In re O & S Trucking, Inc.

514 B.R. 296, 72 Collier Bankr. Cas. 2d 82, 2014 WL 3805475, 2014 Bankr. LEXIS 3310
CourtUnited States Bankruptcy Court, W.D. Missouri
DecidedMay 13, 2014
DocketNo. 12-61003
StatusPublished

This text of 514 B.R. 296 (In re O & S Trucking, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re O & S Trucking, Inc., 514 B.R. 296, 72 Collier Bankr. Cas. 2d 82, 2014 WL 3805475, 2014 Bankr. LEXIS 3310 (Mo. 2014).

Opinion

ORDER SUSTAINING, IN PART, DEBTOR’S OBJECTION TO CLAIM OF MERCEDES BENZ FINANCIAL SERVICES USA, LLC d/b/a DAIMLER TRUCK FINANCIAL and DETERMINING SECURED STATUS OF DAIMLER’S CLAIM

ARTHUR B. FEDERMAN, Chief Judge.

As announced in open court at the close of the hearing held on May 8, 2014, in Springfield, Missouri, the claim of Mercedes Benz Financial Services USA, LLC d/b/a Daimler Truck Financial (“Daimler”) is ALLOWED as a secured claim in the amount of $1,425,309.40. The remainder of Daimler’s claim is unsecured, in the amount of $819,183.48 less the proceeds received by Daimler from a commercially reasonable sale of the eleven vehicles previously surrendered by Debtor, and still in Daimler’s possession.

Section 506(a)(1) of the Bankruptcy Code provides generally that a creditor’s claim is secured to the extent of the value of its collateral. The statute then provides that “[s]uch value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest.”

At the outset of the ease, Daimler held a security interest in 99 vehicles being operated by the Debtor or its lessee drivers, as well as the proceeds of such collateral, and was owed $6,966,162.82.1 On August 7, 2012, the Debtor and Daimler entered into an Agreed Adequate Protection Order2 [299]*299providing generally that the Debtor could continue to use such vehicles provided that the Debtor made monthly adequate protection payments to Daimler. The Agreed Adequate Protection Order also contemplated that the Debtor would be surrendering some of those vehicles to Daimler, and that the debt would be reduced upon liquidation of such vehicles. Therefore, rather than the parties agreeing on a fixed total monthly adequate protection payment, such Agreed Adequate Protection Order set out a value for each such vehicle, and set the adequate protection payment per vehicle at 2% of such value. The Agreed Adequate Protection Order does not specify what basis was used to arrive at such values.

In the course of the case, all but 23 of such vehicles have been surrendered by the Debtor to Daimler. Liquidation of such vehicles has reduced the total debt. In addition, the Debtor has made adequate protection payments in the total amount of $1,577,488.01. Such adequate protection payments serve to reduce the total debt owed, before any determination is made as to how much of that debt is secured.3 The parties stipulated that, with those and other adjustments, the total remaining debt secured by the 23 vehicles and their proceeds was $2,244,492.88, as of May 5, 2014.

Pursuant to § 506(a), the issue here is the value of Daimler’s remaining collateral.

In his well-reasoned opinion in In re Civic Partners Sioux City LLC,4 the Honorable Thad J. Collins concluded, based on § 506(a), that “collateral valuation can happen at a variety of times during the case — and often at confirmation.”5 Such conclusion comports with the holding of the Eighth Circuit in In re Ahlers,6 to the effect that an initial valuation of collateral for adequate protection purposes is not res judicata in determining value of the collateral for plan confirmation purposes. In so holding, the Circuit Court relied on the legislative history of § 506(a), which states that “... a valuation early in the case in a proceeding under sections 361-363 would not be binding upon the debtor or creditor at the time of confirmation of the plan.”7

While the Debtor has argued here that the agreed value for adequate protection purposes is somehow binding on Daimler in determining value for confirmation purposes, or should be used as a starting point in valuing the collateral now, such arguments are contrary to the statute, its legislative history, and the caselaw interpreting it. I turn then to the proper basis for valuing Daimler’s collateral at this point in the case, for the purpose of determining whether the Plan filed by the Debtor is confirmable.

The Supreme Court has held that in valuing a claim secured by personal property for plan confirmation purposes, where the debtor intends to retain possession of the property, the appropriate valuation standard is replacement value.8 In other [300]*300words, what would the Debtor be required to pay to replace such vehicles?

The most reliable evidence offered of replacement cost was the NADA retail values which, as stipulated by the parties, would be $1,373,400.00. Such total is based on a per vehicle retail value of $62,100 for the bulk of the remaining vehicles, which are 2010 Freightliners.

Each party offered various alternative valuations. Daimler argued for a valuation of $85,000 for the 2010 Freightliners, based on the fact that Debtor had entered into lease/purchase agreements with various drivers and that, as to one of such agreements, the total stream of payments over a period of three years came to approximately $85,000. But this argument ignores the time value of money and the possibility that it will not be paid by the drivers, and no evidence was offered as to the effect such factors might have on value.

The Debtor, by contrast, argues for lower values based on the auction prices Daimler received for approximately 65 vehicles it sold after the Debtor surrendered them, and the sale of another three vehicles by the Debtor. But the auctions at which Daimler sold such vehicles are only open to dealers, not retail customers, and the prices do not reflect the costs needed to refurbish such vehicles for resale. And the Debtor’s sample of three sales is too small to be reliable.

In Rash, the Court held that “a simple rule of valuation is needed to serve the interests of predictability and uniformity.” 9 NADA retail provides a predictable and uniform means of determining replacement cost and I find it to be the best approach here.

Debtor’s counsel seemed to argue at the close of the hearing that such value could not be correct because the agreed value for adequate protection payments per vehicle, less the adequate protection payments made, would come to a much lower number per vehicle. But, as stated, the issue is not what the parties agreed on as to value at the beginning of the case, or whether the adequate protection payments made accurately reflect a decline in the value of the vehicles over the course of the case. The issue instead is what the Debt- or would have to pay to replace these vehicles at this time. As stated, the most reliable evidence on that issue was NADA retail. Therefore, I hold their replacement cost to be $1,373,400.

Daimler’s loan documents also gave it a security interest in proceeds of its collateral. Thus, the next question is whether the value of its secured claim should be increased by proceeds generated post-bankruptcy from the use of the trucks on which it held a security interest.

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Cite This Page — Counsel Stack

Bluebook (online)
514 B.R. 296, 72 Collier Bankr. Cas. 2d 82, 2014 WL 3805475, 2014 Bankr. LEXIS 3310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-o-s-trucking-inc-mowb-2014.