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1890

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re:

A. REICH & SONS, INC.,

DEBTOR(S)

CHAPTER 11

NO. 92-41941-11

DEL MONTE FRESH PRODUCE N.A., INC., et al.,

PLAINTIFF(S),

v.

A. REICH & SONS, INC.,

DEFENDANT(S)

ADV. NO. 92-7171

ORDER REGARDING RULING ON HAUN POTATO COMPANY PACA CLAIM

This proceeding is before the Court following the submission of a proposed judgment based on this Court's ruling at the end of the June 18, 1993, trial on the Perishable Agricultural Commodities Act (PACA) claim asserted by the Haun Potato Company (Haun). Jonathan Margolies, counsel for Haun, submitted the proposed judgment, and Donald Loudon has objected on behalf of the debtor. The Court has reviewed both parties' documents, and will make the following order.

Mr. Margolies has proposed that Haun's recovery should include pre-judgment interest and bear post-judgment interest until it is paid but the debtor's offset for a rebate should bear no interest at all, and simply be deducted from Haun's recovery whenever Haun is paid in full. This Court has previously expressed the view that such a setoff is a money judgment and must draw post-judgment interest as provided by federal statute, 28 U.S.C.A. §1961, which is most easily calculated by simply deducting the debtor's rebate from Haun's judgment before computing Haun's post-judgment interest. The Court does not recall any discussion or evidence at the trial regarding pre-judgment interest, but believes the debtor's rebate should draw pre-judgment interest from the date it was due or payable, just as Haun's claim should.

If Mr. Margolies wishes to dispute this view, he must submit a brief citing authority for his position on or before July 30, 1993. Argument alone, without statutory or case support, will not be sufficient. Mr. Loudon will then have ten days to file an opposing brief. If Mr. Margolies does not wish to submit a brief, he should submit an amended judgment conforming to the Court's view.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this _____ day of July, 1993.













   __________________________________

   JAMES A. PUSATERI

   CHIEF BANKRUPTCY JUDGE

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