In re Korn

523 B.R. 453, 2014 Bankr. LEXIS 5063, 2014 WL 7211293
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedDecember 18, 2014
DocketNo. 14-13138 ELF
StatusPublished
Cited by11 cases

This text of 523 B.R. 453 (In re Korn) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Korn, 523 B.R. 453, 2014 Bankr. LEXIS 5063, 2014 WL 7211293 (Pa. 2014).

Opinion

OPINION

ERIC L. FRANK, Chief Judge.

I. INTRODUCTION

In this individual chapter 11 bankruptcy case an unsecured creditor, has filed a “Motion for an Order Directing the Appointment of a Chapter 11 Trustee or Examiner or the Conversion of the Case” (“the Motion”). The debtor contests the Motion.

During the course of the litigation of this contested matter, all parties agreed that neither the appointment of a trustee nor dismissal of the case is appropriate. Thus, the issue is whether the case should be converted to chapter 7 or remain in chapter 11 to permit the debtor the opportunity to confirm a plan of reorganization.

For a variety of reasons, the creditor maintains that “cause” exists under 11 U.S.C. § 1112(b)(1) for conversion of this case to chapter 7. The debtor disputes this, but contends alternatively, that even if “cause” exists, “unusual circumstances,” within the meaning of 11 U.S.C. § 1112(b)(2) are present and that it is in the best interests of creditors that this case remain in chapter 11.

As explained below, I conclude that cause exists for the relief requested under § 1112(b)(1) and that the debtor has not established the existence of unusual circumstances within the meaning of § 1112(b)(2). Accordingly the Motion will be granted and this case will be converted to chapter 7.

II. PROCEDURAL HISTORY

A. General History

Scott Korn (“the Debtor”) filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code on April 21, 2014. The Debtor engaged Klehr Harrison Harvey Branzburg LLP (“Klehr Harrison”) to represent him. He filed his initial set of bankruptcy schedules and statements on May 2, 2014. The § 341 meeting of credi-. tors was held and concluded on June 3, 2014.

On July 11, 2014, the Debtor filed a proposed chapter 11 plan of reorganization (“the Initial Plan”) (Doc. # 92), a proposed Disclosure Statement (“the Initial DS”) (Doc. # 93) and a motion for approval of the DS (“the DS Motion”) (Doc. # 94). A hearing on the DS Motion was scheduled initially on August 20, 2014 and then continued to October 1, 2014. In the interim, the Debtor filed an Amended Plan and an Amended DS on August 29, 2014. (Doc. # s 129 & 130).

On July 18, 2014, John Brown (“Brown”), an unsecured creditor, filed a Motion for an Order Authorizing Discovery and Examinations of the Debtor and Non-Debtors Pursuant to Fed. R. Bankr. P. 2004. (Doc. # 102). Brown’s Rule 2004 Motion was granted on July 28, 2014. (Doc. # 114).

On September 24, 2014, another creditor, American Express Bank FSB [456]*456(“AmEx”) filed an adversary complaint (“the Amex Complaint”) requesting a determination that the Debtor’s pre-petition debt of more than $468,000.00 in credit card charges incurred on three (3) credit card accounts is nondischargeable under 11 U.S.C. §§ 523(a)(2)(A), (a)(2)(C) and (a)(14A). (Adv. No. 14-0427, Doc. # 1). The AmEx Complaint set in motion the chain of events leading to the court’s decision today.1

On September 25, 2014, the day after AmEx filed its adversary complaint, the Debtor filed an application to employ new bankruptcy counsel, Maschmeyer Karalis, P.C. (“M & K”), and sought expedited consideration of the application. (Doc. # 149). On the same day, also on an expedited basis, the Debtor filed an application to retain Asterion, Inc. (“Asterion”) as a valuation expert to assist the Debtor in preparing projections, a liquidation analysis, a valuation report with respect to the Debtor’s business interests and to provide expert testimony. (Doc. # 153). After a hearing, the court granted both applications. (See Orders dated October 15, 2014) (Doc. # 185, 189).

On October 1, 2014, while its application for appointment was pending, M & K advised the court that it intended to amend the initial bankruptcy schedules and revise substantially the amended chapter 11 plan and amended disclosure statement. Consequently, the court continued the hearing on the DS Motion to January 7, 2015.

On November 10, 2014, the Debtor filed amended Schedules and an amended Statement of Financial Affairs (collectively, “the Amended Schedules”),2 containing substantial, material additions to the prior disclosures. (Doc. #’s 209, 210).

On November 18, 2014, the Debtor filed another amended plan (“the Second Amended Plan”) and disclosure statement (“the Second Amended DS”). (Doc. #’s 237, 237).3 As promised by the Debtor’s new counsel, the Second Amended Plan substantially revised the prior filed proposed chapter 11 plan.

B. History of the Motion

On October 6, 2014, less than two (2) weeks after the AmEx Complaint was filed, Brown filed the Motion. (Doc. # 178). With new counsel, the Debtor filed a response to the Motion on October 31,2014. (Doc. #201).

The court held an evidentiary hearing on the Motion on November 19 and 24, 2014. Two (2) witnesses testified: (1) the Debtor and (2) Asterion’s principal, Stephen J. Scherf, CPA, who testified as an expert valuation witness.4

[457]*457No party in interest nor the U.S. Trustee requests dismissal of the case. Brown has withdrawn his request for appointment of a trustee and limits his request to conversion of the case to chapter 7. The U.S. Trustee supports Brown’s request for conversion of the case. In response, the Debtor argues that even if “cause” exists for the court to grant some relief under 11 U.S.C. § 1112(b), the court should not convert the case, but instead, should appoint an examiner with expanded powers.

Brown, the Debtor and the UST all submitted post-hearing memoranda in support of their positions, the last of which was filed bn December 8, 2014.5

III. FINDINGS OF FACT

I make the following findings of fact based upon the testimonial and documentary evidence presented at trial. In making these findings, I have considered the demeanor of the witnesses, the plausibility of their testimony, the existence of corroborating circumstantial, testimonial or documentary evidence and the totality of the evidentiary record.

A. Debtor’s Assets and Debts as Disclosed in the Amended Schedules

1. real property

1. The Debtor is an individual who resides at 1233 Meadowbank Road, Villano-va, Pa (“the Residence”), with his spouse, Arlene Korn, and three (3) children, ages 20, 19 and 16. (Ex. Brown-6, Schedule J).6

2. The Debtor owns two (2) pieces of real property (collectively, “the Properties”) with his spouse as tenant by the entireties:

a. the Residence; and
b.

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523 B.R. 453, 2014 Bankr. LEXIS 5063, 2014 WL 7211293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-korn-paeb-2014.