95 Nev. 807 603 P.2d 268

BADER ENTERPRISES, INC., a Delaware Corporation, Appellant, v. ERNEST A. BECKER, Doing Business Under the Firm Name and Style of CHARLESTON HEIGHTS SHOPPING CENTER, a Limited Partnership of Nevada, Respondent.

No. 10213

November 30, 1979

603 P.2d 268

*808Stanley W. Pierce, Las Vegas, for Appellant.

Smith & O’Brien, Las Vegas, for Respondent.

OPINION

Per Curiam:

Appellant, Bader Enterprises, Inc. (Bader), filed an unverified complaint on December 19, 1975. In its complaint Bader alleged that on June 12, 1972, respondent, Ernest A. Becker (Becker) converted certain property belonging to Bader. Additionally Bader alleged that the property was involved in a bankruptcy of a third person. Becker answered the complaint and on July 15, 1977 made a motion for summary judgment. As the basis for the motion, Becker contended that the statute of limitations for a claim in conversion, NRS 11.190(3)(c), had run. Thus, Becker argued that Bader’s claim for relief was barred.

*809Bader argued that at the time of the alleged conversion the property at issue was within the exclusive jurisdiction of the Federal Bankruptcy Court. It was also asserted that 11 U.S.C. §§ 29(f)1 and 7912 controlled, and that these federal statutes suspend any state statute of limitations “affecting the debts of a bankrupt.”3 Upon the facts presented, the trial court found that there was no genuine issue of material fact and granted Becker’s motion for summary judgment. We do not agree.

Summary judgment is appropriate only when the truth is quite clear, and no genuine issue of fact remains. Lipshie v. Tracy Investment Co., 93 Nev. 370, 566 P.2d 819 (1977); Perry v. Byrd, 87 Nev. 431, 488 P.2d 550 (1971); Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963). While at first blush it appears that the 3-year statute of limitations precludes the appellant’s claim, upon a more in-depth analysis it becomes evident that there are material issues of fact which are still at issue.

The essential question on appeal is whether the bankruptcy proceedings suspended the state statute of limitations. According to the bankruptcy statutes, any non-exempt property within *810the bankrupt’s possession comes within the exclusive jurisdiction of the bankruptcy court. 11 U.S.C. §§ 1104 and 7115. See Thompson v. Magnolia Co., 309 U.S. 478 (1940); Guardian Mortgage Investors v. Unofficial Noteholders-Debentureholders Creditors Committee, 607 F.2d 1020 (2d Cir. 1979); Tolk v. Weinsten, 220 S.E.2d 239 (S.C. 1975); see generally 8 Collier, Bankruptcy ¶ 3.01 (14 ed. 1978).

The United States Supreme Court has stated that the purpose of the bankruptcy law is to place the property of the bankrupt, wherever found, under the control of the court, for equal distribution among the creditors. Straton v. New, 283 U.S. 318 (1931). In order to accomplish this purpose, that Court has reasoned that once a petition in bankruptcy is filed, the federal courts acquire the exclusive right to administer all property in the bankrupt’s possession. Straton v. New, supra; Lazarus v. Prentice, 234 U.S. 263 (1914); Hebert v. Crawford, 228 U.S. 204 (1913); U.S. Fidelity Co. v. Bray, 225 U.S. 205 (1912); Murphy v. John Hofman Co., 211 U.S. 562 (1909); White v. Schloerb, 178 U.S. 542 (1900).

In 1938 the applicable sections, 11 U.S.C. §§ 29(f) and 791, were added to preserve the property of the bankrupt until the various and relative values and rights of all parties concerned could be determined and passed upon by the bankruptcy court. Martin v. Goggin, 238 P.2d 84 (Cal.App. 1951). Other courts have held that these federal statutes suspend all statutes of limitations without exception. See Booloodian v. Ohanesian, 91 Cal.Rptr. 923 (Cal.App. 1970); Wells v. California Tomato Juice, 118 P.2d 916 (Cal.App. 1941).

In the instant case appellant and respondent are creditors of the bankrupt, Brathendale Soup Kettle. Brathendale leased unimproved real property from Becker on December 15, 1969. Pursuant to the terms of the lease, Brathendale constructed a building on the real property. The lease provided that Brathendale was to retain all title to any improvements upon the real property and that it could remove the improvements prior to the expiration of the lease.

*811On January 25, 1971, Bader entered into an equipment lease with Brathendale. As security for this lease, Brathendale assigned all its right, title and interest in and to the improvements located upor the real property.

Brathendale filed a petition for arrangement under Chapter XI of the Bankruptcy Act on January 24, 1972. The bankruptcy court terminated Becker’s real property lease on June 7, 1972. From the record it does not appear that the bankruptcy court released possession of the building or the equipment lease at that time. Bader alleges that Becker converted the building and equipment on July 12, 1972, shortly after the real property lease was terminated. The bankruptcy court entered an order abandoning the building and equipment on January 10, 1974.

It appears to this court that a question of fact remains. The record before this court does not contain a finding as to who had possession of the building or the equipment at the time of Brathendale’s filing of its petition in bankruptcy. If Brathendale indeed had possession at the time of the filing of the petition, the statute of limitations was suspended by 11 U.S.C. §§ 29(f) and 791. See Booloodian v. Ohanesian, supra.

Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.

Bader Enterprises, Inc. v. Becker
95 Nev. 807 603 P.2d 268

Case Details

Name
Bader Enterprises, Inc. v. Becker
Decision Date
Nov 30, 1979
Citations

95 Nev. 807

603 P.2d 268

Jurisdiction
Nevada

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