In re Nat'l Truck Funding LLC

588 B.R. 175
CourtUnited States Bankruptcy Court, S.D. Mississippi
DecidedJune 1, 2018
DocketCASE NO. 17–51243–KMS
StatusPublished
Cited by1 cases

This text of 588 B.R. 175 (In re Nat'l Truck Funding LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Nat'l Truck Funding LLC, 588 B.R. 175 (Miss. 2018).

Opinion

Judge Katharine M. Samson, United States Bankruptcy Judge

This matter came on for hearing on the Joint Chapter 11 Amended Plan of Reorganization of the Debtors (ECF No. 876) ("Plan")2 and the Plan Supplement and Immaterial Modification to Joint Chapter 11 Amended Plan of Reorganization of the Debtors (ECF No. 1055) ("Plan Supplement") filed by Debtors, the Official Committee of Unsecured Creditors, and CAC Properties Inc. ("Plan Proponents"). This matter is within the bankruptcy court's core jurisdiction under 28 U.S.C. § 157(b)(2)(L) ("confirmations of plans").

Objections by the following parties were resolved either before or during the hearing:

• The United States Trustee (ECF No. 1025)
• John Fussell, as Trustee of the American Success Irrevocable Trust, Successful Living Irrevocable Trust and Falcon Capital LLC (ECF No. 1037)
• Evabank (ECF No. 1039)
• Blue Cross & Blue Shield of Mississippi (ECF No. 1043)

At hearing, the parties agreed that the Release and Exculpation in Article XII, Section 12.3 of the Plan as amended by the Plan Supplement will be further amended by language protecting only the Official Committee of Unsecured Creditors and its representatives, as the Court has previously approved. See In re Miss. Phosphates Corp. , No. 14-51667-KMS, ECF No. 1712, at 6 (Bankr. S.D. Miss. Oct 21, 2016) (recognizing binding authority of Bank of N.Y. Tr. Co. v. Official Unsecured Creditors' Comm. (In re Pac. Lumber Co.) , 584 F.3d 229 (5th Cir. 2009) ).

Ruling from the bench on the "cram down" interest rate, the Court held that the Plan will pay secured claims at 6%, calculated as 1.25% over the current prime rate of 4.75%. See *178Wells Fargo Bank N.A. v. Tex. Grand Prairie Hotel Realty, LLC (In re Texas Grand Prairie Hotel Realty, LLC) , 710 F.3d 324, 337 (5th Cir. 2013) (approving "straightforward application" in case under chapter 11 of prime-plus approach in Till v. SCS Credit Corp. , 541 U.S. 465, 124 S.Ct. 1951, 158 L.Ed.2d 787 (2004) ).

The remaining objections3 made at the hearing each raise one or more of the following issues: materiality of the modification in the Plan Supplement, valuation of the parties' collateral, and the Plan's "dirt for debt" provisions. Based on the evidence, arguments, and applicable law, the objections are overruled. All other objections are deemed abandoned. The Plan, as amended by the Plan Supplement and modified at the hearing, is confirmed.

I. The Debtors' Business

Debtors lease used semi-trucks, purchased on the wholesale market, to independent owner-operators through a weekly renewable rental program with an option to purchase. Operating out of Gulfport, Mississippi, Debtors have developed a national market, leasing trucks from a commercial fleet to individuals from more than thirty states. Revenue sources include rental fees, forfeited deposits, compliance and other fees, and vehicle sales to contracted renters and other customers. One Debtor partners with the renters on the operation, use, and repair of the trucks and constantly updates the fleet; the other Debtor generates revenue from vehicle repairs and sales, acting as a dealer for the sale of the fleet's inventory as it ages.

II. The Objections

A. The Modification in the Plan Supplement Is Immaterial.

PACCAR Financial Corp. asserts two arguments in opposition to the Plan Supplement. First, PACCAR argues that the Plan Supplement materially changes the terms of the Plan by moving twelve of its trucks from the operable ("keep") list to the inoperable ("return") list and moving four other trucks from the inoperable list to the operable list,4 thereby changing the amounts of PACCAR's secured and unsecured claims; and by using "orderly liquidation value" instead of "replacement value" for the unsecured claims' initial value. Second, Paccar argues that the Plan Supplement was insufficiently noticed because it was filed the Friday before a long holiday weekend, with confirmation set for the following Tuesday. Both arguments fail.

The proponent of a chapter 11 plan may modify the plan "at any time before confirmation." 11 U.S.C. § 1127. The disclosure requirements under § 1125 apply to a modified plan only if the modification is material. In re Art & Architecture Books of the 21st Century , No. 2:13-bk-14135-RK, 2016 WL 1118743, at *5 (Bankr. C.D. Cal. Mar. 18, 2016).

PACCAR has cited no case in which a plan modification was material as to a creditor that, like PACCAR, had voted to reject the plan. And the two cases PACCAR cited in support of this argument are, in fact, contrary authority. See *179In re Frontier Airlines , 93 B.R. 1014, 1023 (Bankr. D. Colo. 1988) ("If the modification adversely affects the interests of a creditor who has previously accepted the plan , in more than a purely ministerial de minimis manner, that creditor should have the opportunity to reconsider and change his or her vote." (emphasis added) ); In re Am. Solar King Corp. , 90 B.R. 808, 823 (Bankr. W.D. Tex. 1988) ("Further disclosure occurs only when and to the extent that the debtor intends to solicit votes from previously dissenting creditors or when the modification materially and adversely impacts parties who previously voted for the plan ." (emphasis added) ). This view enjoys wide support. See In re Art & Architecture Books , 2016 WL 1118743

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Cite This Page — Counsel Stack

Bluebook (online)
588 B.R. 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-natl-truck-funding-llc-mssb-2018.