Ollag Construction Equipment Corp. v. Goldman
Ollag Construction Equipment Corp. v. Goldman
Opinion of the Court
When financial storms rage, unsecured creditors take on collateral as ballast. The security thus gained is often tenuous, however, for if bankruptcy is involved, it may be dissolved by the trustee’s challenge. In this case, we are called upon to decide whether Manufacturers & Traders Trust Company (“the Bank”) may enforce a security interest in the property of the bankrupt Ollag Construction Equipment Corp. (“Ollag”), or whether, as Ollag’s trustee contends, the Bank’s claim is a voidable preference under § 60 of the Bankruptcy Act.
I.
Ollag’s financial demise was triggered when the construction business operated in Lancaster, New York, by the four Gallo brothers — Leopold, Anthony, Michael, and James — fell on hard times. An equipment leasing firm, Ollag was but one of the three corporate constituents of this family enterprise. It was a wholly-owned subsidiary of Deplan Contracting Inc. (“Deplan”), a construction firm that accounted for more than ninety percent of Ollag’s rentals. The third Gallo corporation, Sheldon Builders Supply Corp. (“Sheldon”), owned the real estate quartering the Deplan and Ollag facilities.
In late 1972, the Gallos learned that De-plan’s financial condition was grave because approximately $300,000 in accounts payable had not been recorded in the company’s books. Deplan’s creditors became aware of this state of affairs in January 1973, as Deplan began to default on a number of construction projects. Meetings were held to discuss refinancing the stricken business. The principal creditor participants were the Bank and the Traveler’s Indemnity Company (“Travelers”). The Bank held Deplan’s note in the sum of $200,000, collateralized by a security interest in equipment Deplan owned separately from Ollag. It had also obtained a mortgage on Sheldon’s real estate, and payment guaranties from Ollag and the Gallos and their wives. Travelers had written performance and payment bonds for Deplan’s projects, and Ollag, Sheldon, and the Gallos had also agreed to indemnify Travelers against liability on these bonds,
While the discussions continued, the security interest at issue in this case came into being. In February 1973, Leopold Gallo, Ollag’s president, executed at the Bank’s request a chattel mortgage on Ollag’s inventory and equipment to serve as security for Ollag’s guaranty of Deplan’s note.
In June, Travelers, having undertaken to finish Deplan’s construction projects after the latter’s default, filed an involuntary petition against Ollag. The Bank, without delay, submitted a reclamation petition asserting its security interest in Ollag’s equipment. The trustee counterclaimed, seeking an avoidance of the Bank’s claim.
II.
We have little difficulty in disposing of the trustee’s contention on his appeal that the security agreement was void because it did not further any of Ollag’s corporate purposes and had not been ratified by Ollag’s shareholders in accordance with
Nevertheless, the trustee argues that even if shareholder approval was not required, the security agreement is without force because Leopold Gallo, president of Ollag, did not have authority to execute it on its behalf. But Leopold’s right to act for Ollag was conclusively established by a resolution adopted by Ollag’s board of directors before any suggestion of trouble in the Gallo enterprises. It granted any one officer of Ollag authority to execute security agreements with the Bank on behalf of Ollag. Accordingly, we have no hesitation in finding that the security agreement complied with New York law.
III.
We now turn to the trustee’s assertion that the Bank’s security interest in Ollag’s inventory and equipment is a voidable preference. The Bank argues that of the seven prerequisites for voidability under § 60 of the Act,
A.
A debtor is insolvent under the Bankruptcy Act if ‘‘the aggregate of [its] property . . . shall not at a fair valuation be sufficient in amount to pay [its] debts.”
In February 1973, Ollag’s physical assets consisted entirely of construction equip
Learned Hand’s landmark opinion in Syracuse Engineering Co. v. Haight, 97 F.2d 573, 576 (2d Cir. 1938), taught us that contingent subrogation and contribution rights must be valued as assets in determining solvency. See also Updike v. Oakland Motor Car Co., 53 F.2d 369, 371 (2d Cir. 1931); Wingert v. President Director & Company of Hagerstown Bank, 41 F.2d 660 (4th Cir.), cert. denied, 282 U.S. 871, 51 S.Ct. 77, 75 L.Ed. 769 (1930). Cf. Schwartz v. Commissioner of Internal Revenue, 560 F.2d 311, 317 (8th Cir. 1977). In the case at bar, we are left in murky obscurity regarding the actual value of Ollag’s contingent assets. The courts below treated Ollag’s subrogation right against Deplan as effectively valueless.
But we must also consider the extent, if any, of Ollag’s liability to Travelers under the indemnity agreement. The Bank contends that the trustee has failed to meet his burden of proof in establishing this liability, see Cohen v. Sutherland, 257 F.2d 737 (2d Cir. 1958), and if it is excluded, Ollag was almost certainly solvent in February 1973.
(1) Ollag’s physical assets;
(2) Ollag’s right of subrogation to the Bank’s secured claim against Deplan;
(3) Ollag’s rights of contribution against Sheldon and the Gallos as co-guarantors of Deplan’s note to the Bank and co-indemnitors on Travelers’s performance and payment bonds;
(4) Ollag’s expected liability to Travelers under the indemnity agreement covering the performance and payment bonds, assuming that liability is established.
These assessments are to be made with “such detail and exactness as the nature of the case permits.” Kelley v. Everglades Drainage District, 319 U.S. 415, 420, 63 S.Ct. 1141, 1144, 87 L.Ed. 1485 (1943). We recognize that valuation of contingent assets and liabilities is, an arduous task, and on occasions only approximations can be made. For this reason, reversals under Bankruptcy Rule 752
B.
Since we do not decide whether Ollag was insolvent when the security interest was taken, we cannot resolve the related question whether the Bank had reasonable cause to believe that the debtor was insolvent at that time. But we must conclude that, as a sophisticated creditor deeply involved in Deplan’s financial woes and well aware of the close relationship between Deplan and Ollag, the Bank was “on inquiry” with respect to matters affecting Ollag’s financial condition. See In re Hygrade Envelope Corp., 366 F.2d 584, 588-89 (2d Cir. 1966); Miller v. Wells Fargo Bank International Corp., 406 F.Supp. 452, 464-65 (S.D. N.Y. 1975), aff’d, 540 F.2d 548, 555-56 (2d Cir. 1976). Proper inquires would certainly have disclosed the existence of Ollag’s indemnity agreement with Travelers. Accordingly, we hold that the Bank is chargeable with knowledge of that arrangement. If the bankruptcy court determines on remand that Ollag had a negative net worth in February 1973, it should then consider whether, with knowledge of all information available upon diligent inquiry into the Gallo enterprise’s affairs, the Bank would have had reasonable cause to conclude that Ollag was insolvent.
. Bankruptcy Act § 60, 11 U.S.C. § 96, provides:
(a)(1) A preference is a transfer, as defined in this Act, of any of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition initiating a proceeding under this Act, the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class.
(b) Any such preference may be avoided by the trustee if the creditor receiving it or to be benefited thereby or his agent acting with reference thereto has, at the time when the transfer is made, reasonable cause to believe that the debtor is insolvent.
. Michael Gallo had withdrawn from the enterprise because of a conflict of interest, but he and his wife remained indemnitors on the bonds and guarantors of the note.
. Leopold Gallo testified at the hearing before Judge McGuire that he did not read the agreement before signing it and that he understood it to be a prerequisite to a refinancing of Deplan by the Bank.
. Pursuant to stipulation, the trustee sold Ol-lag’s equipment at auction, and this litigation concerns the proceeds of that sale.
. N.Y. Bus. Corp. Law § 908 (McKinney 1963) provides;
A guarantee may be given by a corporation, although not in furtherance of its corporate purposes, when authorized at a meeting of shareholders by vote of the holders of two-thirds of all outstanding shares entitled to vote thereon. If authorized by a like vote, such guarantee may be secured by a mortgage or pledge of, or the creation of a security interest in, all or any part of the corporate property, or any interest therein, wherever situated.
. See, e.g., McCarty v. Nostrand Lumber Co., 232 App.Div. 63, 248 N.Y.S. 606 (2d Dep’t 1931); Bacon v. Montauk Brewing Co., 130 App.Div. 737, 115 N.Y.S. 617 (1st Dep’t 1909).
. N.Y. Bus. Corp. Law § 202(a) (McKinney 1963) provides;
Each corporation, subject to any limitations provided in this chapter or any other statute of this state or its certificate of incorporation, shall have power in furtherance of its corporate purposes:
(7) To make contracts, give guarantees and incur liabilities, borrow money at such rates of interest as the corporation may determine, issue its notes, bonds and other obligations, and secure any of its obligations by mortgage or pledge of all or any of its property or any interest therein, wherever situated.
. Judge McGuire originally found that Leopold did not have the requisite authority, but he withdrew that finding as unnecessary in view of his holding that the security agreement was void under § 908. Judge Elfvin stated that he would have remanded for a finding were he not affirming the holding that the security interest was a voidable preference. But an appellate court is as well placed as a trial court to construe a written instrument, Adler v. Nicholas, 381 F.2d 168, 170-71 (5th Cir. 1967); cf. In re Morasco, 233 F.2d 11, 14-15 (2d Cir. 1956), and we therefore see no need for further findings on the issue. The trustee has not pointed to anything in the record or in New York law that would warrant our looking past this explicit authorization.
. 3 Collier on Bankruptcy 1': 60.07-.35, ,52-.56 (14th ed. 1977). The Bank originally contended that the security interest did not enable it to “obtain a greater percentage of [its] debt than some other creditor of the same class,” but it does not press the point on appeal,
. Bankruptcy Act § 1(19), 11 U.S.C. § 1(19).
. 3 Collier on Bankruptcy, supra, (160.31. For preference purposes, the transfer was effected 0n February 6, 1973, when the security interest was perfected by filing. See Bankruptcy Act § 60(a)(2), 11 U.S.C. § 96(a)(2).
. The assets were appraised in 1971 at $166,-650 and in 1972 at $148,900. They were appraised at $131,200 on June 28, 1973, two days before they were sold at auction for $98,000.
. Judge McGuire held that because Deplan, . Sheldon, and the Gallos were all insolvent when the transfer was effected, subrogation and contribution rights against them would be worth little. Reviewing this finding under the “clearly erroneous” rule of Bankruptcy Rules 752 and 810, Judge Elfvin affirmed.
. If we value Ollag’s equipment conservatively at the distress sale price of $98,000, and Ollag’s subrogation claim against Deplan at the $138,951.01 that the Bank recovered on De-plan’s equipment, then Ollag had a positive net worth of some $28,000 as of February 1973 if the Travelers liability is excluded. Because we do not rule on the latter issue, however, these figures are cited merely for the purpose of explaining our concern. We are not to be understood to have determined the proper valuation for either Oilag’s physical assets or its claim against Deplan.
. Documents and testimony introduced at trial showed expenditures by Travelers of some $274,000 through 1976. Although it is not clear whether the documents show every recovery Travelers made from sources other than Deplan, Ollag, or the Gallos, the Bank’s contention that the documents show no such recoveries is incorrect. The claim record for the Erie County Water Authority project, Defendant’s Exhibit J, shows credits of some $65,230.90. We do not pass on whether these documents are sufficient to establish a value for Ollag’s
. Bankruptcy Rule 752, the bankruptcy counterpart to Fed.R.Civ.P. 52, provides:
(a) Effect. In all matters tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon . . Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. If an opinion or memorandum of decision is filed it will be sufficient if the findings of fact and conclusions of law appear therein.
Reference
- Full Case Name
- In the Matter of OLLAG CONSTRUCTION EQUIPMENT CORP., Bankrupt. MANUFACTURERS AND TRADERS TRUST COMPANY v. Karl GOLDMAN, as trustee of Ollag Construction Equipment Corp., Bankrupt
- Cited By
- 1 case
- Status
- Published