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In re Barber & Ross Co. (Case No. 07-50546) 12/22/2010

Debtor's motion to enforce the automatic stay pursuant to section 362 against creditor was denied where debtor sought to compel creditor to return funds transferred to it by its borrowing customer who acquired those funds post-petition from escrow account in connection with pre-petition indemnification claim which that customer had against the debtor.  Court held that while debtor's rights under the escrow agreement were property of the estate, the actual money that was in the escrow account was not and creditor's receipt of those funds was not an act to obtain possession of property of the estate and did not violate section 362(a)(3). The fact that the customer subsequently transferred funds to a third party did not transform them into property of the estate. The creditor only accepted the transfer of the funds and did not take some action against the debtor or property of the estate.  Court held that no violation of the stay occurred and the attempt to recover the funds from the bank pursuant to section 362 was inappropriate.  Court also held that debtor should have proceeded by adversary proceeding and not motion in this situation.

Date: 
Wednesday, December 22, 2010
Category: 
Adversary Proceedings
Automatic Stay
Property of the Estate
Chapter: 
11