In the Matter of a Mail
Dispute Between:

KENNETH CAROBUS

and

RICHARD A. PATETE, JR.

P. S. Docket No. MD-96

APPEARANCE FOR RICHARD A. PATETE, JR:
Richard A. Patete, Jr.
19 South 21st Street
Philadelphia, PA 19103

APPEARANCE FOR KENNETH CAROBUS:
None

This mail dispute has been forwarded by the Office of Field Legal Services, Philadelphia, PA, pursuant to Domestic Mail Manual (DMM) §157.72 and 39 CFR Part 965. The parties dispute the right to delivery of mail addressed to Bent Elbow, 7700 Roosevelt Blvd., Philadelphia, PA 19105-1259. Disputant Patete filed a submittal under §965.5. Disputant Catobus failed to file either a submittal or a comment on Mr. Patete's submittal.

1. On July 3, 1990, Disputant Kenneth Carobus, Esq., was appointed Interim Trustee by the Assistant United States Trustee of the U. S. Department of Justice for the bankrupt estate of Bent Elbow.

2. Mr. Carobus submitted a change of address order to redirect the mail addressed to Bent Elbow from 7700 Roosevelt Blvd., Philadelphia, PA 19152 to his P.O. Box 1259, Philadelphia, PA 19105-1259.

3. Richard A. Patere, Jr., Esq. represents Bent Elbow and claims that he is entitled to the mail in dispute.

4. Mr. Patere asserts, and withdut contrary evidence it is hereby found, that the delivery of mail to Mr. Catobus would interfere with the attorney-client privilege.

5. Mr. Carobus has not obtained an order from the Bankruptcy Court permitting the delivery of mail in dispute to him.

1. Since Disputant Carobus has failed to file a submittal required by 39 CFR §965.5, he is in default. Accordingly, the mail in dispute will be delivered to Disputant Patete. 39 CFR §965.7.

2. Moreover, in Re Benny, 29 BR 754, 10 BCD 921, 9 CBC2d 240, CCH Bankr L. Rptr P 69284, (available on LEXIS, Genfed library, Courts file) (N. D. Cal., 1983), the Court held that a trustee in bankruptcy cannot obtain delivery of the mail of the bankrupt without first notifying the bankrupt and giving the latter an opportunity to object. If the bankrupt objects for the purpose of protecting personal or privileged mail from intrusion by the trustee, the trustee may then seek an order from the Bankruptcy Court specifying how the disputed mail should be delivered.

3. Here, Disputant Catobus, as trustee, jeopardizes and interferes with the bankrupt's attorney-client privilege by seeking delivery of the disputed mail. Since the bankrupt objects to delivery of the mail to the trustee, the latter should have obtained an order from the Bankruptcy Court pursuant to Re Benny, supra. Since the trustee has failed to obtain either an order or the consent of the bankrupt to permit' delivery of the mail to the trustee, the mail should be delivered in accordance with the instructions of Disputant Patete. Since title and right to possession of all business-related mail passes to the trustee, such mail should be forwarded by Mr. Patete to the trustee. Re Benny, supra; In re Fuller, 262 U.S. 91 (1923).

4. If an order is later obtained from the Bankruptcy Court, the mail will be delivered in accordance with the order.

5. The attached mail delivery order should be issued.

Randolph D. Mason
Administrative Law Judge