Sapir v. CPQ Colorchrome Corp. (In re Photo Promotion Associates, Inc.)

89 B.R. 328, 1988 U.S. Dist. LEXIS 15429
CourtDistrict Court, S.D. New York
DecidedApril 25, 1988
DocketNo. 87 Civ. 7355 (GLG)
StatusPublished
Cited by1 cases

This text of 89 B.R. 328 (Sapir v. CPQ Colorchrome Corp. (In re Photo Promotion Associates, Inc.)) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sapir v. CPQ Colorchrome Corp. (In re Photo Promotion Associates, Inc.), 89 B.R. 328, 1988 U.S. Dist. LEXIS 15429 (S.D.N.Y. 1988).

Opinion

MEMORANDUM DECISION

GOETTEL, District Judge:

This appeal follows from a decision of the bankruptcy court, the Honorable Howard Schwartzberg presiding, which denied appellant’s attempt to classify a certain Chapter 11 claim as an administrative expense. Sapir v. Coppinger Color Lab, Inc. (In re Photo Promotion Assoc., Inc.), 72 B.R. 606 (Bankr.S.D.N.Y.1987). Oral argument was heard on December 4, 1987, and we have wrestled mightily with the issues raised on this appeal since that time.

At the outset, we note the relative paucity of cases to which we have been referred by the parties which specifically address the issues before us. Our independent research has shed little additional light on these subjects. Further, we note that appellant has changed counsel since the argument before Judge Schwartzberg, and it does not appear to us that certain of the issues raised on appeal were fully presented before or addressed by the bankruptcy court. In light of these factors, we have decided that the prudent course is to re-’ mand the case to the bankruptcy court, the court with proper jurisdiction over initial review and exploration of issues bearing on this claim.

[330]*330I. FACTS

On October 4, 1984, the debtor-appellee, Photo Promotion Associates, Inc. (“Photo Promotion”), a New York corporation formerly engaged in the sale of individual and family portraits mounted on wooden plaques, filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. It continued to operate the business as a debtor in possession pursuant to 11 U.S.C. § 1107 (1982 & Supp. IV 1986) until March 13, 1985, when the case was converted for liquidation under Chapter 7 and a trustee was appointed.

This appeal centers on an agreement between the debtor and the appellant, C.P.Q. Colorchrome Corp. (“Colorchrome”), a Tennessee corporation and division of Copping-er Color Lab, Inc. engaged in the business of processing photographs. The agreement in question was entered into by the parties on December 20, 1984 (the “agreement” or the “December 20 agreement”), while the debtor was operating under the aegis of Chapter 11. That agreement called for the appellant to provide photographic processing services for the debtor in an attempt to clear the debtor’s backlog of unprocessed photographs. The debtor, however, was unable to pay cash for these services. In addition, the parties assumed that as many as one-third of the debtor’s customers would reject the finished orders due to delays in receiving them. As a hedge against these circumstances, the agreement provided that the appellant would receive its payment directly from the debtor’s customers in an amount equal to 150% of its costs — i.e., the agreement granted to Colorchrome a lien on the debt- or’s post-petition accounts receivable. Any amounts collected by Colorchrome in excess of the agreed-to processing fees would then be refunded to the debtor.

On December 30, 1986, the debtor’s Chapter 7 trustee commenced an adversary proceeding in the bankruptcy court seeking, inter alia, a judgment declaring void that portion of the appellant’s agreement with the debtor in possession which assigned the debtor’s accounts receivable to the appellant, and directing the return of amounts collected by the appellant pursuant to that agreement. The trustee contended that the security interest granted by the December 20 agreement was conveyed in direct contravention of 11 U.S.C. § 364(c) (1982), which expressly provides that post-petition credit may not be secured by a lien on the property of the estate without first obtaining court approval after notice and hearing.1

Colorchrome counterclaimed, seeking to classify its claim under the agreement as a Chapter 11 administrative expense. Color-chrome conceded that it knew, when the agreement was executed, that the debtor was operating under Chapter 11. It further conceded that approval of the agreement was not sought from the bankruptcy court, the debtor’s creditors, or the creditors' committee. Colorchrome nonetheless contended that when a lien agreement is executed in violation of section 364(c), and credit beneficial to the Chapter 11 estate is extended in the ordinary course of business pursuant to that agreement, the creditor is, at the least, entitled to assert its claim as a Chapter 11 administrative expense pursuant to section 364(a), outlined supra note 1.

The trustee moved for partial summary judgment on Colorchrome’s counterclaim, which largely was granted. Judge [331]*331Schwartzberg concluded that the debtor’s assignment of its accounts receivable, without court approval pursuant to section 364(c), constituted an impermissible grant of a security interest by the debtor in possession. Sapir, 72 B.R. at 611-12. Further, he ruled that since the agreement in question involved the attempted assignment of a secured interest in non-compliance with section 364(c), and since section 364(a) grants administrative status only to the extension of unsecured credit in the ordinary course of business, Colorchrome was barred from seeking haven within the confines of administrative status granted under that subsection. Id. at 611. Color-chrome appeals that decision.2

II. DISCUSSION

On appeal, there seem to be three separate bases expressly or implicitly urged by appellant as possible sources of authority allowing classification of Colorchrome’s claim as an administrative expense: (1) as a matter of law, a failed creditor under section 364(c) is entitled to “fall back” (the court’s term) to section 364(a) so long as the post-petition credit was extended in the ordinary course of business; (2) alternatively, it is argued that Colorchrome is entitled to administrative status under 11 U.S.C. § 503(b)(1) (1982 & Supp. IV 1986) (“section 503(b)(1)”);3 and (3) failing either (1) or (2), Colorchrome urges that the court invoke its inherent equitable authority and authorize Colorchrome’s claim as an administrative expense.4 We consider each of these in turn, outlining the reasons motivating our remand.

(1) The “Fall Back” to Section 364(a)

In response to the trustee’s motion for summary judgment, Colorchrome argued before the bankruptcy court that genuine issues of fact existed as to whether the December 20 agreement was in the ordinary course of business, whether there was good faith, and whether Colorchrome conferred a substantial benefit to the estate. Sapir, 72 B.R. at 609.5 It does not appear that the “fall back” argument was clearly articulated before the bankruptcy court, as suggested by the manner in which Judge Schwartzberg dismissed Color-chrome’s arguments. He found that Color-chrome’s responses to the trustee’s motion “are unavailable as a matter of law. The ordinary course of business exception to the need for court authorization relates expressly to obtaining unsecured credit and incurring unsecured debt, as stated in 11 U.S.C. § 364(a).” Id. at 611.

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89 B.R. 328, 1988 U.S. Dist. LEXIS 15429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sapir-v-cpq-colorchrome-corp-in-re-photo-promotion-associates-inc-nysd-1988.