McGraw v. Betz (In re Bell & Beckwith)

140 B.R. 448, 1992 Bankr. LEXIS 686
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedMarch 23, 1992
DocketBankruptcy No. 85-0024; Related No. 83-0132
StatusPublished
Cited by1 cases

This text of 140 B.R. 448 (McGraw v. Betz (In re Bell & Beckwith)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGraw v. Betz (In re Bell & Beckwith), 140 B.R. 448, 1992 Bankr. LEXIS 686 (Ohio 1992).

Opinion

MEMORANDUM OPINION AND ORDER

RICHARD L. SPEER, Bankruptcy Judge.

This cause comes before the Court upon Plaintiffs Renewed Motion for Summary Judgment against Louis Haubner, Jr. The Defendant has filed a Response to the Trustee’s Renewed Motion, in addition to a Motion for Summary Judgment. The Trustee has filed a Memorandum in opposition to the Defendant’s Motion for Summary Judgment. The Securities Investor Protection Corporation has also filed a Memorandum in Support of the Trustee’s Motion and a Motion for Sanctions against counsel for the Defendant. The Court has reviewed the written arguments of counsel and the relevant case and statutory law, as well as the entire record in this case. Based upon that review, and for the following reasons, the Court finds that the Plaintiff’s Renewed Motion for Summary Judgment Against Louis Haubner, Jr. should be granted. The Court further finds that the Plaintiff’s Motion for Sanctions should be granted.

FACTS

On February 5, 1983, the Securities and Exchange Commission filed a complaint against Bell & Beckwith, the Debtor, with the United States District Court for the Northern District of Ohio, Western Division [hereinafter “District Court”]. On that same date, the District Court issued a temporary restraining order and appointed Joseph D. Shibley as temporary receiver of the now defunct brokerage firm.

[450]*450On February 7, 1983, the Securities Investor Protection Corporation [hereinafter “SIPC”] filed an application for a protective decree pursuant to 15 U.S.C. Section 78eee of the Securities Investor Protection Act [hereinafter “SIPA”]. On February 10, 1983, the District Court entered a protective decree. On February 11, 1983, the District Court certified the matter to the United States Bankruptcy Court for the Northern District of Ohio, Western Division.

Patrick J. McGraw, the Trustee in Bankruptcy [hereinafter “Trustee”], Plaintiff, filed a Complaint against the general partners of Bell & Beckwith to recover the deficiency between the Debtor’s assets and liabilities, as well as preference payments, transfers made to the general partners during insolvency, and certain other debts. One such preference payment the Trustee sought to recover involved Haubner. Haubner, a general partner until May 13, 1979, received a payment of Forty-three Thousand Four Hundred Forty-two Dollars and Ninety-one Cents from his Special Capital Account and Five Thousand Four Hundred Forty-five Dollars and Sixteen Cents from his Drawing Account between November 7, 1982, and February 5, 1983. See, Answer of Haubner (March 5, 1985); and Affidavit of Patrick A. McGraw, Trustee (December 22, 1987).

On January 22, 1990, this Court entered an Order granting Summary Judgment against Louis Haubner, Jr. [hereinafter “Haubner”], Defendant. The Court found that the transfer of Forty-eight Thousand Eight Hundred Eighty-eight Dollars and Seven Cents ($48,888.07) amounted to a voidable preference under Section 547(b) of the Bankruptcy Code. See, Patrick A. McGraw, Trustee v. Roscoe R. Betz, Jr., et al, Case No. 85-0024 (January 22, 1990).

On January 29, 1990, the Defendant informed counsel for the Trustee that he had not been served with any of the documents relating to the Motion for Summary Judgment. The Trustee served the Defendant with those documents and filed a certificate of service with the Court to that effect on February 15, 1990. On February 20, 1990, the Plaintiff renewed its Motion for Summary Judgment against the Defendant. The grounds for the Renewed Motion for Summary Judgment parallel those found in the original Motion for Summary Judgment.

On March 14, 1990, the Defendant filed a Response to the Trustee’s Renewed Motion for Summary Judgment. The Defendant also filed a request for Summary Judgment. The Defendant alleged that the “filing date” for purposes of calculating the Ninety (90) day preference period was February 11, 1983, the date the Bankruptcy petition was filed. Consequently, the Defendant argued that the transfers to the Defendant fell outside of the Ninety (90) day period.

The Trustee filed a Memorandum in Opposition to Haubner’s Request for Summary Judgment. SIPC filed a Memorandum in Support of the Trustee’s Renewed Motion for Summary Judgment and in Opposition to Haubner’s Request for Summary Judgment. Additionally, SIPC filed a Motion for Sanctions against Counsel for Haubner. Both the Trustee and SIPC strenuously argued that the “filing date” was February 5, 1983.

The issue confronting the Court is what is the filing date for a liquidation proceeding instituted under SIPA. For the following reasons, this Court finds that the filing date is when the application for a protective decree is filed unless a proceeding has been commenced under Title 11 or a receiver, trustee, or liquidator has been appointed prior to the application. Specifically, this Court finds that February 5, 1983, is the filing date for this case for the purposes of preference actions.

LAW

This case was removed to the Bankruptcy Court for proper liquidation under SIPA pursuant to Section 78eee(B)(4) of that statute. SIPA is intermingled with references to Title 11 of the United States Code, i.e., the Bankruptcy Code. For example, SIPA Section 78fff-l vests in the trustee “the same rights to avoid preferences, as a trustee in a case under title 11.” [451]*45115 U.S.C. § 78fff-1. Section 547 of the Bankruptcy Code empowers a trustee to avoid certain pre-petition transfers of estate property. Therefore, by the language found in SIPA Section 78fff-1, Section 547 of the Bankruptcy Code applies to this liquidation.

SIPA provides that:

To the extent consistent with the provisions of this chapter, a liquidation proceeding shall be conducted in accordance with, and as though it were being conducted under chapters 1, 3, and 5 and subchapters I and II of chapter 7 of title 11. For the purposes of applying such title in carrying out this section, a reference in such title to the date of the filing of the petition shall be deemed to be a reference to the filing date under this chapter.

15 U.S.C. § 78fff(b). Consequently, when applying the provisions of the Bankruptcy Code in a SIPA liquidation, references to the date of the filing of the bankruptcy petition are deemed to be references to the “filing date” as defined in SIPA.

Section 547 of the Bankruptcy Code does make reference to the date of filing:

Except as provided in subsection (c) of this section, the trustee may avoid any transfer of property of the debtor—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A)on or within 90 days before the filing of the petition;
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(5) that enable such creditor to receive more than such creditor would receive if—

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Cite This Page — Counsel Stack

Bluebook (online)
140 B.R. 448, 1992 Bankr. LEXIS 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgraw-v-betz-in-re-bell-beckwith-ohnb-1992.