Miller v. Jannetta (In re Irwin)

509 B.R. 808, 2014 WL 1456270, 2014 Bankr. LEXIS 1630, 59 Bankr. Ct. Dec. (CRR) 123
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedApril 15, 2014
DocketBankruptcy No. 10-14407 ELF; Adversary No. 12-0383 ELF
StatusPublished
Cited by7 cases

This text of 509 B.R. 808 (Miller v. Jannetta (In re Irwin)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Jannetta (In re Irwin), 509 B.R. 808, 2014 WL 1456270, 2014 Bankr. LEXIS 1630, 59 Bankr. Ct. Dec. (CRR) 123 (Pa. 2014).

Opinion

OPINION

ERIC L. FRANK, Chief Judge.

I. INTRODUCTION

In this adversary proceeding, the liquidating agent appointed pursuant to debt- or’s confirmed chapter 11 plan seeks to recover monies that the debtor advanced to the defendant roughly twenty (20) years before the commencement of this bankruptcy case. As one might expect, the central issue in the litigation is the applicability of the affirmative defense of the statute of limitations.

As explained more fully below, I conclude that the statute of limitations bars the liquidating agent’s recovery. Accordingly, judgment will be entered in favor of the defendant and against the liquidating agent.

II. PROCEDURAL HISTORY

Debtor John N. Irwin (“the Debtor”) filed a voluntary chapter 11 case on May 27, 2010. (Bky No. 10-14407, Doc. # 1). This court confirmed the Debtor’s Second Amended Chapter 11 Plan of Reorganization (“the Plan”) (id., Doc. # 282) on January 12, 2012. (id., Doc. #296). The Plan provides for the liquidation of all of the Debtor’s non-exempt assets and the appointment of a liquidating agent. (Plan ¶¶ 1.8, 7.1(a)). The liquidating agent is authorized to sell all of the Debtor’s nonexempt assets and pursue all avoidance and other causes of action. (Plan ¶ 7.1(a), (b)). Pursuant to the Plan, George L. Miller (“Miller”) was appointed as the liquidating agent of the Debtor’s estate.

Miller filed an adversary complaint against Defendant Anthony Jannet-ta (“Jannetta”) on May 11, 2012 and an amended complaint (“the Amended Complaint”) on July 16, 2012.1 In the Amend[813]*813ed Complaint, Miller alleged that, prior to the commencement of the bankruptcy case, the Debtor advanced Jannetta $130,000.00 and that Jannetta was obliged to return the money pursuant to 11 U.S.C. §§ 542(a), 542(b) and the doctrine of unjust enrichment. Jannetta filed an Answer to the Amended Complaint (“the Answer”) on November 16, 2012, denying the allegations in the Amended Complaint and asserting several affirmative defenses.2

At trial, which was held and concluded on October 7, 2013, Jannetta was granted leave to amend his Answer to permit him to raise the statute of limitations as an affirmative defense. After the conclusion of the trial, the parties filed post-trial briefs, the last of which was filed on December 16, 2013. (See Doc. #’s 51, 53).

III. FINDINGS OF FACT

The Debtor and Jannetta became acquainted when Jannetta leased office space from the Debtor in 1985. (N.T. 17-18). In the ensuing years, the Debtor and Jan-netta were involved in several mutual business investments. (Id. 18-19). Jannetta primarily laid the groundwork for the investment opportunities and raised capital. (Id. 18-19, 81-82). The Debtor performed the accounting work for the start-up and operation of the businesses. (Id. 19). In several instances, Jannetta received equity in exchange for finding investors. (Id. 94-95). Jannetta would contribute part of his interest in the company to the Debtor for the accounting and financial work provided by the Debtor. (Id. 83, 95).

The Advances

Prior to the petition date, the Debtor advanced $126,925.00, $32,095.00 and $3,612.00 to or on behalf of Jannetta (collectively, “the Advances”). (N.T. 39). The total amount of prepetition advances to Jannetta, including “the Companies Loan” (described just below), was approximately $162,632.00. (Id. 39). On Schedule B, the Debtor listed $130,000.00 as the amount of an account receivable due from Jannetta.3 (Ex. P-1).

The more sizable advance, the $126,925.00, was derived from investments in two (2) companies based in New Jersey — Advacote and Diversified Products (“DPI”) (collectively, “the Companies”). (N.T. 21-22). The Debtor and Jannetta were among several other shareholders in the Companies. (Id. 22-23).

From approximately 1989 to 1993, the Debtor advanced money to the Companies on Jannetta’s behalf as capital contributions (“the Companies Loan”). (Id. 20, 22). The Debtor kept a ledger (“the Ledger”) detailing the money that he advanced to or for Jannetta on the Companies Loan.4 According to the Debtor’s records, [814]*814he advanced $126,925.00, either to the Companies directly, or to Jannetta, who then forwarded the funds to the Companies. (Ex. P-2; N.T. 26-27).

The Companies Loan was an oral agreement between the Debtor and Jannetta, the terms of which were never reduced to a written contract. (N.T. 20-21). According to the parties, the Companies Loan did not have a specific due date. However, the Debtor and Jannetta agreed that Jan-netta would satisfy the obligation when the Companies became profitable. (N.T. 31).

In 1994, after the Companies’ operations were abandoned and the Debtor took a loss on the investment for tax purposes, the parties agreed that the Companies Loan would be repaid when Jannetta’s “ship comes in.” (Id. 31-32). The Debtor understood that to mean that Jannetta would repay the Companies Loan when he made a profit from other investments. (Id. 32).

The smaller two (2) advances of $32,095.00 and $3,612.00 were not related to the Companies. (Id. 56). The Debtor identified the $32,095.00 advance as “other amounts that were advanced over the years” to Jannetta.5 (Id. 39). The $3,612.00 advance was for “individual items” that the Debtor on Jannetta’s behalf. (Id. 56).

The October 20, 2010 E-Mail

The Debtor did not demand payment from Jannetta on the Companies Loan pri- or to 2010. (Id. 32, 60). In late 2010 (after filing this bankruptcy case), the Debtor told Jannetta in person that Jan-netta owed him $130,000.00 on account of the Advances. Jannetta disputed that he was liable for the Advances, but believed that he could negotiate some resolution of the dispute with the Debtor. (Id. 85).

Shortly after their conversation, on October 20, 2010, Jannetta sent the Debtor an electronic communication, inquiring about the amount of the Advances. (Ex. P-3). The subject of the e-mail was “Money owed — Jannetta.” (Id.). Jannetta wrote: [815]*815{Id,.)7

[814]*814Talked to the receiver’s lawyer this morning.6 They want to talk to me about the money I owe you when I am deposed. I will be seeing him sometime by year end and go thru [sic] the deposition drill.
Because of that, I need to know my obligation. You had told me a short time ago, when we spoke about my leaving the office, that it was (I think) somewhere around 70K. As you know, I hope to pay you when Yaupon gets sold.
Please get back to me and let me know the amount.

[815]*815IV. LEGAL STANDARDS

A. Turnover pursuant to 11 U.S.C. § 542

Generally speaking, turnover actions, pursuant to 11 U.S.C.

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

Related

Isaacson v. Ivchenko
D. New Jersey, 2019
In re: Ann Miller v.
Third Circuit, 2018
Pettie v. Ringo (In re White)
555 B.R. 883 (N.D. Georgia, 2016)
In re Freeman
540 B.R. 129 (E.D. Pennsylvania, 2015)
In re Hart
530 B.R. 293 (E.D. Pennsylvania, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
509 B.R. 808, 2014 WL 1456270, 2014 Bankr. LEXIS 1630, 59 Bankr. Ct. Dec. (CRR) 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-jannetta-in-re-irwin-paeb-2014.