Memorandum of Decision Re: Suit Against Trustee

In re FOODSOURCE, INC.,                                                                                     No. 1-84-00869      Debtor. _____________________________/ HAROLD H. KETTEL, et al.,      Plaintiffs,    v.                                                                                                                     A.P. No. 1-88-0058 CHARLES DUCK, Trustee,      Defendant. _____________________________/ RICHARD VETH,      Plaintiff,    v.                                                                                                                     A.P. No. 1-88-0064 CHARLES DUCK, Trustee,      Defendant. _______________________________/
Memorandum of Decision
     Prior to the commencement of bankruptcy proceedings, debtor Foodsource Sales Corporation and its sister corporation, Foodsource Inc., were in the business of manufacturing and selling to investors whole or fractional interests in large refrigerated containers used for international shipping of perishables. The terms of the sales to investors called for a down payment and a long-term note for the balance of the purchase price secured by the investor's interest in the container. The investors did not take actual possession of their containers; the debtor put them into service, applying the revenue they generated to the note payments. The investors were promised very favorable income tax benefits.      During the bankruptcy proceedings, the containers have been sold by the Trustee with the rights of the parties preserved. By this adversary proceeding, some investors are seeking turnover of the proceeds to them. The Trustee has responded to the complaints with a motion to dismiss on the grounds that the complaint violates the automatic stay and that the complaints fail to state facts upon which relief can be granted.
The Complaint Itself as a Violation of the Stay
     The Trustee's first argument is that this entire adversary proceeding is void as a violation of the automatic stay. The Court has difficulty with this argument, as sustaining it would merely delay a determination of the parties' rights in a bankruptcy which is already more than four years old.      28 U.S.C. section 959(a) does allow some suits against bankruptcy trustees without leave of court. However, that statute is not applicable where the plaintiff seeks possession of property from the trustee. Securities & Exchange Commission v. Lincoln Thrift Assn. (9th Cir.1977) 557 F.2d 1274, 1277n.1. Thus, it is clear that this action could not be commenced in a different forum. That is not to say, however, that the action cannot be commenced at all without prior leave of court.      The issue raised here by the Trustee is whether prior leave must be sought when the action seeking possession of property from the trustee is brought in the same court which appointed the trustee and approves his acts. At least one court has held that leave need not be obtained in such cases because where the court entertains the suit it is the equivalent of granting leave to bring it. Ambrose v. Brown (1914) 42 App.D.C. 25. Bankruptcy courts frequently hear suits against trustees in cases pending before the court without first deciding if the suit is properly brought. See, e.g., In re Ault (Bkrtcy.E.D.Tenn.1980) 6 B.R. 58. This court disagrees somewhat with the rule in Ambrose v. Brown, and has expressed the opinion that a lawsuit brought in bankruptcy court may be a violation of the automatic stay if there is no basis under the Code for the action. In re Hodges (Bkrtcy.N.D.Cal.1988) 83 B.R. 25, 26. Nonetheless, this adversary proceeding appears properly brought. Actions disputing whether property is property of the estate are not clearly inconsistent with the Bankruptcy Code, and indeed are contemplated by section 541(a) of the Code and, in Chapter 7 cases, section 725. The Court therefore feels that it is appropriate to hear and resolve the issues and accordingly rules that to the extent the automatic stay applies at all and has not been previously modified it will be modified to permit the litigation nunc pro tunc, except as limited below.
Revocation of Acceptance
     The investors' first argument is that they have revoked their acceptance of the containers and therefore have a statutory lien on them pursuant to section 2711(3) of the California Commercial Code. While the Court does not find the pleading of this claim to be itself a violation of the automatic stay, it does appear that because of the automatic stay the complaint fails to state facts upon which relief can be granted.      Commercial Code section 2711(3) provides that when a buyer justifiably revokes acceptance of goods, he has a security interest in goods in his possession or control to secure any payments made. Section 2608 provides that acceptance can be revoked if the goods did not conform to the contract, so long as the revocation occurred within a reasonable time. That section further provides that a revocation is not effective until the buyer notifies the seller of it.      There are serious factual problems with the investor's revocation claim. It is problematical whether the grounds stated in the complaint, misrepresentations as to tax benefits, are the sort of grounds which make delivered goods nonconforming. Assuming they are, the investors must still prove that they have given notice of revocation, that the notice was given within a reasonable time after acceptance (section 2608(2)), and that upon the giving of the notice the containers were in their possession or control (section 2711(3)). The latter two issues are factual and not the proper subject for summary adjudication. However, the complaint seems to be legally insufficient as to the first issue, whether notice has been given.      The only thing the investors allege as notice of the exercise of their right of revocation is a page attached to their proof of claim filed in the bankruptcy proceedings alleging a right of rescission. The investors claim that this is the equivalent of revocation of acceptance, and that its postpetition exercise is permitted by section 546(b) of the Bankruptcy Code. The Court has trouble with this argument.      Without deciding whether the page attached to the claim amounts to a notice of revocation notwithstanding the failure to mention this right, it is clear that section 546(b) does not validate the exercise of the right. That section only comes into effect when seizure or commencement of an action is required. Commercial Code section 2608(2) requires only notice, not seizure or the commencement of an action. Accordingly, any postpetition assertion of the right to revoke acceptance cannot be based on section 546(b).      It seems clear that any attempt to give notice of revocation after the commencement of the bankruptcy is void due to the automatic stay. Section 362(a)(4) of the Bankruptcy Code stays any act to create a lien against property of the estate; the giving of notice of revocation has the effect of returning goods to the estate and impressing a lien upon them, and as such violates the stay. Moreover, such an act probably violates sections 362(a)(3), (6), and (7) as well. The whole purpose of the automatic stay is to preserve the status quo and avoid piecemeal enforcement of rights against the estate. As such, it should be liberally interpreted in favor of the debtor and its estate. In re Computer Communications, Inc. (9th Cir.1987) 824 F.2d 725.      The investors must understand that while this Court has determined that the mere bringing of this adversary proceeding did not violate the automatic stay, they cannot use this proceeding to finesse the issue of whether the stay should be modified to allow them to give notice of revocation. Such a determination must of necessity take into consideration factors involving not just the rights of the investors, but the rights of all creditors of the estate. One of the principal goals of bankruptcy courts is to insure the equitable distribution of a debtor's estate among all its creditors. In re Adams Plywood, Inc. (Bkrtcy.W.D.Tenn.1985) 48 B.R. 719, 721, and cases cited therein. For this reason, acts which may be perfectly lawful and proper if done prior to bankruptcy may become inequitable and rightly prohibited after bankruptcy, if to allow the act would give some creditors an unfair advantage over other creditors of equal priority. See, e.g., In re Bruce Farley Corp. (9th Cir.1980) 612 F.2d 1197, 1201.
Extent of the Trustee's Lien
     The Court fails to see the problem with the remainder of the investors' complaint, which merely seeks to establish the validity and extent of the estate's lien in their containers. The Court has no intention of fixing the amount of the investor's unsecured claims, or allowing the investors to exercise a setoff without relief from the stay. However, the trustee must either establish that he has valid lien rights in the proceeds of the sale of the containers or, to the extent he cannot establish valid lien rights or otherwise avoid the investor interests, he must turn over the proceeds to the investors. To the extent that the Trustee bases his lien rights on the investor notes (as opposed to any equitable lien resulting from the costs of maintaining and selling the containers), the investors may show that the notes are unenforceable.
     For the foregoing reasons, the investors' claim based on a theory that they have revoked acceptance will be dismissed, without prejudice to amendment of the complaint to allege prepetition exercise of the right or postpetition exercise by leave of court. Any request for such leave shall be made in the base case, not this adversary proceeding, and shall address the effect that the granting of such leave would have on the other creditors of the estate. The remainder of the Trustee's motion will be denied.      Counsel for the investors shall prepare an appropriate order, which counsel for the Trustee shall approve as to form.
Dated: October 22, 1988                                                                              __________________________                                                                                                                      Alan Jaroslovsky                                                                                                                      U.S. Bankruptcy