In re Shivshankar Partnership LLC

526 B.R. 253, 2015 Bankr. LEXIS 699, 2015 WL 1060567
CourtUnited States Bankruptcy Court, E.D. Tennessee
DecidedMarch 6, 2015
DocketCase No. 14-30843
StatusPublished

This text of 526 B.R. 253 (In re Shivshankar Partnership LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Shivshankar Partnership LLC, 526 B.R. 253, 2015 Bankr. LEXIS 699, 2015 WL 1060567 (Tenn. 2015).

Opinion

MEMORANDUM ON SECOND AMENDED PLAN OF REORGANIZATION

SUZANNE H. BAUKNIGHT, UNITED STATES BANKRUPTCY JUDGE

Before the court for confirmation is the Plan of Reorganization filed by Debtor on June 26, 2014, as amended on August 29, 2014 (Amended Plan), and as again amended on October 30, 2014 (Second Amended Plan). Tennessee State Bank and the United States Trustee have objected to confirmation. The trial to consider confirmation of the Second Amended Plan was held on January 28, 2015. The record before the court consists of twenty-eight exhibits admitted into evidence, Stipulations filed by Debtor and Tennessee State Bank on January 20, 2015, and the testimony of three witnesses: Anil Merai, Ta-[255]*255run Surti, and Shelley Spurgeon. .This is a-core proceeding under 28 U.S.C. § 157(b)(2)(L).

Because Debtor has not met its burden to prove that the Second Amended Plan is feasible, confirmation is denied.

I. FACTS

Debtor, which filed the Voluntary Petition commencing its Chapter 11 case on March 17, 2014, operates real property and improvements known as the Comfort Inn located at 140 Cusick Road, Alcoa, Tennessee,1 as a debtor-in-possession pursuant to 11 U.S.C. §§ 1107 and 1108. The Second Amended Plan proposes the following treatment for six classes of claims and interests to be funded through continued operation of the Comfort Inn, with any shortfall to be funded through additional capital investments by Debtor’s equity security holders:

• Class 1 consists of the tax claim of the City of Alcoa in the amount of $90,000.00, to be paid in monthly installments of $2,002.00 plus 12% interest, and the tax claim of Blount County, Tennessee, in the amount of $98,000.00, to be paid in monthly installments of $2,179.96 plus 12% interest.

• Class 2 consists of Tennessee State Bank’s secured claim in the amount of $2,927,076.30 plus 5.25% interest, amortized over a 30-year period, to be paid in monthly, interest-only, installments of $12,805.96 from September 1, 2014, through September 1, 2015, increasing to $16,163.42 from October 1, 2015, through September 1, 2019, with the balance to be paid in full on November 1, 2019, through a balloon payment to be funded by a refinance of the Comfort Inn. Tennessee State Bank will retain its lien throughout the life of the plan and will retain all rights under its security agreement with Debtor in the event of default. Debtor’s equity security holders (Class 6 claimants) have guaranteed Tennessee State Bank’s claim. The parties stipulated at trial that if all payments are timely made under the Second Amended Plan, the balance of Tennessee State Bank’s claim to be paid by a balloon payment will be $2,739,882.12.

• Class 3 consists of all unsecured claims of $1,500.00 or less. Debtor will pay these claims in full between March 15 and September 15, 2015.

• Class 4 consists of all unsecured claims of greater than $1,500.00, which will be paid in full, plus 2% interest, through a monthly payment of $793.00 over sixty months, beginning June 1, 2015, to be divided pro rata. These claimants have the option to limit their respective claims to $1,500.00 and be paid as a Class 3 claimant.

• Class 5 consists of the $76,834.13 pre-petition claim of Debtor’s franchiser, Choice Hotels International, Inc. (Choice Hotels), which shall be paid in full over twenty-four months beginning December 1, 2014. Under the Second Amended Plan, Debtor will assume its franchise agreement with Choice Hotels.

• Class 6 consists of Debtor’s equity security holders, who will retain their interests. •

Balloting commenced for the Amended Plan, and Debtor filed a Summary of Ballots on October 14, 2014, evidencing that no ballots were received for' Classes 1 and 4, Class 2 rejected, Class 3 accepted, counsel for Class 5 had advised that it was accepting although no ballot was received, [256]*256and Class 6, consisting of insiders, did not submit a ballot. As set forth in the Joint Pre-Hearing Statement filed by the parties on January 21, 2015, the confirmation issues to be determined by the court are (1) whether the Second Amended Plan is feasible and not likely to be followed by liquidation or the need for further financial reorganization and (2) whether the Second Amended Plan proposes treatment of Tennessee State Bank’s claims that is fair and equitable to Tennessee State Bank.

II. ANALYSIS

Confirmation of Chapter 11 plans is governed by 11 U.S.C. § 1129, which provides,’ in material part:

(a) The court shall confirm a plan only if all of the following requirements are met:
(11) Confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan.
(b)(1) Notwithstanding section 510 of this title, if all of the applicable requirements of subsection (a) of this section other than paragraph (8) are met with respect to a plan, the court, on request of the proponent of the plan, shall confirm the plan notwithstanding the requirements of such paragraph if the plan does not discriminate unfairly, and is fair and equitable, with respect to each class of claims or interests that is impaired under, and has not accepted, the plan.
(2) For the purpose of this subsection, the condition that a plan be fair and equitable with respect to a class includes the following requirements:
(A) With respect to a class of secured claims, the plan provides— (i)(I) that the holders of such claims retain the liens securing such claims, whether the property subject to such liens is retained by the debtor or transferred to another entity, to the extent of the allowed amount of such claims; and
(II) that each holder of a claim of such class receive on account of such claim deferred cash payments totaling at least the allowed amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder’s interest in the estate’s interest in such property; [or]
(iii) for the realization by such holders of the indubitable equivalent of such claims.

In support of its Second Amended Plan, Debtor presented the testimony of its member Anil Merai and its management consultant and Merai’s uncle, Tarun Surtí, both of whom testified that Debtor’s revenues have increased substantially since it filed for bankruptcy and its new management philosophies under the guidance of Mr. Surtí have resulted in improvements to both the physical structure of the Comfort Inn and its day-to-day operations. Each testified that the Second Amended Plan is feasible because, based upon projected gross revenues and the improving economy, Debtor will have sufficient income to make all payments.

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Bluebook (online)
526 B.R. 253, 2015 Bankr. LEXIS 699, 2015 WL 1060567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-shivshankar-partnership-llc-tneb-2015.