In re Amdura Corp., Bankruptcy No. 90 B 03811 E-90 B 03816 E

CourtUnited States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Colorado
Writing for the CourtROLAND J. BRUMBAUGH
Citation142 BR 433
PartiesIn re AMDURA CORPORATION; Amdura National Distribution Company, f/k/a Fok; Coastamerica Corporation; Coast to Coast Holdings, Inc.; Coast to Coast Stores, Inc.; Intertrade Cargo, Inc., Debtors. AMDURA CORPORATION, Plaintiff, v. FAEGRE & BENSON, Defendant.
Decision Date29 June 1992
Docket NumberAdv. No. 92 1415 RJB.,Bankruptcy No. 90 B 03811 E-90 B 03816 E

142 B.R. 433 (1992)

In re AMDURA CORPORATION; Amdura National Distribution Company, f/k/a Fok; Coastamerica Corporation; Coast to Coast Holdings, Inc.; Coast to Coast Stores, Inc.; Intertrade Cargo, Inc., Debtors.
AMDURA CORPORATION, Plaintiff,
v.
FAEGRE & BENSON, Defendant.

Bankruptcy Nos. 90 B 03811 E-90 B 03816 E, Adv. No. 92 1415 RJB.

United States Bankruptcy Court, D. Colorado.

June 29, 1992.


Morris B. Hecox, Welborn, Dufford, Brown & Tooley, P.C., Denver, Colo., for plaintiff.

C.C. Onsager, Faegre & Benson, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

ROLAND J. BRUMBAUGH, Bankruptcy Judge.

THIS MATTER comes before the Court upon a COMPLAINT TO AVOID AND RECOVER TRANSFERS filed on April 1, 1992, and a FIRST AMENDED COMPLAINT TO AVOID AND RECOVER TRANSFERS filed on April 2, 1992. It is this latter complaint that is at issue. Defendant maintains that the amended complaint was not timely filed and should be dismissed.

The Debtors filed their petition in bankruptcy on April 2, 1990, and, pursuant to 11 U.S.C. § 546(a), had until two years after that date to file their avoidance action. Plaintiff asserts that applying Bankruptcy Rule 9006(a), its two-year period did not begin to run until the day after its bankruptcy petition was filed, making a complaint filed on April 2, 1992, timely. Defendant contends that 9006(a) may not be applied to § 546, citing Zilkha Energy Co. v. Leighton, 920 F.2d 1520 (10th Cir.1990).

Central to this Court's decision in the case at bar is whether Rule 9006(a) is applicable to § 546(a); i.e., may 9006(a) be used to compute the two-year period set out in § 546(a)?1 In Zilkha, the Debtor filed its

142 BR 434
bankruptcy petition in September 1984, and it was not until March of 1989 that it filed its complaint seeking recovery of alleged overpayment of oil and gas royalties. Defendants sought dismissal for an untimely filed complaint and the Debtor/Plaintiff responded that, since the case had not been closed and the Debtor was not an "appointed trustee," the complaint was timely. The issue in Zilkha was not whether the date of the action should be included in computation of the two-year time period; rather, the issue was whether § 546(a) applied to a debtor in possession as well as appointed trustees. The court stated "The key to this case is the scope of § 546(a), and the question to resolve is whether a debtor in possession is subject to the same two-year statute of limitations as an appointed trustee." The court correctly found that it was, and stated in dicta that "the period of limitation begins to run from the date of the filing of a petition for reorganization under chapter 11. We reach that conclusion because the debtor becomes a debtor in possession on that day." Bankruptcy Rule 9006(a) was not at issue in Zilkha. Nor was the precise date when the statute of limitations begins to run essential to the court's decision. That court's gratuitous statements of when the period of limitations begins to run are therefore dicta and need not be binding upon lower courts

Though there is a lack of precedential rulings in the 10th Circuit on the issue of whether Bankruptcy Rule 9006(a) is applicable to § 546(a), there is an abundance of case law in other circuits. Most frequently cited for the proposition that 9006(a) is not applicable is In re Butcher, 829 F.2d 596 (6th Cir.1987). The Butcher court determined that Bankruptcy Rule 9006(a) would only apply after the court had jurisdiction. It found that § 546(a) is a jurisdictional grant, and unless the action is...

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