In re Hebb Hendrix, Inc.

32 B.R. 29, 1983 Bankr. LEXIS 5756

• Court: United States Bankruptcy Court, S.D. Florida.
• Decided: July 21, 1983
• Docket: Bankruptcy No. 82-00416-BKC-TCB
• Status: Published

Opinion

ORDER OF DISMISSAL

THOMAS C. BRITTON, Bankruptcy Judge.

In this chapter 11 case, a confirmation hearing on the debtor’s plan was held on March 15. Ruling was reserved until April 19 to give debtor a further chance to come up with the money required under its plan to be deposited before confirmation. B.R. ll-38(a). (C.P. No. 55).

The debtor failed to comply and, instead, moved on April 14 for an indefinite postponement pending the harvest of a crop expected on June 15 and worth $50,000.

Following a hearing on that motion, held April 26, the deadline for the deposit was extended to July 15. (C.P. No. 57).

The debtor has not complied and at a hearing held on July 19 announced it was still unable to come up with the pre-confir-mation deposit.

Each of the foregoing Orders gave notice that:

“This case has now been pending over a year and confirmation will be denied and this case will be dismissed if the debtor does not meet this deadline.”

Notice had been given before the confirmation hearing that dismissal or conversion would be considered if confirmation were denied. I believe that at least one creditor has requested dismissal during this case. If not, I recede from an earlier contrary view and join many of my colleagues in concluding that this court has inherent discretion to dismiss a chapter 11 case under the circumstances here. Coram Graphic Arts (Bkrtcy.E.D.N.Y.1981), 11 B.R. 641.

This debtor has had the benefit of the automatic stay since March 8, 1982. It either lacks the capability of carrying out its plan or it is not acting in good faith. In either event, confirmation must be and is denied. B.R. ll-38(a); § 1129(a)(3) and (11).

The case is dismissed under § 1112(b)(3) and (5). Dismissal is with prejudice to the filing of any other bankruptcy proceeding by this debtor earlier than one year after this order becomes final.