Spartan Plastics v. Verco Industries (In Re Verco Industries)

20 B.R. 664 (1982)

In re VERCO INDUSTRIES, a California corporation, Debtor.
SPARTAN PLASTICS, a Partnership, Claimant-Appellant,
v.
VERCO INDUSTRIES, a California corporation, Debtor-in-Possession, Debtor-Appellee.

BAP No. CC-81-1212-VGH, Bankruptcy No. SA-80-01923-PE.

United States Bankruptcy Appellate Panels of the Ninth Circuit.

Argued January 21, 1982. Decided March 8, 1982.

George F. Hemingway, Jeffrey H. Lerman, Marshall, Bratter, Greene, Alison & Tucker, Los Angeles, Cal., for claimant-appellant.

Alan D. Pedlar, Stutman, Treister & Glatt, Los Angeles, Cal., for debtor-appellee.

Before VOLINN, GEORGE and HUGHES, Bankruptcy Judges.

OPINION

VOLINN, Bankruptcy Judge:

The facts are not disputed. Verco Industries, the debtor-in-possession, leased a building owned by Spartan Plastics. Verco owes Spartan rent for the period between July 23 and September 15, 1980. The trial court found this to be an administrative expense allowable under 11 U.S.C. § 503 in the amount of $10,791.^[1]

Noting that "Spartan Plastics owes the Chapter 11 Bankruptcy Estate of Verco Industries the sum of $37,110 plus interest and attorneys' fees as a result of the decision of the United States Bankruptcy Appellate Panel of the Ninth Circuit" the trial court granted Verco a stay of payment of the administrative expense. This stay is to continue in effect until such time as the outstanding debt of Spartan Plastics is paid in full, or until Spartan Plastics obtains a reversal on appeal of the above-mentioned decision of the Bankruptcy Appellate Panel.

Spartan asserts that, pursuant to 11 U.S.C. §§ 503 and 507, it is entitled to immediate payment of its administrative claim. The determination of when an administrative expense is to be paid is within the discretion of the trial court. In re Standard Furniture Co., 3 B.R. 527, 6 B.C.D. 270, 2 C.B.C.2d 274 (Bkrtcy.S.D.Cal.1980); See also 3 Collier on Bankruptcy, ¶ 503.01, at p. 503-3 (15th ed. 1981).

Presently, Verco Industries holds a valid and enforceable judgment against Spartan Plastics in the amount of $37,110 while Verco owes Spartan Plastics $10,791 as an administrative expense. The stay preserves the status quo pending Spartan Plastics' appeal to the Ninth Circuit. Spartan Plastics has failed to show an abuse of discretion. The order staying payment of the administrative expense is affirmed.

Verco asserts that the present appeal is frivolous and requestions attorneys' fees and costs. We decline to award fees and costs in this case.

The decision of the trial court is AFFIRMED and the appellee's request for attorneys' fees is hereby DENIED.

NOTES

[1] In compliance with a prior court order, Verco paid Spartan $202 per day for rent from September 15, 1980 until it vacated the premises.