In re VOIP, Inc.
In re VOIP, Inc.
Opinion of the Court
This cause is before the Court upon the Trustee’s Motion to Dismiss Appeal as Equitably Moot (DE 1); the Trustee’s Amended Motion to Dismiss Appeal as Equitably Moot (DE 12) and Appellants’ Motion to Exclude Mediator’s Statement (DE 6). The motion is fully briefed and ripe for review. The Court has carefully considered the motion and is otherwise fully advised in the premises.
I. Background
On June 2, 2009, an involuntary chapter 7 bankruptcy petition was filed against the Debtor YOIP, Inc. (“Debtor”) by Noctua Fund, L.P., Allen Angel and Garyn Angel, pre-petition state court judgment creditors of the Debtor, or assignees of a number of such judgment creditors (hereinafter, “Judgment Creditors”). (Involuntary Petition, Ex. C, DE 12-3.) The Debtor was a Texas public company, but it maintained its principal place of business in the state of Florida. Debtor’s stock was traded on the over-the-counter bulletin board under the symbol “VOII.” (Complaint, case no. 09-cv-20957-DLG, ¶¶ 10-11, Ex. A, DE 12-1; Complaint, case no. 11-61617-WJZ, ¶ 15, Ex. B, DE 12-2.) Pre-petition, the Debtor and its various subsidiaries and affiliates were engaged in the telecommunications industry. The Debtor provided voice-over internet protocol technology to retail customers and large suppliers of telecommunications services, such as the Vonage Network. (Complaint, case no. 09-cv-20957-DLG, ¶ 10; Complaint, ease no. 11-61617-WJZ, ¶ 15.)
Prior to the petition date, an individual named Barbara Mittman intervened in the Judgment Creditors’ pre-petition state court action in her capacity as “collateral agent,” asserting that she represented various other purported creditors of the Debt- or. For ease of reference, these other creditors shall be referred to collectively as the “Lender Group.”
The Trustee obtained information from various sources regarding claims the bankruptcy estate has or may have against
Instead, the Trustee resolved the fraudulent transfer claims by agreeing to release the Settling Parties in exchange for a payment of $7,500.
The settlement was approved by the Bankruptcy Court on August 9, 2011. (August 9, 2011 Bankruptcy Order Granting Trustee’s Motion to Compromise Controversy, Ex. J, DE 12-11.) The Bankruptcy Court also denied the motion for derivative standing without prejudice. (May 31, 2011 Bankruptcy Order, Ex. 11, DE 11-11.) The Lender Group filed a Notice of Appeal with the Bankruptcy Court of the August 9, 2011 Order on August 19, 2011, but did not seek to stay the Order.
The Trustee moves to dismiss the appeal as equitably moot on the basis that the Lender Group has not sought a stay of the order it wishes to appeal, which would have prevented the consummation of the settlement. According to the Trustee, the consummation of the settlement, in conjunction with the passing of the statute of limitations under 11 U.S.C. § 546, means
II. Discussion
“The mootness doctrine, as applied in a bankruptcy proceeding, permits the courts to dismiss an appeal based on its lack of power to rescind certain transactions.” In re Holywell Corp., 911 F.2d 1589, 1543 (11th Cir. 1990), rev’d on other grounds, Holywell Corp. v. Smith, 503 U.S. 47, 112 S.Ct. 1021, 117 L.Ed.2d 196 (1992). “The mootness standard is premised upon considerations of finality ... and the court’s inability to rescind ... and grant relief on appeal.” Id. (internal quotation marks omitted). As noted by the Eleventh Circuit, the mootness inquiry “involves many subsidiary questions” including “[h]as a stay pending appeal been obtained? If not, why not?” ... “What type of relief does the appellant seek on appeal? What effect would granting relief have on the interests of third parties not before the court?” In re Club Assocs., 956 F.2d 1065, 1069 n. 11 (11th Cir. 1992); see also Miami Ctr. Ltd. P’ship v. Bank of N.Y., 838 F.2d 1547, 1555 (11th Cir. 1988) (noting that dismissal of an appeal on grounds of mootness is often granted when an appeal that would ultimately reverse the confirmation order would “knock the props out from under the authorization for every transaction that has taken place and create an unmanageable, uncontrollable situation for the Bankruptcy Court”) (internal quotations and citations omitted). In the end, however, “[t]he test for mootness reflects a court’s concern for striking the proper balance between the equitable considerations of finality and good faith reliance on a judgment and the competing interests that underlie the right of a party to seek review of a bankruptcy court order adversely affecting him.” In re Club Assocs., 956 F.2d at 1069 citing In re Information Dialogues, Inc., 662 F.2d 475, 477 (8th Cir. 1981).
Typically, the doctrine of equitable mootness is applied “to avoid disturbing plans of reorganization.” In re Fontainebleau Las Vegas Holdings, LLC, 434 B.R. 716, 743 (S.D.Fla. 2010) citing 13B Charles Alan Wright et al., Federal Practice and Procedure § 3533.2.3, at 897 (3d ed. 2008). That stated, the doctrine has been applied in other contexts. See, e.g., In re New Century TRS Holdings, Inc., 407 B.R. 576, 586-90 (D.Del. 2009) (liquidation plan); Aurelius Capital Master, Ltd. v. Tousa Inc., Nos. 08-61317-CIV, 08-61335-CIV, 2009 WL 6453077 (S.D.Fla.Feb. 6, 2009) (cash-collateral order); In re Delta Air Lines, Inc., 374 B.R. 516, 522-25 (S.D.N.Y. 2007) (order approving settlement agreement).
In terms of settlement agreements, courts have looked to see if an appellate court can easily “unwind” a settlement, such as when a settlement is “limited to a small number of parties, all before the court, and presents issues involving the transfer of money and not real property.” In re Cavic, 380 Fed.Appx. 611, 612 (9th Cir. 2010); see also In re Healthco Intern., Inc., 136 F.3d 45, 49 (1st Cir. 1998) (appeal is not equitably moot
Here, there is no evidence before the Court of detrimental reliance on the settlement by any third-parties. Moreover, the settlement involved the transfer of money, not the conveyance of real property. While the Trustee informs the Court that the Settling Parties have deposited the settlement funds with its counsel, there is no evidence suggesting that the funds have already been spent or, upon success of an appeal, that the bankruptcy court could not order the funds returned.
That stated, the Trustee correctly points out that an important factor in its favor is the failure of the Lender Group to seek and obtain a stay to prevent the consummation of the settlement. While the Court agrees that this factor favors the Trustee, when examined in light of the entire record, it is unpersuasive. As noted supra, the Court finds that there is no evidence suggesting that the settlement could not easily be undone. This is in contrast to those cases where, for example, a plan became effective and was implemented over the course of four years, see Matter of Berryman Prods., Inc., 159 F.3d 941, 945 (5th Cir. 1998), or where a “nightmarish situation for the bankruptcy court on remand” would be created that would result in “incalculable inequity” to those who relied on the unstayed order. In re Public Service Co. of New Hampshire, 963 F.2d 469, 475 (1st Cir. 1992). In the end, “the fact remains that the absence of a stay does not compel a finding of mootness in all cases.” In re Club Assocs., 956 F.2d at 1070 n. 13 (11th Cir. 1992) (emphasis in the original); see In re Winn-Dixie Store, Inc., 286 Fed.Appx. 619, 624 (11th Cir. 2008) (failure to seek a stay does not “in and of itself render[] an appeal moot”).
Finally, the Trustee contends that the passing of the statute of limitations under 11 U.S.C. § 546 mandates a finding of equitable mootness. In addressing this issue, the Court first turns to 11 U.S.C. § 546 which provides in part:
a) An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be commenced after the earlier of—
(1) the later of—
(A) 2 years after the entry of the order for relief; or
(B) 1 year after the appointment or election of the first trustee under section 702,1104,1163,1202, or 1302 of this title if such appointment or such election occurs before the expiration of the period specified in subparagraph (A); or
(2) the time the case is closed or dismissed.
11 U.S.C. § 546.
According to the Trustee, the statute of limitations has run on the claim pursuant to section 548 of the Bankruptcy Code, by
This Court need not resolve the applicability of equitable tolling in this case.
For the foregoing reasons, the Court finds that the proper balance between the considerations of finality on the judgment versus the right of a party to seek review of the bankruptcy court’s order at issue is properly resolved in favor of permitting the appeal to go forward. See In re Club Assocs., 956 F.2d at 1069.
III. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1) The Trustee’s Motion to Dismiss Appeal as Equitably Moot (DE 1) and the Trustee’s Amended Motion to Dismiss Appeal as Equitably Moot (DE 12) are DENIED.
2) Appellants’ Motion to Exclude Mediator’s Statement (DE 6) is DENIED AS MOOT.
3) To the extent the Trustee has not spent the settlement funds, the Trustee is hereby ordered not to do so.
4) The Clerk shall CLOSE this case.
5) All pending motions are DENIED AS MOOT.
DONE AND ORDERED.
. The Lender Group are also the Appellants.
. The settlement also provides for advancement by the Settling Parties to the bankruptcy estate of another $160,000 to be used to pursue other recoveries. (Chapter 7 Trustee's Motion, Subject to Higher and Better Offers, to Approve the Compromise and Settlement with Noctua Fund, LP, Mark Baum, James Panther and Garyn Angel bankruptcy case 09-20935-RBR, Ex. J, DE 12-10.)
. An Order for Relief was entered in the bankruptcy case on August 21, 2009, which noted that the Debtor failed to file any timely pleading or defense to the petition. (August 21, 2009 Order for Relief in bankruptcy case 09-20935-RBR, Ex. D, DE 12-4.)
. The burden of establishing mootness is on the party seeking dismissal. In re Fontainebleau, 434 B.R. at 738 citing Beta Upsilon Chi Upsilon Chapter at the Univ. of Fla. v. Machen, 586 F.3d 908, 916 (11th Cir. 2009).
. For this reason, the Court will deny as moot the Lender Group's motion to exclude the mediator’s statement. That motion addressed the applicability of equitable tolling.
Reference
- Full Case Name
- In re VOIP, INC., Debtor
- Cited By
- 2 cases
- Status
- Published