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In re Scrubs Car Wash, Inc., No. 12-31204 ABC, slip op. (Bankr.D.Colo. March 20, 2015) (oral ruling given on February 13, 2014; judgment entered on February 18, 2014). 11 U.S.C. §§ 1111(b)(2) and 1129(b)(2)(A)(i).
In the context of a Chapter 11 reorganization, Judge Campbell denied confirmation of a plan. Among the grounds for denial, the Court found that the debtor's treatment of an undersecured creditor which had elected treatment under section 1111(b) of the Code and which objected to confirmation of the plan, did not comply with section 1129(b)(2)(A) of the Code. The opinion includes a detailed analysis of the interplay of the two sections of the Bankruptcy Code.
Posted: 3/23/2015 10:01:22 AM
Sender v. Golden (In re Golden); Case No. 14-1523 HRT; Order entered March 16, 2015 (11 U.S.C. §§ 549(a) & 1327(b)).
The Chapter 7 Trustee, in a case converted from Chapter 13, filed this adversary proceeding under 11 U.S.C. § 549(a) to recover Debtor's post-confirmation, pre-conversion, transfer of proceeds from the sale of Debtor's homestead to Debtor's non-filing spouse. Under 11 U.S.C. § 1327(b) and the terms of Debtor's Chapter 13 plan, the home revested in the Debtor upon confirmation. The Court followed the reasoning of U.S. v. Richman (In re Talbot), 124 F.3d 1201 (10th Cir. 1997) to determine that revesting had the effect of returning full ownership and control of the property to the Debtor. Therefore, because the property had revested in the Debtor at the time of the transfer, it was not of "property of the estate." The Chapter 7 Trustee's claim was dismissed.
Posted: 3/17/2015 2:07:11 PM
In re Western Capital Partners LLC, Case No. 13-15760 MER; Order entered January 28, 2015 (Post-Confirmation Modification of Chapter 11 Plan and Substantial Consummation)
The reorganized debtor requested the post-confirmation modification of its Chapter 11 plan of reorganization under 11 U.S.C. § 1127(b), and a creditor objected. Section 1127(b) provides a fixed time period for a reorganized debtor to modify a confirmed Chapter 11 plan after confirmation and before substantial consummation of the confirmed plan. "Substantial consummation" is defined in 11 U.S.C. § 1101(2). Even if the proposed modification is sought within this narrow window, a plan may be modified only if circumstances warrant such modification, and the Court confirms the proposed modified plan after notice and a hearing.
The Tenth Circuit has not addressed the issue of substantial consummation in the context of a proposed Chapter 11 plan modification, but has applied "substantial consummation" as a factor in the equitable mootness doctrine. The Court followed the Tenth Circuit's prior application of § 1101(2) to address whether the reorganized debtor's confirmed plan was substantially consummated, and further analyzed whether circumstances warranted the requested confirmation. In this matter, the Court concluded the confirmed plan had been substantially consummated thereby barring the requested modification, and even if the modification was requested within the statutory window, circumstances did not warrant the requested modification.
Posted: 2/13/2015 8:46:25 AM
In re SRKO Family Limited Partnership, Case No. 10-13186-SBB
The Court confirmed a Chapter 11 Plan of Reorganization proposed by a Committee of lien-holding creditors of the Debtor entity but reserved approval of two provisions under the Plan for later determination. The case was commenced by a Jannie Richardson as the pre-petition managing member of the Debtor entity. The lien-holders' Committee proposed that a post-confirmation permanent injunction be placed against Ms. Richardson, barring her from holding herself out as an agent of the newly reorganized Debtor and prohibiting her from entering the property of the reorganized Debtor. The lien-holders' Committee also proposed that this Court retain jurisdiction post-confirmation over any claims asserted by the lien-holders' Committee or the reorganized Debtor against Ms. Richardson or any other of her affiliates.
The Court applied the test for permanent injunctions set forth by the United States Supreme Court in eBay Inc. v. MercExhange, LLC and found that based on the testimonies provided by the Trustee appointed in the personal Chapter 11 bankruptcy case of Ms. Richardson and the chief executive officer of the newly reorganized Debtor, and based on this Court's own observations of Ms. Richardson's conduct over a period of two and a half years, an injunction spanning eighteen months was proper to allow the Debtor reasonable time to undertake the Plan. The Court also opted to retain jurisdiction of matters post-confirmation, concurrent with the jurisdiction of other courts of competent jurisdiction.
Posted: 1/12/2015 7:42:15 AM
In re: Steinke; Case No. 14-18283 HRT; Order entered December 23, 2014 (11 U.S.C. § 522(f)).
In this case, the Court was required to apply the lien avoidance formula set out in § 522(f)(2)(A) in a case where the homestead property at issue is jointly owned by the Debtor and his non-debtor spouse. In 1997, the B.A.P. in In re Cozad, 208 B.R. 495 (B.A.P. 10th Cir. 1997), held that the literal language of § 522(f)(2)(A) required it to use only the debtor's proportional interest in the property when applying the formula but, at the same time, required it to use the full amounts of the liens encumbering the property. In the intervening 17 years, the First Circuit, Third Circuit and Eleventh Circuit have addressed similar issues but have rejected the Cozad style literal language approach as producing a result that is absurd and at odds with Congressional intent. In this case, the Court followed those circuit courts of appeal and applied the § 522(f)(2)(A) formula by using the Debtor's proportional share of the value of the homestead property and also using the proportional amounts of the homestead exemption and the liens only to the extent applicable to his interest in the property.
Posted: 12/24/2014 7:24:05 AM
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