In re: Hassen Imports Partnership

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: August 19, 2013
• Docket: CC-13-1019-KiPaD
• Status: Unpublished

Opinion

FILED AUG 19 2013 SUSAN M SPRAUL, CLERK U.S. BKCY. APP. PANEL 1 OF THE NINTH CIRCUIT

2 3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP No. CC-13-1019-KiPaD ) 6 HASSEN IMPORTS PARTNERSHIP, ) Bk. No. 2:11-42068 ) 7 Debtor. ) ) 8 HASSEN IMPORTS PARTNERSHIP; ) LOS ANGELES COUNTY TREASURER ) 9 AND TAX COLLECTOR, ) ) 10 Appellants, ) ) 11 v. ) M E M O R A N D U M1 ) 12 CITY OF WEST COVINA; CITY OF ) WEST COVINA, as successor to ) 13 the CITY OF WEST COVINA ) COMMUNITY DEVELOPMENT ) 14 COMMISSION; COREPOINTE CAPITAL) FINANCE, LLC; COREPOINTE ) 15 INSURANCE CORPORATION, ) ) 16 Appellees. ) ______________________________) 17 Argued and Submitted on June 20, 2013, 18 at Pasadena, California 19 Filed - August 19, 2013 20 Appeal from the United States Bankruptcy Court for the Central District of California 21 Honorable Ernest M. Robles, Bankruptcy Judge, Presiding 22 23 Appearances: Theodore B. Stolman, Esq. of Stutman, Treister & Glatt PC argued for appellant, Hassen Imports 24 Partnership; Stephen Thomas Owens, Esq. of Squire Sanders (US) LLP argued for appellees, City of West 25 Covina and City of West Covina as successor to the City of West Covina Community Development 26 Commission. _______________________________________ 27 28 1 This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8013-1. 1 Before: KIRSCHER, PAPPAS and DUNN, Bankruptcy Judges. 2 3 Appellants, debtor Hassen Imports Partnership ("Debtor") and 4 the Los Angeles County Treasurer and Tax Collector ("LA County"), 5 appeal an order from the bankruptcy court granting the motion of 6 appellees (collectively, "City"), to convert Debtor's case from 7 chapter 11 to chapter 7 for "cause" under 11 U.S.C. 8 § 1112(b)(4)(A).2 Debtor also appeals the bankruptcy court's 9 order denying its motion for reconsideration of the conversion 10 order. We AFFIRM.3 11 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 12 A. Background prior to Debtor's bankruptcy filing 13 Debtor, a California limited partnership, filed a chapter 11 14 bankruptcy case on July 27, 2011. Debtor consists of Hassen 15 Imports, Inc., as the general partner, and Dighton America, Inc. 16 ("Dighton"), as the sole limited partner. Debtor is engaged in 17 the business of commercial real estate development, owning several 18 parcels of real property in the cities of Covina and West Covina, 19 California. Debtor's largest secured creditors are CorePointe, 20 LA County and the City. 21 The most valuable and lucrative of Debtor's properties have 22 23 2 Unless specified otherwise, all chapter, code and rule 24 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The 25 Federal Rules of Civil Procedure are referred to as “Civil Rules.” 26 3 Per our Conditional Order of Waiver entered on April 1, 2013, appellees CorePointe Capital Finance, LLC and CorePointe 27 Insurance Corporation (collectively, "CorePointe") waived their rights to appear at oral argument by not filing a timely brief on 28 appeal.

-2- 1 been improved to accommodate major car dealerships and are leased 2 to either West Covina Motors, Inc. ("WCM") or West Covina Ford, 3 Inc. ("WCF"), which collectively own and operate Clippinger Ford, 4 Clippinger Chevrolet, and Clippinger Chrysler Jeep Dodge. Both 5 WCM and WCF are related to Debtor in that WCM and WCF are wholly 6 owned by West Covina Automotive Holding, Inc., which is owned by 7 Ziad Alhassen ("Alhassen"). Alhassen is also the president of 8 Hassen Imports, Inc., general partner of the Debtor. 9 Debtor's car dealership properties, which are located in West 10 Covina, include: (1) the Chevrolet Dealership Property; (2) the 11 Ford Dealership Property; (3) the property with improvements for a 12 defunct Hummer dealership ("Hummer Property"); (4) the Dodge/ 13 Chrysler Dealership Property; and (5) a property with improvements 14 for a defunct Mazda dealership ("Mazda Property").4 Collectively, 15 these five properties are referred to as the "Dealership 16 Properties," and the related dealerships are referred to as the 17 "Dealership Franchises."5 Some of these properties have been 18 owned by Debtor and operated as car dealerships by Alhassen since 19 1983. 20 Besides the Dealership Properties, Debtor owns several other 21 parcels of real property in the City of Covina, which are 22 23 4 Shortly after Debtor filed bankruptcy, the City filed an 24 adversary proceeding for fraudulent conveyance to recover the Mazda Property, which Debtor had conveyed to another party in 25 2009. The parties ultimately agreed that the Mazda Property would be returned to the estate. 26 5 Debtor owns only the real property and improvements for the 27 Dealership Properties and does not own any of the inventory or equipment situated thereon; such personal property is owned by the 28 dealerships.

-3- 1 generally held for development purposes (together with the 2 Dealership Properties, the "Properties"). 3 In exchange for certain loans, Debtor executed several 4 promissory notes in favor of Chrysler Financial Services Americas 5 LLC, dating from July 1999 through October 2006, in the aggregate 6 principal amount of $26.2 million. CorePointe is the current 7 beneficiary of the Chrysler notes and is Debtor's largest secured 8 creditor, holding senior deeds of trust on at least eight of the 9 Properties, securing an obligation of approximately $30 million, 10 including Debtor's guarantee of about $2.4 million in wholesale 11 motor vehicle financing (known as "floorplan loans") to WCM and 12 WCF.6 CorePointe also holds a first-priority security interest in 13 virtually all assets of WCM and WCF to secure the floorplan loans 14 to those entities. 15 In 1999, the City agreed to lend Debtor and WCM $4.1 million 16 in exchange for guaranties that the City would receive certain 17 levels of sales and property tax proceeds from the operation of 18 certain dealerships located on some of the Dealership Properties 19 owned by Debtor. The obligations were secured by junior deeds of 20 trust (behind CorePointe's) on the Chevrolet Dealership Property, 21 the Ford Dealership Property and certain real property owned by 22 Alhassen. 23 Debtor's relationship with the City eventually deteriorated, 24 and in 2006 the City sued Debtor, WCM and certain guarantors under 25 the loan agreement in state court. After five years of 26 litigation, the state court found Debtor and WCM liable and 27 28 6 CorePointe filed a proof of claim for $29,473,732.

-4- 1 entered a judgment in favor of the City for $3.93 million, which 2 was later amended to include attorney's fees, for a total judgment 3 of $7.58 million.7 The state court further ordered the judicial 4 foreclosure of the Chevrolet Dealership Property, the Ford 5 Dealership Property, and certain real property owned by Alhassen. 6 A receiver was appointed for Debtor on July 26, 2011, thus 7 prompting the bankruptcy filing on July 27. Debtor and WCM have 8 appealed the state court judgment, but the outcome of that appeal 9 is unknown. 10 B. The City's motion to convert and other related events 11 After losing a determination that Debtor was a single asset 12 real estate case, the City filed its motion to convert Debtor's 13 case to chapter 7 or, alternatively, appoint a trustee on 14 February 8, 2012 ("Motion to Convert"). The City alleged that 15 "cause" existed to convert the case to chapter 7 under 16 § 1112(b)(4)(A) because Debtor was suffering substantial and 17 continuing losses to and diminution of its estate and had no 18 reasonable likelihood of rehabilitation.8 Among other things, the 19 City argued: (1) Debtor had not collected approximately $5 million 20 in unpaid rent from the car dealerships controlled by Alhassen; 21 (2) Debtor had not paid the taxes due on certain Properties going 22 23 7 The City filed a proof of claim for $11,445,502.63, which 24 included interest on the state court judgment and a claim for additional sales tax revenues that the City asserts it is owed, 25 which Debtor disputes. 26 8 The City also moved to convert the case for gross mismanagement under § 1112(b)(4)(B), but the bankruptcy court 27 ultimately determined that the City had failed to show cause under that statute. The City has not cross-appealed that determination. 28 Therefore, we do not discuss it.

-5- 1 back to the 2008-2009 tax year, totaling nearly $1.5 million; 2 (3) Debtor had not paid the interest and penalties accruing 3 postpetition on the delinquent real estate taxes due on eight of 4 its Properties, paying such obligations only on the Chevrolet and 5 Ford Dealership Properties; (4) Debtor was unable to pay the 6 administrative claim for its attorney's fees and costs; (5) Debtor 7 had failed to seek other tenants or uses for those Properties 8 which were under-utilized or vacant; (6) Debtor's monthly 9 operating reports ("MORs") from July 2011 through December 2011 10 showed losses of approximately $80,000 per month; and (7) Debtor 11 had failed to submit a proposed plan of reorganization after six 12 months of being in chapter 11. 13 The original hearing date for the Motion to Convert of 14 February 29, 2012, was continued no less than ten times based on 15 either the City's motions (which Debtor opposed) or the parties' 16 joint stipulations. It was eventually heard on December 5, 2012. 17 Over the course of eleven months, numerous pleadings were 18 filed in support of, and in opposition to, the Motion to Convert. 19 Debtor filed its first opposition to the Motion to Convert on 20 March 6, 2012, contending that the City had failed to demonstrate 21 "cause." Debtor asserted that Alhassen had recently negotiated 22 the sale of the Dealership Franchises to an unrelated third party 23 for over $10 million, of which $7 million in proceeds would 24 benefit the estate ("Sale Transaction"). Debtor argued that the 25 Sale Transaction, which included leasing five of the Dealership 26 Properties to fund future plan payments, would benefit Debtor's 27 creditors by: (1) paying just over $1 million of its delinquent 28 real estate taxes; (2) paying $572,000 towards past due real

-6- 1 estate taxes owed on the Chevrolet and Ford Dealership Properties 2 — the two properties on which the City had liens; (3) and paying 3 CorePointe at least $6 million towards its outstanding secured 4 claims. In other words, WCM and WCF were giving Debtor $6 million 5 of their sale proceeds to pay towards Debtor's secured debts. 6 Debtor asserted that the purchaser had agreed to enter into new, 7 long-term leases on the Dealership Properties at lease rates that 8 were materially higher than the rent currently being collected 9 from the dealerships, which would provide a beneficial income 10 stream for at least ten years. 11 Debtor further asserted that it was current on its monthly 12 adequate protection payments to CorePointe of $121,500, which had 13 just been increased to $135,000. According to Debtor, CorePointe 14 had agreed that Debtor did not, at that time, need to pay the 15 penalties and interest accruing on the delinquent taxes on the 16 other six Properties on which CorePointe had liens (but the City 17 did not), because CorePointe was not concerned that its collateral 18 was in jeopardy. 19 Debtor admitted that it had not been collecting outstanding 20 rents on the Dealership Properties, and part of the problem of 21 reconciling its books with WCM and WCF was because those entities' 22 books were kept on an accrual basis, while Debtor's books were 23 kept on a cash basis. In any event, Debtor's forensic accountant, 24 Alan Levy ("Levy"), determined that Debtor was owed $2.87 million 25 in outstanding rent from the Dealership Franchises from January 26 2007 through July 2011 and that, overall, Debtor was owed about 27 $8 million from the Dealership Franchises, inclusive of the 28 $2.87 million in rent. As for filing a plan, Debtor argued that

-7- 1 it still had six weeks before the exclusivity period ended, which 2 was not a basis for converting its case. Finally, Debtor disputed 3 the alleged monthly operating losses of $80,000 as "overstated," 4 because the City had failed to consider that the MORs were 5 reported on an accrual, not cash, basis; two-thirds of Debtor's 6 operating expenses were attributable to the accrual of 7 depreciation and loan interest on the Properties, and the other 8 third, the accrual of real property taxes, would be paid in full 9 by the Sale Transaction. 10 Debtor filed a supplemental opposition to the Motion to 11 Convert, along with its proposed plan of reorganization, on 12 April 23, 2012. Debtor contended that the Sale Transaction (or a 13 similar sale), which was the lynchpin of the plan, would pay all 14 claims in full. Debtor further contended that it had made all of 15 its postpetition payments to CorePointe, paid its current 16 postpetition property taxes, collected all postpetition rents from 17 its affiliates, worked with accountant Levy to determine its 18 intercompany claims and other accounting matters, was current in 19 paying its U.S. Trustee fees, and had timely filed all of its 20 MORs. As for the pending Sale Transaction, which Debtor argued 21 would benefit the estate with an estimated $8.2 million in 22 proceeds and fund the plan, the following tasks had to be 23 completed for it to close: (1) the auto manufacturers --- Ford, 24 General Motors, Chrysler and Mazda --- had to approve the buyer to 25 operate the Dealership Franchises, which Debtor anticipated would 26 be successful and done in a timely manner; and (2) by agreement, 27 the City had to approve the buyer as a lessee and operator of the 28 dealerships at the sites. Debtor believed the Sale Transaction

-8- 1 could be consummated by July 30, 2012. Accordingly, argued 2 Debtor, the City had failed to establish cause for conversion.9 3 While the Debtor and the City attempted to resolve their 4 disputes, Debtor filed its Third Amended Chapter 11 Plan ("Plan") 5 and Disclosure Statement on August 8, 2012. Debtor conceded that 6 the Plan's success depended upon the pending Sale Transaction to 7 buyer YTransport LLC ("YTransport"), which involved the sale of 8 assets not owned by Debtor but rather Debtor's affiliates, WMC and 9 WCF. The Third Amended Disclosure Statement was approved on 10 August 20, 2012, and the confirmation hearing was scheduled for 11 October 25, 2012. 12 On September 6, 2012, the City filed a supplemental 13 declaration in support of its Motion to Convert. Although the 14 parties had reached a settlement in principle of their disputes 15 and treatment of the City's claim on August 9, 2012, recent events 16 had caused the City to renew its motion: (1) CorePointe had 17 withdrawn its support for the Sale Transaction because, even 18 though Debtor made the July adequate protection payment, Debtor 19 had not made the August payment, and the default rate of interest 20 on future CorePointe payments was 4% higher than the non-default 21 rate, which the City argued eroded its junior lien position; 22 (2) Debtor had failed to make timely court-ordered payments of 23 24 9 While the Motion to Convert was pending, Debtor moved for approval of a third stipulation for its adequate protection 25 payments to CorePointe for the time period of June 2012 through October 2012. Debtor was to pay CorePointe $135,500 for the month 26 of June, and $145,500 for the months of July through October. Debtor conceded that it had failed to make the July 2012 payment, 27 for which CorePointe filed a notice of default, but stated that it would make that payment by August 9. The third stipulation was 28 approved on June 20, 2012.

-9- 1 interest and penalties due on the delinquent real estate taxes 2 owing on the Chevrolet and Ford Dealership Properties, which 3 caused these amounts to accrue and further erode the City's junior 4 lien position; (3) Debtor had retained counsel without court 5 approval to litigate against the City of Covina in a pending 6 eminent domain action, which resulted in an attorney's lien filed 7 against Debtor's assets; and (4) the Mazda Dealership franchise 8 had been terminated by Mazda Motors, which threatened consummation 9 of the Sale Transaction because that franchise was a key element 10 of the sale. 11 In response to the City's supplemental declaration, Debtor 12 contended: (1) CorePointe was onboard with the Sale Transaction, 13 and the parties were resolving the outstanding August adequate 14 protection payment and the issue of whether Debtor would be 15 charged the default rate of interest; (2) it had made all of the 16 payments for interest and penalties accrued postpetition on the 17 delinquent real estate taxes owing on the Chevrolet and Ford 18 Dealership Properties; (3) the attorney's fees for the eminent 19 domain action were incurred by, and would be paid by, Debtor's 20 limited partner; (4) termination of the Mazda Dealership franchise 21 was the subject of litigation, but, even it were lost and unable 22 to be sold, this would not affect the Sale Transaction because the 23 Mazda sale proceeds were not earmarked for Debtor's creditors, 24 given that the franchise was owned by a non-debtor and not subject 25 to either the City's or CorePointe's claims; but, in any event, 26 the Mazda Property could still be leased for other purposes to 27 fund the Plan. 28 The parties agreed to continue the hearing on the Motion to

-10- 1 Convert to October 25, 2012, to coincide with the scheduled 2 confirmation hearing. However, on October 24, 2012, the parties 3 filed a stipulation to continue both matters to December 5, 2012, 4 explaining that the Sale Transaction was stalled because 5 YTransport had not yet completed its due diligence, and it was 6 still waiting for authorization from the respective auto 7 manufacturers. YTransport had until November 16, 2012, to 8 complete its due diligence, and, if it did not do so, confirmation 9 would not proceed because the Plan relied on consummation of the 10 Sale Transaction. The bankruptcy court entered orders continuing 11 both matters to December 5, 2012. 12 As the due diligence deadline approached, the parties learned 13 that YTransport would proceed with the Sale Transaction only if 14 the terms were substantially modified. The parties ultimately 15 agreed to extend time until November 29, 2012, for the City to 16 file supplemental papers and/or CorePointe to file a joinder to 17 the Motion to Convert; Debtor had until November 30, 2012, to file 18 a supplemental opposition. The parties needed additional time to 19 negotiate with YTransport and develop potential alternatives, if 20 necessary. 21 On November 29, 2012, CorePointe filed a joinder to the 22 City's Motion to Convert. According to CorePointe, the Sale 23 Transaction was dead. YTransport was no longer willing to pay the 24 agreed $10 million cash in "goodwill" for the Dealership 25 Franchises and proposed to reduce it to $0, or do a carry-back by 26 Debtor's lenders of a ten-year $10 million subordinated note at 27 1% interest. YTransport had also proposed a dramatic reduction in 28 the lease rates for the Dealership Properties. Without the

-11- 1 $10 million up-front cash, the $5.3 million in cash necessary to 2 close the Sale Transaction was not available, and CorePointe would 3 not realize the $5.7 million in sale proceeds to reduce the 4 balance on its loans as provided in the Plan. Without the 5 reduction of CorePointe's principal balances and with the 6 significantly reduced lease rates, the Plan was not feasible. 7 CorePointe asserted that YTransport was not responding to Debtor's 8 counter-proposals or phone calls, so it appeared that YTransport 9 had withdrawn from the Sale Transaction. 10 In addition, asserted CorePointe, the Mazda Dealership 11 franchise was still terminated, and it now appeared that 12 termination of the Chevrolet Dealership franchise was imminent. 13 According to a stipulation between General Motors and WCM, which 14 was the result of a recent decision by the State of California New 15 Motor Vehicle Board, the Chevrolet Dealership franchise was set to 16 terminate by November 13, 2012, unless WCM submitted a complete 17 buy-sell package for the franchise. GM had sixty days to either 18 approve or reject the proposed buy-sell and transfer of the 19 franchise to the potential buyer. YTransport submitted its 20 proposal to GM on the November 13 deadline. If GM approved it, 21 the sale to YTransport had to close within thirty days. If it 22 rejected it, the franchise terminated voluntarily. If it approved 23 it but the sale did not close within thirty days, the franchise 24 also terminated voluntarily. Thus, with YTransport's withdrawal, 25 CorePointe speculated that either the Sale Transaction would not 26 close within thirty days, or GM would reject the proposed 27 franchise transfer once it learned of YTransport's withdrawal. 28 Either way, the Chevrolet Dealership franchise was all but gone.

-12- 1 CorePointe further noted that the dealerships were unable to 2 pay September rent based on the September 2012 MOR, which showed 3 total receipts of only $7,200, and that they paid only a partial 4 rent payment for October as reflected in the October 2012 MOR, 5 which showed total receipts of only $46,000. Moreover, Debtor had 6 failed to make its full adequate protection payment to CorePointe 7 for the month of September, instead paying only $36,650, and it 8 had also failed to make the payment for October. As a result, 9 CorePointe began charging interest at the default rate as of 10 November 1, 2012. Finally, CorePointe noted that Debtor had 11 failed to make the November payment of postpetition interest and 12 penalties accruing on the delinquent real estate taxes owing on 13 the Chevrolet and Ford Dealership Properties, and the September 14 2012 MOR showed a cash balance of only $121.77. 15 CorePointe argued that "cause" existed under § 1112(b)(4)(A) 16 to convert Debtor's case to chapter 7, because without the Sale 17 Transaction upon which the Plan was based, and with the apparent 18 loss of the Mazda and Chevrolet Dealership franchises, it was 19 unlikely a replacement transaction could be substituted upon which 20 a revised plan could be based. Further, the dealerships appeared 21 unable to make the monthly rent payment of $134,223 needed to fund 22 the Plan. Thus, a reasonable likelihood of rehabilitation seemed 23 absent. To show diminution to the estate, CorePointe argued that 24 Debtor's failure to make the adequate protection payments towards 25 the principal portion of its loans, which accrued interest at the 26 rate of $155,799.13 per month (plus attorney's fees and costs), 27 was consuming the equity in the Properties securing its various 28 loans and further impairing the City's secured portion of its

-13- 1 claim. Moreover, Debtor's failure to pay the interest and 2 penalties on its delinquent real estate taxes further eroded the 3 estate, as did the estate's unpaid and continuing $2 million-plus 4 administrative claims. 5 CorePointe argued that conversion was in the best interest of 6 creditors because, based on Debtor's appraisals and the interest 7 shown in the various properties securing its loans, liquidation of 8 those properties would realize sufficient equity to fully pay 9 CorePointe's claim and the administrative claims, and pay a 10 substantial percentage of the general unsecured claims. 11 The City's second supplemental memorandum in support of its 12 Motion to Convert essentially parroted CorePointe's joinder. The 13 City also noted that YTransport had recently announced that it 14 would not be buying the terminated Mazda Dealership franchise nor 15 leasing the Mazda Property as a result. Ford and Chrysler had 16 also not yet approved YTransport as a replacement dealer. In 17 addition, the City asserted that Debtor's counsel had claimed that 18 Debtor was under no obligation to make any further tax payments or 19 adequate protection payments, that Debtor did not intend to make 20 any more such payments before the December 5 hearing, and that 21 Debtor would never pay the taxes unless the City agreed to 22 postpone the hearing on the Motion to Convert. 23 The City argued that "cause" existed under § 1112(b)(4)(A) to 24 convert the case to chapter 7 because: (1) Debtor's monthly net 25 operating loss of $80,000 had now accumulated to a loss of more 26 than $1 million; (2) Debtor was $2 million delinquent in real 27 property taxes dating back to the 2008-2009 tax year, had not made 28 (and would not make) the $175,000 tax payment due on November 1,

-14- 1 2012, and had never paid the monthly interest and penalties 2 accruing on the delinquent real estate taxes for at least nine of 3 its eleven Properties and had now stopped making those payments on 4 the Chevrolet and Ford Dealership Properties in October; (3) the 5 estate was administratively insolvent, unable to pay its over 6 $2 million administrative claims; (4) Debtor had failed to make 7 its October and November 2012 adequate protection payments to 8 CorePointe; and (5) with the complete collapse of Debtor's Plan 9 and the absence of any alternative plan, no reasonable likelihood 10 of rehabilitation existed. The City argued that, based on 11 Debtor's appraisal figures and the City's conservatively estimated 12 value of $4 million for the Mazda Property (which Debtor's 13 liquidation analysis did not include), the sale of Debtor's eleven 14 Properties would realize proceeds of $47,575,000 to satisfy 15 $45,566,424.96 in pending claims against the estate. Therefore, 16 conversion to chapter 7 was in the best interest of creditors. 17 In its third supplemental opposition to the Motion to 18 Convert, Debtor disputed all of the City's and CorePointe's 19 arguments. Debtor countered that it was solvent, that it had paid 20 all postpetition property taxes that had come due on all of its 21 Properties to date (except the latest $175,000 payment due, which 22 it was prepared to pay by December 10, 2012, if the Motion to 23 Convert was denied), that it had paid the interest and penalties 24 accrued on the delinquent taxes for the Chevrolet and Ford 25 Dealership Properties, and that it had made all adequate 26 protection payments to CorePointe, having missed only one partial 27 payment, which it offered to cure if the case were not converted. 28 In fact, Debtor had offered to enter into a fourth stipulation

-15- 1 with CorePointe for adequate protection payments for the next 2 several months. As for the alleged operating losses of $80,000 3 per month, Debtor again contended that this was simply a 4 bookkeeping matter, and any expenses incurred by the accrual of 5 real property taxes were going to be cured with proceeds from the 6 Sale Transaction and/or lease payments made by tenants. Thus, the 7 estate was not suffering any continuing losses or diminution. 8 As for Debtor's rehabilitation, Debtor asserted that the Sale 9 Transaction was still "very much alive," as GM had just approved 10 YTransport to replace WCM as franchisee of the Chevrolet 11 Dealership franchise. Ford was still considering YTransport's 12 application and had until January 13, 2013, to either approve or 13 reject it. Further, although the parties were still negotiating 14 the sale terms, Debtor asserted that the renegotiation would not 15 result in a reduction of either the purchase price or the rents to 16 be paid under the leases of the Dealership Properties. The fate 17 of the pending sale would be known by December 30, 2012, because 18 YTransport had to close the transaction by that date under the 19 terms of the GM agreement. Therefore, argued Debtor, it was 20 reasonable for the parties to wait that short amount of time to 21 close the sale and confirm the Plan. 22 Finally, Debtor argued that conversion was not in the best 23 interest of creditors. First, contrary to CorePointe's and the 24 City's contentions, liquidation values for the Properties were far 25 less than their non-liquidation values — $34.68 million as opposed 26 to $48.5 million. Therefore, secured creditors would not be paid 27 in full, and general unsecured claims, which totaled $13.5 28 million, would have to share a distribution of $1.44 million.

-16- 1 Further, argued Debtor, CorePointe and the City presented no 2 admissible evidence that buyers were waiting to make offers on the 3 Properties once the case was converted. 4 Concurrently with its third supplemental opposition, Debtor 5 filed a status report stating that it was not able to move forward 6 with confirmation at the December 5 hearing, and that it wished to 7 continue the confirmation hearing until December 20, 2012. 8 Although YTransport was still willing to pay the same purchase 9 price and lease rates for the dealerships, more time was needed to 10 discuss the terms of the deferred portion of the purchase price. 11 In its reply to its second supplemental memorandum in support 12 of the Motion to Convert, the City contended that it needed to 13 correct numerous misrepresentations Debtor made in its third 14 supplemental opposition. First, Debtor's assertions that 15 CorePointe and the City had agreed to the modifications proposed 16 by YTransport to the Sale Transaction and modifications to the 17 Plan were false. On the contrary, the City believed that the Sale 18 Transaction had collapsed, and thus the Plan was facially 19 unconfirmable. Second, Debtor's statement that it had paid all of 20 the postpetition property taxes that had come due on all of its 21 Properties to date was also false; Debtor had never paid the 22 interest and penalties accruing on real estate taxes owed on any 23 of the Properties except the Chevrolet and Ford Dealership 24 Properties, which it admittedly stopped paying as well in October 25 2012. 26 On December 4, 2012, Debtor filed an emergency motion to 27 approve the fourth stipulation for adequate protection payments to 28 CorePointe for the months of November 2012 through April 2013.

-17- 1 Besides paying the current balance due and future monthly payments 2 of $106,500.00, Debtor agreed to pay CorePointe $1 million by 3 December 14, 2012, in exchange for CorePointe's agreement to 4 continue the Motion to Convert.10 In accordance with the parties' 5 agreement, CorePointe concurrently filed its notice of withdrawal 6 of its joinder to the Motion to Convert. 7 C. The bankruptcy court's tentative ruling on the Motion to Convert and the December 5, 2012 hearing 8 9 It its lengthy tentative ruling dated December 4, 2012, the 10 bankruptcy court found "cause" to convert Debtor's case to 11 chapter 7 under § 1112(b)(4)(A). The City had demonstrated 12 substantial and continuing loss to the estate based on Debtor's 13 failure to pay the postpetition property taxes of $175,000 due on 14 November 1, 2012. The court further found that absence of a 15 reasonable likelihood of rehabilitation was established because no 16 evidence existed that a deal could be struck with YTransport. 17 YTransport had filed nothing in connection with the Motion to 18 Convert and had not appeared in any prior proceedings. Everything 19 Debtor wanted the court to believe about the continued viability 20 of the Sale Transaction had come only from Debtor. In the court's 21 opinion, this fell short of rebutting the City's substantial 22 evidence that no reasonable likelihood of rehabilitation existed: 23 The November 14, 2012 development in which YTransport rejected the terms of the Transaction as originally 24 negotiated and incorporated into the Plan reflects a failure of the parties, after more than a year of 25 negotiations to consummate the Transaction. All parties 26 10 The $1 million was not coming from the Debtor but from an 27 unknown outside source. It was not considered a loan to Debtor, and no recourse was available against the Debtor. It is not clear 28 on the record whether this money was given to Debtor's estate.

-18- 1 agree that the Plan is premised on the successful closing of the Transaction. The Court is not persuaded by 2 Debtor's efforts to argue that a new buyer can be found or, based on the requested changes by YTransport, that new 3 terms to the Transaction can be reached that will allow Debtor to successfully fund the Plan. 4 5 Tentative Ruling (Dec. 4, 2012). As a result, the confirmation 6 hearing was taken off calendar. 7 The hearing on the Motion to Convert proceeded on December 5, 8 2012. That same morning, counsel for YTransport filed a 9 declaration stating that his client was still actively negotiating 10 the Sale Transaction. At the hearing, Debtor's counsel began by 11 noting that subsequent to the court's tentative ruling, CorePointe 12 had withdrawn its joinder. Counsel admitted Debtor had not made 13 the semi-annual real property tax payment of $175,000 due on 14 November 1, 2012, but argued that the payment was not considered 15 delinquent until December 10, 2012, and that Debtor intended to 16 make the payment by then as part of the fourth stipulation for 17 adequate protection. Counsel further admitted that Debtor had not 18 made the court-ordered payments for the accruing interest and 19 penalties on the delinquent real estate taxes for the Chevrolet 20 and Ford Dealership Properties since October 2012, but said he 21 possessed a check to make the payment for November. Counsel 22 disputed the City's argument that Debtor was not collecting rents 23 from the dealerships; the money collected was being used to pay 24 the adequate protection payments, and any shortcomings for 25 September 2012 were due to some earlier overpayments. Counsel 26 admitted that his firm had an administrative claim of 27 approximately $2 million for fees, but contended that three of 28 Debtor's Properties were unencumbered, and the value of these

-19- 1 properties far exceeded the amount of the claim. 2 After hearing further argument from the parties, the 3 bankruptcy court announced its decision to convert the case to 4 chapter 7. Determining that the City had established a prima 5 facie case for "cause," the court found Debtor had not 6 sufficiently rebutted that evidence: 7 I think that it really --- at this point, I would have preferred to hear that we will stipulate to a conversion 8 of the case if we don't meet the --- terms of the fourth adequate protection stipulation. I didn't hear that, nor 9 did I hear that there are ongoing negotiations with respect to a deal. There is no deal. There may be 10 potential deals out there in the future, either with YTransport or somebody else that the Court is not aware 11 of, but as we sit here today, there is no deal. 12 So we're stuck with a motion that was filed some time earlier this year, with continuances after continuances, 13 with no assurance that we have any deal at all. The only thing that we're assured of is that every day the case 14 continues as a Chapter 11. There are administrative expenses. There are other various expenses incurred by 15 the Debtor. And it behooves no one to keep this in a Chapter 11 process . . . . 16 17 Hr'g Tr. (Dec. 5, 2012) 45:10-46:1. The court indicated that it 18 would supplement its tentative ruling to make further findings and 19 conclusions as needed, given the information disclosed at the 20 hearing.11 The court agreed to put a 14-day stay on the order 21 until December 19 so the parties could continue talking, "but 22 otherwise, the case [would] be converted." Id. at 49:16-19. 23 D. Debtor's motion to reconsider, the related order, and the order converting Debtor's case to chapter 7 24 25 Before the bankruptcy court had entered any order converting 26 the case, Debtor moved for reconsideration on December 14, 2012, 27 11 The bankruptcy court never did supplement its findings and 28 conclusions as intended.

-20- 1 contending that significant events had occurred since the 2 December 5 hearing: 3 • YTransport had committed to closing the sale of the Chevrolet Dealership franchise by December 31, 2012 (or shortly 4 thereafter) and entering into a long-term lease for the Chevrolet Dealership Property and Hummer Property; however, 5 YTransport was not able to commit to purchasing the Ford or Chrysler Dealerships at this time; and 6 • $3 million would be escrowed by a third party on behalf of 7 Debtor's estate by December 31, 2012, which would be used to fund Debtor's performance under the fourth stipulation for 8 adequate protection payments, to pay the $175,000 tax payment due and the interest and penalties accrued on the delinquent 9 taxes for the Chevrolet and Ford Dealership Properties, and to pay Debtor's administrative claims. 10 11 In the interim, Debtor requested a continuance on entry of the 12 conversion order until January 3, 2013, and sought approval of the 13 leases for the Chevrolet Dealership Property and the Hummer 14 Property so the transaction with YTransport could close by 15 December 31, 2012, as required. Debtor further requested that, 16 and only in the event it provided evidence that the $3 million was 17 fully funded by December 31, the court approve the fourth adequate 18 protection stipulation, set a confirmation hearing on the Plan for 19 a date in January, and continue the Motion to Convert to May 1, 20 2013, subject to an earlier date if Debtor failed to make a timely 21 payment under the fourth stipulation. 22 CorePointe and LA County filed declarations in support of 23 Debtor's motion to reconsider. For further support, Debtor 24 offered a declaration from YTransport's counsel, who confirmed his 25 client's intent to consummate the sale of the Chevrolet Dealership 26 franchise and enter into the related property leases. Debtor also 27 offered a declaration from counsel for the $3 million donor. He 28 explained that his client, who chose to remain anonymous, held an

-21- 1 account at Barclay's Bank containing in excess of $3 million in 2 liquid funds. The $3 million would be deposited in escrow on 3 Debtor's behalf upon notification that the order converting the 4 case to chapter 7 had been vacated or otherwise modified. 5 The City opposed Debtor's motion to reconsider, contending 6 that Debtor had failed to provide any evidence that YTransport 7 actually entered into a binding commitment to purchase the 8 Chevrolet Dealership franchise and to lease the Chevrolet 9 Dealership Property and Hummer Property; counsel's declaratory 10 statement that his client was "willing" to buy the dealership and 11 lease the properties if a number of things beyond his client's 12 control happened first was not sufficient. Still convinced that 13 Debtor remained insolvent even with a $3 million gift, the City 14 argued that Debtor had failed to provide any information about the 15 "mystery" benefactor or the terms of the escrow. The City 16 contended that Debtor's motion should fail because nothing had 17 changed since December 5: (1) the Sale Transaction had fallen 18 apart, and the proposed transaction did not provide Debtor with 19 enough money to consummate the Plan; and (2) Debtor had failed to 20 pay the $175,000 property tax payment by the deadline, so the 21 estate was continuing to suffer losses. 22 With no order converting the case yet entered, Debtor filed a 23 reply and a supplemental reply to its motion to reconsider on 24 December 19 and 21, 2012, respectively. Another recent 25 development had occurred that was critical to Debtor confirming 26 its Plan as originally proposed. On December 21, WCM and WCF had 27 entered into two "non-binding" letters of intent with B & B WC, 28 LLC for the sale of the Ford and Chrysler Dealerships under the

-22- 1 same lease terms, and for the same price, that YTransport had 2 agreed to under the Sale Transaction. Binding agreements would be 3 executed on December 27, 2012, and the sale was to close by 4 March 31, 2013. This left only the Mazda Property unleased, which 5 Debtor asserted could be leased by the beginning of next year. 6 Therefore, once all of the Dealership Properties were leased as 7 contemplated by Debtor's Plan, Debtor asserted that it would have 8 sufficient cash flow to confirm its Plan, which creditors had 9 voted to accept. Attached were copies of the two letters of 10 intent signed by B & B WC, LLC. 11 In response, the City contended that even assuming the sales 12 to B & B WC, LLC and YTransport were successful, which was 13 unlikely, and assuming Debtor received the $3 million from escrow, 14 insufficient funds would be generated to satisfy the debts of 15 Debtor and its affiliates under the Plan. 16 Still with no conversion order having been entered, Debtor 17 filed a second supplemental reply to its motion to reconsider on 18 January 1, 2013. The players had changed again. On December 31, 19 2012, WCM and WCF had entered into a letter of intent with Carlos 20 Hidalgo ("Hidalgo"), a highly qualified buyer whom the City had 21 previously approved, for the sale of all of the Dealership 22 Franchises and lease of all Dealership Properties, including the 23 Mazda Property, under the same lease terms, and for the same 24 price, that YTransport had agreed to under the Sale Transaction. 25 A copy of the letter of intent signed by Hidalgo was attached. 26 Accordingly, Debtor's Plan would be fully funded and was now 27 confirmable. Hidalgo was to be a back-up buyer should YTransport 28 not proceed with the Sale Transaction in whole or in part. Debtor

-23- 1 also informed the court that WCM had to file a chapter 11 2 bankruptcy on December 28, 2012, primarily because GM required 3 that the closing of its transaction occur by December 31, 2012, or 4 its franchise would be terminated, and that clearly was not going 5 to happen by the deadline. 6 On January 2, 2013, the bankruptcy court entered its 7 memorandum decision, its order denying Debtor's motion to 8 reconsider, and its order granting the Motion to Convert 9 ("Conversion Order"). In short, the court found that the "new 10 evidence" presented by Debtor was not sufficient to alter its 11 prior ruling granting the Motion to Convert. Debtor's argument 12 that the $3 million cash infusion would prevent loss was 13 unsupported; Debtor had provided only evidence that the money was 14 ready for transfer, not that the funding was currently available 15 to prevent further postpetition diminution of the estate. 16 Further, the Hidalgo letter of intent was explicitly "non- 17 binding," and, in any event, Hidalgo still had numerous "hoops to 18 jump through in order to even be in a position to follow through 19 on his stated desire to replace YTransport as purchaser." The 20 court concluded: 21 The Debtor has a long history of proposing last minute fixes to avoid potential failure of its attempts to 22 reorganize. Each was a mirage. This situation is no different. The additional evidence provided by the 23 Debtor includes letters of intent from B & B to purchase the properties that YTransport does not 24 purchase, but also includes a letter of intent to fully replace YTransport in the Sales Transaction. 25 The Court finds that, in its haphazard and frenetic race to avoid conversion of the case, Debtor has not 26 successfully rebutted the claim that cause exists under § 1112(b)(4)(A). A 'reasonable likelihood of 27 rehabilitation' is no more in prospect now than it was on December 5, 2012 and 'diminution of the estate' 28 continues so long as the anonymous benefactor remains

-24- 1 a prospective rather than actual benefactor. 2 Memorandum Decision (Jan. 2, 2013) at 4-5. 3 On January 3, 2013, Debtor filed a declaration from John 4 Egli, consultant to the anonymous benefactor. He confirmed that 5 the $3 million had been wired to the account of Dighton, Debtor's 6 limited partner, and was subject to Dighton's possession and 7 control for Debtor's immediate use. Whether the bankruptcy court 8 ever reviewed this late-filed declaration is unknown. Notably, 9 Debtor submitted no evidence of the escrow's existence or proof 10 that the wire transfer occurred. This timely appealed followed. 11 II. JURISDICTION 12 The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 13 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158. 14 III. ISSUES 15 1. Did the bankruptcy court abuse its discretion in converting 16 Debtor’s case to chapter 7? 17 2. Did the bankruptcy court abuse its discretion in denying the 18 motion to reconsider? 19 IV. STANDARDS OF REVIEW 20 The bankruptcy court's decision to convert a chapter 11 case 21 to chapter 7 is reviewed for an abuse of discretion. Pioneer 22 Liquidating Corp. v. U.S. Trustee (In re Consol. Pioneer Mortg. 23 Entities), 264 F.3d 803, 806 (9th Cir. 2001); Johnston v. JEM Dev. 24 Co. (In re Johnston), 149 B.R. 158, 160 (9th Cir. BAP 1992). 25 Likewise, the bankruptcy court's denial of a motion for 26 reconsideration is reviewed for an abuse of discretion. Arrow 27 Elec., Inc. v. Justus (In re Kaypro), 218 F.3d 1070, 1073 (9th 28 Cir. 2000); Sewell v. MGF Funding, Inc. (In re Sewell), 345 B.R.

-25- 1 174, 178 (9th Cir. BAP 2006). A bankruptcy court abuses its 2 discretion if it applied the wrong legal standard or its findings 3 were illogical, implausible or without support in the record. 4 TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th 5 Cir. 2011). We can affirm on any basis supported by the record, 6 even where the issue was not expressly considered by the 7 bankruptcy court. O'Rourke v. Seaboard Sur. Co. (In re E.R. 8 Fegert, Inc.), 887 F.2d 955, 957 (9th Cir. 1989). 9 V. DISCUSSION 10 A. The bankruptcy court did not abuse its discretion when it converted Debtor's case to chapter 7. 11 12 The statutory authority for conversion of a chapter 11 13 bankruptcy case is found in § 1112(b), which provides that the 14 bankruptcy court shall convert or dismiss a case, whichever is in 15 the best interests of creditors and the estate, for cause. 16 Section 1112(b)(1). The bankruptcy court has wide discretion in 17 determining what constitutes "cause" adequate for conversion under 18 § 1112(b). In re Consol. Pioneer Mortg. Entities, 248 B.R. at 19 375; In re Johnston, 149 B.R. at 160. The burden of proof is on 20 the moving party. In re Creekside Senior Apartments, L.P., 21 489 B.R. 51, 60 (6th Cir. BAP 2013); In re Hinesley Family Ltd. 22 P'ship No. 1, 460 B.R. 547, 553 (Bankr. D. Mont. 2011). 23 1. Cause existed for conversion under § 1112(b)(4)(A). 24 The bankruptcy court found that "cause" existed due to the 25 substantial or continuing loss to or diminution of the estate and 26 the absence of a reasonable likelihood of rehabilitation. 27 Section 1112(b)(4)(A). As the movant, the City had to establish 28 both (1) a substantial and continuing loss to or diminution of the

-26- 1 estate and (2) absence of a reasonable likelihood of 2 rehabilitation. In re Bay Area Material Handling, Inc., 76 F.3d 3 384 (9th Cir. 1996) (unpublished); In re Creekside Senior 4 Apartments, L.P., 489 B.R. at 61. "The loss may be substantial or 5 continuing. It need not be both in order to constitute cause 6 under § 1112(b)(4)(A)." In re Creekside Senior Apartments, L.P., 7 489 B.R. at 61 (citing 7 COLLIER ON BANKRUPTCY ¶ 1112.04[6][a][i] 8 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2012)). 9 a. A substantial and continuing loss to or diminution of the estate 10 11 The substantial or continuing loss prong is demonstrated by a 12 loss that will "materially negatively impact the bankruptcy estate 13 and the interest of creditors," or "dwindling liquidity, or 14 illiquidity resulting in unpaid postpetition debts which usually 15 constitute administrative expenses that will take priority over 16 prepetition claims." 7 COLLIER ON BANKRUPTCY at ¶ 1112.04[6][a][i]. 17 See also In re Schriock Constr., Inc., 167 B.R. 569, 575 (Bankr. 18 D.N.D. 1994)("This element can be satisfied by demonstrating that 19 the debtor incurred continuing losses or maintained a negative 20 cash flow position after the entry of the order for relief."). To 21 determine the existence of a continuing loss to, or diminution of, 22 the estate, the bankruptcy court must look beyond financial 23 statements and fully evaluate the present condition of a debtor's 24 estate. In re Motel Props., Inc., 314 B.R. 889, 894 (Bankr. S.D. 25 Ga. 2004)(citing In re Moore Constr., Inc., 206 B.R. 436, 437-38 26 (Bankr. N.D. Tex. 1997)). 27 In the bankruptcy court's December 4 tentative ruling, which 28 it incorporated into its oral findings at the December 5 hearing,

-27- 1 the court found that a continuing loss to or diminution of the 2 estate existed based on Debtor's failure to make its postpetition 3 property tax payment of $175,000 due on November 1, 2012. It 4 further found at the December 5 hearing that, as long as the 5 Debtor stayed in chapter 11, it continued to accrue administrative 6 and other various expenses. 7 Debtor contends that the bankruptcy court erred in 8 interpreting "continuing loss to or diminution of the estate" to 9 mean the incurrence of expenses regardless of the debtor's ability 10 to meet those expenses - i.e., that incurring expenses equals a 11 loss to the estate, thereby constituting "cause." Nothing in the 12 court's ruling indicates that it interpreted § 1112(b)(4)(A) as 13 Debtor contends. While the court did comment in its oral ruling 14 that Debtor continued to accrue administrative and other expenses 15 in chapter 11, when viewed in context with its entire ruling, the 16 court was implicitly finding that without the deal with YTransport 17 (or a substitute buyer), Debtor was unable to pay its substantial 18 $2 million (and counting) administrative expenses, which 19 constituted a loss to or diminution of the estate. This finding 20 is made clear by the court's statements in its memorandum on the 21 motion to reconsider that "diminution of the estate" continued as 22 long as the $3 million gift needed to pay these expenses was 23 "prospective" rather than "actual." Although § 1112(b)(4) does 24 not list administrative insolvency as cause to convert a 25 chapter 11 case, a court may still consider this factor. In re BH 26 S & B Holdings, LLC, 439 B.R. 342, 349 (Bankr. S.D.N.Y. 27 2010)(citations omitted). 28 The Debtor alternatively argues that, even if the bankruptcy

-28- 1 court properly applied § 1112(b)(4)(A), no evidence in the record 2 supports a finding of continuing loss to or diminution of the 3 estate. We disagree. First, as the bankruptcy court found, 4 Debtor had failed to make the $175,000 property tax payment due 5 November 1, 2012. Granted, this may not have been the strongest 6 fact to show loss considering that no penalties would accrue if 7 Debtor made the payment by December 10, 2012, but other facts 8 support the bankruptcy court's decision.12 9 Although Debtor disputes it, the record also reflects that 10 Debtor was not consistently collecting the approximate $135,000 11 monthly rent from the dealerships. The MORs from June, September 12 and October 2012 show that collections were $180.00, $7,200.00 and 13 $46,000.00, respectively. Further, as of October 2012, Debtor had 14 stopped making the monthly $7,214.26 payment for the interest and 15 penalties accruing on the delinquent real estate taxes for the 16 Chevrolet and Ford Dealership Properties. Debtor also never made 17 any payments for the interest and penalties accruing on the 18 delinquent real estate taxes on its nine other Properties. 19 Further, even if two-thirds of Debtor's continuing monthly 20 operating losses were due to its accrual-based accounting, Debtor 21 admitted that the other one-third was attributed to the accrual of 22 real property taxes, which could only be paid in full with 23 proceeds from the Sale Transaction or tenant rents, neither of 24 which was generating sufficient funds. Finally, although not 25 expressly noted by the bankruptcy court, but supported by the 26 record, it was clear that Debtor was unable to function without 27 12 At oral argument, Debtor revealed that it did not make the 28 $175,000 tax payment on December 10, 2012.

-29- 1 the promised, but unfulfilled, $3 million cash infusion. Debtor's 2 inability to pay its obligations without this outside money only 3 establishes further loss. 4 Consequently, all of these facts established a continuing 5 loss to, or diminution of, the estate, and we see no clear error 6 by the bankruptcy court. 7 b. Absence of a reasonable likelihood of rehabilitation 8 9 Section 1112(b)(4)(A) also requires the bankruptcy court to 10 find an absence of a reasonable likelihood of rehabilitation. 11 "The issue of rehabilitation for purposes of § 1112(b)(4)(A) is 12 not the technical one of whether the debtor can confirm a plan, 13 but, rather, whether the debtor's business prospects justify 14 continuance of the reorganization effort." In re Wallace, 2010 WL 15 378351 at *4 (Bankr. D. Idaho Jan. 26, 2010)(quotations and 16 citations omitted). "Rehabilitation is a different and much more 17 demanding standard than reorganization." In re Creekside Senior 18 Apartments, L.P., 489 B.R. at 61 (citing In re Brutsche, 476 B.R. 19 298, 301 (Bankr. D.N.M. 2012)(citing 7 COLLIER ON BANKRUPTCY at 20 ¶ 1112.04[6][a][ii])). 21 In its tentative ruling, the bankruptcy court found the 22 absence of a reasonable likelihood of rehabilitation based on a 23 lack of evidence that the Sale Transaction with YTransport, which 24 the parties agreed was the lynchpin to the Plan, would close as 25 planned. Up until then, no representative from YTransport had 26 submitted a declaration or appeared at any hearing establishing 27 that the deal, as set forth in the Plan, would proceed. Although 28 counsel for YTransport attempted to file a declaration on the

-30- 1 morning of the December 5 hearing, it was filed about fifteen 2 minutes after the hearing had begun. The bankruptcy court 3 articulated these same reservations about the lack of a viable 4 deal in its oral ruling on December 5. 5 Debtor contends the bankruptcy court erred by interpreting 6 the "absence of a reasonable likelihood of rehabilitation" to mean 7 the "absence of the likelihood of confirmation of the Plan." We 8 disagree that this was the court's interpretation. While the 9 bankruptcy court expressed its concern with Debtor's ability to 10 confirm its Plan, the court was clearly focused on the viability 11 of the Sale Transaction with YTransport — the only potential buyer 12 before it at that time. It concluded that, based on recent 13 developments with YTransport's proposed deal-killing modifications 14 to the Sale Transaction, and no other buyers on the horizon, such 15 bleak business prospects did not justify Debtor continuing with 16 its reorganization effort. 17 We also reject Debtor's argument that no evidence in the 18 record supports a finding of an absence of a reasonable likelihood 19 of rehabilitation. The evidence before the bankruptcy court on 20 December 5, 2012, was: Debtor had been in chapter 11 for 21 seventeen months; the sale it had been negotiating for the past 22 year, which was its only hope for rehabilitation at that time, had 23 just fallen through; and the estate was experiencing continued 24 losses, including the accrual of substantial professional fees, 25 with no end in sight. Debtor's argument that it had presented the 26 bankruptcy court with contrary evidence of several alternative 27 rehabilitation options and the $3 million "no strings attached" 28 gift escrow lacks merit. These other alternatives and the

-31- 1 unsubstantiated $3 million gift were not offered until after the 2 bankruptcy court had made its ruling on December 5. Even when the 3 court did consider this evidence in its decision on the motion to 4 reconsider, it was not persuaded that any of these options were 5 viable - "each was a mirage." Accordingly, the record supports 6 the bankruptcy court’s finding of an absence of a reasonable 7 likelihood of Debtor's rehabilitation. 8 Debtor's argument that the bankruptcy court erroneously 9 placed the burden of proof on Debtor to establish the "absence of 10 cause" lacks merit. In its tentative ruling, the bankruptcy court 11 acknowledged that the City had the burden to establish both 12 elements for cause under § 1112(b)(4)(A). However, it concluded 13 in its tentative ruling and at the December 5 hearing that Debtor 14 had not adequately rebutted the City's prima facie case by showing 15 either that no continuing loss to or diminution of the estate 16 existed, or that rehabilitation was reasonably likely. See Matter 17 of Woodbrook Assocs., 19 F.3d 312, 317 (7th Cir. 1994)(debtor is 18 obligated to produce evidence in opposition to a well-supported 19 motion under § 1112(b)); In re Lizeric Realty Corp., 188 B.R. 499, 20 503 (Bankr. S.D.N.Y. 1995)(once cause is shown, "it is incumbent 21 upon debtor to show that relief under § 1112(b) is not 22 warranted"). Further, Debtor's argument here rests on the faulty 23 premise that the City submitted "no evidence whatsoever that the 24 Debtor had no reasonable likelihood of rehabilitation." On this 25 record, we conclude the bankruptcy court properly held the City to 26 its burden. 27 /// 28 ///

-32- 1 B. The bankruptcy court did not abuse its discretion when it denied the motion to reconsider. 2 3 A motion under Civil Rule 59(e), made applicable here by 4 Rule 9023, should not be granted absent highly unusual 5 circumstances, unless the court is presented with newly discovered 6 evidence, committed clear error, or if there is an intervening 7 change in the controlling law. Marlyn Nutraceuticals, Inc. v. 8 Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). 9 Although Debtor appealed the order denying reconsideration of 10 the Conversion Order, Debtor does not articulate in its appeal 11 briefs any specific argument as to why the bankruptcy court abused 12 its discretion in denying it. As a result, this issue has been 13 waived. City of Emeryville v. Robinson, 621 F.3d 1251, 1261 (9th 14 Cir. 2010)(appellate court in this circuit "will not review issues 15 which are not argued specifically and distinctly in a party’s 16 opening brief."). Even if we did consider it, we see no error in 17 the bankruptcy court's decision that reconsideration was 18 inappropriate under the grounds set forth above. 19 VI. CONCLUSION 20 For the foregoing reasons, we AFFIRM. 21 22 23 24 25 26 27 28

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