Pittsburg Refrigeration Co. v. Federman (In re Davison)

79 B.R. 866, 1987 Bankr. LEXIS 1678
CourtDistrict Court, W.D. Missouri
DecidedAugust 28, 1987
DocketBankruptcy No. 83-00699-SW-1-3
StatusPublished
Cited by2 cases

This text of 79 B.R. 866 (Pittsburg Refrigeration Co. v. Federman (In re Davison)) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pittsburg Refrigeration Co. v. Federman (In re Davison), 79 B.R. 866, 1987 Bankr. LEXIS 1678 (W.D. Mo. 1987).

Opinion

ORDER DENYING OBJECTION OF PITTSBURG REFRIGERATION CO. TO APPLICATION OF RESPONDENT CHAPTER 7 TRUSTEE TO PAY POST-CONVERSION EXPENSES OF ADMINISTRATION

DENNIS J. STEWART, Chief Judge.

On March 26, 1987, the respondent trustee in bankruptcy filed his application for leave of court to pay the following postcon-version expenses of administration:

Payee Amount
Diversified Ventures, Inc. $1,864.94
Betlin Manufacturing Company 896.89
Bull’s Trophy House 79.19
Discus Athletic 566.28
Dunn & McCarthy, Inc. 38.20
Family Shoe Store, Inc. 2,441.48
Grid Sports 71.64
Molten America 752.76
Nasco Sporting Goods 21.39
New Era Cap Company 49.91
Nunn Bush Shoe Company 281.66
Paul Appling 74.85
Prince Manufacturing Co. 117.43
Richard Brothers 131.89
Judy Gerster 396.35

The court issued a notice on June 30, 1987, directing the creditors of the estate, or any of them, to show cause in writing within 20 days why the trustee’s application should not be granted. Within the time for objection thus allotted, the objecting creditor, Pittsburg Refrigeration Co., filed a written objection to the following effect:

“Where’s Pittsburg Refrigeration $102.67? We do [object]! unless we get paid also.”

The court accordingly set a hearing on the objection for July 30, 1987, in Joplin, Missouri. At that hearing, only the trustee appeared, by counsel, Gary D. Barnes, Esquire. The objecting creditor did not appear.

It is necessary for the court, therefore, to base its ruling on the files and records before it. In this court’s prior orders, this court has discussed the premier importance in the administration of this case of determining whether postconfirmation claims— such as that asserted by Pittsburg Refrigeration Co. — must be granted priority over other claims of other creditors or whether [867]*867they should be relegated to the status of general, unsecured prepetition claims. As has been observed previously in Federman v. Davison, 79 B.R. 859 (Bkrtcy.W.D.Mo.1987): “[T]he court is now faced with the wholly unpalatable circumstances of having to choose which of two postpetition sets of creditors — preconversion or postconversion — receive the miserable spoils which remain, with both sides having the facile ability to cite decisions of nearly equal logical force in their favor.” Not to grant the postconversion claims priority would give notice to the world, not only that a supplier of goods or services might not safely do business with a chapter 11 debtor, but that the risk of nonpayment is exceedingly great. That appears to be why the authorities hold that chapter 11 debtors may not incur new long-term postpetition indebtedness without approval of the court.1 Otherwise, the debts incurred in the ordinary course of business must be immediately paid. See Matter of Isis Foods, Inc., 19 B.R. 329, 330 (Bkrtcy.W.D. Mo.1982), affirmed 27 B.R. 156 (W.D.Mo. 1982):

“Thus, for the court initially to grant the chief executive officer this unqualified power to operate the business and the necessary power to make agreements to pay expenses as they currently arise and then, later, to refuse to enforce those agreements according to their clear and admitted terms would be fraud upon those who are encouraged under' the aegis of the bankruptcy court to do business with a chapter 11 debtor. The proposition is too fundamental that the bankruptcy court should not and cannot make itself a party to such a fraud. And such would stultify the purpose and intent of the foregoing provisions of the modern bankruptcy law, which is to encourage the rehabilitation of an honest chapter 11 entity, rather than to permit that entity to victimize those who attempt to fulfill the purpose of rehabilitation by doing business with the chapter 11 debtor. If the agreement were not enforced, the word would rapidly go forth that no person might safely do business with a chapter 11 entity, regardless of the assurances given him by that entity, and all the rest of the provisions of that chapter would accordingly become an unusable dead letter.”

To do as was permitted to be done in this case and convert the ordinary business debts into a stupendous sum of long-term debt is to defeat the purposes of reorganization, not only in the case at bar, but in chapter 11 cases generally. Nevertheless, once nonpayment has stretched past the date of conversion of chapter 11 proceedings to chapter 7, the law clearly provides for the relegation of post confirmation claims to the same status. See the prior order of this court in this case respecting the claim of BDH Rock of Monmouth, Illinois v. Federman, 79 B.R. 855 (Bkrtcy.W.D.Mo.1987), to the following effect:

“The debtors have, in substance, by running up a total of $800,000 in postpetition indebtedness, created a new class of creditors and have used the chapter 11 proceedings to hold off their prepetition [868]*868creditors while doing so. They abused the chapter 11 process, not only to frustrate its primary purpose — the ultimate payment of prepetition creditors — but also to enrich themselves to the extent that they received inventory without paying for it. It seems astonishing to this court, in retrospect, that responsible officers of any court would stand by and tolerate such an outrageous result gradually but certainly to be effected, as it was in this case. Yet, that was precisely what was done in this case. As this court has formerly found in making its findings of fact and conclusions of law in respect to the trustee’s objection to discharge in Federman v. Davison, [73 B.R. 726] Adversary Action No. 86-0384-3 (Bkrtcy.W.D.Mo. March 12, 1987):
‘Beginning with (August 3, 1983), the debtors failed to list the debts incurred and unpaid; ... they thereafter continued to fail to list the evergrowing debts incurred — inventory purchases, mostly, but also some sizeable obligations to relatives and others on account of loans which were extended to them — until, at the time of conversion of the chapter 11, proceedings to chapter 7 proceedings on September 10, 1985, the incurred but unpaid indebtedness had reached a figure totaling in excess of $800,000.... [T]he debtors ... had made disclosures [otherwise] in the monthly operating reports which should have plainly indicated that monthly purchases of inventory vastly exceeded monthly payments thereon ... When the unpaid accounts payable were being incurred at a stupendous rate ..., as they were in this case, it seems that even the most superficial attention to them would have resulted in the court’s taking some appropriate action.’

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Related

Matter of Davison
79 B.R. 866 (W.D. Missouri, 1987)

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Bluebook (online)
79 B.R. 866, 1987 Bankr. LEXIS 1678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pittsburg-refrigeration-co-v-federman-in-re-davison-mowd-1987.