In re Genlime Group, L.P.

167 B.R. 449, 1994 Bankr. LEXIS 388, 1994 WL 159989
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedFebruary 18, 1994
DocketBankruptcy No. 93-33249
StatusPublished

This text of 167 B.R. 449 (In re Genlime Group, L.P.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Genlime Group, L.P., 167 B.R. 449, 1994 Bankr. LEXIS 388, 1994 WL 159989 (Ohio 1994).

Opinion

OPINION AND ORDER DENYING AMENDED APPLICATION FOR ORDER AUTHORIZING EMPLOYMENT OF CONRAD J. MORGEN-STERN & ASSOCIATES, INC. AS FINANCIAL ADVISOR

WALTER J. KRASNIEWSKI, Bankruptcy Judge.

This matter is before the Court on the Genlime Group, L.P.’s (the “Debtor”) amended and restated application for order authorizing employment of Conrad J. Morgenstern & Associates, Inc. (“CMA”) as financial ad-visor and the United States Trustee’s (“UST”) objections thereto (the “Objection”). Upon consideration of the evidence adduced at the hearing on this matter, the Court finds that the Debtor’s amended application is not well taken and should be denied with prejudice.

FACTS

The Debtor filed an application to employ CMA on December 1, 1993.

This Court’s order dated December 6,1993 stated that the application could not be approved by the Court because of certain deficiencies contained in the application.

Thereafter, on January 12, 1994, the Debt- or filed the instant amended and restated application for order authorizing employment of CMA.

The Debtor is engaged in owning, operating and managing a limestone mining and processing facility located in Genoa, Ohio.

The Debtor financed both its purchase of the business in Genoa, Ohio and its operation of the business through loans (the “Loans”) from Glen Fed Financial Corp. (“Glenfed”). The maturity date of the Loans was November 7, 1993.

After Glenfed purportedly refused to refinance the Loans, the Debtor’s chief financial officer Rick Banks (“Banks”) testified that he was unsuccessful in his attempts to obtain replacement financing. Subsequently, the Debtor hired CMA to seek replacement financing in September of 1993.

The Debtor and CMA failed to obtain alternative financing for the Loans and the Debtor filed a petition under chapter 11 of title 11 on November 15, 1993.

The Debtor’s application states that CMA was paid a $15,000.00 prepetition retainer by the Debtor which was “fully earned upon receipt”. According to Banks, the Debtor’s only witness at the hearing on this matter, the retainer was paid to CMA pursuant to a prepetition oral agreement between CMA and the Debtor.

The Debtor seeks to pay CMA a postpetition monthly retainer of $3,000.00 per month for professional services.

The Debtor further proposes to pay CMA 1% of any replacement financing obtained by the Debtor. The Debtor proposes that this fee should be paid to CMA irregardless of [451]*451whether CMA is successful in obtaining replacement financing for the Debtor.

Included within CMA’s proposed duties are: “[a]ssistance in the development, negotiation, and promulgation of a plan of reorganization”, “[a]ssistanee in the preparation of documents necessary for confirmation of a plan of reorganization in this chapter 11 case, including debt agreements and financial information contained in the disclosure statement”, and “[performance of such other functions as requested by Debtor or its counsel to aid Debtor in its business and reorganization, including, but not limited to, advice on strategies for reorganization and assistance in claims analysis”.

DISCUSSION

Compliance with Bankruptcy Rule 2014

Bankruptcy Rule 2014 requires an applicant to set forth the applicant’s “connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee or any person employed in the office of the United States trustee”. See Fed.R.Bankr.P. 2014. Further Rule 2014 requires an applicant to provide a verified statement indicating the professional’s connections with creditors and other interested parties.

In describing the requirements of Rule 2014 the court in In re Marine Outlet, Inc. stated that:

[t]here is no duty placed on the United States Trustee or on creditors to search the record for the existence, vel non, of a conflict of interest of a professional sought to be employed. On the contrary, there is a definite affirmative duty placed on a professional to disclose his or her connection with parties whose interest is or may be antagonistic or opposite to the interest of the general estate[.]

In re Marine Outlet, Inc., 135 B.R. 154, 156 (Bankr.M.D.Fla.1991) (citation omitted).

The Debtor’s application does not satisfy the requirements of Rule 2014 because it fails to disclose the relationship between CMA and Benesch, Friedlander, Coplan & Aronoff (“BFCA”), the Debtor’s attorney. Despite Banks’ testimony that the Debtor was referred to BFCA by CMA, the application does not mention any connection between CMA and BFCA. See Objection at p. 3-4, para. 7.

Additionally, the application fails to disclose the relationship, if any, between CMA and creditors of the Debtor as noted by the UST at the hearing on this matter. See Objection at p. 1-2, para. 2. The Amended and Restated Affidavit of Conrad J. Morgen-stern (the “Affidavit”) filed with the Debtor’s amended application to employ CMA states that:

[a]s a result of my extensive experience in bankruptcy proceedings both as a former United States Trustee and an attorney in private practice, [CMA] has in the past acted as consultant and will likely in the future act as a consultant to parties who may be creditors of the Debtor, either directly or indirectly as adviser to a committee, in matters completely unrelated to this case and not in matters adverse to Debtor, nor in any capacity which confidential knowledge of a creditor has been acquired which would bear on Debtor’s employment of [CMA] in this case.

The Court concludes that the Affidavit fails to comply with Rule 2014 because it fails to minimally describe the creditors of the Debt- or with which CMA has relationships and the nature of such relationships. Despite the Affidavit’s assurances that any relationships between CMA and creditors are “not in matters adverse to Debtor”, creditors are entitled to determine for themselves whether such relationships are adverse to the interests of the estate.

Potential Duplication of Effort

Although assertions contained within the Debtor’s amended application indicate, that there will be no duplication of effort between CMA and other professionals, the Debtor has not persuaded the Court that CMA’s proposed duties do not encompass duties of counsel for the Debtor. BFCA has already been retained to serve as counsel for the Debtor. As previously noted, included within CMA’s proposed duties are: “[assistance in the development, negotiation, and promulgation of a plan of reorganization”, “[assistance in the preparation of documents neees-[452]*452sary for confirmation of a plan of reorganization in this chapter 11 case, including debt agreements and financial information contained in the disclosure statement”, and “[performance of such other functions as requested by Debtor or its counsel to aid Debtor in its business and reorganization, including, but not limited to, advice on strategies for reorganization and assistance in claims analysis”. These terms of employment apparently duplicate the duties of BFCA as the Debtor’s counsel. See In re Liberal Market, Inc., 24 B.R.

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Bluebook (online)
167 B.R. 449, 1994 Bankr. LEXIS 388, 1994 WL 159989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-genlime-group-lp-ohnb-1994.