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IN RE McMAHON

No. 1140, Docket 96-5072.

129 F.3d 93 (1997)

In re: Richard L. McMAHON, a/k/a McRich Foods, Debtor. NEW YORK STATE ELECTRIC AND GAS CORPORATION, Plaintiff-Appellant, v. Richard L. McMAHON, a/k/a McRich Foods, Debtor-Appellee.

United States Court of Appeals, Second Circuit.

Decided November 4, 1997.

Attorney(s) appearing for the Case

James M. Hayes, Hinman, Howard & Kattell, LLP, Binghamton, NY, for Plaintiff-Appellant.

Allan J. Bentkofsky, Bentkofsky, Simmonds & Spano, LLP, Auburn, NY, for Debtor-Appellee.

Russell R. Johnson III, Richmond, VA (Paul B. Phinney III, Pearl River, NY, Amicus Curiae from Utility Companies in Florida, Indiana, Kentucky, Maryland, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Virginia, Washington, DC, and West Virginia.)

Before: WALKER, LEVAL and WOOD, Jr., Circuit Judges.

JOHN M. WALKER, Jr., Circuit Judge:

This case presents two questions. First, whether the bankruptcy and district courts erred in declaring NYSEG's post-petition application of debtor's pre-petition utility deposit to the debtor's pre-petition utility debt to be a setoff subject to the automatic stay of 11 U.S.C. § 362 instead of a recoupment not subject to the automatic stay. Second, whether the bankruptcy court abused...

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