Elmwood Development Co. v. General Electric Pension Trust

964 F.2d 508
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 2, 1992
DocketNo. 91-3572
StatusPublished
Cited by2 cases

This text of 964 F.2d 508 (Elmwood Development Co. v. General Electric Pension Trust) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elmwood Development Co. v. General Electric Pension Trust, 964 F.2d 508 (5th Cir. 1992).

Opinion

POLITZ, Chief Judge:

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[510]*510untary petition for relief under Chapter 11 {Elmwood I). After trial on GEPT’s stay relief motion, Elmwood and GEPT executed a settlement agreement under which Elmwood was given a deadline of December 31, 1990 by which to satisfy GEPT’s 18.7 million dollar secured claim. The agreement described the GEPT remedies in the event of Elmwood’s default as “bankruptcy proof”: GEPT was to have immediate authority to proceed with foreclosure. Further, Elmwood agreed not to propose any plan which would alter GEPT’s rights under the settlement. The bankruptcy court approved the settlement which expressly was incorporated into the Elmwood I confirmed plan approved on January 9, 1990.

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.1 Elmwood I presently pends. On December 28, 1990 Elm-wood filed its second petition for Chapter II relief, Elmwood II. Elmwood II is the subject of the instant litigation.

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.2 A factual finding that a Chapter 11 petition was not filed in good faith is subject to the clearly erroneous standard of review.3 If this finding is based on an incorrect statement of law, however, we review de novo.4

Lack of good faith in the filing of a Chapter 11 bankruptcy petition constitutes cause for dismissal under 11 U.S.C. § 1112(b).5 The good faith standard protects the integrity of the bankruptcy courts and prohibits a debtor’s misuse of the process where the overriding motive is to delay creditors without any possible benefit, or to achieve a reprehensible purpose through manipulation of the bankruptcy laws. The good faith determination depends largely upon the bankruptcy court’s on-the-spot evaluation of the debtor’s financial condition, motives, and the local financial realities. A collation of factors, rather than any single datum, controls resolution of this issue. In determining whether a petition was filed with the requisite good faith, the court must examine the facts and circumstances germane to each particular case.6

[511]*511This case raises for this circuit the de novo issue of the extent to which a serial filing of a Chapter 11 petition evidences a lack of good faith on the part of the debtor. We conclude that the mere fact that a debtor has previously petitioned for bankruptcy relief does not render a subsequent Chapter 11 petition “per se ” invalid. This conclusion is consistent with the Supreme Court’s recent teaching in Johnson v. Home State Bank.7 The Johnson Court held that serial Chapter 7 and Chapter 13 petitions are not categorically prohibited. The Court reasoned that because Congress has enumerated certain instances in which serial filings are per se impermissible, there is no absolute prohibition in instances not so enumerated. The Court considered the good faith requirement to be adequate protection from abusive serial filings.

Even prior to Johnson, the national consensus permitted serial filings in Chapter 11 cases provided the second petition was filed in good faith.8 Where a debtor requests Chapter 11 relief for a second time, the good faith inquiry must focus on whether the second petition was filed to contradict the initial bankruptcy proceedings.9 Because the Elmwood I bankruptcy court had found that the confirmed plan in that case was substantially consummated, we must consider whether the Elmwood II petition was an attempt to evade the Code’s prohibition against modification of substantially consummated confirmed plans.10 We are impelled to the. conclusion that Elm-wood II would only accomplish this impermissible purpose. In 1987 Elmwood bargained for three years in which to sell or refinance its property, granting an absolute deadline after which GEPT could proceed undisturbed with a foreclosure of Elmwood Towers. After reaping the benefit of its bargain Elmwood sought to avoid its solemn obligation by filing Elmwood II.

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.11 In that instance, a second petition would not necessarily contradict the original proceedings because a legitimately varied and previously unknown factual scenario might [512]*512require a different plan to accomplish the goals of bankruptcy relief. Such a changed factual scenario does not exist, however, in the case at bar.

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.

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Bluebook (online)
964 F.2d 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elmwood-development-co-v-general-electric-pension-trust-ca5-1992.