Thurner Industries, Inc. v. Gunnison Energy Corp. (In re Riviera Drilling & Exploration Co.)
Thurner Industries, Inc. v. Gunnison Energy Corp. (In re Riviera Drilling & Exploration Co.)
Opinion of the Court
OPINION
Section 1121(e) of the Bankruptcy Code
1. Factual Background
The debtor, Riviera Drilling and Exploration Company (“Riviera”), owns a 43% interest in several oil and gas leases in Colorado (the “Leases”). Scott, Sam, and Jacob Thurner, and various trusts and corporate entities established by them (collectively the “Thurners”) own the other 57% interest in the Leases. GEC owns a pipeline that transports gas from the Thurner-Riviera wells and the parties have a history of disputes over the transmission of -gas from these Leases.
Riviera filed a small business Chapter 11 case in the District of Colorado on February 2, 2010. In August of 2010, Riviera proposed a plan which was not confirmed. GEC filed a motion to convert or dismiss the case. In November of 2010, Riviera proposed a second plan and, at a November 30 hearing on the motion to dismiss, the bankruptcy court directed Riviera to file a motion to extend time to confirm its plan by December 6, 2010. Riviera did so, but on December 15, 2010, the court appointed a Chapter 11 trustee and, on January 3, 2011, denied the extension motion. The Chapter 11 trustee then attempted to close a § 363 sale of 100% of the Leases. When that sale fell apart, the trustee filed an adversary proceeding against the Thur-ners seeking to sell the properties, to equitably subordinate the interests of the Thurners to the general creditors, and substantially consolidate the leasehold interests of the Thurners with the debtor’s estate (the “Adversary”).
The Plan provided that GEC would offer $600,000 in immediate financing to the es
The Thurners objected to confirmation of the Plan on a variety of grounds, including their assertion that because the 300-day period for plan filing had not been extended, GEC was barred from filing a plan. After an evidentiary hearing, the bankruptcy court confirmed the Plan and concluded in a reasoned order that the 300-day deadline applies only to plans filed by a debtor, not by other proponents (the “Confirmation Order”). The court then entered a separate confirmation order. The Thurners appeal both of these orders.
II. Appellate Jurisdiction
This Court has jurisdiction to hear timely filed appeals from final orders, final collateral orders, and, with leave of court, interlocutory orders of bankruptcy courts within the Tenth Circuit, unless one of the parties elects to have the district court hear the appeal.
But even when a timely appeal of a final order is made to this Court, we lack jurisdiction to review it if the appellant lacks standing to bring the appeal.
Standing to appeal is limited to those “aggrieved” by a bankruptcy court’s order.
B. Equitable mootness
The equitable mootness doctrine allows a court to decline to hear a bankruptcy appeal “even when relief could be granted, if implementing the relief would be inequitable.”
The Thurners argue that if we reverse the Confirmation Order, the bankruptcy court can still convert the case or dismiss it.
The Tenth Circuit’s six factor test of equitable mootness includes the following questions: (1) Was a stay pending appeal entered? (2) Has the plan been substantially consummated? (3) Have the rights of third parties been affected? (4) Would reversing the order affect public policy? (5) What is the chance of a successful reorganization after reversal? And (6) are the appellants’ claims legally meritorious?
The Thurners sought a stay, but no stay was entered because they could not place a bond. Thus, this factor weighs against proceeding to the merits, but is not dispositive. More important is whether the plan has been substantially consummated. “Substantial consummation” is defined in the Code as:
(A) transfer of all or substantially all of the property proposed by the plan to be transferred;
(B) assumption by the debtor or by the successor to the debtor under the plan of the business or of the management of all or substantially all of the property dealt with by the plan; and
(C) commencement of distribution under the plan.25
The plan administrator has assumed management of all estate property and has made substantial distributions under the Plan; but the centerpiece of the Plan, namely the sale of the lease interests to GEC following substantive consolidation of the Thurners’ lease interests into the estate, has not occurred. Thus the transfer of “all or substantially all” of the property to be transferred under the Plan has yet to occur. The Plan then has not been substantially consummated. GEC funded the Plan and certain consequences have accrued, but certainly none that would be a nightmare to undo.
III. Discussion
On appeal, the Thurners argue that on its face, § 1121(e)(3)’s 300-day limitation for filing a Chapter 11 plan applies not only to small business debtors, but to all parties in interest and that because the Plan was filed after the expiration of the 300-day deadline, the case should have been dismissed or converted.
A. Section 1121 Establishes Who May File a Plan and When.
Section 1121 establishes that the debtor may file a plan at any time during a case and sets certain time periods during which the debtor has the exclusive right to propose and confirm a Chapter 11 plan. These are generally referred to as “exclusivity periods.” Section 1121(b) provides that only the debtor may file a plan during the first 120 days after the order for relief. Section 1121(c)(3) states that any other party in interest may propose a plan only if the debtor has not filed a plan that has been accepted before 180 days after the order for relief. That provision effectively grants the debtor a 180-day exclusivity period in which to confirm its plan. If, however, the debtor fails to file a plan within the 120-day period, or if a Chapter 11 trustee has been appointed, the debtor’s exclusive periods expire and others may file plans. Section 1121(d) allows for a party in interest to request an extension of either the 120-or 180-day periods and, after notice and hearing, and upon a showing of cause, the court may reduce or extend them, provided that the 120-day period not be extended beyond 18 months after the order for relief and the 180-day period beyond 20 months.
Congress has established a different set of time limits for small business debtors in § 1121(e). Small business debtors are defined as debtors who are engaged in certain commercial or business activities and whose debts do not exceed a certain debt ceiling.
(1) only the debtor may file a plan until after 180 days after the date of the order for relief, unless that period is—
(A) extended as provided by this subsection, after notice and a hearing; or
(B) the court, for cause, orders otherwise;
(2) the plan and a disclosure statement (if any) shall be filed not later than 300 days after the date of the order for relief; and
(3) the time periods specified in paragraphs (1) and (2), and the time fixed in section 1129(e) within which the plan shall be confirmed, may be extended only if—
(A) the debtor, after providing notice to parties in interest (including the United States trustee), demonstrates by a preponderance of the evidence that it is more likely than not that the court will confirm a plan within a reasonable period of time;
(B) a new deadline is imposed at the time the extension is granted; and
(C) the order extending time is signed before the existing deadline has expired.31
If the debtor files a plan within the time-lines established under § 1121(e), § 1129(e) requires that the court confirm a plan “that is filed in accordance with § 1121(e)” not later than 45 days after its filing unless the time is extended “in accordance with § 1121(e)(3).”
Formerly, § 1121(e) provided that (1) only the small business debtor could file a plan until 100 days after the order for relief and that (2) “all plans” were to be filed within 160 days from the order for relief.
B. Section § 1121(e)’s Deadlines Apply to Small Business Debtors.
Most of the cases that address plans filed after the 300-day limit concern debtors’ plans and have concluded that once that time passes without being extended or without a plan being filed, cause to dismiss or convert the case exists. We agree with these courts that “[t]he timing requirements of § 1121(e) were imposed to
In In re Randi’s Inc., the debtor filed its first plan after the 300 days had expired; then the debtor filed a motion to extend the 300-day period 51 days after its expiration.
C. Section 1121(e) Does Not Address Creditors’ Plans, But § 1121(c) Does.
None of the cases discussed above involve plans filed by creditors. The only reported case, other than this one, in which a bankruptcy court has considered the effect of § 1121(e) in the context of plans filed by parties other than small business debtors is In re Florida Coastal Airlines, Inc.
In Florida Coastal, the debtor waited to file a plan until after the 180-day exclusivity period expired. Without seeking to have that or the 300-day period extended, the debtor filed its plan on day 209. It amended that plan on day 309 and a creditor filed its plan on day 317. First, the court concluded that the debtor’s amended plan was “a fundamentally cleaned up version of its original plan” that “related back” to the date of the original plan.
This case better resembles the fact pattern in Florida Coastal than it does the other cases interpreting § 1121(e). Here, the debtor filed several plans, the court then appointed a Chapter 11 trustee and, long after the 300-day deadline had expired, GEC filed a creditor plan, but only after the trustee filed a motion to convert the case to Chapter 7 to which GEC and several other parties in interest objected. In none of the other cases is there a meaningful competing creditor’s plan.
In these circumstances, we agree that applying the § 1121(e) 300-day deadline to defeat a result that is otherwise beneficial to the creditors and the estate makes little sense, particularly in light of the changes BAPCPA made to former § 1121(e) and the differences between small business and ordinary Chapter 11 cases. We also agree with the reasoning in Florida Coastal that it would be absurd to condition allowing the confirmation of an otherwise confirma-ble creditor’s plan on the debtor’s taking action to extend the plan periods and that the change in the statutory language puts the onus on the debtor to request an extension of time in which to file its plan, not any plan.
But there is an even more compelling reason to affirm here.
In this case, when the court appointed a Chapter 11 trustee, the debtor’s exclusivity period expired under § 1121(c)(1), opening the door to any party in interest to file a plan. Because the 300-day deadline applies to debtors alone, the Bankruptcy Court could consider and confirm GEC’s plan at any time.
IY. Conclusion
The small business amendments in BAPCPA were aimed at giving small business debtors an extendable, but limited and definite time period in which to formulate and confirm a plan. They say nothing about creditors plans, leaving us to look to the rest of § 1121, which sets out the conditions for other parties in interest to file plans, as a guide. Once the Chapter 11 trustee was appointed in this case, creditors were free to file a plan at any reasonable time. Accordingly, the Bankruptcy Court correctly held that § 1121(e)’s 300-
. 11 U.S.C. § 101, et seq. All future refer-enees to "Code,” "Section,” and "§ ” are to
. A “small business” debtor is a debtor engaged in commerce or business with aggregate liquidatéd debts of not more than $2.19* million in a Chapter 11 case in which the United States trustee has not appointed a committee of unsecured creditors. § 101(5ID) (*the adjusted rate effective on the date of petition).
. § 1121(e)(2) (emphasis added).
. Complaint in Adv. No. 12-01079, in App. 242-60. The Trustee seeks (1) substantive consolidation of the non-Riviera lease interests into the bankruptcy case; (2) equitable subordination of Riviera insider claims; and (3) avoidance and recovery of roughly $110,000 in fraudulent transfers made to Jacob Thurner.
. Amended Chapter 11 Plan Filed by GEC dated August 31, 2012, in App. 547-68.
. Id. at 8, in App. at 557.
. Id. at 8, ¶ 6.03(b), in App. at 557.
. Id. at 11-13, ¶ 8.02, in App. at 560-62.
. Appellants’ Notice of Appeal (“NOA") lists only the Order on Confirmation as the order appealed from, but Appellants also linked the Order Confirming Plan to the notice. Since it’s clear they meant to appeal both orders and the Order Confirming Plan is the execution of the rulings in the Order on Confirmation, we construe the NOA as appealing both orders but shall simply refer to them collectively as the "Confirmation Order.”
. 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr.P. 8002; 10th Cir. BAP L.R. 8001-3.
. In re K.D. Co., Inc., 254 B.R. 480, 490 (10th Cir. BAP 2000) (Chapter 11 plan confirmation order is a final judgment.).
. Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) ("Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.”).
. Arizonans for Official English v. Arizona, 520 U.S. 43, 73, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (court has obligation to satisfy itself that it has jurisdiction to hear appeal) (quoting Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986); In re Phila. Newspapers, LLC, 690 F.3d 161, 168 (3rd Cir. 2012) (Equitable mootness is a way for an appellate court to avoid deciding the merits of a bankruptcy appeal by dismissing the appeal, even if it has
. In re Kopexa Realty Venture Co., 240 B.R. 63, 65 (10th Cir. BAP 1999).
. Holmes v. Silver Wings Aviation, Inc., 881 F.2d 939, 940 (10th Cir. 1989) (internal quotation marks omitted).
. In re C.W. Mining Co., 641 F.3d 1235, 1239-40 (10th Cir. 2011).
. In re Paige, 584 F.3d 1327, 1337-43 (10th Cir. 2009).
. C.W. Mining, 641 F.3d at 1240.
.The Thurners also argue that the prudential mootness doctrine does not apply where the issue involves a challenge to the court’s authority to confirm a plan, citing In re Combined Metals Reduction Co., 557 F.2d 179 (9th Cir. 1977). But that case does not say that. Rather, the Ninth Circuit was of the opinion that the appeal of the confirmation order was not moot because the plan still controlled the actions of the trustee even though much of the estate property had been liquidated and many creditors had been paid. Combined Metals is factually distinguishable because the debtor was unquestionably solvent and its only problem was an inability to meet current liabilities, while our debtor is insolvent and the trustee is out of the picture.
. Declaration of Thomas M. Kim at 12, in Appellee’s Appendix at 622. This declaration is the subject of GEC’s motion to supplement the record, which states that Appellants object, yet they filed no response. We grant GEC’s motion to supplement as this information is critical to this Court’s assessment of mootness.
. Paige, 584 F.3d at 1339.
. Id.
. Id. at 1335 (adopting abuse of discretion standard of review for determinations of equitable mootness in bankruptcy cases).
. Id. at 1339-40.
. 11 U.S.C. § 1101(2) (emphasis added).
. In re Pub. Serv. Co., 963 F.2d 469, 474 (1st Cir. 1992) (reversal “ ’creat[ing] a nightmarish situation for the bankruptcy court on remand’ ... makfing] reconstructive relief extremely improbable”) (quoting In re Texaco, Inc., 92 B.R. 38, 50 (S.D.N.Y. 1988)).
. Under the doctrine of equitable mootness, substantial consummation of reorganization plan is a momentous event, but it does not necessarily make it impossible or inequitable for appellate court to grant effective relief. In
. We reject the Thurners’ argument that neither the trustee nor the plan administrator constitute third parties for purposes of the mootness analysis as they played a pivotal role in the bankruptcy proceedings. They are nonparties to the appeal so the effects of reversal on them should be considered. Paige, 584 F.3d at 1343 (“The effects that reversal will have on non-party creditors is probably the foremost concern in our analysis of equitable mootness.”).
. See § 101(5ID) (providing for a ceiling that is currently $2,343 million and excluding from this category of debtor one whose primary activity is operating real property).
. Compare §§ 1121(e) and 1129(e) (2005) with §§ 1121(e) and 1129(e) (1994).
. § 1121(e) (emphasis added).
. § 1129(e).
. Former § 1121(e)(1) and (2).
. Former § 1121(e)(3).
.BAPCPA made few changes to the other timing provisions in § 1121 that govern non-small business cases other than to impose an 18-month outside limit on extensions of a debtor’s § 1121(c)(2) exclusive period in which to file a plan and a 20-month outside limit on extensions of the § 1121(c)(3) time to confirm that plan.
. In re Randi's Inc., 474 B.R. 783 (Bankr.S.D.Ga. 2012).
. In re Castle Horizon Real Estate, LLC, No. 09-05992, 2010 WL 3636160, at *1 (Bankr.E.D.N.C. Sept. 10, 2010).
. Id. at *2.
. In re Sanchez, 429 B.R. 393 (Bankr.D.P.R. 2010).
. Id. at 398.
. 361 B.R. 286 (Bankr.S.D.Fla. 2007).
. 6 Hon. William L. Norton Jr. & William L. Norton III, Norton Bankr.Law & Practice 3d, § 108:5, at 108-14 (2013).
. Florida Coastal, 361 B.R. at 291.
. Former § 1121(e)(3).
. Recall that the Randi’s court concluded that the shareholder plan filed there was virtually identical to that filed by the debtor.
. The BAPCPA’s legislative history also supports our holding. See H.R. Rep. 109-31(1), 92, reprinted in 2005 U.S.C.C.A.N. 88, 158: Sec. 437. Plan Filing and Confirmation Deadlines. Section 437 of the Act amends section 1121(e) of the Bankruptcy Code with respect to the period of time within which a small business debtor must file and confirm a plan of reorganization. This provision provides that a small business debt- or’s exclusive period to file a plan is 180 days from the date of the order for relief, unless the period is extended after notice and a hearing, or the court, for cause, or
Sec. 438. Plan Confirmation Deadline. Section 438 of the Act amends Bankruptcy Code section 1129 to require the court to confirm a plan not later than 45 days after it is filed if the plan complies with the applicable provisions of the Bankruptcy Code, unless this period is extended pursuant to section 1121(e)(3).
. § 1121(c)(2) and (c)(3).
. § 1121(c)(1).
. See In re Aspen Limousine Serv., Inc., 193 B.R. 325, 333 (D.Colo. 1996).
Reference
- Full Case Name
- In re RIVIERA DRILLING & EXPLORATION COMPANY, Debtor. Thurner Industries, Inc., Thurner Explorations, Inc., T Investment Group, Vicon, Inc., Timothy Thurner, individually and as successor in interest to an undivided 50% of the interest held in the name of the Thurner Heat Treating Corporation Employees' Profit Sharing Plan, an Erisa Trust, Scott Thurner, individually, and as trustee for The Doris Thurner Family Trust, and as successor in interest to an undivided 50% of the interest held in the name of the Thurner Heat Treating Corporation Employees' Profit Sharing Plan, an Erisa Trust, Samuel Thurner, individually and as successor in interest to one fourth of the Robert E. Thurner Family Trust, Sally Thurner, individually and as successor in interest to one fourth of the Robert E. Thurner Family Trust, Holly Thurner, individually and as successor in interest to one fourth of the Robert E. Thurner Family Trust, The Doris Thurner Family Trust, by and through Scott Thurner, Trustee, and 350 Saint Paul, LLC v. Gunnison Energy Corporation
- Cited By
- 3 cases
- Status
- Published