In re Creech

538 B.R. 245, 2015 Bankr. LEXIS 3125, 61 Bankr. Ct. Dec. (CRR) 149, 2015 WL 5474449
CourtUnited States Bankruptcy Court, E.D. North Carolina
DecidedSeptember 16, 2015
DocketCASE NO. 13-00817-8-SWH
StatusPublished
Cited by6 cases

This text of 538 B.R. 245 (In re Creech) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Creech, 538 B.R. 245, 2015 Bankr. LEXIS 3125, 61 Bankr. Ct. Dec. (CRR) 149, 2015 WL 5474449 (N.C. 2015).

Opinion

ORDER DENYING MOTION TO DISMISS

Stephani W. Humriekhouse, United States Bankruptcy Judge

The matter before the court is the motion to dismiss the debtors’ chapter 11 case for cause under 11 U.S.C. § 1112(b) filed by Ormond Oil & Gas Co., Inc. (“Or-mond”). Hearings on the motion were held on April 9, 2015, and on July 7, 2015.1

BACKGROUND

Stephen E. Creech and Edna B. Creech (the “debtors”) have owned and operated Creech’s Greenhouse (“Creech’s”), a greenhouse wholesale business in Selma, North Carolina, since the 1970s. Creech’s grows and sells plants to wholesalers, florists and other stores. Ormond is a supplier of propane, and for the past thirty years, supplied propane gas to the debtors to heat the greenhouse.

Creech’s operations require large upfront costs, and business typically ebbs and flows seasonally, with heightened sales around the holidays. Prior to the bankruptcy filing, Creech’s was able to counteract the large upfront costs involved with the business with longer terms for pay-ables, but this arrangement became increasingly difficult to obtain. The self-described “feast or famine” revenue cycles, combined with a string of unfortunate and untimely events, ultimately made it impossible for the debtors to remain current on operating costs, including payments to Or-mond. On February 8, 2013, the debtors filed a petition under chapter 11 of the Bankruptcy Code.

The debtors have continued doing business throughout the course of their bankruptcy case through a modified business model, and their plan of reorganization proposes to make plan payments from business operations.2 On June 14, 2013, A & E Wholesale, LLC (“A & E”) was formed by the debtors’ daughter, Amy Radford, and her husband, Michael Rad-ford, to act as a wholesaler and provide a majority of Creech’s delivery services.3 A & E absorbs Creech’s payroll expenses and also purchases certain necessary products for Creech’s benefit.

On April 18, 2014, Ormond filed the instant motion to dismiss primarily grounded on the alleged impropriety of the [248]*248relationship between the debtors and A & E. Ormond contends that A & E has siphoned off customers, goodwill and going-concern value from Creech’s to the detriment of the bankruptcy estate and creditors. As such, Ormond asserts that cause for dismissal is warranted under 11 U.S.C. § 1112(b)(1) based on alleged substantial or continuing loss or diminution of the estate and the lack of a reasonable likelihood of rehabilitation; gross mismanagement of the estate; and unexcused failure to timely satisfy filing or reporting requirements. In response, the debtors maintain that the formation of A & E has been a major contributor to Creech’s survival because A & E has access to credit and is able to purchase necessary products for Creech’s on better terms than Creech’s could receive. A & E’s existence has also helped reduce Creech’s costs and expenses.

DISCUSSION

Ormond seeks dismissal under § 1112(b)(1), which provides that the court “shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause.... ” “Cause” includes:

(A) substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation;
(B) gross mismanagement of the estate;
(F) unexcused failure to satisfy timely any filing or reporting requirement established by this title or by any rule applicable to a case under this chapter.

§ 1112(b)(4). Determining the existence of cause entails a fact-specific inquiry of the debtor’s postpetition circumstances. In re Paterno, 511 B.R. 62, 66 (Bankr.M.D.N.C.2014). In deciding whether dismissal or conversion is warranted, the court is mindful of the twin goals of a chapter 11 reorganization: preserving viable businesses and maximizing creditors’ returns. See 7 Alan N. Resnick & Henry J. Sommer, Collier on Bankruptcy ¶ 1112.04[5][a] (16th ed. rev.2011). Generally, if allowing the case to go forward would promote these goals, “the case is probably not a candidate for conversion or dismissal under section 1112(b).” Id. The movant bears the burden of proving cause by a preponderance of the evidence, and once a prima facie showing is made, the court must determine whether unusual circumstances exist that prevent dismissal or conversion. In re Modanlo, 413 B.R. 262, 271 (Bankr.D.Md.2009). Additionally, the court must determine whether conversion or dismissal is in the best interests of creditors and the estate. Id.

A. Substantial or Continuing Loss or Diminution to the Estate

The court will first consider whether there is cause to dismiss based on “substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation” under § 1112(b)(4)(A). Cause • under § 1112(b)(4)(A) involves a two-pronged test: (1) whether the debtor has suffered or continues to experience a negative cash flow or declining asset values; and (2) whether the debtor lacks a reasonable likelihood of reestablishing itself on a firm, sound basis. In re Surtronics, Case No. 13-05672-8-SWH, 2014 WL 2581159, at *2 (Bankr.E.D.N.C. June 9, 2014). If the movant fails to satisfy either prong, the court must deny the motion to convert or dismiss. Paterno, 511 B.R. at 66.

The post-petition loss or diminution must either be substantial or continuing to satisfy the § 1112(b)(4)(A) standard, but need not be both. Id. The circum[249]*249stances indicating substantial or continuing loss or diminution must have occurred post-petition; pre-petition events will not establish cause. Id. at 68. The debtor’s financial prospects and records are relevant to this inquiry. In re Gateway Access Sols., Inc., 874 B.R. 556, 564 (Bankr. M.D.Penn.2007). An inability to pay ongoing expenses, combined with an absence of reliable income, can establish cause. Pa-terno, 511 B.R. at 67.

In Gateway, the court found that the evidence indicated a pattern of declining assets and substantial continuing losses where the monthly operating reports showed a sharp decline in the debtor’s cash position, disbursements exceeded earnings many times over, and the debtor continued to incur post-petition loans. 874 B.R. at 564. Specifically, the debtor’s January monthly report showed a starting cash balance of $125,739.00, whereas the June monthly report showed a starting cash balance of only $11,870.00. Id. Additionally, over the same six-month period, the debtor’s earnings, totaling $30,671.00, were largely overshadowed by disbursements of $335,800.00. Id. Substantial and continuing loss has been found where a debtor did not engage in any business activity and had no income or funds to make payments, while at the same time continued to accrue post-petition debt and administrative costs. In re Landmark Atl. Hess Farm, LLC, 448 B.R. 707, 714 (Bankr.D.Md.2011). In In re Forest Grove, LLC, 448 B.R.

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Cite This Page — Counsel Stack

Bluebook (online)
538 B.R. 245, 2015 Bankr. LEXIS 3125, 61 Bankr. Ct. Dec. (CRR) 149, 2015 WL 5474449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-creech-nceb-2015.