The Debtor, Ralph Bonham, sought relief in the Bankruptcy Court under Chapter 11 after a judgment was entered against him in the approximate amount of $4.6 million and in favor of the Conservatorship of Robert D. Buchanan, the Debtor’s stepfather. The Debtor’s appeal of the judgment is currently pending.
The judgment arose from allegations including breach of fiduciary duty and undue influence in connection with certain business schemes the Debtor perpetrated upon Buchanan including the failure to pay appropriate interest on moneys borrowed, and the misappropriation of proceeds from the sale of a multi-family apartment complex.
The Court conducted a five-day evidentiary hearing on the Conservator’s Motion to Appoint a Chapter 11 Trustee or Convert Case to Chapter 7. The Court reviewed the lengths to which the Conservator went in attempting to derail the Debtor’s reorganization efforts. The Conservator objected to nearly every motion the Debtor filed. He objected to fee applications on behalf of estate professionals. He objected to the sale of stock in H.E. Whitlock, Inc., the Debtor’s closely held construction company. He attempted to intervene in what was claimed to be a sham divorce proceeding between the Debtor and his spouse. The Court found the Conservator’s attempts to exercise control over a legal malpractice action being pursued by the Debtor were subject to the automatic stay under 11 U.S.C. § 362(a)(3). The Court reviewed the numerous adversary proceedings related to the case and characterized the litigation as “a war.”
In considering whether the appointment of a Chapter 11 Trustee was appropriate, the Court applied a standard of proof of a preponderance of the evidence rather than a clear and convincing standard. The Conservator argued the appointment of a Chapter 11 Trustee would eliminate conflicts of interest arising from the Debtor preferring his spouse over other creditors as evidenced by the alleged sham divorce. The Conservator argued the Debtor demonstrated a lack of good faith, that the Debtor was squandering assets through the retention of multiple professionals, that there were issues with the accuracy of the Debtor’s operating reports, and that a neutral trustee was necessary to diffuse the acrimony in the two-party dispute. The Conservator alleged that the Debtor was not pursuing avoidance actions against insiders, that the Debtor had not timely filed a plan of reorganization, that the liquidation of assets and prosecution of the malpractice action would be protracted over several years, and that the Debtor is not trustworthy as evidenced by the pre-petition jury verdict resulting in the judgment. Each of the allegations was rebutted by the Debtor and the Court determined, in reviewing the totality of circumstances, that the Conservator did not meet his burden of proof warranting the appointment of a Chapter 11 Trustee. The Court considered the trustworthiness of the Debtor, the Debtor’s past and present performance in the bankruptcy case, prospects for reorganization, the confidence of the business community and of the creditors in the Debtor, and weighed the cost and benefits that would be derived by the appointment of a trustee. The Court found that the Debtor was trustworthy and properly managing the Chapter 11 estate, and found the case was not a two-party dispute as several bank claims were also involved. Importantly, the Court considered the Debtor’s testimony that if the appeal was unsuccessful, he was willing to sell all of his assets, if necessary, to satisfy his creditors. The Motion to Appoint a Chapter 11 Trustee or Convert Case to Chapter 7 was denied.