Elmwood Development Co. v. General Electric Pension Trust
Opinion of the Court
Elmwood Development Company appeals the dismissal of its second Chapter 11 bankruptcy petition. Agreeing with the bankruptcy and district courts that the second petition was not filed in good faith, we affirm.
Background
In July of 1985, General Electric Pension Trust (“GEPT”) initiated Louisiana foreclosure proceedings against Elmwood’s main asset, a ten-story office building called Elmwood Towers. GEPT agreed to defer the foreclosure proceeding until November of 1986 to afford Elmwood an opportunity to find a buyer or refinancing lender. Elmwood was unsuccessful in its refinancing efforts. It resisted the foreclosure in state court and in April of 1987, on the very eve of foreclosure, filed a vol
On December 5, 1990, Elmwood filed a series of pleadings conceding material default of its confirmed plan and seeking its modification. On December 20, the bankruptcy court refused to modify the Elm-wood I plan on the grounds that it was “substantially consummated” and thus not subject to modification.
The bankruptcy court dismissed Elm-wood II based on a finding that it was not filed in good faith as required by 11 U.S.C. § 1112(b). The court found that Elmwood II was not motivated by a desire to effectuate a reorganization plan but was instituted to prevent GEPT from foreclosing on Elm-wood Towers. The Elmwood II schedules contain no new assets and list the same 20 unsecured creditors as found in the first petition, albeit four are noted for a lesser sum. The bankruptcy court understandably found no changes which would authorize the successive Elmwood II filing. The court also found no realistic prospect for successful reorganization. The district court affirmed the bankruptcy court’s dismissal and Elmwood timely appealed.
Analysis
We review a bankruptcy court’s decision to dismiss a Chapter 11 petition for abuse of discretion.
Lack of good faith in the filing of a Chapter 11 bankruptcy petition constitutes cause for dismissal under 11 U.S.C. § 1112(b).
Even prior to Johnson, the national consensus permitted serial filings in Chapter 11 cases provided the second petition was filed in good faith.
Elmwood maintains that changed circumstances justify the filing of the second petition. We agree that unanticipated changed circumstances may justify a valid successive request for Chapter 11 relief.
To demonstrate change, Elmwood contends that certain new factors would allow it ultimately to increase equity in Elmwood Towers to the eventual benefit of unsecured creditors: (1) two tenants might be moving into the vacant top floor; and (2) a new settlement agreement with another creditor, Irving Trust, provides that it will take only a 20% share of unsecured-creditor funds as opposed to the estimated 25-27% which it would otherwise receive. Elm-wood also lists as changed factors: (3) a claim to a prospective buyer but needs additional time to consummate the sale; (4) that there is pending litigation to resolve lien priority between GEPT and Irving Trust; and (5) the national credit crunch ostensibly occurring after the Elmwood I plan was confirmed.
We agree with the bankruptcy court that none of these factors constitute changed circumstances sufficient to justify the serial filing in this case. The evidence presented in the June 26, 1987 proceeding in Elmwood I reveals that occupancy of the tenth floor was fully anticipated at that time. Similarly, Elmwood also contended in the Elmwood I trial that Irving Trust was willing to negotiate its claims. The Elmwood II proceedings reveal that Irving Trust and Elmwood still have not finalized an agreement on the Irving Trust lien. Regarding Elmwood’s promises of a pending sale, Elmwood has consistently represented that it could sell or refinance Elmwood Towers. The indisputable fact remains that in the Elmwood I settlement Elmwood voluntarily bargained for an absolute deadline within which to consummate that sale. That settlement also provides that GEPT's litigation with Irving, which was ongoing at that time, would have no effect on GEPT’s rights under the settlement. Regarding the national credit crunch, Elm-wood’s manager testified in Elmwood I that the real estate market had been flat for several years. The depressed real estate economy was fully anticipated by Elm-wood at the time of the settlement in Elm-wood I. Nothing has changed.
The Elmwood I record demonstrates that the circumstances alleged were not only foreseeable but in fact were expected by Elmwood before it entered into the 1987 settlement. We therefore reject Elmwood’s next contention that the bankruptcy court’s proceedings were inadequate for lack of a fact-finding hearing. A court may decline to conduct an evidentiary hearing where the alleged facts, even if true, would not change the outcome.
Conclusion
We find that the good faith rule, engineered to prevent abusive manipulation of the Bankruptcy Code, has been properly honored by the bankruptcy court’s dismissal. Elmwood has not justified the maintenance of a serial Chapter 11 petition which directly obstructs the bankruptcy proceedings in its prior Chapter 11 ease. The second petition properly was dismissed.
AFFIRMED.
. 11 U.S.C. § 1127(b). On December 31, 1990, GEPT filed a notice of appeal from the portion of the district court order which concluded that the confirmed plan was substantially consummated. The district court has not yet ruled thereon.
. In re Humble Place Joint Venture, 936 F.2d 814 (5th Cir. 1991).
. In re Little Creek Development Co., 779 F.2d 1068 (5th Cir. 1986).
. In re Chaffin, 816 F.2d 1070 (5th Cir. 1987), modified, 836 F.2d 215 (5th Cir. 1988) (even though a "totality of the circumstances” test was voiced by the bankruptcy court, a "per se " rule was applied in actuality, and thus de novo review was required).
. Humble Place Joint Venture; Little Creek. Section 1112(b) provides in part:
... the court may convert a case under this chapter [chapter 11] to a case under chapter 7 of this title or may dismiss a cáse under this chapter whichever is in the best interest of creditors and the estate, for cause----
. Little Creek, 779 F.2d at 1072 & 1074.
. — U.S. -, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991).
. See In re Jartran, Inc., 886 F.2d 859 (7th Cir. 1989); In re McCormick Road Assoc., 127 B.R. 410 (N.D.Ill. 1991); In re Casa Loma Assoc., 122 B.R. 814 (Bankr.N.D.Ga. 1991); In re Miller, 122 B.R. 360 (Bankr.N.D.Iowa 1990); see also In re Mableton-Booper Assoc., 127 B.R. 941 (Bankr.N.D.Ga. 1991), and In re Henke, 127 B.R. 255 (Bankr.D.Mont. 1991) (post-Johnson cases reaching the same conclusion; Henke addressing a Chapter 12 filing successive to a Chapter 11 filing).
. See Jartran, 886 F.2d at 868 (discussing whether the successive filing "effectively evaded all responsibility under the previous reorganization plan"); McCormick, 127 B.R. at 413 (purpose of bad faith filing test is to discern whether the case was filed to abuse the judicial process by, in particular, delaying or frustrating the creditors’ efforts to enforce their rights); Miller, 122 B.R. at 367 (“[Fjiling of a successive Chapter 11 ... after substantial consummation of a previously confirmed Chapter 11 case for the sole purpose of renegotiating previously agreed upon plan treatment is an impermissible motive for filing the successive case.").
. See 11 U.S.C. § 1127(b); Miller; Casa Loma; In re AT of Maine, Inc., 56 B.R. 55 (Bankr.D.Me. 1985) (refusing to permit a serial Chapter 11 filing that would effect a modification of a substantially consummated confirmed plan in a prior proceeding); In re Northampton Corp., 39 B.R. 955 (Bankr.E.D.Pa. 1984), aff’d, 59 B.R. 963 (E.D.Pa. 1984) (filing of a second Chapter 11 petition to cure defaults arising under a previously confirmed Chapter plan is too akin to modifying the previous plan to be permissible).
The district court has not yet ruled on GEPT’s appeal of the bankruptcy court's finding in Elm-wood I that the plan was substantially consummated. Our holding does not turn on the assumption that this ruling will be affirmed. It is undisputed that the plan was confirmed. Section 1127(b) also restricts, although it does not clearly prohibit, modification of confirmed plans. In either event, then, a serial filing to effect a modification of a confirmed plan may constitute an improper attempt to avoid section 1127(b)’s restrictions on modification.
. Mableton-Booper, 127 B.R. at 944 (requiring a showing of “unanticipated changed circumstances” to justify the filing of a successive petition); Casa Loma, 122 B.R. at 818 (requiring that "the second case is filed in good faith and as a result of unforeseen changed circumstances.”).
. See Mableton-Booper (bad faith may be inferred from record in bankruptcy case); see also Stage I Land Co. v. United States, 71 B.R. 225 (D.Minn. 1986) (remand to bankruptcy court is not necessary when the issue of good faith filing can be determined through a review of the record on appeal); In re Zick, 931 F.2d 1124 (6th Cir. 1991) (dismissal of Chapter 7 case affirmed; full blown evidentiary hearing is not required where record supports dismissal).
. We reject Elmwood’s contention that the Elmwood I proceedings are improperly part of the Elmwood II record. In the hearing the court agreed to accept the Elmwood I record in Elmwood II. This ruling was not in error. Cf. In re Missionary Baptist Foundation, Inc., 712 F.2d 206 (5th Cir. 1983) (bankruptcy court may take judicial notice of the record in prior related proceedings).
. McCormick, 127 B.R. at 415 (“[Ojnce a court has properly found that the debtor has failed to satisfy the court’s objective good faith inquiry ... it may properly dismiss the debtor’s petition without considering the debtor’s subjective good faith.").
Reference
- Full Case Name
- In the Matter of ELMWOOD DEVELOPMENT COMPANY, a Louisiana Partnership in Commendam, Debtor. ELMWOOD DEVELOPMENT COMPANY, a Louisiana Partnership in Commendam v. GENERAL ELECTRIC PENSION TRUST
- Cited By
- 2 cases
- Status
- Published