In the Matter of a Mail Dispute ) January 28, 1999 Between ) ) DUGENT LIQUIDATING TRUST ) ) at ) ) WILLIAM A. BRANDT, JR. ) P.S. Docket No. MD 98-568 APPEARANCE FOR DISPUTANT William S. Kramer, Esq. DUGENT LIQUIDATING TRUST: Abrams Anton, P.A. One Boca Place, Suite 411-E 2255 Glades Road Boca Raton, FL 33431-7383 APPEARANCE FOR DISPUTANT Phillip M. Hudson, III, Esq. WILLIAM A. BRANDT, JR.: Dana A. Clayton, Esq. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A. One Biscayne Tower, Suite 3400 Two South Biscayne Boulevard Miami, FL 33131-1897
INITIAL DECISION
This mail dispute has been docketed pursuant to Postal Operations Manual (POM 7, August 1, 1996) Section 616.21, which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to Firestone Publishing, Inc., The Shula Building, 14411 Commerce Way, Suite 420, Hialeah, FL 33016-1600. The mail is currently being held by the Hialeah, Florida Postmaster. Both parties to this mail dispute submitted sworn statements and other supporting documents, in accordance with 39 C.F.R. §965.5. The following findings of fact are based on the parties’ submissions and information from the Postal Service that was included in the file referred to the Judicial Officer.
FINDINGS OF FACT
1. Disputant Dugent Liquidating Trust’s (Dugent) predecessor-in-interest sold all its assets to Firestone Publishing, Inc. (Firestone), in September 1996. As part of the cost of purchase, Firestone gave back a promissory note in the approximate amount of $4,000,000. The promissory note was collateralized by a security agreement which provided that, in the event of default, Dugent had a security interest in all assets (including real, personal, tangible and intangible assets), then owned and thereafter acquired by Firestone. (Dugent submission, attachment C).
2. In conjunction with the sale, Mr. Walter Weidenbaum, a principal and officer of Dugent, was appointed president of Firestone (Brandt submission).
3. On October 15, 1998, Dugent gave Firestone ten days to cure its failure to make payments in accordance with the promissory note or face default (Brandt submission).
4. On October 23, 1998, Firestone’s Board of Directors adopted a resolution to assign to Disputant William A. Brandt, Jr., the assets of Firestone for the benefit of creditors (Brandt submission, exhibit F).
5. On Monday, October 26, 1998, Mr. Weidenbaum advised a representative of Firestone that he had taken possession of the assets of Firestone on behalf of Dugent because of Firestone’s default on the promissory note (Brandt submission; see also Exhibit D to Brandt’s motion for rehearing).
6. On this same date Firestone purported to unconditionally convey all of its assets to Mr. Brandt for the benefit of creditors (Brandt submission, Exhibit G).
7. When Mr. Weidenbaum refused to relinquish possession of Firestone’s assets (asserting that he was a creditor in possession), Brandt filed an Emergency Motion to Compel Turnover of Assets in Florida Circuit Court (Brandt submission).
8. By order dated November 16, 1998, the Circuit Court denied Brandt’s emergency motion to compel Dugent to turnover the Firestone assets, and Dugent remains in possession of the assets of Firestone.
Contentions of the Parties
Disputant Dugent Liquidating Trust contends that it is a lawful creditor in possession of the assets of Firestone (including the mail addressed to Firestone) and that the Circuit Court of the State of Florida upheld its right to remain in possession of Firestone’s assets.
Disputant Brandt offers three arguments to support his claim to delivery of the mail. First, Mr. Brandt argues that mail was not included in the assets that Dugent had a security interest in under the security agreement. Second, Mr. Brandt argues that he has the right to receive delivery of Firestone’s mail as the assignee under Firestone’s conveyance of assets to him on October 26, 1998 (see Finding of Fact No. (FOF) 6). Finally, Mr. Brandt argues that Dugent violated Florida law in the manner in which it retook possession of Firestone’s assets under the security agreement.
DECISION
Based on Dugent’s position as the creditor in possession of all the assets of Firestone, a circumstance that was sanctioned by the Circuit Court of the State of Florida (see FOF 8), as well as Mr. Weidenbaum’s position as the president of Firestone,1/ Dugent is entitled to direct delivery of the mail (see Postal Operations Manual §614.1).
There is no merit to any of Mr. Brandt’s arguments. Whether or not mail is an asset, as defined by the security agreement, this decision addresses only the right to delivery of the mail and does not determine ownership of the mail. Moreover, Mr. Brandt’s second and third arguments were first made in his Emergency Motion to Compel Turnover of Assets, and were rejected by the court.
As previously stated, this decision deals only with delivery of the mail. It says nothing about any of the underlying business disputes between the parties, nor does it determine ownership of the contents of the mail.
The attached delivery order should be issued.
William K. Mahn Administrative Judge