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VOEST-ALPINE TRADING USA CORP. v. VANTAGE STEEL CO

November 14, 1989

VOEST-ALPINE TRADING USA CORPORATION
v.
VANTAGE STEEL CORPORATION, CYPRESS INTERNATIONAL CORPORATION, PAIGE STEEL, INC., PAIGE INDUSTRIES, INC., PAIGE STEEL PROCESSING, INC., MARVIN F. STABLER, and HOLLEY SUE STABLER



The opinion of the court was delivered by: FULLAM

 JOHN P. FULLAM, CHIEF UNITED STATES DISTRICT JUDGE

 Plaintiff brought this suit claiming that defendants violated the Uniform Fraudulent Conveyance Act, as adopted in Pennsylvania at 39 P.S. §§ 351-363, and the Uniform Commercial Code -- Bulk Transfers, as adopted in Pennsylvania at 13 Pa.C.S. §§ 6101-6111. The disputed assets were located in both Pennsylvania and New Jersey, but the two states' laws are substantially identical. As a matter of convenience, Pennsylvania law will be cited in this Memorandum. This court has jurisdiction pursuant to 28 U.S.C. § 1332(a), since the parties are citizens of different states, and the amount involved exceeds the jurisdictional threshold.

 After a non-jury trial, I now record the following findings of fact:

 FINDINGS OF FACT

 The Parties

 1. Plaintiff Voest-Alpine Trading USA Corporation (VATCO) is a New York corporation, with its principal place of business in Stamford, Connecticut.

 2. VATCO is a judgment creditor of defendant Paige Steel, Inc.

 3. Defendant Vantage Steel Corporation (Vantage) is a Pennsylvania corporation, with its principal place of business in Newtown, Pennsylvania.

 4. Defendants Cypress International Corporation (Cypress), Paige Steel, Inc. (Paige Steel), and Paige Steel Processing Corp. (PSP) are corporations organized and existing under the laws of the Commonwealth of Pennsylvania. Prior to August 11, 1986, these companies maintained their principal places of business in Pennsylvania.

 5. Paige Industries, Inc. (Paige Industries) is a corporation organized and existing under the laws of New Jersey.

 6. Defendants PSP and Paige Steel are wholly-owned subsidiaries of defendant Paige Industries. Paige Industries is a wholly-owned subsidiary of defendant Cypress. All of these entities will be referred to collectively as "the Paige Group".

 7. At all relevant times defendant Marvin F. Stabler, a citizen of Pennsylvania, owned one hundred percent (100%) of Cypress's common stock and thereby controlled all of the defendant corporations comprising the Paige Group.

 8. Defendant Holley Sue Stabler is a citizen of Pennsylvania and is married to Marvin Stabler.

 Events Leading Up To The August 8, 1986 Transactions

 9. In October, 1984, the Paige Group and the New Jersey National Bank (NJNB) executed a Loan and Security Agreement providing the Paige Group with a $ 3.5 million revolving-credit loan and a term loan of $ 500,000 (the Paige loan). (Plaintiff's Exhibit 209)

 10. The Paige Group's debt to NJNB was secured by the assets of the Paige Group and (1) the unconditional and coterminous personal guaranty of the Stablers, (2) a mortgage on rental property owned by the Stablers, and (3) an $ 80,000 certificate of deposit owned by the Stablers.

 11. In August 1985, VATCO sold a quantity of steel to Paige Steel for $ 528,727.34. Paige Steel paid $ 100,000 on account. When VATCO did not receive the balance of the payment, it filed suit in this court. This case was captioned VATCO v. Paige Steel, Inc., Civil Action No. 85-7264, (Paige I). (Plaintiff's Exhibit 188)

 12. A NJNB memorandum shows that Paige Steel had "no defense" to the Paige I litigation and it was a source of concern to NJNB and the Paige Group. (Exhibit 8)

 13. During the spring and summer of 1986, the Paige Group had been negotiating with NJNB trying to work out a way for the Paige Group to pay down approximately $ 1.5 million in debt to the NJNB. These negotiations included discussions of how to handle the Paige I litigation, whether Marvin Stabler should place the Paige Group into Chapter 11 reorganization, and whether he could find a buyer for the Paige Group's assets. (Plaintiff's Exhibit 8; Testimony of Scharmett 178, 192-97)

 14. In the summer of 1986, VATCO was the Paige Group's largest unsecured creditor. Paige Steel's obligation to VATCO represented approximately 50% of its unsecured debt. (Plaintiff's Exhibit 215, p. 2995; Testimony of Marvin Stabler 30-32)

 15. Under 11 U.S.C. § 1103, VATCO would have had a significant voice in the unsecured creditors' group in any Chapter 11 proceedings. This legal reality was unacceptable to Marvin Stabler because of his concern that VATCO, as a condition of its willingness to approve any reorganization plan, would have insisted that NJNB obtain payment of its secured debt, in part, by exercising its rights under the Stablers' personal guaranty. In any event, the idea of placing the Paige Group into bankruptcy under Chapter 11 was eventually rejected. (Testimony of Scharmett, 195-97)

 16. On June 12, 1986, VATCO moved for summary judgment in Paige I. (Plaintiff's Exhibit 217)

 17. The next day, Marvin Stabler, Gary Scharmett (the attorney who represented the Paige Group in business matters), William Jacobs (the Paige Group's loan officer at NJNB), and other individuals met at NJNB. Marvin Stabler and Scharmett told NJNB that VATCO had "no defense" to the Paige I litigation. Marvin Stabler and Scharmett asked NJNB to fund an advertisement in the Wall Street Journal for the sale of the Paige Group, and NJNB agreed to do so. (Plaintiff's Exhibit 8)

 18. The advertisement, which appeared on June 18, 19, and 20, in the Wall Street Journal stated:

 
ACQUISITION OPPORTUNITY
 
Steel dist/processing business in Phila. PA area. 1985 sales $ 6 mil. NOL $ 1.7 mil. Inv. at cost $ 1.4 mil. Equip. at market $ 750K . Good leveragability. Excellent turnaround opportunity. Price $ 1,725,000.
 
Contact Gary Scharmett,
 
1100 One Franklin Plaza,
 
Phila. Pa. 19102
 
(215)563-8046

 (Plaintiff's Exhibit 238)

 19. In July 1986, in response to this advertisement, Richard Steinberg began negotiating for the purchase of the Paige Group's assets with Marvin Stabler and Scharmett. (Testimony of Steinberg, 220-28, 235)

 20. Early in the week of July 28, 1986, Marvin Stabler and Scharmett made a proposal to NJNB that Marvin Stabler form a new company which would, with the help of a NJNB loan, purchase the assets of Paige Steel and the other companies in the Paige Group. The purchase would be accomplished through a "foreclosure" by NJNB in order to launder the assets and cleanse the Paige Group of its unsecured debt. (Plaintiff's Exhibit 3,; Testimony of Steinberg, 229-30)

 21. Further meetings were held on July 31 and August 4, 1986 between Marvin Stabler, Scharmett, and representatives of NJNB to discuss these transactions. (Plaintiff's Exhibit 3)

 23. In August 1986, the Stablers' personal assets were significantly less than the amount of the Paige loan which the Stablers had personally guaranteed. (Testimony of Marvin Stabler, 32-34)

 24. At the August 4, 1986 meeting, the final details of the parties' plan for a foreclosure and resale of assets were set. (Plaintiff's Exhibit 3)

 25. On August 4, 1986, Vantage Steel Corporation was incorporated in the Commonwealth of Pennsylvania by a Harrisburg attorney retained by Scharmett to handle the ministerial aspects of the incorporation proceedings. (Plaintiff's Exhibits 176, 208; Testimony of Scharmett, 164-65)

 26. After its inception and for some time thereafter, Scharmett was the Secretary of Vantage. (Plaintiff's Exhibit 176; Testimony of Scharmett 174)

 27. The arrangement for foreclosure and resale was agreed to by NJNB before anyone from the bank had met Steinberg. The first meeting between Steinberg and representatives of NJNB occurred on August 8, 1986. (Testimony of Steinberg, 113-14)

 28. As of August 8, 1986, because of its default under the terms and conditions of the Paige loan, and due to NJNB's purported repossession of all of its assets, the Paige Group ceased doing business under its own names.

 29. On October 2, 1986, I granted VATCO's summary judgment motion in the Paige I litigation. The principal amount of the judgement was $ 428,727.34, plus interest calculated at 6% per annum from November 1, 1985. Interest totaled $ 23,579.81, and judgment was entered in favor ...


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