In re Sandford

498 B.R. 307, 2013 WL 4525212, 2013 Bankr. LEXIS 3573
CourtUnited States Bankruptcy Court, D. New Mexico
DecidedAugust 27, 2013
DocketNo. 11-10-14424 TS
StatusPublished
Cited by6 cases

This text of 498 B.R. 307 (In re Sandford) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Sandford, 498 B.R. 307, 2013 WL 4525212, 2013 Bankr. LEXIS 3573 (N.M. 2013).

Opinion

MEMORANDUM OPINION

DAVID T. THUMA, Bankruptcy Judge.

The Debtor has asked the Court to modify her Third Amended Chapter 11 Plan of Reorganization to give her until December 31, 2013 to sell her assets and pay creditors.1 Three secured creditors objected.2 [309]*309This is a core matter. The Court has considered the briefs and supporting papers of the parties, has heard the testimony of witnesses at a final hearing, and has considered the arguments of counsel. Being sufficiently advised, the Court finds that the Motion is not well taken and should be denied.

I.FACTS

The Court finds the following facts:

1. Debtor filed this bankruptcy case on August 30, 2010.

2. Debtor has been trying to sell the real property commonly known as the Vista Clara Resort and Spa and the Flying M Ranch (together, the “Property”) since before the petition date.

3. Debtor filed her First Amended Plan of Reorganization on February 10, 2012 (the “First Plan”).

4. Los Alamos National Bank (“LANB”), JPMorgan Chase Bank (“JPMorgan”), and U.S. Bank N.A. (“U.S. Bank”) objected to the First Plan.

5. To resolve the objections, Debtor filed her Second Amended Chapter 11 Plan of Reorganization on June 5, 2012 (the “Second Plan”).

6. At the confirmation hearing on the Second Plan, LANB, U.S. Bank, and JPMorgan, (together, the “Secured Lenders”) consented to confirmation of the plan with certain modifications.

7. These modifications, together with certain additional modifications required by the Court, are reflected in the Third Amended Chapter 11 Plan of Reorganization, filed June 18, 2012, doc. 217 (the “Third Plan”).

8.’ As reflected in the Third Plan, The Secured Lenders agreed to forego monthly adequate protection or other payments, and for Debtor to have 14 months after confirmation to sell the Property. In exchange, Debtor agreed inter alia to the inclusion of the following language in the treatment of each Secured Lender’s claim:

Mandatory Conversion. If on or before August 15, 2013, the Debtor does not close and fund the sale of the [Property], or as much of the [Property] as may be sufficient to pay_Allowed Secured Claim in full, the Debtor’s bankruptcy case shall be converted to a case under Chapter 7 of the United States Bankruptcy Code. In such event, Debtor shall cause an order converting this case to chapter 7 to be submitted to the Court for entry on or before August 21, 2013.

9. The mandatory conversion language appears, with slight variations depending on the secured creditor, four times in the Third Plan. In addition, the following language appears in paragraph 5.4 of the Third Plan, which was not in the Debtor’s Second Plan:

Conversion. Notwithstanding anything herein to the contrary, if by August 15, 2013, the Debtor has not (i) closed and funded the sale of the Vista Clara Portion and/or the Ranehitos Property, or so much of the aforementioned properties to fully repay U.S. BANK N.A., Sterling, LANB and JPMorgan, or (ii) paid U.S. Bank N.A., Sterling, LANB, and JPMorgan the full amount of their Allowed Claims, the case will be converted to Chapter 7 as provided herein.

10. The Secured Lenders agreed to the Third Plan in reliance on Debtor’s agree[310]*310ment to convert the case in August, 2013, if she had not completed and funded a sale of the Property sufficient to pay them in full.

11. By the Motion, the Debtor seeks to extend until December 31, 2013 the time she has to complete and fund the sale of her Property, which means that she wishes to delay payment to the Secured Lenders, and delay or avoid the conversion of her case to Chapter 7.

12. At the final hearing, the Debtor introduced into evidence a Letter of Intent signed by the Debtor and Gaaruda LLC (the “LOI”), in support of her argument that if the Court grants her Motion, she will be able to sell the Property by the extended deadline.

13. The Secured Lenders expressed concern about Gaaruda’s financial ability to purchase the Property. No evidence of such ability was tendered.

14. The Debtor also had her current broker, Tommy Gardner of Sotheby’s International Realty/Santa Fe Commercial Realty), testify about his efforts to sell the Property. Mr. Gardner testified that he thought the market has improved recently, and he is optimistic that a buyer can be found in the near future, although he had no offers in hand as of August 15, 2013.

15. Debtor has three general unsecured creditors: Virginia Sandford (Debt- or’s mother), $40,000; Ferrell Gas, $2,920.29; and Bank of America, $47,126.63 (credit card debt). None voted on any plan.

II. DISCUSSION

A. Relevant Law.

1. Section 1127(e). The Motion is brought under 11 U.S.C. § 1127(e)(2), which provides:

If the debtor is an individual, the plan may be modified at any time after confirmation of the plan but before the completion of payments under the plan, whether or not the plan has been substantially consummated, upon request of the debtor, the trustee, the United States trustee, or the holder of an allowed unsecured claim, to—
(2) extend or reduce the time period for such payments;

Section 1127(e) was enacted in 2005 as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005(“BAPCPA”). It mirrors the post-confirmation modification provisions of Chapter 12, 11 U.S.C. § 1229(a), and Chapter 13,11 U.S.C. § 1329(a)(2), even to the point of providing that the “trustee” may seek to modify an individual’s chapter 11 plan post-confirmation, an unlikely scenario.

2. The Standard for Determining Motions under § 1127(e). There is a split in the case law about the standard for analyzing motions to amend confirmed plans under §§ 1127(e), 1229(a), and/or 1329(a).3 The majority of courts have held that granting or denying motions to modify confirmed plans under these subsections4 is within the bankruptcy court’s sound discretion. See, e.g., In re Meza, 467 F.3d 874, 877-78 (5th Cir.2006); In re Witkowski, 16 F.3d 739, 748 (7th Cir.1994); Barbosa v. Solomon, 235 F.3d 31, 41 (1st Cir.2000); In re Brown, 219 B.R. 191, 192 [311]*311(6th Cir. BAP 1998) (modification under § 1329 is discretionary); In re Mattson, 468 B.R. 361, 367 (9th Cir. BAP 2012); In re Malian, 2012 WL 4855180, at *6 (E.D.Mich.2012); In re Riddle, 410 B.R. 460 (Bankr.N.D.Tex.2009). See also In re Self,

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Cite This Page — Counsel Stack

Bluebook (online)
498 B.R. 307, 2013 WL 4525212, 2013 Bankr. LEXIS 3573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sandford-nmb-2013.