In re Wagle, LLC

570 B.R. 725, 2017 Bankr. LEXIS 2299
CourtUnited States Bankruptcy Court, W.D. Pennsylvania
DecidedAugust 16, 2017
DocketBankruptcy No. 16-21169-CMB
StatusPublished

This text of 570 B.R. 725 (In re Wagle, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.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 Wagle, LLC, 570 B.R. 725, 2017 Bankr. LEXIS 2299 (Pa. 2017).

Opinion

MEMORANDUM OPINION

Carlota M. Bohm, United States Bankruptcy Judge

This matter came before the Court for an evidentiary hearing on the confirmation of the amended chapter 11 plan of reorganization, dated March 20, 2017 (the “Amended Plan”)1 filed by Wagle, LLC d/b/a Ed & Mark’s Locksmith (the “Debt- or”) and the objection to confirmation of the Amended Plan filed by Lynn Stone McLaughlin (“McLaughlin”).2 Having reviewed the record, testimony, evidence and applicable law, this Court shall deny, without prejudice, confirmation of the Amended Plan.

Background

The Debtor in this case is a locksmith operating as a Pennsylvania limited liability corporation. On or about March 30, 2016, the Debtor commenced this bankruptcy proceeding by filing a voluntary petition for relief under chapter 11 of title 11 of the United States Code, §§ 101 et seq. (the “Bankruptcy Code”). The Debtor is a small business debtor as defined in 11 U.S.C. § 101(51D). Pursuant to the Debt- or’s disclosure statement, the event that precipitated the Debtor’s bankruptcy filing was an impending balloon payment on the [727]*727Debtor’s loans held by Branch Banking and Trust Company (“BB&T”).3

On or about March 20, 2017, the Debtor filed the Amended Plan pursuant to 11 U.S.C. § 1121(e). The Amended Plan provides for treatment of classes and interests as follows:

Class 1—Administrative claims
Class 2—BB&T secured claims4
Class 3—Priority tax claims
Class 4—Unsecured claims5
Class 5—Member interests of William and Patricia Wagle (the “Owners”).

Funding of the Amended Plan is to be provided from continued business operations, as well as a contribution of $8,000.00 from the Owners, in return for maintaining their ownership interest in the reorganized debtor. The source of these funds is identified within the Amended Plan as a gift to the Owners from a family member.6

On or about April 18, 2017, McLaughlin filed an objection to confirmation of the Amended Plan (the “McLaughlin Objection”), stating that the Amended Plan violates the absolute priority rule under 11 U.S.C. § 1129(b)(2) and is therefore not confirmable.7

Following an evidentiary hearing, this Court directed the parties to submit briefs as to whether the proposed cash infusion of $8,000.00 by the Owners, in exchange for their retained equity in the reorganized debtor, satisfies the new value exception to the absolute priority rule codified in 11 U.S.C. § 1129(b)(2)(B)(ii). Upon review of the applicable law, the Court resolves this matter on undisputed facts. After reviewing the briefs filed by the Debtor and McLaughlin, the matter is now ripe for decision.

Discussion

In order for a chapter 11 plan of reorganization to be confirmed, the plan must meet the requirements of 11 U.S:C. § 1129(a). Since the Amended Plan was not accepted by every impaired class of claims, it does not satisfy the requirements of § 1129(a)(8). As such, it may only be confirmed pursuant to the cram-down provisions of § 1129(b), which, in turn, triggers analysis of the absolute priority rule set forth in 11 U.S.C. § 1129(b)(2)(B)(ii). The absolute priority rule requires payment in full of a dissenting class of unsecured creditors before any junior class is [728]*728permitted to retain any property, including ownership in the reorganized debtor.8

In this case, the Owners, as equity holders, are in a class junior to the dissenting unsecured creditor, McLaughlin. McLaughlin falls under class 4 of unsecured creditors, which, pursuant to the Amended Plan, is only receiving a distribution of 2%. Typically, application of the absolute priority rule would bar the Owners from retaining their ownership interest in the reorganized debtor, however, the Owners are seeking to utilize the new value exception to overcome the absolute priority rule. This exception permits existing equity holders to buy back their ownership interests by making a new capital contribution to the debtor that meets the applicable criteria.9

Under the terms of the Amended Plan, the Owners are to retain 100% ownership of the reorganized debtor, in exchange for a contribution of $8,000 of new capital.10 As the proponent of the Amended Plan, the “[D]ebtor bears the burden of showing that this retained interest is ‘reasonably equivalent’ to the amount of [the Owners’] contribution.”11 McLaughlin claims that the Debtor has not met this burden. This Court agrees.

While the Debtor offered testimony at the confirmation hearing as to the value of the Debtor’s real property, the Debtor did not present any evidence as to the value of the locksmith business, the Debtor did not offer any expert testimony as to valuation, nor did the Debtor expose the business to a market valuation. This Court has no basis to determine the “going concern” value of the business. As the Supreme Court stated in 203 N. LaSalle, “[assuming a new value corollary, plans providing junior interest holders with exclusive opportunities free from competition and without benefit of market valuation fall within § 1129(b)(2)(B)(ii)’s prohibition.”12

In its brief, the Debtor asserts that the agreement of the secured lender to voluntarily cramdown an unsecured portion of its claim is the best evidence that the equity interest of the principals has a negative value.13 This Court disagrees,

Instead, this Court relies on the four-step test for the new value exception delineated in In re Haskell Dawes, Inc., that is, equity holders seeking to use the new value exception to the absolute priority rule to obtain plan confirmation must provide a capital contribution that is: (1) in the form of money or money’s worth; (2) necessary to the reorganization; (3) reasonably equivalent to the value of the interest being retained; and (4) up front and substantial.14. The burden of proving all of these requirements is on the plan proponent.15 “A ‘rigorous showing’ as to these requirements is necessary in order to ensure that a debtor’s equity holders do not eviscerate the absolute priority rule by means of a contrived infusion.”16

[729]*729In this case, the first prong of the test is met as the $8,000.00 contribution by the Owners is in the form of money or money’s worth. As to the second prong, however, it is unclear as to whether the $8,000.00 contribution is necessary to the Debtor’s reorganization.17

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

Related

In Re Haskell Dawes, Inc.
199 B.R. 867 (E.D. Pennsylvania, 1996)
In Re Tallahassee Associates, L.P.
132 B.R. 712 (W.D. Pennsylvania, 1991)
In Re Wynnefield Manor Associates, L.P.
163 B.R. 53 (E.D. Pennsylvania, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
570 B.R. 725, 2017 Bankr. LEXIS 2299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wagle-llc-pawb-2017.