McComber v. Arts Dairy, LLC (In re Arts Dairy, LLC)

McComber v. Arts Dairy, LLC (In re Arts Dairy, LLC)

Opinion

 [*498]  MEMORANDUM OPINION AND DECISION

This cause comes before the Court on the Motion of the Defendant, AgStar Financial Services, to Dismiss Adversary Complaint. In furtherance of its Motion, the Defendant filed supporting Memoranda. Against the Motion to Dismiss, the Plaintiff, Robert McComber, filed a Memorandum in support of his position. The Court has now had the opportunity to review the arguments presented by the Parties, as well as the pleadings submitted in this case. Based upon this review, the Court finds that the Defendant's Motion should be Granted.

FACTS

On April 14, 2009, the Debtor, Arts Dairy, LLC (hereinafter the "Debtor"), filed a voluntary petition in this Court for relief under Chapter 11 of the United States Bankruptcy Code. At the time this case was commenced, the Debtor was engaged in the business  [**2] of operating a dairy farm with approximately 1,250 cows. The Debtor continues to operate this business as a debtor-in-possession pursuant to 11 U.S.C. §§ 1107 and 1108.

The Plaintiff, Robert McComber (hereinafter the "Plaintiff"), was disclosed by the Debtor as an unsecured creditor, holding a claim in the amount of $ 95,889.90. The claim was not listed by the Debtor as contingent, unliquidated or disputed. Consideration for the claim was described as "Corn Silage."

It was presented that the claim arose from an agreement, executed on August 29, 2008, between the Debtor and the Plaintiff. (Doc. No. 1, Ex. 1). This agreement provided that the Plaintiff, as the seller, would deliver to the Debtor "300 acres of Corn Silage." Id. For this, the Debtor agreed to pay the Plaintiff in 12 monthly installments, beginning in September of 2008. Id. Not long thereafter, in accordance with the agreement, the Plaintiff delivered to the Debtor the required silage. Id. at P 7. At the time the Debtor filed for bankruptcy relief, however, the Plaintiff had yet to receive full payment for the silage.

In addition to the agreement for silage, the Plaintiff and the Debtor also entered into an undated written  [**3] arrangement for "Manure application." Id. The document  [*499]  evidencing this arrangement scheduled a monthly payment plan, beginning in October of 2008, and extending through September of 2009. Id. Also as to the form of the document, it was set forth at the top: "Agreement: Bob McOmber [sic]" Id. After the payment schedule, it was then stated, "If you agree with this payment plan, payments will be sent accordingly." Id. Thereafter, the document concluded with the name of the Debtor, "Arts Dairy LLC." Id.

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