In re Kenval Marketing Corp., Bankruptcy No. 83-02723F.
Decision Date | 15 March 1988 |
Docket Number | Bankruptcy No. 83-02723F. |
Parties | In re KENVAL MARKETING CORPORATION, Debtor. |
Court | United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania |
Jay G. Ochroch, Fox, Rothschild, O'Brien Frankel, Philadelphia, Pa., for Assignee for the Benefit of Creditors.
Bonnie Glantz Fatell, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for objector/trustee, Fred Zimmerman.
Adelman, Lavine, Gold & Levin, Philadelphia, Pa., for debtor.
Leonard Cook, Dilworth, Paxson, Kalish & Kaufman, Philadelphia, Pa., for Creditors' Committee.
After a tortuous procedural history (set out in an unpublished memorandum dated April 22, 1987), the merits of an application filed by the law firm of Fox, Rothschild, O'Brien and Frankel are now before me. In this application, Fox, Rothschild seeks the allowance of professional fees of $17,107.50 and the reimbursement of costs totaling $1,130.81 in connection with services rendered to the assignee for the benefit of creditors who was appointed, prepetition, under state law. These fees and costs are related to postpetition services rendered to the assignee. Fox, Rothschild has already received $10,000.00 in compensation for its prepetition services rendered. In response to this application, the trustee in this chapter 11 bankruptcy case has filed an objection. The trustee argues that there is no statutory entitlement for the payment of, (virtually), all of the services and costs incurred by Fox, Rothschild postpetition.
As with most disputes, understanding the background surrounding the filing of this bankruptcy petition is useful if one is to appreciate the parties' respective positions.
On or about March 8, 1983, the debtor, Kenval Marketing Corp., executed an assignment for the benefit of creditors in Pennsylvania. On July 7, 1983, an involuntary petition under chapter 7 of the Bankruptcy Code was filed against the debtor. An order for relief was entered on April 12, 1984. On July 2, 1984, this bankruptcy case was converted from chapter 7 to chapter 11 and a trustee was appointed by the court on October 14, 1984.
The involuntary petition was filed by three creditors who were owed 75% of the total amount of the claims against the debtor. These three creditors had received substantial payments from the debtor, totaling approximately $347,000.00, during the four month period prior to the assignment. Moreover, the debtor had made transfers of $275,000.00 to its president and his family as well as satisfied a $735,000.00 loan that was guaranteed by the debtor's president more than four months prior to the assignment but not more than one year prior to the filing of the involuntary petition. See In re Kenval Marketing, 38 B.R. 241, 242 (Bankr.E.D.Pa.1984).
The assignee, Mr. Waslow, vigorously opposed the involuntary bankruptcy. Prior to the entry of the order for relief, as well as in his motion for reconsideration of the entry of this order, the assignee argued that the bankruptcy case should be dismissed or that this court should abstain pursuant to 11 U.S.C. § 305. The basis of his argument was his position that transfers made to creditors within four months of the assignment could be invalidated only by the assignee pursuant to the Pennsylvania Insolvency Statute, 39 P.S. § 151, but not by a bankruptcy trustee, since those transfers occurred more than ninety days prior to the bankruptcy filing. 11 U.S.C. § 547(b)(4)(A). For a variety of reasons, this court rejected the assignee's arguments, entered the order for relief, and later denied a motion for reconsideration. In re Kenval Marketing Corp., 38 B.R. 241, 40 B.R. 445 (Bankr.E.D.Pa.1984). Thereafter, the trustee filed twenty-eight adversary proceedings seeking to invalidate the preassignment transfers to non-insiders pursuant to 11 U.S.C. § 544(b) and 39 P.S. § 151. The right of the trustee to succeed to the powers of the assignee under the Pennsylvania Insolvency Act, by virtue of § 544(b), was upheld by this court in ruling on a motion to dismiss filed by one of the creditors. In re Kenval Marketing Corp., 69 B.R. 922 (Bankr.E.D.Pa. 1987). This decision enabled the trustee to resolve all the adversary disputes upon terms acceptable to the trustee and to all creditors and parties in interest.
At bottom, the arguments of the trustee and counsel for the assignee in this dispute may be summarized as follows: The trustee maintains that counsel to the assignee may only be compensated for services rendered to the assignee which benefited the debtor's estate; the assignee's counsel contends that where actions are taken to oppose an involuntary bankruptcy in the good faith belief that the bankruptcy filing will harm creditors, such actions are compensable even if the assignee's belief is mistaken. After reviewing the various code provisions and their origins, I conclude that the trustee's position has greater support.
Although counsel's application seeks compensation under 11 U.S.C. § 331, this code provision is inapplicable to the matter at bench. Counsel to the assignee never sought appointment from this court, nor was its appointment approved. Therefore, Fox, Rothschild is not a professional "person", (see 11 U.S.C. § 101(35)), employed pursuant to 11 U.S.C. § 327. Recognizing this problem, Fox, Rothschild now asserts that it is entitled to compensation by virtue of 11 U.S.C. § 503(b)(3)(E), and (b)(4). These provisions state:
If counsel is entitled to compensation by virtue of § 503(b)(4), then prior court approval was not required. In re Washington Lane Associates, 79 B.R. 241 (Bankr.E. D.Pa.1987).
The possibility that an assignee for the benefit of creditors might have existed prepetition is recognized by the Bankruptcy Code in a number of provisions. For example, 11 U.S.C. § 303(h)(2), makes the appointment of an assignee1 grounds for the filing of an involuntary petition by the requisite number of creditors. 11 U.S.C. § 543 requires an assignee to turn over all of the debtor's assets to a debtor in possession or trustee and to file an accounting. See Matter of North Port Development Co., 36 B.R. 19 (Bankr.E.D.Mo.1983). The assignee is forbidden to distribute any of the debtor's property, or to continue to administer the debtor's property, except for those actions which are needed to preserve such property. 11 U.S.C. § 543(a). See Matter of North Port Development Co.
The Bankruptcy Code further states that the court "shall — provide for the payment of reasonable compensation for services rendered and costs and expenses incurred by `the assignee'",2 11 U.S.C. § 543(c)(2), and such costs and expenses, including counsel fees shall become a first priority expense of the debtor's estate. 11 U.S.C. §§ 503(b)(3)(E), (b)(4), 507(a)(1). See In re Hearth & Hinge, Inc., 28 B.R. 595, 597 (Bankr.S.D.Ohio 1983).
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