In the Matter of Atlas Supply Corporation, Debtor. Gail Lee Peterson v. Atlas Supply Corporation

857 F.2d 1061, 1988 U.S. App. LEXIS 14315, 18 Bankr. Ct. Dec. (CRR) 769, 1988 WL 102034
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 21, 1988
Docket87-2584
StatusPublished
Cited by74 cases

This text of 857 F.2d 1061 (In the Matter of Atlas Supply Corporation, Debtor. Gail Lee Peterson v. Atlas Supply Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of Atlas Supply Corporation, Debtor. Gail Lee Peterson v. Atlas Supply Corporation, 857 F.2d 1061, 1988 U.S. App. LEXIS 14315, 18 Bankr. Ct. Dec. (CRR) 769, 1988 WL 102034 (5th Cir. 1988).

Opinion

E. GRADY JOLLY, Circuit Judge:

Gail Lee Peterson and Lana McLain, independent administratrices of the estate of their father, Garland C. Moss, moved to dismiss the bankruptcy petition of Atlas Supply Corporation (“Atlas”), of which Moss was a director and fifty-percent shareholder, on the grounds that the petition was not validly authorized by the corporation since Moss was in a coma when it was filed. The bankruptcy judge denied the motion, and the district court dismissed their appeal. We affirm.

I

Atlas is a Texas corporation organized in 1977. Its charter named Garland Moss, Gary Cavasas, and Norman Kent Garrison as its three directors. At subsequent shareholder meetings, Moss and Cavasas, who each owned half of the corporation's stock, elected only themselves as directors and officers of Atlas. A board of directors resolution, however, required the signatures of three corporate officers to authorize the procurement of loans on behalf of the corporation. The signatures of two officers and the board of directors were needed to make deposits or withdrawals of over $2,500 from the corporate bank account.

On October 9, 1982, Moss suffered a stroke and lapsed into a coma. On October 28, Gail Lee Peterson, Moss’s daughter, was appointed Moss’s temporary guardian. On November 4, Cavasas, as the sole remaining active director and officer, appointed Mark Garfield and Carolyn Ann Cavasas as directors of Atlas. The three active directors then adopted a resolution requiring the signatures of only two directors on checks in excess of $2,500, and on loans from the bank to the corporation.

At a special meeting on December 7, 1982, Cavasas told the newly appointed directors that the bank was foreclosing on a loan. Cavasas reported that he had collected sufficient funds to pay off the bank, but that the repayment along with the bankruptcies of three of the corporation’s largest customers had left Atlas insolvent. At Cavasas’s recommendation, the three directors resolved to file a petition in bankruptcy under Chapter 7. Cavasas filed the petition on December 8.

In January 1983, Peterson filed an application in the state court to put the corporation into receivership. Peterson claims that she first learned of the bankruptcy at the state court hearing on her application. Upon learning of the bankruptcy, Peterson negotiated with the trustee to purchase the life insurance policy on her father’s life, which the trustee claims to be an asset of Atlas’s estate. The trustee gave notice to the creditors of the proposed sale of the policy for its cash value, and one creditor, J & J Machine Shops, Inc., objected. Peterson then bought J & J’s claim. On March 18, 1983, Moss died without having regained consciousness. The value of the policy increased to $100,000. As a result, the trustee refused to consummate the sale to Peterson. Peterson, however, still maintains a claim on the policy in the bankruptcy proceeding.

In March 1983 Peterson was appointed by the state court as temporary administra-trix of her father’s estate with limited powers. On March 5, 1984, Peterson filed her first motion to dismiss the bankruptcy peti *1063 tion. On November 27, 1984, Peterson and her sister Lana McLain were named independent administratrices of Moss’s estate.

Peterson’s Motion to Dismiss asserted that the filing of Atlas’s bankruptcy petition was not authorized by the corporation since Moss was comatose and Cavasas had improperly appointed two new directors. In June 1984, the bankruptcy court denied this motion. Peterson filed a second motion in August 1984, and in August 1985, the bankruptcy judge set aside the order denying the first motion and held a hearing on the second motion. This motion, too, was denied.

The bankruptcy judge issued a memorandum opinion with his denial of Peterson’s second motion. In that opinion, the judge cites no less than four separate bases for his denial of the motion to dismiss: (1) Cavasas’s appointment of the two new directors was valid since two vacancies existed, and so the bankruptcy petition was authorized; (2) even if the bankruptcy had not been authorized, under Fifth Circuit precedent the petition should not be dismissed because Peterson waited too long to complain; (3) Peterson was also barred by the doctrine of laches from pursuing her objection to the petition; and (4) even aside from laches, the motion to dismiss should be denied because it would prejudice the creditors.

Peterson and McLain appealed to the district court, which affirmed the bankruptcy judge’s denial of the second motion to dismiss. Peterson and McLain now appeal from the district court’s judgment.

II

Peterson moved to dismiss the bankruptcy petition under section 707(a) of the Bankruptcy Code. Under that section a bankruptcy judge may dismiss cases “only for cause.” 11 U.S.C. § 707(a). Section 707(a) does not, however, provide an exhaustive list of factors to be considered in determining whether good cause exists to dismiss a bankruptcy petition. In re Carroll, 24 B.R. 83 (Bankr.N.D. Ohio 1982). Under past bankruptcy law, whether to grant a motion to dismiss has been guided by equitable principles: “The court must balance the equities and weigh the ‘benefits and prejudices’ of a dismissal.” In re Blue, 4 B.R. 580 (Bankr.D.Md.1980) (citations omitted). Section 707 itself does not preclude the application of equitable principles. In re Blackmon, 3 B.R. 167 (Bankr.S.D. Ohio 1980). Since equitable principles may be applied under the present Bankruptcy Code, the decision whether to grant a motion to dismiss a petition in bankruptcy lies within the discretion of the bankruptcy judge. Cf. In re International Airport Inn Partnership, 517 F.2d 510, 511 (9th Cir.1975) (“the granting of a voluntary motion to dismiss (under the Bankruptcy Act) lies within the sound discretion of the Referee and is reversible only for an abuse of that discretion”).

The bankruptcy judge did not abuse his discretion in denying Peterson’s motion to dismiss. Sufficient considerations were present to support the judge’s decision.

First, neither Atlas nor its creditors stands to benefit by dismissal. Nobody questions the fact that Atlas did not have the ability to pay its creditors. The appellants do not claim that the corporation could have been saved or that they are presently able to pay off the creditors outside a bankruptcy proceeding. Peterson’s only apparent interest is the life insurance policy. She does not assert, however, that her interest in the life insurance policy constitutes grounds for dismissal. In fact, if Peterson does have a legitimate claim on the policy, that claim can be pursued as well in the bankruptcy proceeding as in any other court.

On the other side of the balance is the prejudice to the creditors. If dismissal would prejudice the creditors, then it will ordinarily be denied. Matter of Williams, 15 B.R. 655 (E.D.Mo.1981). Delay in satisfying creditors’ claims can be sufficient to preclude dismissal. Id.

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857 F.2d 1061, 1988 U.S. App. LEXIS 14315, 18 Bankr. Ct. Dec. (CRR) 769, 1988 WL 102034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-atlas-supply-corporation-debtor-gail-lee-peterson-v-ca5-1988.