Blog Banner Image

The Franchise Memorandum

Franchisor's Motion to Annul Automatic Stay is Denied Based Upon Consideration of Debtor's Other Creditors
Posted in Bankruptcy

In In re All American Properties, Inc., 2010 Bankr. LEXIS 687 (Bankr. M.D. Pa. Mar. 10, 2010), a franchisor sought to annul the automatic stay following a former franchisee’s bankruptcy filing. Franchisor Petro Franchise Systems had sued its franchisee for trademark infringement.  Petro obtained an injunction prohibiting the franchisee from using Petro’s trademarks and brands.  The franchisee ignored the injunction order and continued to operate the infringing business. 

After a hearing on an order to show cause for the franchisee’s non-compliance with its orders, the court entered another injunction order that, among other things, awarded money damages to Petro and enjoined the franchisee from violating the noncompete agreement.  Before this order was actually entered by the court, the franchisee filed for bankruptcy.

Petro sought to annul the automatic stay in bankruptcy to validate the injunction order.  To do so, a movant must demonstrate “cause” to receive relief or annulment of the stay.  The bankruptcy judge noted that unsecured creditors often are granted relief from the automatic stay when two factors are present:  (1) the debtor has engaged in “morally culpable conduct” that the moving party is seeking to undo in another forum; and (2) the movant is not pursuing assets of the estate.  While the bankruptcy court judge found the franchisee’s conduct to be “reprehensible” and in “flagrant disregard” of the federal court’s orders, the judge noted that the interests of the franchisee’s other creditors would be harmed by an annulment of the automatic stay, which would allow Petro to obtain a sizable judgment against the franchisee to the detriment of its other creditors.  While the bankruptcy court reluctantly denied Petro’s motion to annul the automatic stay, it left open the possibility of a subsequent motion if the issues concerning the other creditors could be addressed adequately. 

Email LinkedIn Twitter Facebook

The information contained in this post is provided to alert you to legal developments and should not be considered legal advice. It is not intended to and does not create an attorney-client relationship. Specific questions about how this information affects your particular situation should be addressed to one of the individuals listed. No representations or warranties are made with respect to this information, including, without limitation, as to its completeness, timeliness, or accuracy, and Lathrop GPM shall not be liable for any decision made in connection with the information. The choice of a lawyer is an important decision and should not be based solely on advertisements.

About this Publication

The Franchise Memorandum is a collection of postings on summaries of recent legal developments of interest to franchisors brought to you by Lathrop GPM LLP. 

To subscribe to monthly emails for The Franchise Memorandum, please click here


















Blog Authors