67 B.R. 192 | M.D. La. | 1986
REASONS FOR ORDER DENYING MOTION FOR INTERVENTION, DENYING MOTION FOR INJUNCTION PENDING DETERMINATION OF INTERVENTION, AND AMENDING PRIOR ORDER
The factual background of this case is set forth in considerable detail in pleading 103, “Determination of Entitlement to In-terpleader Relief” dated August 26, 1986, 67 B.R. 184. In substance, Swaggert Ministries (Owner) employed Tudor Construction (General Contractor) to perform certain work; General Contractor employed Naylor as a sub-contractor. Naylor employed materialmen and sub-sub-contractors. Owner has paid Tudor in full; Tudor owes a substantial sum (probably exceeding $150,000) to Naylor; materialmen and sub-contractors assert claims against Nay-lor, Tudor, and the bonding companies in excess of the retainage.
Three different contracts and constructions were involved. Tudor asserts a right to offset deficiencies on one job against sums due on another; Naylor disputes that right; the positions of the bonding companies regarding that issue have not been established. Capital Bank & Trust Co. asserts an assignment of accounts receivable that it alleges is superior to the claims of the lien claimants and the bonding companies. The bonding companies assert a right that they allege to be superior to those of Capital, Naylor, and the lien claimants on account of legal and conventional rights of subrogation and indemnity.
Tudor had originally asked for injunctions against lien claimants proceeding against the bonding companies in state court. The lien claimants asserted an independent right to proceed against the bonding companies.
In a prior order the Court declined to enjoin the lien claimants from proceeding against the bonding companies for reasons set forth in the written reasons provided. It should be noted that in the prior hearing
The prior opinion tentatively concluded that the Court had jurisdiction over claims by lien claimants against the bonding companies as proceedings that were related to a case under title 11 because the obligations of indemnity and obligations to keep the job lien-free probably mean that determination of lien claimants’ entitlements directly impact retainage and thus property of the estate.
Pearlman
The claim of the lien claimants against the bonding companies is not a direct claim against the retainage which is property of the estate;
. See Pacor, Inc. v. Higgins, 743 F.2d 984 (3rd Cir., 1984); In re Bobroff, 766 F.2d 797 (3rd Cir., 1985). Counsel for the bonding companies have cited several other opinions and substantial jurisprudence to the same effect.
. Pearlman v. Reliance Ins. Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962).
. Georgia Pacific v. Sigma Service Corp., 712 F.2d 962 (5th Cir., 1983).
. 28 U.S.C. § 1334(d).
. La.R.S. 9:4813.
. 28 U.S.C. § 1334(c)(1).
. id.