In re Asset Resolution Corp.
In re Asset Resolution Corp.
Opinion of the Court
MEMORANDUM OPINION AND ORDER DISMISSING CASE
The matter before the Court arises from this Court’s issuance of an order to show
VENUE AND JURISDICTION
This Court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C. §§ 157(a) and 1334(a) and (b) and the Amended Standing Order of Reference of the United States District Court for the District of Kansas that exercised authority conferred by 28 U.S.C. § 157(a) to refer to the District’s bankruptcy judges all matters under the Bankruptcy Code and all proceedings arising under the Code or arising in or related to a case under the Code, effective June 24, 2013.
BACKGROUND
John Brown (Brown) founded Ringside, Inc. (Asset Resolution Corp.), in 1977. Ringside manufactured and sold boxing and fitness equipment for several decades.
In 2009 and 2010, Ringside and Everlast World’s Boxing Headquarters Corporation
In late 2010 or early 2011, Brown hired Greg Orman (Orman) of Exemplar as a business consultant to help find purchasers or investors for Ringside. Orman formed Combat on June 19, 2012, and Brown formed RAL, LLC (RAL) on June 21, 2012. On June 25, 2012, Ringside sold the bulk of its assets to Combat, including inventory, intellectual property, and the ringside.com website (the Sale).
On July 9, 2012, Everlast filed a complaint against Ringside, Combat, and
On October 29, 2012, Ringside filed a Chapter 11 petition as Asset Resolution Corp. The case was converted to Chapter ■7 on May 7, 2013. Eric C. Rajala was appointed as the Chapter 7 Trustee (Trustee) and the Law Office of Eric C. Rajala was appointed as counsel for the Trustee on July 11, 2013. The Trustee engaged Vincent F. O’Flaherty (O’Flaherty) to investigate the circumstances surrounding the Sale and to determine whether the Trustee had any claims against Combat Brands, LLC (Combat), Exemplar Holdings, LLC (Exemplar), Orman (collectively, the Combat Parties), Ringside, and RAL. The Trustee and O’Flaherty investigated whether:
(i) Premier Bank [Debtor’s main prepet-ition secured lender] and its successor failed to perfect and continue its perfection in the personal property assets of Ringside; (ii) Combat was the alter ego of Ringside and therefore had liability for the debts of Ringside; (iii) the [ ] Sale could, be avoided pursuant to §§ 544-550 of the [] Code; (iv) the Combat Parties were successors to Ringside and therefore had liability for the debts of Ringside; (v) the Combat Parties violated duties they owed to Ringside and its creditors when they pursued the [ ] Sale after they had consulted for and provided advice to Ringside; (vi) the,Combat Parties were liable for some or all of the debts or contractual obligations of Ringside; and (vii) any other claims the Trustee could make against the Combat Parties (collectively, the “Claims”).10
The Trustee and O’Flaherty determined the estate could not pursue the Claims and entered into a settlement agreement. On January 16, 2015, the Trustee filed a motion for approval of a proposed agreement with the Combat Parties and entry of a permanent injunction.
On August 5,2015, this Court denied the Trustee’s motion to approve the settlement and directed the Trustee and parties in interest to show cause why the Claims that the Trustee asserts are valueless, should
On August 10, 2015, the Trustee and the Combat Parties (collectively, the Appellants) jointly appealed the Denial Order to the United States Tenth Circuit Bankruptcy Appellate Panel (the BAP). That same day, the BAP issued an order to show cause why the appeal should not be dismissed as interlocutory. On August 24, 2015, Appellants filed a response to the BAP’s show cause order and a contemporaneous Fed. R. Bankr. P. 8004 motion for leave to appeal. On August 31, 2015, Ap-pellee filed a reply to the BAP’s show cause order and elected to have the appeal heard by the United States District Court for the District of Kansas. The BAP transferred the appeal on September 9, 2015, to the United States District Court for the District of Kansas, leaving the interlocutory issue untouched.
On January 21, 2016, the United States District Court for the District of Kansas denied the Combat Parties and the Trustee’s motion for leave to appeal an interlocutory order and dismissed the appeal as interlocutory.
... sets out alternative, further steps needed to conclude the bankruptcy case. The Trustee admits that his claims against the Combat Parties are merit-less and valueless. Thus, they will eventually be abandoned, whether compelled under § 554(b) or naturally at the time of the closing under § 554(c). The show cause order simply hastens the administration and liquidation of the estate.14
Pending resolution of the Denial Order’s appeal, the Trustee filed a response to this Court’s show cause order requesting the Court refrain from entering an order abandoning the Claims or dismissing the case.
Everlast filed a reply to the Trustee’s response, requesting that the Claims be deemed abandoned, or the case dismissed.
This Court has considered extensive pleadings and oral arguments in this case, including, the Trustee’s motion to approve a proposed compromise and a § 105(a) injunction.
On March 16, 2016, the Trustee filed a supplemental response to the Court’s show cause order, stating that he is holding estate property consisting of a $2,416.67 bank deposit that represents the net proceeds of the former debtor-in-possession’s DIP account.
LAW
Section 105(a) provides:
The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.
Section 330 provides:
(a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award*862 to a trustee ... or a professional person employed under section 327 or 1103—
(A) reasonable compensation for actual, necessary services rendered by the trustee, ... professional person ...; and
(B) reimbursement for actual, necessary expenses.
Section 554(c) provides:
Unless the court orders otherwise, any property scheduled under section 521(a)(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor....
Section 707 provides:
(a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, including—
(1) unreasonable delay by the debtor that is prejudicial to creditors;
(2) nonpayment of any fees or charges required under chapter 123 of title 28; and
(3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521(a), but only on a motion by the United States trustee.
Chapter 7 of the Code permits the Court to dismiss a case “for cause” under § 707(a). Further, § 105(a) allows the Court to sua sponte dismiss a case “for cause” under § 707(a).
... all of the facts and circumstances leading up to the filing of this case to include the debtor’s motive in filing the case, the purposes which will be achieved in this ease, and whether the debtor’s motive and purposes are consistent with the purpose of chapter 7, that is, to provide an honest debtor with a fresh start in exchange for the debtor’s handing over to a trustee all of the debtor’s non-exempt assets for liquidation for the benefit of the debtor’s creditors.32
The determination of “cause” under “for cause” dismissal turns on the
ANALYSIS
Here, there is no reason for Asset Resolution to remain in Chapter 7. This is not a Chapter 7 case filed to maximize value for creditors, corporations do not receive a discharge,
The Trustee argues that he is still pursing administration of the Claims to yield value to the estate. However, the facts do not support this finding. The Trustee previously admitted that the “he had no credible Claims he could pursue against the Combat Parties ...”
As set out in the Court’s Denial Order,
Finally, courts may dismiss Chapter 7 cases contingent on the debtor paying outstanding administrative .claims.
CONCLUSIONS OF LAW
The Court finds that these circumstances furnish sufficient cause to justify dismissal of this case under § 707(a). The Trustee shall pay $2,416.67 as administrative fees and expenses of the estate to his accountant within 30 days of the entry of this order. Upon expiration of 30 days from the’ date of entry of this order, this case shall be deemed dismissed.
IT IS SO ORDERED.
. Doc. 196.
. All future statutory references are to the Bankruptcy Code (Code), as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), 11 U.S.C. §§ 101-1532, unless otherwise specifically noted.
. Trustee, Eric C. Rajala, appears in person. Combat Brands LLC, Exemplar Holdings, and Greg Oman appear by their attorney. Mark A. Shaiken. Everlast World’s Boxing Headquarters Corporation appears by its attorneys, Alan M. Feld and Jed R. Schlacter.
. The Court heard oral arguments addressing the Trustee's motion for an intended compromise and § 105(a) injunction and considered the parties’ pleadings in response to this Court’s show cause order.
. D. Kan. Standing Order No. 13-1. printed in D. Kan. Rules of Practice and Procedure at 168 (March 2016).
. The material facts are not disputed.
. Everlast designs, manufactures, licenses, and markets boxing, mixed martial arts, and fitness related sporting goods,.
. Case No. 12-cv-5297-PAE.
. Everlast World’s Boxing Headquarters Corporation v. Ringside. Inc. et al., Case No. 13-cv-2150.
. Doc. 203, at 1-2.
. Doc. 177.
. Doc. 196.
. United States District Court for the District of Kansas. Case No. 15-cv-09255-JTM, Doc. 3.
. Doc. 207, at 5. ■
. Doc. 203.
. Id. at 2 ¶ 8.
. Id. at 2 ¶ 9.
. Id. at 3 ¶ 10.
. Id. at 3 ¶ 11.
. Doc.204.
. Doc.205.
. Id. at 1.
. Id. at 2 (emphasis in original).
. Mat 2-3.
. Doc. 177.
. Doc. 196.
. Doc. 209.
. In re Jakovljevic-Ostojic, 517 B.R. 119, 125 (Bankr.N.D.Ill. 2014). See also Matter of Jones, 1990 WL 300922, at * 1 (Bankr.N.D.Ind. Sept. 13, 1990) (finding that pursuant to § 105(a), "the bankruptcy court may dismiss cases sua sponte where to do [so] perpetuates the proper use of the bankruptcy mechanism” quoting In re Ray, 46 B.R. 424, 426 (S.D.Ga. 1984)); Tennant v. Rojas (In re Tennant), 318 B.R. 860, 869 (9th Cir. BAP 2004) ("The court can dismiss ' a case sua sponte under Section 105(a).”).
. 11U.S.C. § 707(a).
. In re Stairs, 307 B.R. 698, 702 (Bankr.D.Colo. 2004).
. In re Cleland, 150 B.R. 63, 64-65 (Bankr.D.Kan. 1992) (citations omitted).
. In re Bilzerian, 258 B.R. 850, 857 (Bankr.M.D.Fla. 2001), aff'd, 276 B.R. 285 (M.D.Fla. 2002), aff'd sub nom. Bilzerian v. SEC, 82 Fed.Appx. 213 (11th Cir. 2003).
. In re Kaur, 510 B.R. 281 (Bankr.E.D.Cal. 2014).
. Cleland, 150 B.R. at 65 (citing In re Campbell, 124 B.R. 462, 464 (Bankr.W.D.Pa. 1991)).
. In re Maixner, 288 B.R. 815 (8th Cir. BAP 2003); In re Foster, 316 B.R. 718 (Bankr.W.D.Mo. 2004).
. Kaur, 510 B.R. at 286 (emphasis in original). Notably, this would include the estate’s administrative expenses.
. 6 Collier on Bankruptcy ¶ 707.03[2], at 707-19 (Alan N. Resnick & Hemy J. Sommer, eds., 16th ed. 2016).
. Id. at 707-18.
. Kaur, 510 B.R. at 286. See also Cleland, 150 B.R. at 65 (quoting Matter of Atlas Supply Corp., 857 F.2d 1061, 1063 (5th Cir. 1988)).
. § 727(a)(1). See also In re CCR Fin. Planning, Ltd., 199 B.R. 347, 349 (Bankr.E.D.Va. 1996) ("corporate debtors do not receive a discharge under § 727”).
. Doc. 177, at ¶ 10.
. Doc. 177, at 4 ¶ 16.
. Doc. 196.
. Matt Chiappardi, Bankruptcy Judges Beginning To Sour On Third-Party Releases, http:// www.law360.com/articles/778601/ bankruptcy-judges-beginning-to-sour-on-third-party-releases.
. Cleland, 150 B.R. at 65; Kaur, 510 B.R. at 289; In re Chavez, 157 B.R. 30, 32 (D.Colo. 1993) (permitting dismissal subject to the payment of the trustee’s administrative expenses); In re Bancroft Laundry Ctr., Inc., 164 B.R. 586 (Bankr.N.D.Ohio 1994); In re Todd, 2015 WL 5042116, at *5 (Bankr.N.D.Ga. Aug. 6, 2015).
. Kaur, 510 B.R. at 289.
Reference
- Full Case Name
- IN RE: ASSET RESOLUTION CORP., Debtor
- Cited By
- 2 cases
- Status
- Published