In re Johnson, Bankruptcy No. 85 J 0243.

• Decision Date: 24 July 1985
• Docket Number: Bankruptcy No. 85 J 0243.
• Citation: 51 BR 220
• Parties: In re Ronald D. JOHNSON, Debtor. Ronald Dennis JOHNSON, Plaintiff, v. INVESTMENT LEASING, INC. and Vicki S. Porter, Trustee, Defendants.
• Court: U.S. District Court — District of Colorado

51 B.R. 220 (1985)

In re Ronald D. JOHNSON, Debtor Ronald Dennis JOHNSON, Plaintiff, v. INVESTMENT LEASING, INC. and Vicki S. Porter, Trustee, Defendants.

Bankruptcy No. 85 J 0243.

United States District Court, D. Colorado.

July 24, 1985.

Stephen J. Timm, Aurora, Colorado, for Ronald Johnson, plaintiff.

Gregory S. Bell, Fort Collins, Colorado, for Investment Leasing, defendant.

MEMORANDUM OPINION & ORDER

ROLAND J. BRUMBAUGH, Bankruptcy Judge.

THIS MATTER came on for trial on Debtor/Plaintiff's Complaint to Recover Property of the Estate. The relevant facts are undisputed.

On August 4, 1982, Mr. Johnson and Mr. Yattaw formed a partnership known as Electrical Sales of Colorado. Investment Leasing ("Defendant") was a creditor of Electrical Sales. On December 2, 1983, the partnership was dissolved. At the time of dissolution, Yattaw and Johnson agreed between themselves, that Johnson, individually, would be entitled to receive the commissions of certain partnership accounts, specifically the Raco account. Johnson does not dispute the fact that the accounts receivable due the partnership by Raco were earned by the partnership prior to dissolution and were not earned by Johnson personally.

On January 6, 1984, Defendant filed suit in state court against the partnership and against Yattaw and Johnson, as individual partners to collect the debt owed to it by Electrical Sales. On January 6, 1984, a prejudgment writ of attachment was issued, resulting in the attachment of $10,209.00 in accounts receivable of Electrical Sales. This amount directly relates to the commissions earned by the partnership from the Raco account and was promptly paid into the registry of the District Court in Jefferson County.

Johnson was dismissed from the suit before service of process. Yattaw entered into a stipulation with Defendant on December 26, 1984, whereby Yattaw was dismissed with prejudice and judgment would enter against the former partnership in the amount of $13,500.00. An Order for Entry of Judgment and Release of Funds (obtained as the result of the pre-judgment writ of attachment) was entered on said date.

Johnson filed his petition in bankruptcy on March 15, 1984, and now brings this action to recover the $10,209.00 which was held in the registry of the Court and subsequently paid over to Defendant. Debtor alleges that the agreement between himself and Yattaw overrides Defendant's right to these funds as a creditor of the former partnership.

The assets Debtor seeks to bring into his estate are assets in which he could not and did not acquire any interest in. Debtor was a general partner of Electrical Sales. The Uniform Partnership Act, as enacted in Colorado, specifically defines the interest of a partner in partnership property. C.R.S. § 7-60-126 (1973) provides "A partner's interest in the partnership is his share of the profits and surplus and the same is personal property." There is no evidence that the Raco account commissions were or were not profits or surplus of Electrical Sales. Thus,...