In re Packer

586 B.R. 274
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedJune 19, 2018
DocketBankruptcy No. 17–81746
StatusPublished
Cited by1 cases

This text of 586 B.R. 274 (In re Packer) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Packer, 586 B.R. 274 (Ill. 2018).

Opinion

Thomas M. Lynch, United States Bankruptcy Judge

This matter comes before the court on the motion of First Trust and Savings *276Bank of Albany, Illinois (the "Bank") to convert the bankruptcy case to Chapter 7. For the reasons discussed below the Bank's motion will be denied.

FINDINGS OF FACT AND PROCEDURAL HISTORY 1

Rusty Packer and his wife Kristi Jo Packer commenced this Chapter 12 bankruptcy on July 27, 2017. They operate a family farm. For a majority of the time they have been farming they have operated through a limited liability company owned by the Debtors jointly, named Packer Farms, LLC. Rusty Packer testified that they formed Packer Farms, LLC approximately eight to ten years ago to conduct the farming they had previously "been doing in [their] own name." (Tr. 75:9-15.)2 He testified that they formed the entity out of concern over insurance and potential liability once they started hiring outside workers for the farm. (Tr. 75:14-21.) Also involved in the Debtors' farming operations are Midwest Agri-Services, LLC, wholly owned by the Debtors, and Genesys Specialty Group, LLC, owned 50% by Rusty Packer and 50% by an individual named Chad VanHolten. (Stipulations, ECF No. 122.) None of Packer Farms, LLC, Genesys Specialty Group, LLC or Midwest Agri Services, LLC has filed for bankruptcy protection, and Genesys has no contractual indebtedness with the Bank. (Id. ).

The Bank seeks conversion of the case to Chapter 7 pursuant to Section 1208(d).3 That section provides for conversion "upon a showing that the debtor has committed fraud in connection with the case." 11 U.S.C. § 1208(d). In the Motion to Convert Case to Chapter 7 (ECF No. 34, the "Motion"), the Bank alleges that the Debtors made material misstatements of fact in their bankruptcy schedules and in a motion to authorize use of cash collateral they filed with the court. The Bank also alleges the Debtors "are holding [their] crops hostage as a lever to negotiate for the use of cash collateral far beyond what the Code allows." (Id. )4 In its reply, the Bank alleges that, by taking inconsistent positions on whether certain property is owned by the Debtors or their non-debtor affiliates, the Debtors have "misused the bankruptcy *277process and have played fast and loose with their cash assets and the cash of their affiliates." (Reply, ECF No. 61, pg. 2.)

The court held a trial on March 6, 2018, at which the only witnesses were Debtor Rusty Packer and president and CEO of the Bank, Mark Hanson. The Chapter 12 trustee has not joined in the Motion and, while counsel for the trustee attended the trial, she neither called nor questioned any witnesses. The trustee had filed her own separate motion to either dismiss or convert the case on October 26, 2017 (ECF No. 44), but withdrew that motion on the date of the trial, March 6, 2018 (ECF No. 126.) The trustee has a pending objection to confirmation of the Debtors' current proposed plan of reorganization, filed March 6, 2018, and that objection includes a request for either dismissal or conversion of the case to Chapter 7. However, the trustee's objection asserts completely different grounds for the request than the Bank's, primarily arguing that the proposed plan is not feasible and fails to comply with certain requirements for confirmation, and that the Debtors have not yet provided certain documentation requested by the trustee.5

The Debtors' bankruptcy schedules disclose Rusty Packer "doing business as" Packer Farms, LLC, Midwest Agri Service, Avant Partners, LLC and Genesys Specialty Group. The Debtors listed among their assets a 50% interest in "Genesys Special Group" [sic], a 100% interest in Packer Farms, LLC and a 100% interest in "Agri Services," reporting each as having an "unknown" value. (ECF No. 1.) They listed as real property their residence in Erie, Illinois, a 76.5 acre parcel of land in Erie, a 31.42 acre parcel of land also located in Erie and a 12.5 acre parcel of land in Albany, Illinois. The Debtors designated each as owned by Rusty & Kristi Packer only.6

The Packers also listed a 2015 GMC 2500 truck as owned by Kristi Packer only, but stated as "Other information: *Packer Farms." (ECF No. 1, pg. 15.) As deposits of money, they listed a checking account at First Trust & Savings of $35.34, a checking account at Central Bank of Illinois of $8,269.00, a savings account at First Trust & Savings of $403.00 and a savings account at Central Bank of Illinois of $175.00. They also listed: "checking, *Packer Farms-Checking-Central Bank of Illinois, $500," "checking, **Midwest Agri Service w/ Central Bank: $168.00," and "Savings, **Midwest Agri Service, $57.00." (ECF No. 1, pg. 17.) The Debtors scheduled as "other contingent and unliquidated claims" what they described as "*Packer Farms-2014 crop insurance (claim from Wisconsin)" of "unknown value" and described as other financial assets what they described as "Uncashed checks (3)-First Trust & Savings named as co-payee-$6,407.09; $11,415.99; $23,113.68," totaling $40,936.76. (Id. at pg. 19.)

The Packers listed several pieces of farm-related equipment with the designation "*Packer Farms" or "**Midwest Agri."7 . They listed as other property *278"Packer Farms-office supplies, desk/chair located at 13559 Black Rd." worth "$2,000," and stated "see attached list" for "**Midwest Agri Services-misc. equipment" and "Packer Farms-misc. equipment," (Id. at pg. 23.) However, they did not attach the referenced list to their schedules.

Finally, the Packers listed "Growing crops-see attached worksheet," stating a value of $176,925.75. The referenced worksheet is found attached to their Schedule I (income) rather than Schedule A/B (property).8 The worksheet, entitled "Packer Farms L.L.C. 2017 Crop Plan" provides the following information:

Farm State Soil Acres 2017 Estimated Price Bushells Rented to: Type Crop Yield Erie Illinois Gumbo 34.70 Soybeans 45 $10.00 1,561.50 $15,615.00 Genesys Peat Illinois Peat 29.60 Corn 0 Parents Erie Illinois Sand 98.80 Soybeans 35 $24.00 3,458.00 $82,992.00 Genesys Home Illinois Sand 7.00 Rye 40 $9.00 280.00 $2,520.00 Rusty Fenton Illinois Clay 8.60 Soybeans 0 VonHolten Home Illinois Sand 61.50 Corn 145 $8.50 8,917.50 $75,798.75 Rusty Estimated Revenue: $176,925.75

(ECF No. 1, pg. 52.)

With regard to this worksheet, Mr. Packer testified that he and his wife owned the farmland designated as "Home." (Tr. 27:11-15.) The farmland designated "Erie" was owned by the Village of Erie and leased to Genesys Specialty. (Tr. 28:6-14.) He further testified that the crops growing on the "Home" farm in 2017 were owned by "[Mr. Packer] and [his] wife or Packer Farms" (Tr. 28:3-4) and the crops growing on the Erie Farms "were owned by Genesys Specialty." (Tr. 28:12-14.) While Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
586 B.R. 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-packer-ilnb-2018.