In re Bates

545 B.R. 183, 2016 Bankr. LEXIS 253, 2016 WL 323511
CourtUnited States Bankruptcy Court, W.D. Texas
DecidedJanuary 26, 2016
DocketCASE NO. 15-52459-cag
StatusPublished
Cited by8 cases

This text of 545 B.R. 183 (In re Bates) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bates, 545 B.R. 183, 2016 Bankr. LEXIS 253, 2016 WL 323511 (Tex. 2016).

Opinion

MEMORANDUM OPINION ON THE ORDER FOR RELIEF

CRAIG A. GARGOTTA, UNITED STATES BANKRUPTCY JUDGE

Came on to be considered the above-captioned involuntary proceeding filed for Stan P. Bates by Petitioning Creditors: Jude Bond, Bond Multimedia, LLC, Kingdom Chevrolet, Inc., and John D. Sauder Auto Company (ECF No. 1) (the “Involuntary Petition”). The Court held a trial on the Involuntary Petition and took this matter under advisement. For the reasons stated herein, the Court finds that the Order for Relief should be entered on the Involuntary Petition (ECF No. 1).

Procedural History

On August 27, 2015, FWLL, LLC filed a chapter 11 bankruptcy petition, with Stan Bates signing on behalf of the Debtor as CEO. See Case No. 15-52071 (ECF No. 1). FWLL, LLC’s bankruptcy case was subsequently converted to a chapter 7 proceeding on November 4, 2015. See Case No. 15-52071 (ECF No. 65).

The Involuntary Petition (the “Petition”) was filed on October 6,2015, (ECF No. 1)1 by Petitioning Creditors Jude Bond; Bond Multimedia, LLC; Kingdom Chevrolet, Inc.; and John D. Sauder Auto Company (the “Petitioning Creditors”). Following the filing of the Petition, Stan P. Bates (the “Putative Debtor”) filed an answer controverting the Petition (ECF No. 11).

The Court began a hearing on November 18, 2015, on 2040 Babcock, Ltd.’s Motion to Appoint Interim Chapter 7 Trustee (the “Motion to Appoint Interim Trustee”) (ECF No. 30). The Putative Debtor and 2040 Babcock, Ltd. reached an agreement on the Motion to Appoint Interim Trustee (ECF No. 65).

On December 3, 2015, the Court held a hearing on Petitioning Creditor John D. Sauder’s First Amended Motion for Summary Judgment (ECF No. 48), Putative Debtor’s Memorandum in Opposition to Motion for Summary Judgment and in Support of Putative Debtor’s Motion to Dismiss/Summary Judgment (ECF No. 81), Putative Debtor’s Motion to Dismiss and to Determine Standing of Petitioning Creditors, or in the Alternative, Motion for Partial Summary Judgment or to Abstain (ECF No. 49) and Petitioning Creditor’s Response thereto (ECF No. 76). The Court, after argument of counsel, denied [186]*186Putative Debtor’s Motion to Dismiss (EOF No. 49) and in doing so, determined that the Petitioning Creditors established the numerosity and dollar requirements of 11 U.S.C. § 303(b)(1).2

Next, the Court considered Petitioning Creditor John D. Sauder’s Motion for Summary Judgment, Putative Debtor’s Response thereto, and argument of counsel. The Court found that while the requirements of § 303(b)(1) were established, an order for relief can only be entered if “the debtor is generally not paying such debtor’s debts as such debts become due unless such debts are the subject of a bona fide dispute as to liability or amount.” § 303(h)(1).3 The Court found that while there was argument on this point, the Petitioning Creditor did not offer sufficient summary judgment evidence that Putative Debtor was not paying debts as such debts became due. Additionally, the Court found that Putative Debtor did not provide sufficient summary judgment to controvert this point. As such, the Court denied summary judgment and set this matter for an evidentiary hearing on December 16, 2015. The hearing continued onto December 17, 2015, and January 5, 2016. The issues before this Court are (i) whether, under the meaning of § 303(h)(1), Putative Debtor is generally not paying debts as such debits become due and (ii) whether an order for relief should be entered.

Jurisdiction

The Court has jurisdiction of the subject matter and of the parties to this proceeding pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding under 28 U.S.C. § 157(b)(1).

Discussion '

The burden is on Petitioning Creditors to establish that Putative Debtor was generally not paying his debts as they became due as of the date of filing of the involuntary petition. In re Norris, 183 B.R. 437, 455 (Bankr.W.D.La.1995). The Court must consider the evidence bearing in mind that “the filing of an involuntary petition is an extreme remedy with serious consequences to the alleged debtor.” In re Reid, 773 F.2d 945, 946 (7th Cir.1985).

A. Putative Debtor was not paving his debts as such debts became due.

Section 303(h)’s “generally not paying” standard is not a balance-sheet insolvency test based on a comparison of assets and liability. In re Green Hills Dev. Co., LLC, 445 B.R. 647, 657 (Bankr.S.D.Miss.2011). The question is not whether a putative debtor can pay his debts, but rather, whether a putative debt- or is paying his debts. Id. To determine if a putative debtor is not generally paying his debts as they become due, this Court must consider: (1) the number of unpaid claims; (2) the amount of such claims; (3) the materiality of the non-payments; and (4) the debtor’s overall conduct in his financial affairs. In re Moss, 249 B.R. 411, 422 (Bankr.N.D.Tex.2000) (citations omitted). No one factor is more meritorious than another; what is most relevant depends on the facts of each case.4 8 Col[187]*187liers on Bankruptcy ¶ 303.31[2] (Alan N. Resnick & Henry J. Sommers, eds., 15th ed. rev. 3/06).

1. The number of claims not subject to a bona fide dispute

The Bankruptcy Code does not define the term “bona fide disputé.” Colliers at ¶ 303.11[1]. The Fifth Circuit employs an objective standard, meaning that the bankruptcy court must determine whether there is an objective basis for either a factual or a legal dispute as to the validity of the debt. Subway Equip. Leasing Corp. v. Sims (Matter of Sims), 994 F.2d 210, 221 (5th Cir.1993). The bankruptcy court may be required to conduct a limited analysis of the legal issues in order to ascertain whether an objective legal basis for the dispute exists. Id. (quoting In re Rimell, 946 F.2d 1363, 1365 (8th Cir.1991)). The determination as to whether a dispute is bona fide will often depend ... upon an assessment of witnesses’ credibilities and other factual considerations, and therefore, the bankruptcy court’s determination in this regard is a factual finding. Sims, 994 F.2d at 221 (citing Rimell, 946 F.2d at 1365).

Section 330(h)(1) only considers whether the debtor is generally paying such debtor’s debts as such debts become due as of the date of filing the petition. In re Edwards, 501 B.R. 666, 682 (Bankr.N.D.Tex.2013). Therefore, the Court will only consider those claims as of October 6, 2015.

а. Petitioning Creditors’ Judgments and the Bond Settlement

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Bluebook (online)
545 B.R. 183, 2016 Bankr. LEXIS 253, 2016 WL 323511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bates-txwb-2016.