Paul Harris Stores, Inc. v. Expeditors International of Washington, Inc. (In re Paul Harris Stores, Inc.)

342 B.R. 290, 2006 Bankr. LEXIS 805
Procedural entryThis page is a short order in Paul Harris Stores, Inc. v. Expeditors International of Washington, Inc. (In re Paul Harris Stores, Inc.). Read the opinion of the Court — 342 B.R. 285
United States Bankruptcy Court, S.D. Indiana·Decided May 9, 2006·No. Bankruptcy No. 00-12467-BHL-II; Adversary No. 02-0479·Published

Opinion

ORDER

BASIL H. LORCH III, Bankruptcy Judge.

This matter comes before the Court on Expeditors International of Washington, Inc.’s [“Expeditors”] Motion for Partial Summary Judgment on Plaintiffs Complaint filed on August 29, 2005. The matter was fully briefed on November 11, 2005. Based upon the pleadings and evidence presented, the Court makes the following Findings of Fact:

1. On October 16, 2000 [the “Petition Date”], the Debtors filed voluntary Chapter 11 petitions for relief with this Court [291]*291under Title 11 of the United States Code. [Complaint, ¶ 2.]

2. Prior to the Petition Date, Paul Harris Stores, Inc. [“Paul Harris”] operated a number of retail stores, selling women’s clothing. [Deposition of Ronald W. Martin, p. 42.] A portion of its inventory was purchased from manufacturers based in Asia. [Martin Deposition, p. 50.]

3. Expeditors is a non-vessel operating common carrier, customs broker, freight forwarder and freight consolidator. [Affidavit of A.J. Tangeman, ¶ 2.]

4. Before the Petition Date, Paul Harris contracted with Expeditors to transport merchandise [collectively, the “Goods”] from manufacturers overseas to the United States and to clear the Goods through U.S. Customs. [Martin Deposition, pp. 54-57.]

5. As used herein, the term “Goods” means merchandise which Expeditors transported to the United States by sea and which Paul Harris purchased on “T/T” (telegraphic transfer) terms and open account credit terms. As a result, Paul Harris paid for the Goods from its own funds and not with borrowed money. [Martin Deposition, pp. 41-42, 54.]

6. In addition to said credit terms, the terms of sale for the Goods provided that all Goods were sold FOB point of origin. [Tangeman Affidavit, ¶ 4.]

7. For accounting purposes, Paul Harris calculated its cost in merchandise (including the Goods) as purchase price, plus transportation costs and Customs duties. [Martin Deposition, pp. 35-36.]

8. To evidence Expeditors’ receipt of the Goods for shipment, with respect to all Goods Expeditors issued bills of lading and/or cargo receipts, naming Paul Harris as consignee. [Tangeman Affidavit, ¶ 10.]

9. Expeditors obtained possession, custody and control of the Goods at their points of origin outside the United States, then Expeditors transported the Goods to Indianapolis, Indiana. [Martin Deposition, pp. 30, 75; Tangeman Affidavit, ¶¶ 3, 7 and 8.]

10. The Goods first arrived in the United States in California or Washington State. [Tangeman Affidavit, ¶ 8.]

11. Subsequently, Expeditors cleared the Goods through United States Customs, and delivered the Goods to Paul Harris’s warehouse in Indianapolis. [Tangeman Affidavit, ¶¶ 3, 7 and 8; Martin Deposition, pp. 56-57.]

12. At all times while the Goods were en route from point of origin overseas to the Paul Harris warehouse in Indianapolis, Expeditors maintained possession, custody and control of the Goods. [Tangeman Affidavit, ¶¶ 3, 7 and 8; Martin Deposition, pp. 30-32, 75.]

13. The services rendered by Expeditors with respect to the Goods enabled Paul Harris to acquire rights in the Goods and the possession or use of the Goods. [Tangeman Affidavit, ¶ 6; Martin Deposition, pp. 29-33.]

14. On or about March 29, 1996, Paul Harris executed and delivered to Expeditors a credit application [the “Credit Application”], which contained the following provision:

As security for any existing and future indebtedness of the Customer [Paul Harris] to the Company [Expeditors], including claims for charges, expenses or advances incurred by the Company in connection with any shipment or transaction of the Customer, and whether or not presently contemplated by the Customer and the Company, the Customer hereby grants to the Company a continuing lien and security interest in any [292]*292and all property of the Customer (including goods and documents relating thereto) now or hereafter in the Company’s possession, custody or control or en route (the “Collateral”)....

[Tangeman Affidavit, ¶¶ 9, 11, and Exhibit A thereto; Martin Deposition, pp. 73-75.]

15. The services which Expeditors performed for Paul Harris were governed by the Credit Application and by the individual contracts for the carriage of goods. [Tangeman Affidavit, ¶ 9; Martin Deposition, pp. 73-75.]

16. Expeditors asserts carrier’s liens and security interest in and upon all Goods in its possession, custody or control and in all documents of title related to said Goods. [Answer, ¶ 16, and affirmative defenses ¶¶ 5, 6, 7, 10 therein; Tangeman Affidavit, ¶¶ 9-13 and Credit Application; Martin Deposition, pp. 73-77.]

17. Only Expeditors and LaSalle Bank claim liens or security interests in the Goods. [Martin Deposition, pp. 79-80.] LaSalle Bank alleges that it is still owed several million dollars on account of pre-petition loans.

18. LaSalle Bank did not give value to enable Paul Harris to acquire rights in the Goods or to acquire the use of the Goods. [Martin Deposition, pp. 41-42, 54.]

19. No UCC-1 financing statements naming Paul Harris as debtor were of record in the State of California on or before the Petition Date, nor are there any such financing statements of record as of August 4, 2005. [UCC-11 Searches, Appendix to Memorandum in Support of Expeditors’ Motion for Partial Summary Judgment on Plaintiffs Complaint.]

20. No UCC-1 financing statements naming Paul Harris as debtor were of record in the State of Washington on or before the Petition Date, nor were there any such financing statements of record in Washington as of August 11, 2005. [UCC-11 Searches, Appendix to Memorandum in Support of Expeditors’ Motion for Partial Summary Judgment on Plaintiffs Complaint.]

21. On the 90th day before the Petition Date, the value of the Goods in Expeditors’ possession, custody and control was $1,175,580.33, and the amount of Paul Harris’s debt to Expeditors was $139,380.94. Thus, on this date, Expeditors was over-secured by not less than $1,036,199.39. [Tangeman Affidavit, ¶¶ 16, 31.]

22. During the 90-day period before the Petition Date, Paul Harris made several payments to Expeditors in payment for Expeditors’ services in transporting Goods from overseas to Paul Harris’s Indianapolis warehouse, and clearing said Goods through U.S. Customs (collectively, “the Payments”). [Tangeman Affidavit, ¶ 15.] Those Payments totaled $739,071.15. [Tangeman Affidavit, ¶ 15.]

23. The Payments were made by Paul Harris and not by any of the other Debtors. [Martin Deposition, pp. 44-45.]

24. On the date prior to the transfer of each Payment, the value of the Goods in Expeditors’ sole possession, custody or control exceeded the amount of Paul Harris’s indebtedness. [Tangeman Affidavit, ¶¶ 17-29, 31.] Thus, Expeditors was over-secured on each such date.

25. On the Petition Date, the value of the Goods in Expeditors’ possession, custody and control was $1,166,601.62, and the amount of Paul Harris’s debt to Expeditors was $122,989.63. Thus, on this date, Expeditors was over-secured by not less than $1,043,611.99. [Tangeman Affidavit, ¶¶ 30, 31.]

26. On the Petition Date, this Court entered an Order Authorizing Debtors to Honor Certain Prepetition Checks or Issue New Checks to Pay for (I) Prepetition [293]

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Paul Harris Stores, Inc. v. Expeditors International of Washington, Inc. (In re Paul Harris Stores, Inc.), 342 B.R. 290, 2006 Bankr. LEXIS 805 (Ind. 2006).

342 B.R. 290 (Paul Harris Stores, Inc. v. Expeditors International of Washington, Inc. (In re Paul Harris Stores, Inc.)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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