FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRISTOL-AMERICAN HOTEL No. 1-89-00410
MANAGEMENT GROUP, INC.,
JEFFREY D. WOLFERT,
v. A.P. No. 1-89-0109
THOMAS NOONAN, et al.,
Memorandum of Decision
With the rulings announced from the bench at the conclusion of trial, control of the debtor
has been transferred to Jeffrey Wolfert. The sole remaining issue is whether Wolfert may now
obtain judgment against Thomas Noonan or whether Wolfert must first exhaust his collection
possibilities against the debtor.
Where there is a contractual relationship between the guarantor and the creditor, the court
can see nothing in the statutes cited which afford protection to the guarantor, especially where
the primary debtor is in bankruptcy and immune from prosecution.
Pursuant to the contract between the parties, Noonan's liability on his guarantee became
absolute and unconditional when the debtor filed its bankruptcy petition. Action against the
debtor is not a prerequisite to action against Noonan under these circumstances. Bank of
(1947) 81 Cal.App.2d 1, 7. To the extent that Noonan pays Wolfert pursuant
to the guarantee, he is subrogated to Wolfert's bankruptcy rights pursuant to section 509(a) of
the Bankruptcy Code.
Judgment shall therefore be entered in favor of Wolfert in all respects as against Noonan.
Wolfert shall also recover his costs of suit from Noonan.
Counsel for Wolfert shall submit an appropriate form of judgment, which counsel for Noonan
and the debtor shall approve as conforming to the rulings of the court. This memorandum and
the statements made on the record shall constitute the court's findings and conclusions pursuant
to FRCP 52(a) and Bankruptcy Rule 7052.
Dated: October 16, 1989 _______________________