In re All Island Truck Leasing Corp.

546 B.R. 522, 76 Collier Bankr. Cas. 2d 379, 2016 Bankr. LEXIS 634, 62 Bankr. Ct. Dec. (CRR) 79, 2016 WL 821174
CourtUnited States Bankruptcy Court, E.D. New York
DecidedMarch 2, 2016
DocketCase No. 8-09-77670-reg
StatusPublished
Cited by10 cases

This text of 546 B.R. 522 (In re All Island Truck Leasing Corp.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re All Island Truck Leasing Corp., 546 B.R. 522, 76 Collier Bankr. Cas. 2d 379, 2016 Bankr. LEXIS 634, 62 Bankr. Ct. Dec. (CRR) 79, 2016 WL 821174 (N.Y. 2016).

Opinion

MEMORANDUM DECISION

Robert E. Grossman, United States Bankruptcy Judge

Before the Court are the final applications pursuant to 11 U.S.C. § 330 for compensation for the Chapter 7 Trustee, Kenneth Kirschenbaum (the “Trustee”) and counsel for the Trustee, Kirschenbaum & Kirschenbaum, P.C. (“K & K”) as well as other professionals retained by the Trustee in the case of All Island Truck Leasing Corp. (the “Debtor”). In this case, the Trustee was appointed to a failed chapter 11 case with assets including numerous vehicles owned by the Debtor which appeared to have no equity, as well as a group of unencumbered vehicles and some cash on hand, which appeared to be subject to a blanket lien on the Debtor’s assets. The Trustee was tasked with determining the lien status of the vehicles and deciding in a relatively short time span the extent to which the case should be administered. Ultimately, the Trustee was successful in generating an estate by administering the collateral of the secured creditors who agreed to provide the estate with a cash distribution pursuant to carve-out agreements, collecting accounts receivable, and selling unencumbered assets of the estate. In sum, the Trustee realized gross receipts of $863,479.97. After paying the secured creditors, the estate was reduced to $222,427.31. The Trustee seeks statutory commissions of $46,424 plus expenses of $462.65 and K & K seeks fees of $34,725 plus expenses of $942.38. The total amount of chapter 7 administration expenses requested are $202,544.66. Pursuant to the Trustee’s Final Report (the “Final Report”), there will be no distribution to unsecured creditors after a partial distribution for chapter 11 administration expenses is made.

There are many troubling aspects of this case. First, the Court advised the Trustee at the initial hearing after the Debtor’s case was converted that the Debtor’s estate should not be administered solely for the benefit of the secured creditors and the professionals. If the Trustee intended to negotiate a carve-out to administer assets which were subject to claimed liens, the Trustee should ensure that his efforts would benefit more than the Trustee and his professionals. Second, the Trustee appears to have disregarded a stipulation with a secured creditor, which was so-ordered by the Court, specifically providing for a carve-out for the benefit of unsecured creditors. Third, the Court advised the Trustee at the first hearing on the Trustee’s final report and application for compensation that a reduction in compensation may be appropriate to allow for a [525]*525distribution to creditors. Despite these events, there has been no modification of the requests by the Trustee or K & K. In fact, the Trustee has “doubled down” on his request by filing a supplemental affirmation claiming that it was too difficult to have known at the outset that administration of the estate would have generated no return for the unsecured creditors.

This Court acknowledges, as it has in the past, that the duties imposed on chapter 7 trustees by the Bankruptcy Code (the “Code”) often entail difficult tasks, but by accepting the position, chapter 7 trustees are bound to fulfill those duties nonetheless. The Trustee’s and K & K’s willful disregard of their fiduciary duties owed to the unsecured creditors in this case highlight a systemic failure to protect the very parties they are charged with serving. The Court cannot turn a blind eye to such blatant conduct by a trustee and his retained professional as to do so would condone a breach of their fiduciary duties, which are implicit in the Code. The Court is also troubled by the fact that the United States Trustee (the “UST”), which is charged with protecting the integrity of the bankruptcy system, raised no objections to the applications, despite being actively solicited by the Court for comments. The apparent lack of concern by the UST notwithstanding, it remains the province of this Court to approve and award professional fees. Trustees are cloaked with quasi-judicial authority by the Code and by the Court; this Court must protect the integrity—including the appearance of integrity—of the system against flagrant abuses whereby administrative professionals profit from estate assets while conferring no benefit upon creditors. The Bankruptcy Code requires that a Trustee and retained professionals can only be compensated if their services provide a benefit to unsecured creditors. See 11 U.S.C. § 330. Since the Final Report proposes no distribution to unsecured creditors, the Trustee has failed to demonstrate that the Trustee and retained professionals have provided any benefit to unsecured creditors. Therefore, the Court shall adjourn the applications of the Trustee, K & K and the other professionals retained by the Trustee pending the submission of an amended Final Report and fee applications consistent with this Memorandum Decision.

FACTS

The Debtor operated a business that leased vehicles to businesses and individuals. On October 9, 2009, the Debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. The Debtor’s case was jointly administered with the chapter 11 case of AIT Trucking Corp.’s (“AIT”). The Debtor represented in its Schedule B that it owned 150 vehicles. Many of these vehicles were subject to security interests claimed by various secured creditors. On August 30, 2010, the Debtor made an unopposed oral motion to convert the cases of the Debtor and AIT to cases under chapter 7 of the Bankruptcy, which was granted by the Court. On September 2, 2010, an order converting the case was docketed and the Trustee was appointed as the chapter 7 trustee. On September 7, 2010, the Trustee filed an application to employ his own law firm, K & K, as counsel to the Trustee. On September 10, 2010, an order authorizing the retention of K & K was docketed. The Trustee also retained an auctioneer, David R. Maltz & Co.1 (“Maltz”), along with an affiliated company, Statewide Auto Auction, Inc.2 (“Statewide”), to store the vehi-[526]*526cíes, an accountant, Hirshfíeld & Kantor LLP3 (“Hirshfíeld”) and special counsel for debt collection actions, David Chefec, P.C. (“Chefec”).4

On September 22, 2010, a hearing was held on the Trustee’s motion (the “Cash Collateral Motion”) to use cash collateral of secured creditors Sovereign Bank (“Sovereign”) and Navistar Financial Corporation (“Navistar”), to employ the former Chief Financial Officer of the Debtor, Mark Rauch (“Rauch”), and to authorize K & K to rent some of its office space to the estate for Rauch to use (the “Cash Collateral Hearing”). The Court acknowledged at the hearing, and acknowledges now, that the Trustee inherited a difficult case. The Trustee’s required analysis as to whether administering assets would generate a benefit to the estate was complicated by the need to investigate the validity of liens of various secured creditors and the location of vehicles subject to leases, as well as to identify and marshal the Debt- or’s bank accounts, outstanding lease payments, other accounts receivable, and the many vehicles not in the Debtor’s possession. The Trustee also had to analyze and-update the business records of the Debtor, which were reportedly in a state of disarray. See Supplement to Trustee’s Final Report, [dkt 235], pg.

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Bluebook (online)
546 B.R. 522, 76 Collier Bankr. Cas. 2d 379, 2016 Bankr. LEXIS 634, 62 Bankr. Ct. Dec. (CRR) 79, 2016 WL 821174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-all-island-truck-leasing-corp-nyeb-2016.