In Re Beauchesne

209 B.R. 266, 1997 Bankr. LEXIS 790, 1997 WL 307967
CourtUnited States Bankruptcy Court, D. New Hampshire
DecidedMay 6, 1997
Docket19-10296
StatusPublished
Cited by3 cases

This text of 209 B.R. 266 (In Re Beauchesne) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Beauchesne, 209 B.R. 266, 1997 Bankr. LEXIS 790, 1997 WL 307967 (N.H. 1997).

Opinion

MEMORANDUM OPINION ON THIRD AMENDED PLAN OF REORGANIZATION

JAMES E. YACOS, Chief Judge.

This Chapter 11 case is before the Court for confirmation of the debtor-in-possession’s “Third Amended Plan of Reorganization dated March 1, 1996” (Court Doc. No. 91), and *268 an Objection thereto, filed by Beal Bank, SSB, a secured and unsecured creditor of this debtor (Court Doc. No. 94). This is a core proceeding in accordance with 28 U.S.C. § 157(b) over which the Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and the “Standing Order of Referral of Title 11 Proceedings to the United States Bankruptcy Court for the District of New Hampshire,” dated January 18,1994 (DiClerico, C.J.).

Mr. Beauchesne is an individual proprietor who operates a laundromat business and commercial and residential rentals in Somersworth and Newmarket, New Hampshire. He owns and operates thirty-two residential rental apartments in a building in Newmarket situated on four acres, and he owns an additional seven acres of undeveloped land in Newmarket. He also operates two commercial rental units and seven residential rental units in Somersworth and has a laundromat operation in the residential building. At the time of bankruptcy, Mr. Beauehesne’s businesses had assets totaling approximately $1,168,359 and debts totaling approximately $1,340,000. Beal Bank is the holder of a first and second mortgage on the debtor’s real estate in Newmarket, New Hampshire 1 , and is the holder of a first mortgage on the debtor’s real estate in Somersworth, New Hampshire. 2

PLAN PROVISIONS AND ISSUES

Under the plan, Beal Bank’s secured claim on the Newmarket property of $840,000 is crammed down to $511,000, which is the undisputed value of that property, leaving a $329,000 unsecured deficiency claim upon which the debtor would pay 40 percent over the six years of the plan. The secured claim of $511,000 would be paid out over 10 years under the plan with interest at percent and with a final balloon payment of $417,847. 3 Beal Bank’s secured claim on the Newmarket properties includes $110,000 that the bank paid for property taxes shortly before the bankruptcy filing.

Beal Bank’s secured claim on the Somersworth property of $450,000 is crammed down to $320,000, leaving a $130,000 unsecured deficiency claim upon which the debtor would pay 40 percent over the six years of the plan. The secured claim of $320,000 would be paid over 25 years with a 9 percent interest rate with no balloon. 4 The plan only extends the existing notes that Beal Bank bought from the defunct bank (FDIC) by two to three years at the most, and does not significantly increase their original maturities.

The payout under the plan to unsecured creditors would include 24 initial payments of $500, totaling $12,000 in the first two years of the plan, and 48 payments thereafter of $1,898, totaling $91,104 for the next four years, with a final balloon payment of $34,361 in the last month for a total of $137,465, which would be a 40 percent distribution on the total unsecured claims, including the deficiency claims of Beal Bank. The debtor proposes to retain his interest in the properties in Somersworth and Newmarket, and proposes to exchange new value for these re *269 tained interests in the form of a $30,000 cash contribution from Mr. Beauchesne’s wife and her contribution of a parking lot in New-market owned by her valued at $15,000. 5 The debtor’s wife will commit to deeding the parking lot property by the effective date of the plan, pursuant to an oral stipulation made at the confirmation hearing.

The plan provides for the debtor to have monthly draws of $1,511, with increases of a maximum of 10 percent “and/or reasonable cost of living increases” each year during the six years of the plan. Third Amended Disclosure Statement, Art. VI, p. 30 (Court Doc. No. 90); Plan Financial Projections. Draw to Arthur R. Beauchesne, p. 3 (Exhibit B to Third Amended Disclosure Statement). Mr. Beauehesne’s individual income and individual living expenses, including his personal income taxes, are not part of the plan projections, because they are a “wash”. Beal Bank has not raised any issue about the debtor’s personal income and expenses being a wash in this regard.

The issues presented are whether the “new value exception” to the absolute priority rule is available and satisfied by the provisions of the debtor’s plan; whether the debt- or’s plan is feasible; whether the debtor’s plan meets the cramdown requirements of section 1129 of the Bankruptcy Code; whether the debtor has “artificially impaired” the claims of certain classes to obtain the requisite votes in support of his cramdown plan; and whether the debtor’s plan is in the best interests of creditors. For the reasons set forth below, the Court overrules Beal Bank’s objection and confirms the debtor’s Third Amended Plan of Reorganization dated March 1,1996.

CHRONOLOGY

The debtor filed a petition for bankruptcy relief under Chapter 11 of the Bankruptcy Code on March 13, 1995. On May 3, 1995, Beal Bank filed a Motion to Dismiss the Case, as a bad faith filing, and on May 4, 1995 the Court ordered the debtor to file a plan by September 15, 1995. On May 10, 1995, the debtor requested cash collateral usage, which the Court allowed until September 15, 1995 by agreement from Beal Bank. On August 3, 1995, the Court denied Beal Bank’s motion for dismissal, and on August 22, 1995 Beal Bank filed a motion for relief from the automatic stay. The debtor requested dismissal of Beal Bank’s motion for relief on September 12,1995.

The first plan of reorganization was filed on September 15, 1995, and after the first plan was filed the debtor filed a second motion to use cash collateral, to which Beal Bank objected. However, prior to the filing of the bank’s objection, the debtor filed a second plan on October 23, 1995. On November 3, 1995, the Court denied Beal Bank’s request for stay relief, but required Mr. Beauchesne to have the Somersworth property reconveyed to the bankruptcy estate by his son, Dana Coleman, to whom Mr. Beauchesne had transferred the property prepetition, and to report that such had been done by November 9, 1995. The reconveyance was timely reported to the Court, and the Court then granted the request for further cash collateral usage.

The debtor filed a third plan on November 17, 1995 and, after the third plan was filed, Beal Bank served the debtor with subpoenas and deposition notices, to which the debtor responded by filing a motion to quash. By Order of December 8,1995, the Court denied the motion to quash, and also denied Beal Bank’s oral motion for a 2004 exam.

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Cite This Page — Counsel Stack

Bluebook (online)
209 B.R. 266, 1997 Bankr. LEXIS 790, 1997 WL 307967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-beauchesne-nhb-1997.