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819 F2d 546 Lift Equipment Service Inc Itt Diversified Credit Corp v. Lift & Equipment Service Inc

819 F.2d 546

In re LIFT & EQUIPMENT SERVICE, INC., Debtor.
ITT DIVERSIFIED CREDIT CORP., Plaintiff-Appellee Cross-Appellant,
v.
LIFT & EQUIPMENT SERVICE, INC., Defendant-Appellant Cross-Appellee.

No. 86-3086.

United States Court of Appeals,
Fifth Circuit.

June 18, 1987.

Emile L. Turner, Jr., Turner, Young & Hebbler, New Orleans, La., for appellant.

Robert A. Mathis, Newman, Drolla, Mathis, Brady & Wakefield, Metairie, La., for appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

ON PETITIONS FOR REHEARING

(Opinion April 30, 1987, 5th Cir.1987 816 F.2d 1013)

Before GEE, POLITZ and WILLIAMS, Circuit Judges.

PER CURIAM:

1

Both the debtor-appellant, Lift & Equipment Service, Inc., and the creditor-appellee, ITT Diversified Credit Corp., have requested that the court rehear this matter. The arguments raised by Lift were neither argued nor briefed at any stage of the litigation, and are in any event inapplicable in this case. ITT's application, however, correctly suggests a modification.

2

In the opinion, we recognized that ITT was entitled to post-petition interest, to be paid out of its security, in the amount set forth in the assignment of accounts receivable, a rate we recognized to be ten percent. ITT correctly notes that the rate stipulated was "four and one half percentage points per annum higher than the generally prevailing prime per annum rate of interest charged on the last business day of the preceding month by Manufacturers Hanover Trust Co., New York, New York," but a minimum of ten percent. Consistent with our holding that the contract governs the rate of interest, the interest awarded should be assessed at the quoted rate, if otherwise allowable, in accordance with the calculation procedures detailed in the Business Financing Agreement/Assignment of Accounts Receivable.

3

Finally, ITT suggests that in recognizing a security interest in accounts receivable, we did not specifically state that the security interest attached to the money generated by those receivables. That necessarily follows herein, and the security interest extends to the funds which are subject to the control of the bankruptcy court.

4

The applications for rehearing are GRANTED to the extent necessary for these revisions; otherwise the applications for rehearing are DENIED.