Bruck Mfg. Co. v. Mason , 84 Ohio App. 3d 398 ( 1992 )

I respectfully dissent from the majority's judgment in this appeal. Section 362 of the Bankruptcy Code provides that the filing of a petition in bankruptcy:

"* * * operates as a stay, applicable to all entities, of:

"(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title." Section 362(a)(1), Title 11, U.S.Code.

According to the Court of Appeals for the Third Circuit, "[S]ection 362 by its terms only stays proceedings against the debtor. The statute does not address actions brought by the debtor which would inure to the benefit of the bankruptcy estate." Assn. of St. Croix Condominium Owners v. St. Croix HotelCorp. (C.A.3, 1982), 682 F.2d 446, 448. Accord Cathey v.Johns-Manville Sales Corp. (C.A.6, 1983), 711 F.2d 60, 61. A counterclaim or third-party claim instituted by the debtor is not subject to the automatic stay provided for in Section 362, Title 11, U.S.Code. Trans Caribbean Lines, Inc. v. Tracor Marine,Inc. (S.D.Fla. 1985), 49 B.R. 360; Jefferson Ward Stores, Inc. v.Doody Co. (E.D.Pa. 1985), B.R. 276; Harris v. Alexander Grant Co. (1990), 61 Ohio App.3d 172, 180, 572 N.E.2d 226, 231; N.Pipeline Constr. Co. v. Marathon Pipe Line Co. (1982),458 U.S. 50, 83, 102 S.Ct. 2858, 2877, 73 L.Ed.2d 598, 623.

For this reason, I find that appellant was not estopped from asserting his claim against appellees. The trial court, therefore, improperly granted appellees' motion for summary judgment as the bankruptcy statute does not address actions brought by the debtor which would inure to the benefit of the bankruptcy estate. N. Pipeline Constr. Co. v. Marathon Pipe LineCo.; Assn. of St. Croix Condominium Owners v. St. Croix HotelCorp.; Harris v. Alexander Grant Co., supra. For the same reasons, the trial court improperly denied appellant's motion for summary judgment. Accordingly, I would reverse the judgment of the trial court.