Laserfiche WebLink
FROM :NATURRL RESOURCES SEC. 303 866 3558 1995, 12-11 11:00 #667 P.08/13 <br /> DMG also alleges that a contract between Debtor and Pitkin Iron states that ban]cruptey <br /> court approval shall be obtained. However, significantly, DMG cites no law-for the proposition <br /> that it as a third party can have the contract set aside on those grounds, why unjust enrichment <br /> would not apply in the absence of a contract or that there is even any requirement in the <br /> Bankruptcy Code that such approval is required. Further, several other contracts for reclamation. ,.� <br /> work were executed by Debtor with knowledge by DMG and without Court approval. These vt .. <br /> included the contract with R&G Excavating for portal sealing, the contract with ENSR for the <br /> environmental audit on the industrial park and the contract with USPCI for transformer disposal. ' y <br /> DMG next asserts that the payroll services (and perhaps all services) provided by Pitkin <br /> Iron are professional services which require prior court approval pursuant to § 327 of the <br /> Bankruptcy Code. Section 327 requires prior court approval for attorneys, accountants, <br /> appraisers, auctioneers or "other professional persons." Clearly, Pitkin Iron does not fall into <br /> any of the specific classifications and the only question is whether Pitldn Iron could be classified <br /> as an "other professional person." DMG cites In re InterwMt Business E4ui2.. Inc_, 2.3 F.3d <br /> 311 (loth Cir. 1994). That case involved the approval of attorneys to represent debtors. That <br /> case is inapplicable in determining the identity of"other professional persons" pursuant to § 327 <br /> because "attorneys" are specifically listed. DMG also cites In re Neidig Cdrn-, 117 B.R. 625 <br /> (Banlr. D.Colo. 1990). In that case, the court found that a company retained to operate the <br /> debtor-in-possession's,radio station was actually a"professional person"requiring approval under <br /> § 327. The court found it'significant that the creditor claiming the administrative expense had <br /> virtually unfettered operation and control of the radio station. There were also allegations by <br /> the trustee of potential fraud in concealing and diverting revenues from the operation of the radio <br /> station (an allegation not present in the instant case). The court described a professional person <br /> as one who plays "a central role in the administration of the debtor's estate." 117 B.R. 628. <br /> The court went on to state, "Perhaps the most common determinative factor appears to be the <br /> amount of autonomy or discretion the person is given by the debtor or trustee in performing its <br /> services." Id. at p. 629. Here, the operations of Pitkin Iron were directly controlled on a daily <br /> basis by Diane Delaney on behalf of Debtor. Ms. Delaney's salary is not claimed as an <br /> administrative expense under the application of Pitkin Iron. Since.the individuals perfohning LC <br /> services for Pitkin Iron were under the direct control and supervision of the Debtor, In re Neidia �`rib <br /> 7CIL <br /> 7 <br />