36 B.R. 822 | Bankr. E.D. Pa. | 1984
OPINION
In responses to our order of September 16, 1983, granting American Bank and Trust Company of Pennsylvania (“the Bank”) relief from the automatic stay, the trustee, the Bank and the debtors’ lessor have each filed motions seeking to amend our order and to reconsider our opinion in
Although the facts were previously outlined in our original opinion in this case at 32 B.R. 969, we will reiterate them here for the sake of clarity and make such additional findings of fact as may be necessary:
The trustee has urged eight bases for amendment of the judgment, the first of which is that our order of September 16th did not modify the stay with respect to ASI. As the Bank aptly notes, the trustee waived this objection and consented to the jurisdiction of the court as evinced by the transcript of court proceedings on May 19, 1983. As provided in 11 U.S.C. § 323(a) the trustee is the legal representative of the bankruptcy estate and as such has the power to waive personal jurisdiction.
The trustee also contends that we should amend our judgment and deny relief from the stay since “a real basis exists for controversy between the parties under state law.” The trustee’s elaboration of this allegation is unintelligible and thus we find that it fails to state a basis for reconsideration.
As a third basis for amendment of the judgment the trustee asserts that we erred in giving the estate’s assets a distress sale value rather than a fair market value. From our opinion the trustee imputes to us the erroneous rule “that one can sell assets on a going concern basis only when the assets are in fact currently used in operations.” On the contrary we did not state,
The trustee also contends that the stay should not have been modified since the security interests granted by Ampro and ASI were without adequate consideration. Since the rendition of our opinion the trustee has filed a fraudulent conveyance action based on the granting of the security interest. In our previous opinion at 32 B.R. 973, we expressly found that adequate consideration was present, and consequently this allegation is without merit.
The trustee’s fifth assertion is that in considering whether relief from the stay was appropriate we erred in affording no value to certain lawsuits which were instituted by the trustee. In fact, even though some of the actions at issue are against the United States we stated that since “security interests in unrealized accounts receivable and pending lawsuits are predicated on a third party’s ability, or unsecured promise, to repay, they typically do not have sufficient integrity under § 361 to protect adequately a creditor’s eroding security interest in real property.” 32 B.R. at 972. Furthermore, although we did not previously establish the value of the lawsuits since we determined they are not relevant, we have reviewed them in light of the valuation procedure approved in Bittner v. Borne Chemical Co., Inc., 691 F.2d 134 (3d Cir. 1892).
The trustee’s sixth allegation is that the realty subject to bank’s security interest should not be released from the stay since the trustee has a claim against this property under 11 U.S.C. § 506(c) of the Code for the reasonable and necessary costs and expenses of preserving such property. Quite simply, the trustee has not previously raised this issue and a motion for reconsideration is not the proper way to introduce the issue.
The seventh contention, raising two ostensibly unrelated points, is that we erred in valuing certain electronic consoles and that the trustee should be allowed to pursue certain litigation with the costs of such litigation allowed as an administrative expense. We find this allegation unconvincing since the trustee has presented no persuasive rationale for us to redetermine the value of the consoles or to allow the pursuit of litigation while delaying relief from the stay.
The trustee’s last contention in support of its motion for reconsideration is that there was “no evidentiary basis for finding that [ASI] was domiciled in Pennsylvania,” although, in fact, it was incorporated in Florida. The trustee apparently believes that Pennsylvania was not the proper place for filing the financing statements on the collateral at issue here. In reviewing the evidence we find that Pennsylvania was the proper place for filing the financing statements since the collateral was located here. 13 Pa.Cons.Stat. § 9104. Consequently, this contention, as well as the trustee’s other seven, are devoid of merit and we will deny his motion for reconsideration.
Although we granted relief in favor of the Bank in our original opinion, it, too, seeks in the alternative an order directing the trustee to cooperate with the Bank in its efforts to foreclose its security interest
Gulf + Western Manufacturing Company (“Gulf”), the debtors’ lessor, has also moved for reconsideration of our order of September 16th seeking a “clarification” that said order does not affect any claim it may have under § 506(c) of the Code against the Bank for recovery of the reasonable and necessary costs and expenses of preserving any collateral stored on the leased premises which the Bank may ultimately repossess. Gulf, like the trustee, has failed to raise previously this issue and it cannot now be initially addressed on a so-called motion for reconsideration.
We will enter an order denying relief on all of the motions filed by the trustee, the Bank and Gulf.
. This opinion constitutes the findings of fact and conclusions of law required by Bankruptcy Rule 7052 (effective August 1, 1983).
. Although objections to personal jurisdiction are waivable, objections to subject matter jurisdiction are not. FediR.Civ.P. 12(h); Bky.R. 7012(b).
. As stated in Bittner, a determination of the value of a lawsuit is a question of fact which is subject to reversal on appeal only if “clearly erroneous.” 691 F.2d at 136, n. 2.