In re Williams

191 B.R. 497, 1996 Bankr. LEXIS 90, 28 Bankr. Ct. Dec. (CRR) 616, 1996 WL 44832
CourtUnited States Bankruptcy Court, M.D. Georgia
DecidedJanuary 26, 1996
DocketBankruptcy No. 95-50444
StatusPublished
Cited by1 cases

This text of 191 B.R. 497 (In re Williams) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Williams, 191 B.R. 497, 1996 Bankr. LEXIS 90, 28 Bankr. Ct. Dec. (CRR) 616, 1996 WL 44832 (Ga. 1996).

Opinion

MEMORANDUM OPINION

JAMES D. WALKER, Jr., Bankruptcy Judge.

This matter comes before the Court on motion of Empire Financial Services and Thomas & Howard Company (collectively “Movants”) to hold Murray and Judy Williams (collectively “Debtors”) in contempt for failure to comply with a Cash [499]*499Collateral Order and for violating 11 U.S.C. § 363(c). This is a core matter within the meaning of 28 U.S.C. §§ 157(b)(2)(A) and (M). A hearing was held on notice to all parties on October 24, 1995. After considering the evidence from the hearing, as well as supplemental briefs and memoranda, the Court enters the following findings of fact and conclusions of law. Fed.R.Bankr.P. 7052.

FINDINGS OF FACT

Debtors owned and operated a grocery store partnership known as Little River Red & White located at Riverside Plaza in Baldwin County, Georgia. Debtors purchased their interest in the grocery store from Tom Myers on July 28,1994. The property purchased included real estate and the inventory and equipment located in the grocery store. The real property purchased by Debtors included leased premises containing a pharmacy and beauty salon, from which Debtors derived rental income. The monthly rental income from the pharmacy and beauty salon was $1,500.00 and $350.00, respectively.

As part of the purchase agreement, Debtors assumed the seller’s debt to Empire which holds a security interest in the real estate and the inventory, equipment, rental income and accounts receivable of the grocery store. In 1994, Debtors entered into a security agreement with Thomas & Howard Company (“T & H”), granting T & H a security interest in all inventory, equipment, proceeds and accounts receivable of the grocery store. Debtors contend that Movants do not have properly perfected security interests because the financing statements were not filed in the county where Debtors reside.

The debt to Empire is evidenced by two promissory notes, one in the principal amount of $766,000.00, and the other in the principal amount of $204,000.00. When Debtors assumed the indebtedness, the outstanding balances on the notes were $724,-572.20, and $162,095.20, respectively. While the record does not reveal the basis for the indebtedness to T & H, that evidence is not necessary to the resolution of this motion.

Debtors filed their petition under Chapter 11 of the Bankruptcy Code on February 15, 1995. At the time of the filing, Debtors reported $87,537.45 in inventory on their schedules. Debtors later realized that the scheduled value of the inventory was based on retail value rather than at cost, as stated in the schedules. The actual cost of the inventory at that time was estimated by Debtor to be between $60,000.00 and $65,-000.00. Debtors never notified Movants of this discovery.

Between the date of filing and May 9, 1995, Debtors used the proceeds from the sale of the grocery store inventory and rents from tenants to finance the store’s operation without the permission of the Court or Mov-ants. There was an “understanding” between Movants and Debtors as to how the inventory and cash collateral could be used, although nothing was reduced to writing until May 9,1995.

Debtors testified that they hoped to find a buyer for the grocery store and needed to maintain the appearance that the store was a thriving business. To this end, Debtors used cash collateral and inventory to pay employees as well as various vendors and suppliers. Additionally, Debtors made several cash payments to individuals. In this manner Debtors dispersed Movants’ cash collateral until, on April 25, 1995, the balance in the rental account was $696.05, the operating account contained $3,353.97, and the remaining inventory had a value of $29,984.88.

On May 9, 1995, the Court entered a consent order (“Cash Collateral Order”) regarding Debtors’ use of Movants’ cash collateral consisting of proceeds from the sale of Debtors’ inventory as well as rents collected by Debtors from the pharmacy and beauty salon. Movants’ witnesses testified that the parties’ previous “understanding” was reflected in the Court’s Cash Collateral Order. The order contained the following requirements:

(1) Debtors were to maintain a balance in the grocery store’s operating account and inventory in the amount of $87,537.45, matching the amount of inventory in the store on hand at the time of filing;
[500]*500(2) Debtors were to notify Movants immediately in the event that the balance in the operating account and inventory dropped below $87,537.45;
(3) Debtors were to serve copies of the monthly operating reports on counsel for Movants, including copies of the check register and bank statements for the operating account on or before the 20th of every month;
(4) Debtors were to maintain a separate, segregated deposit account for the rental income received from the pharmacy and beauty salon which could not be used without further order of the Court;
(5) Debtors were to provide Movants with a monthly bank statement for the segregated account on or before the 20th of every month.

Debtors violated all of the above provisions. While Debtors opened a bank account for the purpose of segregating rental income, Debtors failed to make the required deposits and, further, withdrew deposits in order to fund the day to day operation of the grocery store. Debtors failed to obtain the permission of the Court or Movants prior to withdrawing the segregated rental fund deposits. Debtors’ inventory suffered a similar fate. The entry of the Cash Collateral Order did not alter Debtors’ unauthorized use of Mov-ants’ collateral, and Debtors do not dispute that they failed to comply with the requirements of the Cash Collateral Order.

The Court heard further testimony from James Mashburn, an employee of Debtors, that he observed Debtors removing inventory from the store’s premises on the night of June 11, 1995. While the Court accepts that Mr. Mashburn saw Debtors removing items from the store, it was not possible for Mr. Mashburn to conclusively identify the objects removed from the store by Debtors. However, Mr. Mashburn testified that the next working day he could identify missing items as a dozen bags of potatoes, two cases of bananas, a case of New York strip steaks, a ribeye loin and firewood. Debtors admitted to taking steaks, firewood, personal possessions and business records. The Court finds that the value of the misappropriated inventory was $300.

On June 6, 1995, counsel for Debtors sent Movants the first financial reports required by the Cash Collateral Order. Movants requested an inventory, and one was scheduled for June 12, 1995. After Debtors did not appear at the scheduled inventory, Movants filed a motion for relief from the automatic stay. On June 13, 1995, with the consent of Debtors, the Court authorized Movants to take possession of the premises, and the business was closed. Thereafter, Empire took an inventory of all goods, perishable and nonperishable, which reflected $46,305.86 in sellable goods.

Debtors converted the ease to Chapter 7 on September 14, 1995.

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191 B.R. 497, 1996 Bankr. LEXIS 90, 28 Bankr. Ct. Dec. (CRR) 616, 1996 WL 44832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-williams-gamb-1996.