In re Lee Min Ho Chen

482 B.R. 473, 2012 Bankr. LEXIS 5282, 57 Bankr. Ct. Dec. (CRR) 59, 2012 WL 5463256
CourtUnited States Bankruptcy Court, D. Puerto Rico
DecidedNovember 9, 2012
DocketNo. 11-08170 BKT
StatusPublished
Cited by7 cases

This text of 482 B.R. 473 (In re Lee Min Ho Chen) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Lee Min Ho Chen, 482 B.R. 473, 2012 Bankr. LEXIS 5282, 57 Bankr. Ct. Dec. (CRR) 59, 2012 WL 5463256 (prb 2012).

Opinion

OPINION AND ORDER

BRIAN K. TESTER, Bankruptcy Judge.

The proceeding before the court is Doral Bank’s (“Doral”) Opposition to Second Amended Plan of Reorganization [Dkt. No. 190] and Debtor’s Reply to Doral Bank’s Opposition to Second Amended Plan of Reorganization [Dkt. No. 203]. For the reasons stated below, the confirmation of the Debtor’s Second Amended Plan of Reorganization (“Plan”) [Dkt. No. 177] is hereby DENIED.

In its opposition, Doral asserts that Debtor’s Plan should not be confirmed, because the Plan contains the same substantive deficiencies and issues as the Debtor’s first Plan, filed on May 18, 2012. Their argument is three-fold. First, the Plan violates the absolute priority rule and does not satisfy the cramdown requirements of 11 U.S.C. § 1129(b)(2)(B)(ii) in that it is not fair and equitable to dissenting creditors. Specifically, Doral points out that Debtor proposes to retain almost all of her pre-petition property and pay less than 0.05% of their claims to the general unsecured creditors. Further, the Debtor’s Plan does not qualify for the new value exception under the absolute priority rule because the new value does not come from an outside source, but rather from the Debtor herself.1 Second, the Debtor cannot claim a tacit acceptance of the Plan because a logical and literal reading of 11 U.S.C. § 1129(a)(10) requires an active acceptance of the Plan by unimpaired classes in order to satisfy the cramdown requirements in 11 U.S.C. § 1129(b)(2)(B)(ii). Third, the Plan fails to comply with the confirmation requirements under 11 U.S.C. § 1129(a) because:

(a) [the] Plan’s projections are unrealistic and thereby do not reflect the historical reality of Debtor’s prior revenues, not accounts, for probable contingencies within the Debtor’s business.

(b) the Plan’s projections demonstrate that Debtor will not generate sufficient income to satisfy her Plan obligations while retaining her property. More specifically, the Debtor plans to contribute $14,790 monthly rental income generated by her realproperties. However, Doral points out that the majority of the Debtor’s income comes from the 100 Fortaleza St. building, which generates only $9,000 per month. The majority of the tenants hold leases for no greater than one (1) year each with the Plan lacking any contemplation on turnover periods between tenants. [476]*476Yet, the Debtor proposes repayment terms of up to thirty (30) years and thus demonstrates repayment uncertainty. Further, Debtor’s projections do not contain a provision for payment of ordinary maintenance and repairs for any of her income producing rental properties.

(c) the Plan includes an additional $2,000.00 in professional services income that was never disclosed to the creditors nor to the court in the previous plan to be approved under 11 U.S.C. § 363(b)(1). Further, Doral points out that the Debtor never supplied concrete evidence demonstrating certainty of such contractual agreement.

(d) the Plan fails to provide to the unsecured creditors at least an amount equal to the Debtor’s disposal income during the next five years in accordance with 11 U.S.C. § 1129(a)(15). More specifically, the Debtor proposes to pay unsecured creditors approximately 0.492% of the total claims, yet the Debtor failed to demonstrate that such distribution at least equals the Debtor’s disposal income during the next five years.

(e) the Plan failed to comply with additional requirements as mandated by 11 U.S.C. § 1129(a)(l)-(2). More specifically, that the Debtor did not obtain court approval for the use of certain real property outside the ordinary course of business as required by 11 U.S.C. § 363(b)(1) and Fed. R. Bankr.P. 6004. Further, the Debtor seems to request a discharge upon Plan confirmation in violation of 11 U.S.C. § 1141(d)(5), which does not allow a discharge until all Plan payments are complete.

(f)the Plan failed to comply with 11 U.S.C. § 1129(a)(8). More specifically, the Debtor has not filed a § 1129 statement demonstrating acceptances or rejections of the Plan by all unimpaired classes.

Conclusively, Doral requests the court to reject the Plan because it violates the requirements of 11 U.S.C. § 1129(a)(1),(2), (8), (11), (15), and (b)(2)(B).

In her rebuttal, the Debtor contends that the Plan is not speculative because the $14,790 from her real property will come from not only the Fortaleza Street and the Condado Comelot properties, but also properties in Hawaii.2 Further, the Debtor contends that the projections included a provision of $700 per month for any necessary repairs and extraordinary maintenance.3 Lastly, her professional service contract is from a life long friend, who had previously offered her such position. Debtor also contends that she complied with the following:

(a) 11 U.S.C. § 1129(a)(15) because she is proposing a 5.64% rather than a 0.492% distribution to unsecured creditors;

(b) 11 U.S.C. § 1129(a)(l)-(2) because Doral’s allegations have no merit;4

(c) 11 U.S.C. § 1129(a)(8) because she disclosed in the § 1129 statement that she will be going forward with her Plan under § 1129(b).

The Debtor further contends that the absolute priority rule does not apply to [477]*477individual chapter 11 cases and even if it does, she is excepted by providing new value. Specifically, the Debtor contends that the court should adopt a broad interpretation of the absolute priority rule as opposed to a narrow interpretation. Under the broad interpretation of the rule, 11 U.S.C. § 1115 includes prepetition property specified in section 541 as well as post-petition earnings. Therefore, the exemption added in 11 U.S.C. § 1129(b)(2)(B)(ii) abolished the absolute priority rule in individual chapter 11 cases.

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Bluebook (online)
482 B.R. 473, 2012 Bankr. LEXIS 5282, 57 Bankr. Ct. Dec. (CRR) 59, 2012 WL 5463256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lee-min-ho-chen-prb-2012.