Chapter 11 Motion to Confirm Plan ?
Posted: Tue Jan 15, 2013 12:33 pm
Here is one of mine I used before BR:
You can cut and paste this one: I used the old format for notice. You may
need to use the notice of motion form. If you do cut out the notice parts
of this notice of motion and motion.
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA, LOS ANGELES DIVISION
In re: ) Bky. No. 2:10-bk-19575-BR
)
) Chapter 11
)
) NOTICE OF MOTION AND MOTION
) FOR CONFIRMATION OF SECOND
) AMENDED PLAN OF REORGANIZATION ) PURSUANT TO 1129(a) AND, IF
) NECESSARY 1129(b);
) DECLARATION OF IN
) SUPPORT OF CONFIRMATION; POINTS
) AND AUTHORITIES
)
Debtor. ) Date: July 27, 2011
) Time: 10:00 a.m.
) Courtroom: 1668, 16th Floor
NOTICE
TO: THE COURT; THE U.S. TRUSTEE; INTERESTED PARTIES:
PLEASE TAKE NOTICE that on July 27, 2011, at 10:00 a.m., or as soon
thereafter as is possible, in Courtroom 1668, 16th Floor of the Edward R.
Roybal Federal Building, 255 E. Temple Street, Los Angeles, California, the
Court will consider the debtors Motion for Confirmation of Second Amended
Plan of Reorganization filed herein.
Objections, if any, must be made in writing, filed with this Court and
served upon counsel for the debtor whose address appears in the upper
left-hand corner of this Notice and Motion no later than July 6, 2011.
Failure to file an objection may be deemed a waiver thereof and consent to
the relief for which the debtor prayed.
, the Debtor and Debtor in Possession, through its attorney,
Dennis McGoldrick, respectfully submits this Motion for Confirmation Of
Plan of Reorganization.
I
MOTION
1. The debtor filed a voluntary petition under chapter 11 and consented to
the jurisdiction of this court over his reorganization. Pursuant to 28
U.S.C. 1334, jurisdiction over Debtor's Chapter 11 case is vested in the
United States District Court for the Central District of California. By
virtue of section 157 of title 28 and the Order of the Chief Judge of the
United States District Court, Central District of California, entered on
July 20, 1984, all cases and proceedings under title 11 have been referred
to the Bankruptcy Court. Confirmation of the Plan is a core proceeding and
this Court may enter a final Order confirming the Plan pursuant to 28
U.S.C. 157(b)(1) and 157(b)(2)(L).
2. The Debtor filed his Second Amended Plan of Reorganization (the "Plan")
in the Chapter 11 proceeding of on May 23, 2011. The court approved
Disclosure Statement at a hearing held May 24, 2011.
3. The plan and disclosure statement were mailed to all creditors with a
ballot for voting on June 8, 2011.
4. The debtor will file a tally of ballots when ballots have concluded.
The debtor anticipates that he will receive ballots accepting the plan
from at least one class of creditors, and on that basis, requests the court
confirm the plan.
WHEREFORE, the debtor prays the court confirm his plan of reorganization
under 11 U.S.C. 1129(a) or (b).
Dated: June 15, 2011 Respectfully submitted
/s/ Dennis McGoldrick
Dennis McGoldrick
DECLARATION OF
I, , declare:
I am the debtor in this proceeding. I make this declaration of my own
personal knowledge and would so testify.
I filed this case to reorganize my affairs under chapter 11.
The projections attached to my disclosure statement and sent to creditors
for voting on the plan are true and correct to my best ability.
I sat with my counsel to draft the plan. The payments under the plan
constitute my best effort, based upon the projections.
I fully intend to make all of the payments required by the plan.
I am aware of the terms of the plan, the disclosures in my disclosure
statement and believe they are all true.
I believe the plan complies with all of the requirements of chapter 11.
The plan is in the best interest of creditors, as the plan pays creditors
more than they would be paid in a chapter 7 proceeding.
In drafting the projections for the plan, I proposed sales and costs
reasonably conservatively, so the court could find the plan reasonably
likely to be performed.
I declare under penalty of perjury the foregoing is true and correct.
Executed at Torrance, California on June 15, 2011.
___________________________
POINTS AND AUTHORITIES
I
BASIC STRUCTURE OF THE PLAN
The Plan provides that on the effective date, or as soon as possible
thereafter, the Debtor will make periodic distributions to pay his
creditors through periodic payments over five years, beginning on August 1,
2011 and ending July 1, 2016.
II
CONFIRMATION CRITERIA
A. THE PLAN MAY BE CONFIRMED UNDER SECTION 1129(B) WITH CRAM DOWN.
Section 1129(a) of the Bankruptcy Code sets forth, in twelve enumerated
paragraphs, the requirements that must be complied with before a plan of
reorganization will be confirmed. 11 U.S.C. 1129(a). This memorandum
demonstrates conclusively below that each of the requirements in 11 U.S.C.
It is clear that the Bankruptcy Court must hold an evidentiary hearing in
ruling on confirmation of the Plan. In re Acequia, Inc., 787 F.2d 1352,
1358 (9th Cir. 1986). The role of the Court in the confirmation process
has been described by the court in In re Holthoff, 58 B.R. 216, 218 (Bankr.
E.D. Ark. 1985) as follows:
"In addition to the consideration of objections raised by creditors, the
Court has a mandatory independent duty to determine whether the Plan has
met all of the requirements necessary for confirmation."
"Regardless of whether a valid objection to confirmation has been asserted,
however, the Code imposes upon the Court the responsibility to determine
whether the requirements of Section 1129(a) have been met...Discharging
this responsibility does not entail investigation of the Debtor, but it
does require sufficient documentation to be submitted and to ask
appropriate questions concerning the requirements of Section 1129(a)." In
re Prudential Energy Company, 58 B.R. 857, 862 (Bankr. E.D.N.Y. 1986).
The Debtor submits that the following points and authorities establish a
basis for the confirmation of the Plan by the Court.
1. Section 1129(a)(1): The Plan Complies With The Applicable Provisions
of Chapter 11.
Section 1129(a) requires the Plan to comply with the applicable provisions
of Chapter 11. In general, the Plan must comply with Sections 1122 and
1123 of the Code.
a. Debtor's Classification Scheme Complies With Section 1122.
Section 1122(a) requires the Plan to place a claim or interest in a
particular class only if the claim or interest is substantially similar in
nature to other claims or interests of such class. The Plan designates the
following classes:
Class 1: The secured claim of American Servicing Company.
Class 2: The secured claim of Wachovia Bank.
Class 3: The secured claim of Chase.
Class 4: The secured claims of the JP Morgan Chase N.A.
Class 5: The secured claims of the Maria Banales.
Class 6: The secured claims of East West Bank
Class 7: The secured claims of Monarch Grand Vacations
Class 8: The secured claims of Wachovia Bank
Class 9: The secured claims Los Angeles Co. Tax Collector.
Class 10: The claim of California Bank and Trust
Class 11: The claims of General Unsecured Creditors
Class 12: The claims of interest holders.
These classes have been structured to take into account the special
provisions of each classmember's claim and the priority of the secured
claims.
b. The Plan Contains The Provisions Required by Section 1123(a).
Paragraph 1 of Section 1123(a) requires that the Plan must designate
classes of claims other than claims of the kind specified in Section
507(a)(1), (2) and (8). The Plan designates classes of claims and
interests in accordance with this requirement.
Paragraph 2 of Section 1123(a) requires that the Plan specify any class of
claims or interests which is not impaired under the Plan. The Plan
specifies classes of claims and interests not impaired under the Plan and
the treatment thereof, thereby satisfying the requirement of Section
1123(a)(2).
Paragraph 3 of Section 1123(a) requires that the Plan specify the treatment
of any class of claims or interests under the Plan.
The Plan specifies the treatment of the class, and indicates whether the
claim is impaired or not impaired.
Paragraph 4 of Section 1123(a) requires that the Plan provide the same
treatment for each claim or interest of a particular class unless the
holder of a particular claim or interest consents to different treatment.
The Plan specifies identical treatment of all claims and interests in a
class unless a holder agrees to a different or less favorable treatment.
Paragraph 5 of section 1123(a) requires that the Plan provide adequate
means for the Plan's implementation. The cash flow of the debtor is
sufficient to fund the plan. The Disclosure Statement indicates that the
monies will be applied to pay administrative and priority claimants, and
that the balance will be used to fund the ongoing operation of the Debtor.
Paragraph 6 of Section 1123(a) specifies that the Plan must provide for the
inclusion in the by-laws in the event the debtor is a corporation,
prohibiting the issuance of non-voting equity shares. This is not
applicable as this is an individual debtor.
Subsection (b) of Section 1123 specifies permissive provisions that may be
included under the Plan.
Paragraph 1 of Section 1123(b) provides that the Plan may impair or leave
impaired any class of claims or interests.
Paragraph 2 of 1123(b) specifies that, subject to Section 365 of the
Bankruptcy Code, the Plan may provide for the assumption or rejection of
any executory contract or unexpired lease not previously rejected. The
Plan provides for the assumption of certain contracts. No leases are
specifically assumed in the plan, however, none are rejected either. The
debtor will continue to make rental payments on the properties the debtor
leases for business.
Paragraph 3 of Section 1123(b) specifies that the Plan may provide for the
settlement or adjustment of any claim or interest belonging to the Debtor
or the estate for the retention and enforcement by the Debtor, by the
Trustee, or by a representative of the estate appointed for such purpose of
any such claim or interest.
The Plan provides that the Debtor shall retain a right to object to any
claim. The Debtor believes that the balance of the claims are dealt with
under the plan.
Paragraph 4 of Section 1123(b) permits the Plan to provide for the sale of
all or part of the property of the estate. The Plan does not propose any
sale.
Paragraph 5 of Section 1123(b) provides that the Plan may include any other
appropriate provisions not inconsistent with the applicable provisions of
the Code. The Plan discusses the effect of confirmation, amendments or
modification, retention of jurisdiction. These provisions are consistent
with the Bankruptcy Code.
Based on the foregoing analysis, it is respectfully submitted that the Plan
complies with the applicable provisions of Section 1129(a)(1).
2. Section 1129(a)(2): The Plan Proponent Has
Complied With The Applicable Provisions Of Chapter
11.
The Debtor believes and will sign a declaration that the Plan complies with
the provisions of Chapter 11.
3. Section 1129(a)(3): The Plan Has Been Proposed In
Good Faith And Not By Any Means Forbidden By Law.
"Good faith" is assessed by a totality of circumstances, and requires an
exercise of fundamental fairness in dealing with creditors, and requires
that a plan achieve a result consistent with the objectives and purposes of
the Bankruptcy Code. In re Jorgensen, 66 B.R. 104, 109 (Bankr. 9th Cir.
1986).
If required, the Debtor will offer testimony to show that the Plan was
proposed in good faith and not by any means forbidden by law. However,
unless some objection regarding compliance with this section has been
filed, Bankruptcy Rule 3008(a)(2) and Bankruptcy Rule 3020(b)(2) permit
this court to find, without hearing evidence, that the requirement of
Section 1129(a)(3) has been satisfied.
4. Section 1129(a)(4): Payments Made or Promised
For Services Or Costs And Expenses In Or In Connection
With The Case Have Been Disclosed.
Section 1129(a)(4) requires that any payment made or promised the proponent
for services or for costs and expenses in, or in connection with, the case,
or in connection with the Plan, and incident to the case, has been
disclosed to the Court and any such payment made before confirmation be
reasonable or that such payment be subject to approval of the Court as
reasonable.
In the instant case, all professionals rendering services to the Debtor are
receiving compensation only with Court approval, and fees paid prior to
confirmation have been disclosed.
5. Section 1129(a)(5): To The Extent Relevant, The
Identities Of The Individuals Proposed To Serve As
Debtor's Management After Confirmation Have Been
Disclosed.
Section 1129(a)(5) requires disclosure of the identity of any individuals
proposed to serve as officers, directors, or voting trustees of the Debtor
after confirmation. This provision has been complied with and is disclosed
in the section entitled "Postconfirmation Management."
6. Section 1129(a)(6): No Regulatory Approval Is Necessary
Section 1129(a)(6) requires approval of any regulatory commission of any
rate change provided for in the Plan. In these circumstances, this
provision does not apply to the Plan proposed by the Debtor.
7. Section 1129(a)(7): The Best Interest Test Is Satisfied
With Respect To Each Class Of Creditors
In summary, under Section 1129(a)(7) the creditors of the estate must
either accept the Plan or receive thereunder at least as much as such
creditors would receive in a liquidation. 11 U.S.C. section 1129(a)(7).
As indicated in the liquidation analysis under the plan, the Debtor
believes that creditors would realize no more if the Debtor were
liquidated.
8. Section 1129(a)(8): Since balloting has just begun, this issue will
have to be addressed at the confirmation hearing.
9. Section 1129(a)(9): Priority Claims Are Given
Appropriate Treatment
Priority claims are paid in full as of the effective date of the plan or
given the treatment required by 1129(a)(9)(C).
10. Section 1129(a)(10): At least One Impaired Class Has
To Accept The Plan.
Under 11 U.S.C. Section 1129(a)(10), at least one impaired class must
accept the Plan. Balloting has just begun, so this issue will have to be
addressed at the confirmation hearing.
11. Section 1129(a)(11): Confirmation Of The Plan Is Not
Likely To Be Followed By A Further Need For Financial
Reorganization.
Section 1129(a)(11) contains a feasibility standard. The cases
interpreting this standard have concluded that Section 1129(a)(11) is
satisfied as long as the terms of the Plan are "capable of being done or
carried out, reasonably and likely." In re Trails End Lodge, Inc., 54 B.R.
898 (Bankr. Vt. 1985). A "reasonable probability" of success will be
enough to meet the feasibility requirements under section 1129(a)(11). In
re Acequia, 787 F.2d 1352, 1364 (9th Cir. 1986).
Stated in the negative, "[g]uaranteed success in the stiff winds of
commerce without the protection of the Code is not the standard of
feasibility." In re Prudential Energy Co., 58 B.R. 857 (Bankr. S.D.N.Y.
1986)(Emphasis added). Section 1129(a)(11) merely requires the Debtor to
show reasonable assurance of success. Id.
The debotors projections of income are sufficient to pay the payments
required by the plan. The projections were attached to the Disclosure
Statement served upon all creditors, and the debtor has signed a
declaration under penalty of perjury that the disclosure statement is true
and correct.
The Debtor has complied with Section 1129(a)(11) by providing realistic,
conservative projections of its business.
12. Section 1129(a)(12): All Fees Required By 28 U.S.C.
1930 Have Or Will Be Paid.
The Plan provides that all fees of the U.S. Trustee will be paid.
13. Section 1129(a)(13): The Retiree Protection Section Is
Inapplicable.
14. THE COURT SHOULD CONFIRM THE PLAN PURSUANT TO SECTION 1129(a) and
(b).CONCLUSION
In sum, the Debtor is entitled to confirmation of his plan of
reorganization.
Dated: June 15, 2011 Respectfully submitted,
/s/ Dennis McGoldrick
Dennis McGoldrick
Here is one of mine I used before BR:You can cut and paste this one: I used the old format for notice. You may need to use the notice of motion form. If you do cut out the notice parts of this notice of motion and motion.
UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA, LOS ANGELES DIVISION In re: ) Bky. No. 2:10-bk-19575-BR
) ) Chapter 11 ) NOTICE OF MOTION AND MOTION
RMATION OF SECOND ) AMENDED PLAN OF REORGANIZATION div>
) DECLARATION OF IN Debtor. ) Date: July 27, 2011 div>NOTICE
TO: THE COURT; THE U.S. TRUSTEE; INTERESTED PARTIES: Section 1122(a) requires the Plan to place a claim or interest in a particular class only if the claim or interest is substantially similar in nature to other claims or interests of such class. The Plan designates the following classes:
Class 1: The secured claim of American Servicing Company. Good Faith And Not By Any Means Forbidden By Law.
"Good faith" is assessed by a totality of circumstances, and requires an exercise of fundamental fairness in dealing with creditors, and requires that a plan achieve a result consistent with the objectives and purposes of the Bankruptcy Code. In re Jorgensen, 66 B.R. 104, 109 (Bankr. 9th Cir. 1986).
If required, the Debtor will offer testimony to show that the Plan was proposed in good faith and not by any means forbidden by law. However, unless some objection regarding compliance with this section has been filed, Bankruptcy Rule 3008(a)(2) and Bankruptcy Rule 3020(b)(2) permit this court to find, without hearing evidence, that the requirement of Section 1129(a)(3) has been satisfied.
4. With The Case Have Been Disclosed.
Section 1129(a)(4) requires that any payment made or promised the proponent for services or for costs and expenses in, or in connection with, the case, or in connection with the Plan, and incident to the case, has been disclosed to the Court and any such payment made before confirmation be reasonable or that such payment be subject to approval of the Court as reasonable.
In the instant case, all professionals rendering services to the Debtor are receiving compensation only with Court approval, and fees paid prior to confirmation have been disclosed.
5. Identities Of The Individuals Proposed To Serve As Disclosed. Section 1129(a)(5) requires disclosure of the identity of any individuals proposed to serve as officers, directors, or voting trustees of the Debtor after confirmation. This provision has been complied with and is disclosed in the section entitled "Postconfirmation Management."
6. an class"Apple-tab-span" style"white-space:pre"> Section 1129(a)(6) requires approval of any regulatory commission of any rate change provided for in the Plan. In these circumstances, this provision does not apply to the Plan proposed by the Debtor.
7. With Respect To Each Class Of Creditors In summary, under Section 1129(a)(7) the creditors of the estate must either accept the Plan or receive thereunder at least as much as such creditors would receive in a liquidation. 11 U.S.C. section 1129(a)(7).
As indicated in the liquidation analysis under the plan, the Debtor believes that creditors would realize no more if the Debtor were liquidated.
8. Section 1129(a)(8): Since balloting has just begun, this issue will have to be addressed at the confirmation hearing. 9. Section 1129(a)(9): Priority Claims Are Given
Appropriate Treatment Priority claims are paid in full as of the effective date of the plan or given the treatment required by 1129(a)(9)(C).
10. " style"white-space:pre"> Under 11 U.S.C. Section 1129(a)(10), at least one impaired class must accept the Plan. Balloting has just begun, so this issue will have to be addressed at the confirmation hearing.
11. an class"Apple-tab-span" style"white-space:pre"> Reorganization.
Section 1129(a)(11) contains a feasibility standard. The cases interpreting this standard have concluded that Section 1129(a)(11) is satisfied as long as the terms of the Plan are "capable of being done or carried out, reasonably and likely." In re Trails End Lodge, Inc., 54 B.R. 898 (Bankr. Vt. 1985). A "reasonable probability" of success will be enough to meet the feasibility requirements under section 1129(a)(11). In re Acequia, 787 F.2d 1352, 1364 (9th Cir. 1986).
Stated in the negative, "[g]uaranteed success in the stiff winds of commerce without the protection of the Code is not the standard of feasibility." In re Prudential Energy Co., 58 B.R. 857 (Bankr. S.D.N.Y. 1986)(Emphasis added). Section 1129(a)(11) merely requires the Debtor to show reasonable assurance of success. Id.
The debotors projections of income are sufficient to pay the payments required by the plan. The projections were attached to the Disclosure Statement served upon all creditors, and the debtor has signed a declaration under penalty of perjury that the disclosure statement is true and correct.
The Debtor has complied with Section 1129(a)(11) by providing realistic, conservative projections of its business. 12. Section 1129(a)(12): All Fees Required By 28 U.S.C.
style"white-space:pre"> The Plan provides that all fees of the U.S. Trustee will be paid.
13. e"white-space:pre"> 14. THE COURT SHOULD CONFIRM THE PLAN PURSUANT TO SECTION 1129(a) and (b).CONCLUSION
In sum, the Debtor is entitled to confirmation of his plan of reorganization.Dated: June 15, 2011 Respectfully submitted,
style"white-space:pre"> /s/ Dennis McGoldrick Dennis McGoldrick
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