In re Dynamic Tours & Transportation, Inc.

349 B.R. 307, 2006 Bankr. LEXIS 2269, 2006 WL 2615526
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedSeptember 8, 2006
DocketNo. 6:04-bk-02009-ABB
StatusPublished
Cited by1 cases

This text of 349 B.R. 307 (In re Dynamic Tours & Transportation, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Dynamic Tours & Transportation, Inc., 349 B.R. 307, 2006 Bankr. LEXIS 2269, 2006 WL 2615526 (Fla. 2006).

Opinion

ORDER

ARTHUR B. BRISKMAN, Bankruptcy Judge.

This matter came before the Court on the Application by General Electric Capital Corporation for an Order Allowing Administrative Expense Claim, Setting Priority of Such Claim and Directing Prompt Payment of Such Expenses in the Amount of $858,303.28 (Doc. No. 215) (“Application”) filed by General Electric Capital Corporation (“GE”) and the Motion by Debtor to Strike Application for Administrative Expense Claim by General Electric (Doc. No. 222) (“Motion to Strike”) filed by Dynamic Tours & Transportation, Inc., the reorganized Debtor herein (“Debtor”).

A hearing was held on May 24, 2006, at which the Debtor, counsel for the Debtor, and counsel for GE appeared. The parties were granted fourteen days to submit supplemental briefs in support of their positions. The Court makes the following Findings of Fact and Conclusions of Law after reviewing the pleadings and evidence, hearing live argument, and being otherwise fully advised in the premises.

FINDINGS OF FACT

Case Background: Pre-confirmation Events

The Debtor filed this voluntary Chapter 11 case on February 25, 2004 (“Petition Date”). The Debtor was in the business of providing bus transportation on the Petition Date and continues to operate and manage its business as a reorganized debt- or. The Debtor utilized a fleet of buses with twelve of the buses leased from GE (the “Buses”) pursuant to certain Commercial Transportation Lease Agreements executed by the Debtor and GE prepetition. The Debtor utilized the GE Buses pre- and post-petition. GE was an active participant throughout this bankruptcy case.

A disagreement existed from the onset of this case as to whether the leases constituted true leases or financing agreements. The determination of this issue would establish the nature of GE’s claim rights. GE would have a secured claim if the leases were disguised financing agreements. If they were true leases, GE would have an unsecured claim for rejection damages upon the Debtor’s rejection of the leases or cure and adequate assurance rights upon assumption of the leases.

GE filed its original claim, Claim No. 13, on May 3, 2004 as a prophylactic measure while the lease issue was pending. The claim is for the amount of $3,277,317.50, consisting of an unsecured priority amount of $70,872.34 and an unsecured nonpriority amount of $3,206,445.16. GE sets forth in a Rider attached to the claim: “This proof of claim is filed for the purpose of preserving GE Capital’s right to assert this claim for rejection damages in the event the Leases are rejected and for priority treatment of post-petition rents due under the Leases.... ” The Rider includes a reservation of rights clause: “GE Capital reserves its right to amend this proof of claim and this rider as may be necessary to adjust the amount asserted herein, the priority of any amounts due, or to supplement this claim in any way.”

The lease issue was resolved by the November 19, 2004 Order (Doc. No. 148) [310]*310in which the leases were determined to be true leases. The Order Conditionally Approving Disclosure Statement (Doc. No. 149) was entered on that same date and set the deadline for filing administrative claims fourteen days before January 18, 2005, the date of the confirmation hearing. Order at ¶¶ 2, 8. GE did not timely file an administrative claim nor did it seek an extension of the administrative claims bar date.

The Debtor’s Chapter 11 Plan of Reorganization as Modified (Doc. No. 157) (“Plan”) was confirmed on February 2, 2005 (Doc. No. 184) (“Confirmation Order”). The Confirmation Order provides the Debtor’s unsecured creditors, with filed claims totaling approximately $1,211,000, shall receive a pro rata distribution of at least 31% of their allowed claims and in no event shall the amount disbursed be less than $387,133.12. Confirmation Order at ¶ 3. The Plan put GE on notice the Debtor was contemplating rejecting the GE leases.1 The Plan contains an injunction in Paragraph A of Article IX enjoining all persons and entities that have held, currently hold, or may hold a claim that is discharged or terminated by the Plan from taking any action against the Debtor to attempt to collect such claim. The Debtor had significant secured debts, which are being paid pursuant to the Plan.

The Debtor had not assumed or rejected the GE leases as of the entry of the Confirmation Order and had not reached an agreement with GE regarding the calculation or treatment of GE’s cure amount, if applicable through assumption of the leases. Jurisdiction was reserved to consider a motion by the Debtor to assume the GE leases “at a later date under separate order.”2 Jurisdiction was also broadly reserved to address “any and all matters that may come before the Court in the administration of the Plan and pursuant to the Confirmation Order ....”3

Confirmation of the Debtor’s Plan discharged the Debtor from any debt that arose before the date of confirmation and any debt arising from the rejection of an executory contract or unexpired lease of the Debtor. A discharge injunction arose upon confirmation of the Plan, pursuant to the terms of the Plan and Sections 1141 and 524(a) of the Bankruptcy Code, protecting the Debtor from any act to collect a discharged debt. The confirmed Plan is binding upon the Debtor and every creditor.

Case Background: Post-confirmation Events

The Debtor rejected the GE leases post-confirmation. GE and the Debtor entered into a Stipulation and Agreed Order for the Rejection of General Electric Capital Corporation’s Leases on April 13, 2005 (Doc. No. 190) (“Stipulation”), which the Court approved on April 25, 2005 (Doc. No. 191) (“Stipulation Order”). The Stipulation provides, among other things: (i) the GE leases were rejected by the Debtor effective as of the date of entry of the Stipulation Order; (ii) the Debtor would return the Buses to GE’s agent ABC Companies located in Winter Garden, Florida within seven days of entry of the Stipulation Order; (iii) the returned buses would be applied to GE’s rejection damages claim; (iv) the allowance of an administrative claim in favor of GE in the amount of $375,313.34 to be paid by the reorganized Debtor in installments through May 2005; and (v) “For purposes of facilitating the [311]*311Debtor moving forward to entry of a Final Decree, GE Capital, within twenty (20) days of this Stipulation and Agreed Order, shall provide the Debtor with a reasonable estimate of its unsecured claim, and shall provide a final and amended claim within 150 days after entry of the Final Decree and provide notice of same to counsel for the Debtor and the Debtor.” Stipulation at pp. 5-6.

A rejection damages claim arose in favor of GE upon entry of the Stipulation Order. The Debtor returned the Buses to GE’s agent ABC Companies. GE’s records reflect the Buses were received by ABC Companies from April 14, 2005 to May 19, 2005.4 GE knew the condition of the Buses on June 7, 2005, if not earlier. GE’s agent ABC Companies prepared GE Bus Condition Reports for each bus (with the reports dated June 7, 2005 and June 8, 2005) containing detailed descriptions and photographs of the Buses.5

GE filed Claim No. 29 on August 22, 2005, which amends Claim No. 13, for the unsecured nonpriority amount of $2,759,244.32. The Rider to Claim No.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
349 B.R. 307, 2006 Bankr. LEXIS 2269, 2006 WL 2615526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dynamic-tours-transportation-inc-flmb-2006.