will be allowed.

BACKGROUND

Wayne Bailey, Inc. (the "debtor") filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code on January 21, 2018 (the "Petition Date"). The court issued a Notice of Chapter 11 Bankruptcy Case on the Petition Date, Dkt. 2, which established a deadline of May 29, 2018 for the filing of claims by non-governmental creditors in this case (the "Claims Bar Deadline").

The debtor is a sweet potato grower, packer, and shipper based in Chadbourn, North Carolina. As part of its business operation, the debtor regularly purchases sweet potatoes from local growers, packs the purchased potatoes, and sells and ships them to wholesale and retail vendors. Many of the growers who sell potatoes to the debtor are licensed produce sellers pursuant to the Perishable Agricultural Commodities Act ("PACA"), which governs the sale of produce in the United States and is codified at 7 U.S.C. §§ 499a - 499t. Under PACA, upon the sale of produce, a statutory trust is imposed upon the purchased "perishable agricultural commodities" and all receivables and proceeds thereof. As a result, the debtor contends that many of the sellers in this case may hold claims subject to PACA's statutory trust provisions, such that a separate PACA-specific claims process was necessary.

A. Procedural History

Based on the large number of anticipated PACA claims in the case, the court entered a consent order on March 5, 2018, Dkt. 139 (the "Consent Order"), which required any unpaid produce "seller or supplier of the debtor alleging rights under [PACA]" to file a proof of claim using a specific form on or before April 16, 2018 (the "PACA Claim Deadline"). Southern Roots timely filed its PACA proof of claim on April 13, 2018 in the amount of $ 1,870,411.09 for sweet potatoes grown during the 2017 growing season. Southern Roots filed an Amended PACA Proof of Claim No. 79-2, on July 17, 2018 in the amount of $ 1,882,944.67. The original proof of claim and the amended proof of claim differ only by the inclusion of an interest component. Objections to Southern Roots' PACA proof of claim were filed by both the debtor and CFG.

ISSUES AND PARTIES' POSITIONS

In its Amended PACA Claim, filed on July 17, 2018 (Claim No. 79-2), Southern Roots asserts a claim in the amount of $ 1,882,944.67 and contends that this full *392amount is entitled to statutory trust protection pursuant to PACA. The debtor's objection asserts that: 1) Southern Roots "was not the grower of, and had no actual ownership interest in, the 2017 sweet potato crop reflected in the invoices attached to the PACA Proof of Claim and therefore, "Southern Roots is therefore not eligible for PACA trust benefits;" 2) that the Grower Agreements entered into between the debtor and Southern Roots created payment terms in excess of those prescribed by PACA; and 3) the payment terms contained in the Grower Agreements conflicted with the payment terms contained in the invoices. The CFG objection asserts that: 1) since Southern Roots "was not a supplier, seller or agent who transferred ownership, possession or control of the sweet potatoes identified in the invoices issued by Southern Roots, [Southern Roots] is not entitled to assert the benefits of a PACA trust," and 2) the PACA waiver executed by George Wooten is binding upon Southern Roots and waives the PACA claim in its entirety, or alternatively, to the extent of George Wooten's 50% ownership interest in Southern Roots. The SPF Objection asserts that the Southern Roots PACA Claim was waived by George Wooten. In the CFG Supplemental Objection filed after the hearing held on October 25, 2018, CFG asserted an additional argument that incorporated the position of the debtor taken in its objection by contending that the payment terms between the parties exceeded those allowed under PACA statutes and regulations.1

In response, Southern Roots maintains that 1) it is the proper holder of the PACA claim because it "transferred ownership, possession or control of the potatoes," 2) the waiver executed by George Wooten does not waive Southern Roots' PACA rights, and 3) the payment terms between the parties do not exceed those allowed under PACA statutes and regulations.

For purposes of its ruling, the court will assume, but not decide, that Southern Roots is the proper party to assert the PACA claim and that the waiver is unenforceable as against Southern Roots. The court's ruling, therefore, will only be based upon its analysis of the payment terms between the parties and their effect on PACA eligibility.

DISCUSSION

A. PACA, Generally

PACA, enacted by Congress in 1930, exists "to encourage fair trading practices in the marketing of perishable commodities by suppressing unfair and fraudulent business practices in marketing of fresh and frozen fruits and vegetables ... and providing for collecting damages from any buyer or seller who fails to live up to his contractual obligations." H.R. Rep. No. 543, 98th Cong., 2d Sess. 3 (1984). To this end, the statute creates, "immediately upon a delivery [of produce], a nonsegregated 'floating' trust in favor of sellers on the perishable commodities sold and the products and proceeds derived from the commodities." Reaves Brokerage Co., Inc. v. Sunbelt Fruit & Vegetable Co. , 336 F.3d 410, 413 (5th Cir. 2003). PACA requires a "produce dealer [to hold] produce-related assets as a fiduciary in statutory trust until full payment is made to the seller."

*393Bowlin & Son, Inc. v. San Joaquin Food Serv. (In re San Joaquin Food Serv.) ,

In re Wayne Bailey, Inc., 598 B.R. 389 (N.C. 2019).

598 B.R. 389 (In re Wayne Bailey, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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