In re Beltrami Enterprises, Inc.

191 B.R. 303, 1995 Bankr. LEXIS 1948, 1995 WL 791209
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedOctober 16, 1995
DocketBankruptcy Nos. 5-91-00866, 5-91-01571
StatusPublished

This text of 191 B.R. 303 (In re Beltrami Enterprises, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Beltrami Enterprises, Inc., 191 B.R. 303, 1995 Bankr. LEXIS 1948, 1995 WL 791209 (Pa. 1995).

Opinion

OPINION AND ORDER

JOHN J. THOMAS, Bankruptcy Judge.

The application of Federal Rule of Bankruptcy Procedure 9011 has been seldom addressed by the Third Circuit. See In re Gioioso, 979 F.2d 956 (3rd Cir.1992); Landon v. Hunt, 977 F.2d 829 (3rd Cir.1992); Cinema Service Corp. v. Edbee Corp., 774 F.2d 584 (3rd Cir.1985). Not surprisingly, there is little instruction by the Third Circuit concerning the application of that rule to bankruptcy procedures. The United States Trustee (hereinafter “Trustee”) requests the court to apply Rule 9011 to a disclosure statement and plan presented by Pagnotti Enterprises, Inc. (hereinafter “PEI”) through its law firm, Rosenn, Jenkins & Greenwald, L.L.P.1

Federal Rule of Bankruptcy Procedure 9011 provides, in pertinent part, as follows:

[304]*304(a) Signature. Every petition, pleading, motion and other paper served or filed in a case under the Code on behalf of a party represented by an attorney, except a list, schedule, or statement, or amendments thereto, shall be signed by at least one attorney of record in the attorney’s individual name, whose office address and telephone number shall be stated. A party who is not represented by an attorney shall sign all papers and state the party’s address and telephone number. The signature of an attorney or a party constitutes a certificate that the attorney or party has read the document; that to the best of the attorney’s or party’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation or administration of the case. If a document is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the person whose signature is required. If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee.

The bankruptcy court in the case of In re Ligon, 50 B.R. 127 (Bkrtcy.M.D.Tenn.1985) addressed the purpose of a disclosure statement as follows:

The purpose of the disclosure statement is to provide sufficient information to enable a reasonable and typical investor to make an informed judgment about the plan. S.REP. NO. 989, 95th Cong., 2d Sess. 121, reprinted in 1978 U.S.CODE CONG. & AD .NEWS 5787, 5907. While the debtor cannot be expected to unerringly predict the future, the “information to be provided should be comprised of all those factors presently known to the plan proponent that bear upon the success or failure of the proposals contained in the plan.” In re Stanley Hotel, Inc., 13 B.R. 926, 8 BANKR.CT.DEC. (CRR) 35, 5 COLLIER BANKR.CAS.2d (MB) 64 (Bankr.D.Colo.1981). Conelusory allegations or opinions without supporting facts are generally not acceptable. In re Egan, 33 B.R. 672, 11 BANKR.CT.DEC. (CRR) 476 (Bankr.N.D.Ill.1983); In re East Redley Corp., 16 B.R. 429, 8 BANKR.CT.DEC. (CRR) 806 (Bankr.E.D.Pa.1982).
Knowledge of the debtor’s financial condition is essential before any informed decision concerning the merits of a plan can be made. A description of available assets and their value is a vital element of necessary disclosure. In re Metrocraft Publishing Services, Inc., 39 B.R. 567, 10 COLLIER BANKR.CAS.2d (MB) 1182 (Bankr.N.D.Ga.1984); See In re A.C. Williams Co., 25 B.R. 173, 9 BANKR.CT.DEC. (CRR) 1239 (Bankr.N.D.Ohio 1982). In re Ligon, supra at p. 130.

The Trustee, at the time of the hearing, conceded that every disclosure statement lacking adequate information for any interested party to make an informed decision would not necessarily result in a Rule 9011 violation. Nevertheless, the Trustee argues that the disclosure statement submitted by PEI, through its law firm, Rosenn, Jenkins & Greenwald, failed to include basic and vital information necessary for any creditor to make an informed judgment and that the inclusion of certain information and the omission of other information made the disclosure statement inaccurate and misleading. Further, the Trustee argues that PEI and its lawyers knew at the time of the drafting of the disclosure statement and plan of reorganization that they were both inherently flawed to the point where there would be no basis in law upon which the court could approve the disclosure statement and subsequently confirm the plan. The Trustee argues that PEI and Rosenn, Jenkins and Greenwald not only failed to investigate the assets and liabilities of this Debtor and to disclose those assets and liabilities in the disclosure statement, and to adequately re[305]*305view the law, but also engaged in a purposeful deceit of the creditors of this estate.

After conceding that the Trustee would not automatically determine that a failure to include adequate information in the disclosure statement would necessitate a motion for sanctions, the Trustee indicated that that decision would have to be made on a ease by case basis. The Trustee, addressing some of the factors it believed weighed heavily on his decision to file the instant motion, stated that “[a] large factor that effected my decision to file sanctions was the posture of the case and — you know, what I perceive to be the antagonism of the parties and the different positions that were being taken by the parties in other matters that affected my conclusions regarding the purpose of the filing of the disclosure statement so, you know, it’s a number of factors and but I believe this is an egregious ease that ... touches on almost every well every part of Rule 9011.” Transcript dated February 1,1995 at p. 28.

In the In re Ligon case, supra, the court made the following observations about that particular case:

At the sanctions hearing it was made clear to this court that this is not a case where debtor’s counsel has signed and submitted a Chapter 11 disclosure statement which merely fails the statutory test for adequate information contained in 11 U.S.C. § 1125(a). Rather, this is a case where debtor’s counsel has exceeded the boundaries of appropriate advocacy by signing and filing documents with the bankruptcy court which he had to have known were materially false and misleading. This was hardly a complicated or difficult bankruptcy case. There were only a handfull of creditors and fewer than a half-dozen identifiable assets.

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Related

Cinema Service Corporation v. Edbee Corporation
774 F.2d 584 (Third Circuit, 1985)
In Re A.C. Williams Co.
25 B.R. 173 (N.D. Ohio, 1982)
In Re Ligon
50 B.R. 127 (M.D. Tennessee, 1985)
In Re East Redley Corp.
16 B.R. 429 (E.D. Pennsylvania, 1982)
In Re Egan
33 B.R. 672 (N.D. Illinois, 1983)
In Re Metrocraft Publishing Services, Inc.
39 B.R. 567 (N.D. Georgia, 1984)
In Re Stanley Hotel, Inc.
13 B.R. 926 (D. Colorado, 1981)
In re Beltrami Enterprises, Inc.
178 B.R. 388 (M.D. Pennsylvania, 1994)
Landon v. Hunt
977 F.2d 829 (Third Circuit, 1992)

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Bluebook (online)
191 B.R. 303, 1995 Bankr. LEXIS 1948, 1995 WL 791209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-beltrami-enterprises-inc-pamb-1995.