30 B.R. 19 (Bkrtcy.D.Mass. 1983), 80-0451, In re Landy Beef Co., Inc.

• Docket Nº: Adv. No. 80-0451-L.
• Citation: 30 B.R. 19
• Party Name: In re LANDY BEEF CO., INC., Debtor. PARTY PACKING CORPORATION, Plaintiff, v. George ROSENBERG, Trustee, Defendant. Bankruptcy No. 80-810-L.
• Case Date: May 17, 1983
• Court: United States Bankruptcy Courts, First Circuit

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30 B.R. 19 (Bkrtcy.D.Mass. 1983)

In re LANDY BEEF CO., INC., Debtor.

PARTY PACKING CORPORATION, Plaintiff,

v.

George ROSENBERG, Trustee, Defendant.

Bankruptcy No. 80-810-L.

Adv. No. 80-0451-L.

United States Bankruptcy Court, D. Massachusetts.

May 17, 1983

Joel L. Cherwin, Cherwin & Glickman, Boston, Mass., for Plaintiff.

MEMORANDUM AND ORDER

THOMAS W. LAWLESS, Chief Judge.

ISSUE

Does Party Packing Corporation have a right of reclamation under M.G.L.A. c. 106 § 2-702(2)?

BACKGROUND

From March 24, 1980 through March 27, 1980, Party Packing Corporation ("Party Packing") sold on credit and caused to be delivered to Landy Beef Co., Inc. ("Landy Beef") 782 veal-calves ("Goods"). Landy Beef was a regular customer (purchaser of meat) of Party Packing. Landy Beef would order Goods from Party Packing. Party Packing would forward an invoice to Landy Beef, and send the Goods to Party Packing's subsidiary, Sunrise Meats. Sunrise Meats would custom bone the Goods for Landy Beef, and subsequently ship the Goods and an invoice for the boning service to Landy Beef. Shipments, which took place several times a week, would generally arrive between two and three days after the Party Packing invoice arrived.

Landy Beef normally tendered its payment for the Goods to Party Packing on a weekly basis, each payment representing the amount due on the previous week's shipment. On or around April 3, 1980, Party Packing did not receive payment from Landy Beef for the previous week's shipment. Subsequently, on April 4, 1980, Party Packing made written demand upon Landy Beef for reclamation of the Goods pursuant to M.G.L.A. c. 106 § 2-702(2). The Goods were not returned to Party Packing.

On April 10, 1980, the Suffolk Superior Court, by Adams, J., entered a temporary

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restraining order enjoining Landy Beef from selling or otherwise disposing of the Goods and product derived solely therefrom and ordering Landy Beef to preserve and protect the Goods. The temporary restraining order of the Suffolk Superior Court was continued as a preliminary injunction on April 11, 1980; the preliminary injunction has not been modified, amended or terminated by the Suffolk Superior Court.

On May 20, 1980, an involuntary petition under Chapter 7 of Title 11 of the United States Code was filed against Landy Beef and on May 23, 1980 George Rosenberg ("Trustee") was appointed interim Trustee pursuant to 11 U.S.C. § 303(g). An order for relief under Chapter 7 of Title 11 of the United States Code was entered against Landy Beef on July 22, 1980. On July 22, 1980 a complaint for reclamation of the Goods was filed with this Court by Party Packing against the Trustee, seeking inter alia, a determination by this...