In re Universal Finance, Inc.

493 B.R. 735, 2013 WL 2467757, 2013 Bankr. LEXIS 2338, 58 Bankr. Ct. Dec. (CRR) 16
CourtUnited States Bankruptcy Court, M.D. North Carolina
DecidedJune 7, 2013
DocketNo. 13-50538
StatusPublished
Cited by2 cases

This text of 493 B.R. 735 (In re Universal Finance, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Universal Finance, Inc., 493 B.R. 735, 2013 WL 2467757, 2013 Bankr. LEXIS 2338, 58 Bankr. Ct. Dec. (CRR) 16 (N.C. 2013).

Opinion

OPINION AND ORDER

WILLIAM L. STOCKS, Bankruptcy Judge.

This case came before the court on May 28, 2013 for hearing upon a Motion to Use Cash Collateral filed by the Debtor, Universal Finance, Inc. (the “Motion”). Katherine J. Clayton and Clint S. Morse appeared on behalf of the Debtor, June L. Basden and J. Patrick Haywood appeared on behalf of Wells Fargo Bank (“Wells Fargo”), and Robert E. Price appeared on behalf of the Bankruptcy Administrator. Having considered the Motion, the objections filed by Wells Fargo and the Bankruptcy Administrator, and the evidence and arguments presented at the hearing, the court makes the following findings and conclusions.

FACTS

The Debtor is a licensed consumer finance company in the business of making small, secured consumer loans. To finance its operations, in 2007 the Debtor took out a $30,000,000 line of credit from Wells Fargo. When this loan was made, Wells Fargo obtained a security interest in the accounts receivable of the Debtor. The cash collateral which the Debtor seeks to use consists of the collections from the accounts receivable that are subject to the security interest held by Wells Fargo.

Beginning in May of 2008, the Debtor’s principals, Richard and Robert Greer, concluded that loans or equity infusions to the Debtor were needed. Thereafter, R & R Enterprises, LLC, another company owned by the Greers, pledged, among other things, its interest in two office buildings to secure a loan from Branch Banking and Trust Company (“BB & T”) in the amount of $1,500,000. The proceeds of this loan provided over $1,000,000 in working capital to the Debtor. In June and [737]*737September of 2010, the Greers pledged the majority of their liquid assets to SunTrust Bank (“SunTrust”) to secure two loans totaling $4,500,000. Approximately $3,500,000 of the loan proceeds from Sun-Trust also went to the Debtor. These loans to the Debtor were made subject to subordination agreements under which repayment of BB & T and SunTrust was subordinated to Wells Fargo, the Debtor’s largest creditor.

On April 30, 2013, the Debtor filed for relief under Chapter 11 of the Bankruptcy Code. On May 1, 2013, the Debtor filed its Motion for Use of Cash Collateral Pursuant to 11 U.S.C. § 363. The Debtor has submitted a budget setting forth the items which it proposes to pay if permitted to use cash collateral. The budget includes proposed monthly payments of $11,540 to BB & T and $21,884.56 to SunTrust from the cash collateral. Wells Fargo and the Bankruptcy Administrator object to the proposed payments to BB & T and Sun-Trust.

ANALYSIS

The Fourth Circuit has interpreted the Bankruptcy Code as generally not permitting a distribution to unsecured creditors in a Chapter 11 proceeding except under and pursuant to a plan of reorganization that has been properly presented and approved. Official Committee of Equity Sec. Holders v. Mabey, 832 F.2d 299 (4th Cir.1987). The Court explained this limitation as follows:

11 U.S.C. § 1121 provides for the filing of a plan of reorganization. Sections 1122-1129 set forth the required contents of a plan, the classification of claims, the requirements of disclosure of the contents of the plan, the method for accepting the plan, any modification thereof, the hearing required on confirmation of the plan and the requirements for confirmation. The clear language of these statutes, as well as the Bankruptcy Rules applicable thereto, does not authorize the payment in part or in full, or the advance of monies to or for the benefit of unsecured claimants prior to the approval of the plan of reorganization.

Mabey, 832 F.2d at 302.

Despite the Fourth Circuit’s disapproval of pre-confirmation payment to unsecured claimants, the Debtor seeks approval to use cash collateral in order to pay BB & T and SunTrust under the so-called “Doctrine of Necessity,” an exception not addressed in Mabey. See In re NVR L.P., 147 B.R. 126, 128 n. 2 (Bankr.E.D.Va.1992) (“[I]t is unclear whether the broad language in Mabey failed to address the ‘necessity of payment’ exception deliberately or by happenstance. This court assumes the latter for purposes of this opinion since the ‘necessity of payment’ rule was not directly at issue in Mabey.”). As later explained in In re United Am., 327 B.R. 776, 781 (Bankr.E.D.Va.2005),

The Doctrine of Necessity is an equitable doctrine that endeavors to reconcile two otherwise irreconcilable objectives of chapter 11: the reorganization of otherwise viable entities that have fallen upon hard times into profitable entities and thereby pay pre-petition creditors and preserve jobs; and, at the same time, the equal treatment of all creditors.

See also In re Lehigh & New England Ry. Co., 657 F.2d 570, 581 (3d Cir.1981).

By definition, the necessity of payment rule is a rule of necessity and not one of convenience. The Doctrine is a narrow exception to the equal treatment rule that has been recognized only where such pre-petition payment is vital to a debtor’s reorganization and, therefore, the opportunity of other creditors to recoup any part of [738]*738their pre-petition claims is through a reorganization. See, e.g., Lehigh & New Eng. Ry. Co., 657 F.2d at 581; In re Just For Feet, 242 B.R. 821, 821 (D.Del.1999); Mich. Bureau of Workers’ Disability Comp. v. Chateaugay Corp. (In re Chateaugay Corp.), 80 B.R. 279 (S.D.N.Y.1987); In re CoServ, L.L.C., 273 B.R. 487 (Bankr.N.D.Tex.2002); In re Wehrenberg, Inc., 260 B.R. 468 (Bankr.E.D.Mo.2001). For example, some courts have stated the payment must be “critical to the debtor’s reorganization,” In re Finan. News Network, Inc., 134 B.R. 732, 736 (Bankr.S.D.N.Y.1991), “indispensably necessary” to continuing the debtor’s operation, In re Boston & Maine Corp., 634 F.2d 1359, 1382 (1st Cir.1980), or “necessary to avert a serious threat to the Chapter 11 process,” In re Eagle-Picher Indus., Inc., 124 B.R. 1021, 1023 (Bankr.S.D.Ohio 1991). In re NVR L.P., 147 B.R. 126, 128 (Bankr.E.D.Va.1992). “In short, the payment must not only be in the best interest of the debtor but also in the best interest of its other creditors.” Id.

In courts where the Doctrine of Necessity has been accepted as an exception to the equal treatment rule, its application has been exceedingly narrow. The court’s reasoning in United American illustrates the narrow scope of the Doctrine. In United American, the debtor asserted that two vendors, a cabinet maker and an electrician, were essential for the debtor’s continued operation and successful organization, and sought to pay the vendors under the Doctrine of Necessity. The debtor was a contractor engaged in a commercial property construction project. The debtor testified that while a substitute electrician could be obtained, it would be difficult, time consuming, and expensive. The current electrician had prepared, and arguably owned, the shop drawings for the job, which had been approved by county agencies; a new electrician would likely have to prepare its own shop drawings and obtain county approval.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

William F. Floyd, Jr.
E.D. North Carolina, 2020
Joseph W. Floyd, IV
E.D. North Carolina, 2020

Cite This Page — Counsel Stack

Bluebook (online)
493 B.R. 735, 2013 WL 2467757, 2013 Bankr. LEXIS 2338, 58 Bankr. Ct. Dec. (CRR) 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-universal-finance-inc-ncmb-2013.