Hutson v. CIT Group/Business Credit, Inc. (In Re E-Z Serve Convenience Stores, Inc.)

MEMORANDUM ORDER TILLEY, Chief Judge. This appeal arises out of an order entered on September 16, 2003, by the United States Bankruptcy Court for the Middle District of North Carolina in the bankruptcy case of E-Z Serve Convenience Stores, Inc.; E-Z Serve Corporation; SSCH Holding Corp.; Swifty Serve, LLC; and Swifty Serve Holding Corp. (collectively the “Debtors”). In re E-Z Serve Convenience Stores, Inc., et al., 299 B.R. 126 (Bankr.M.D.N.C.2003). The order denied the portion of a motion by Debtors’ Delaware bankruptcy counsel, Morris, Nichols, Arsht & Tunnell (“MNAT”), that sought to transfer the remaining balance of their retainer to the Trustee, Richard M. Hut-son, II, free and clear of any pre-petition or post-petition liens. The Bankruptcy Court’s decision found that (1) the Debtors’ right to recover the balance of MNAT’s retainer was a general intangible of the Debtors; (2) § 552(a) of the Bankruptcy Code did not apply; and (3) CIT had a perfected first priority lien in the Debtors’ general intangibles which included the balance of the MNAT retainer. This matter is currently before the Court on appeal by the Trustee. Oral arguments were held on September 28, 2004. After considering the parties’ briefs and oral arguments, this Court adopts the reasoning outlined in Judge Carruthers’ bankruptcy opinion. 299 B.R. 126. Now, therefore, it is ordered that the decision and the order of the bankruptcy court, entered September 16, 2003, denying the portion of MNAT’s motion that sought to transfer its retainer free and clear of all liens to the bankruptcy estate is hereby AFFIRMED.