In re Omega Optical, Inc.

476 B.R. 157, 2012 WL 3059362, 2012 Bankr. LEXIS 3481, 56 Bankr. Ct. Dec. (CRR) 229
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedJuly 27, 2012
DocketNo. 11-13036
StatusPublished
Cited by6 cases

This text of 476 B.R. 157 (In re Omega Optical, Inc.) 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 Omega Optical, Inc., 476 B.R. 157, 2012 WL 3059362, 2012 Bankr. LEXIS 3481, 56 Bankr. Ct. Dec. (CRR) 229 (Pa. 2012).

Opinion

[159]*159MEMORANDUM

BRUCE FOX, Bankruptcy Judge.

Presently before me is the chapter 11 debtor’s motion for the entry of a final decree, pursuant to Federal Rule of Bankruptcy Procedure 3022, as well as a motion filed by Sovereign Bank to amend its proof of claim, which motion is opposed by the debtor.

After consideration of the arguments of counsel,1 I conclude for the following reasons that Sovereign Bank’s motion must be denied and the debtor’s motion denied without prejudice.

I.

The following relevant facts are derived from court records.2

The debtor filed a voluntary petition in bankruptcy under chapter 11 on April 14, 2011. On April 17, 2011, notice of the debtor’s bankruptcy filing was sent to known creditors, including Sovereign Bank. See docket entry # 13. On April 27, 2011, the debtor filed its bankruptcy schedules. On Schedule D the debtor listed Sovereign Bank as a secured creditor with a disputed claim, and valued the collateral for the disputed claim at $10,000.

By order dated May 9, 2011, a bar date of July 18, 2011 was set as the deadline for creditors to file proofs of claim pursuant to Federal Rule of Bankruptcy Procedure 3003(c)(3). On May 9, 2011, counsel for the chapter 11 debtor certified that a true and correct copy of the Order Setting the Proof of Claim Deadline was served by first class mail, postage prepaid and/or by electronic filing through the court’s electronic case filing system upon all of its creditors, including Sovereign Bank. See docket entry # 34.

On December 16, 2011, Sovereign Bank filed a proof of claim in the amount of $80,662.46, docketed on the claims register as proof of claim number 19. This amount was asserted as a general, unsecured claim. Id.3 The proof of claim requested that all notices be sent to Sovereign Bank “c/o Robert L. Saldutti, Esq.” Moreover, also on December 16, 2011, Mr. Saldutti entered his appearance in this case on behalf of Sovereign Bank. See docket entry #78.

On January 31, 2012, the debtor filed a proposed chapter 11 plan and disclosure statement. See docket entries ## 86-87. Debtor’s counsel certified on February 6, 2012 that a copy of the proposed plan and disclosure statement were sent by first [160]*160class mail, postage prepaid, inter alia, to Mr. Saldutti. See docket entry # 90.

Article III, paragraph 3.2 of the debtor’s chapter 11 plan proposed on January 31st stated in full as follows:

Sovereign Bank is the holder of a disputed secured claim allegedly secured by “all assets” of the Debtor. The secured claim relates to a pre-petition business loan that totals $92,229.67. Sovereign Bank attempted to perfect its lien by recording a financing statement under the Uniform Commercial Code with the Department of State of Pennsylvania. The financing statement identifies the collateral subject to the lien of the financing statement as “all assets.” This description of collateral is considered super-generic and not sufficient to effectively perfect a lien on any collateral. In addition, the description of the collateral is limited to the collateral that existing [sic] at the time the lien was filed, and does not extend to any collateral acquired after the lien was filed. Therefore, Sovereign Bank’s lien is not properly perfected. Indeed, Sovereign Bank has filed a proof [of] claim in this Bankruptcy treating the entire debt as unsecured. This secured claim of Sovereign Bank is being re-classified as an unsecured claim to be paid as a Class 8 [unsecured] creditor under this Plan. Sovereign Bank shall terminate the UCC-1 Financing Statement and release all other existing liens against the Debtor’s asset[s] upon the Effective Date of this Plan.

Docket entry # 86 (“Chapter 11 Small Business Plan Filed by Omega Optical, Inc.” dated January 31, 2012, ¶ 3.2) (emphasis added).

On March 7, 2012, the debtor filed an amended chapter 11 plan. This proposed amended plan, which provided that the debtor would continue in operation after confirmation and make plan distributions from net operating income, see paragraph 3.3, contained the identical language in paragraph 3.2 regarding the treatment of Sovereign Bank’s claim as did the original proposed plan. See docket entry # 97 (“Amended Chapter 11 Small Business Plan Filed by Omega Optical, Inc.” dated March 7, 2012). In addition to providing a modest dividend to class 3 unsecured creditors, including Sovereign Bank, this amended plan contained the following two provisions:

Possession of Assets. The Reorganized Debtor shall continue in possession of all its property and assets after the Effective Date.
The payments, distributions and other treatments provided in respect of each Allowed Claim and Allowed Interest in the Plan shall be in full settlement and complete satisfaction [sic] discharge and release of such Allowed Claim and Allowed Interest.

Id., ¶¶ 5.2, 6.1.

On March 7, 2012, debtor’s counsel certified that a copy of this proposed amended plan was sent by first class mail, postage prepaid, to (among others) Mr. Saldutti. See docket entry # 99. By order dated March 12, 2012, a hearing was scheduled for April 30, 2012 to consider confirmation of the debtor’s proposed amended plan. See docket entry # 101. Debtor’s counsel certified that Sovereign Bank (along with all other creditors), as well as Mr. Saldutti separately, were served with a copy of the March 12th order. See docket entry # 102.

A confirmation hearing was held on April 30, 2012. The only objection to confirmation was filed by the Commonwealth of Pennsylvania. See docket entry # 109. By order dated April 30, 2012, the debtor’s amended plan was confirmed pursuant to [161]*16111 U.S.C. § 1129(b). See docket entry # 111. A copy of the confirmation order was sent electronically by the court to Mr. Saldutti on May 2, 2012, see docket entry # 113, and a hard-copy was mailed to Mr. Saldutti and to Sovereign Bank by debtor’s counsel on May 8, 2012. See docket entry # 114. The order of confirmation made no mention of any lien held by Sovereign Bank; nor did the order address the vesting of property of the estate. No appeal was taken from the April 30th confirmation order. The plan effective date was ten days after the confirmation order became final (May 24, 2012). See “Amended Chapter 11 Small Business Plan Filed by Omega Optical, Inc.,” dated March 7, 2012, ¶ 1.29.

On June 12, 2012, the debtor filed its instant motion for a final decree, alleging that its confirmed plan would be substantially consummated by June 30, 2012, and seeking to have its case closed under 11 U.S.C. § 350(a).

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Cite This Page — Counsel Stack

Bluebook (online)
476 B.R. 157, 2012 WL 3059362, 2012 Bankr. LEXIS 3481, 56 Bankr. Ct. Dec. (CRR) 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-omega-optical-inc-paeb-2012.