In re Deile
In re Deile
Opinion of the Court
ORDER
Allen and Werna Deile filed for relief under Chapter 11 of the Bankruptcy Code on April 19, 1983. The Debtors initially filed on October 26, 1983, a Disclosure
FINDINGS OF FACT
The Debtor, Allen Deile, is primarily a dairy farmer who grows some small grains and maintains a small stock of cattle. Deile testified at trial that at present he has 150 dairy cattle on his farm. Of those numbers, 40 to 45 head of dairy cattle are owned by his sons. The sons are accordingly obligated to pay a prorata share of the dairy expenses. Historically, the sons have failed to meet the obligation of their dairy expenses. The sons failed to make any dairy expense payment in 1983 and fell $18,000.00 short of their expected payments in 1984. The Debtors expect to receive a contribution of approximately $41,-000.00 from their sons for their share of the expenses in 1985. Overall, Allen Deile testified that his estimated operating expenses are $180,000.00 per year of which $21,000.00 is set aside for family living. The Debtors project that their total annual income will reach approximately $230,-000.00 of which $150,000.00 comes from milk sales. The Debtors estimate that the payments required pursuant to their Plan of Reorganization for retirement of debt will approximate $81,000.00 a year. From the Debtors’ own estimates, the Plan of Reorganization is underfunded by $31,-000.00. The Debtor suggested at the confirmation hearing that his sons will have to put more money into the operation in order to garner the additional money needed under the Plan of Reorganization.
In addition to the $81,000.00 in annual payments scheduled under the Plan, the Debtors propose to make within six months of confirmation two large payments from the sale of collateral. The Debtor presently has $80,000.00 in a cash collateral account at Central Dakota Bank which was derived from the sale of cattle. Central Dakota Bank has a security interest in this money as proceeds of their collateral. The Debtors have arranged with the Bank for the use of a portion of this cash collateral and propose to pay the greatest portion of their account over on their obligation to Central Dakota Bank. The second large payment which the Debtors propose to make in 1985 comes from the sale of a
The Debtor believes there are some positive aspects to his performance during the pendency of his bankruptcy case. The Debtor has been able to operate during the past two years without taking out any operating loans. During that period of time, the Debtors have kept current with all their bills. The Debtors have failed, however, to make any payments to the Farmers Home Administration, Federal Land Bank, and other pre-petition secured creditors. Further, the Debtors have not been able to save any funds during the pendency of their bankruptcy case for funding payments under their proposed Plan of Reorganization.
CONCLUSIONS OF LAW
A court shall confirm a proposed plan of reorganization only if all provisions of 11 U.S.C. § 1129(a) are met. Section 1129(a)(ll) provides that the court shall determine that “[cjonfirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan.” 11 U.S.C. § 1129(a)(ll). Thus, a court must find that the plan of reorganization is feasible. The Eighth Circuit Court of Appeals has stated when construing the requirement of 11 U.S.C. § 1129(a)(ll) that:
“In determining whether [a plan] is feasible, the bankruptcy court has an obligation to scrutinize the plan carefully to determine whether it offers a reasonable prospect of success and is workable.” United Properties, Inc. v. Emporium Department Stores, Inc., 379 F.2d 55, 64 (8th Cir. 1967). Success need not be guaranteed. 5 Collier on Bankruptcy, ¶ 1129.02 at 1129-33 ...
In re Monnier Bros., 755 F.2d 1336, 1341 (8th Cir. 1985). The decision in Monnier confirms that the objective of any bankruptcy reorganization is to provide the best opportunity under the circumstances for payment of claims without jeopardizing vested interests in collateral. The Court cannot find in this instance, however, that the plan of reorganization could be termed “workable.” The Debtors’ own estimates provided at the confirmation hearing indicated that annual income would not be sufficient to support the payments promised under the plan. The Debtors have proposed in their post-hearing brief further modifications of the plan. This again affirms the likelihood that’ confirmation will be followed by further need for modification or a possible liquidation. Further, performance of the Debtors during the pend-ency of this case has not shown that they are ready or able to repay their pre-petition obligations. For the past two years, the Debtors have operated at break-even point without making any effort to pay their pre-petition obligations. The Debtors have been unable to set aside any savings during the bankruptcy case. It is difficult for the Court with this reorganization history to find that it is feasible for the Debtors to meet the additional obligations imposed by a confirmed plan of reorganization.
Accordingly, and for the reasons stated,
IT IS ORDERED:
That confirmation of the Debtors’ Second Modified Plan of Reorganization is DENIED, and
That the above-entitled bankruptcy case is DISMISSED.
Reference
- Full Case Name
- In re Allen A. DEILE and Werna Deile, Debtors
- Status
- Published