In re Whetten

473 B.R. 380, 2012 WL 2018259
CourtUnited States Bankruptcy Court, D. Colorado
DecidedJune 5, 2012
DocketNos. 11-14571 EEB, 11-14572 EEB
StatusPublished
Cited by16 cases

This text of 473 B.R. 380 (In re Whetten) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Whetten, 473 B.R. 380, 2012 WL 2018259 (Colo. 2012).

Opinion

ORDER DISMISSING CHAPTER 11 CASES

ELIZABETH E. BROWN, Bankruptcy Judge.

THIS MATTER comes before the Court on the United States Trustee’s Motion to Convert or Dismiss Chapter 11 Case Under 11 U.S.C. § 1112(b)(4) (the “Motion”) and the Debtors’ Objection. Following an evidentiary hearing on this matter, the Court hereby FINDS and CONCLUDES that cause exists to dismiss these cases due to the Debtors’ repeated failures to file timely and accurate monthly operating reports with the U.S. Trustee (“UST”).

I. Background

Debtor Matthew Ray Whetten is the founder and sole owner of Debtor Ray’s Collision, Inc. (“RCI”). RCI is a Colorado corporation that provides automotive repair, towing, tire and other related automotive services in Castle Rock, Colorado. Both Debtors filed Chapter 11 petitions on March 8, 2011, and have been functioning as debtors-in-possession for the last fifteen months. RCI filed an amended petition on May 20, 2011, designating itself as a “small business debtor” pursuant to 11 U.S.C. § lOUSID).1 Small business debtors are required to file a plan of reorganization within the first 300 days of the case pursuant to § 1121(e)(2). RCI did not meet this deadline. It was not until the eve of the hearing on the UST’s Motion that Mr. Whetten filed a Joint Plan of Reorganization and Disclosure Statement on March 5, 2012.

[382]*382Both Debtors have also been consistently late in filing monthly operating reports and in paying quarterly fees to the UST. Based on these deficiencies, the UST filed its Motion, seeking conversion or dismissal of Debtors’ cases. At the evidentiary hearing, the UST asserted additional grounds as cause for dismissal, including the untimeliness of Debtors’ plan and disclosure statement, continuing loss or diminution of Debtors’ estates, and the absence of a reasonable likelihood of rehabilitation. Debtors object to conversion or dismissal, arguing they are now current on all reporting requirements and quarterly fees, and have proposed a viable plan of reorganization.

II. Discussion

Section 1112(b) governs the conversion or dismissal of Chapter 11 cases. That section contains sixteen examples of “cause” to convert or dismiss a case. 11 U.S.C. § 1112(b)(4). The list is illustrative, not exhaustive. Courts may find cause for other equitable reasons. See In re FRGR Managing Member LLC, 419 B.R. 576, 582-83 (Bankr.S.D.N.Y.2009). The movant bears the burden of establishing cause by a preponderance of the evidence. In re ARS Analytical, LLC, 433 B.R. 848, 861 (Bankr.D.N.M.2010). If cause is established, § 1112 provides that the Court shall convert or dismiss, unless there are “unusual circumstances” that establish that such relief is not in the best interests of creditors and the estate. 11 U.S.C. §§ 1112(b)(1), (b)(2). Thus, once cause is demonstrated, the burden shifts to the opposing party to prove “unusual circumstances.” In re Dr. R.C. Samanta Roy Inst. of Science Tech. Inc., 2011 WL 2350095, at *3 (3d Cir. June 15, 2011).

The UST asserts cause exists under § 1112(b)(4)(F) due to an “unexcused failure to satisfy timely any filing or reporting requirement established by [the Bankruptcy Code] or by any rule applicable to a case under [Chapter 11],” and § 1112(b)(4)(H) for failure to “timely ... provide information or attend meetings reasonably requested by the United States trustee.” 11 U.S.C. §§ 1112(b)(4)(F), (4)(H). A debtor-in-possession is required to perform the duties of a trustee specified in § 704(a)(8), which mandates the filing of periodic operating reports and summaries and such other information as the UST or court requires if the business of the debtor is authorized to be operated. 11 U.S.C. §§ 704(a)(8), 1106(a)(1). The UST is charged with supervising the administration of Chapter 11 cases, including a debt- or’s performance of its statutory and fiduciary responsibilities. 28 U.S.C. § 586(a)(3). To perform this role, the UST has adopted reporting requirements embodied in its guidelines, which a debtor-in-possession is required to fulfill. The UST guidelines for this district require a debtor-in-possession to file a monthly report within twenty-one days after the end of the month covered by the report.2 These reports must include basic financial information, such as a statement of accounts receivable and payable, payments to professionals, and postpetition taxes payable. In addition, a debtor must provide, at least every six months, a periodic financial report for any entity in which the debtor holds a substantial or controlling interest. Fed. R. Bank. P. 2015.3.

In this case, the UST presented evidence that both Debtors failed to file [383]*383timely, accurate monthly reports, and that Mr. Whetten failed to file timely periodic reports for an entity he owns called 8898 Burning Ridge, LLC. Specifically, the evidence showed that RCI failed to file any monthly reports until six months into the case, when RCI filed five months worth of the monthly reports at one time on August 5, 2011. After that initial bulk filing, there was another gap of four months, when RCI filed another batch of monthly reports on December 2, 2011. On that same day, Whetten filed his first nine months worth of monthly reports. After another two-month gap in filing, both Debtors filed yet another batch of catch-up monthly reports on February 8, 2012. Debtors’ monthly reports for January 2012 were timely filed. Mr. Whetten filed his periodic reports for the Burning Ridge entity in a similar, tardy fashion.

Not only were the monthly reports not filed on time, but they were not filed in a complete and accurate manner. The bankruptcy analyst for the UST’s office who dealt with Debtors’ cases testified that the monthly reports Debtors filed in 2011 were extremely deficient. They did not contain accounts payable and receivable information, a schedule of payments to professionals and postpetition taxes payable, or bank account reconciliations. The UST’s office contacted Debtors’ counsel by email and by phone regarding these deficiencies and to request other necessary information, but received no response for weeks. It was not until February 2012, after the UST had filed a certificate of contested matter in regard to this Motion to Dismiss and nearly one year into these cases, before the Debtors attempted to fully meet their reporting requirements. The Debtors’ failure to provide timely, accurate information prevented the UST from effectively monitoring Debtors’ cases and ensuring Debtors’ compliance with the Code.

Debtors did not dispute the UST’s version of events. Mr. Whetten’s only excuse was that he was busy running RCI’s business. The Court believes that Mr. Whet-ten has been extremely busy. He testified that he has been working approximately 15 hours per day, because he eliminated certain staff positions and absorbed that work himself. Nevertheless, this “excuse” is unavailing.

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Cite This Page — Counsel Stack

Bluebook (online)
473 B.R. 380, 2012 WL 2018259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-whetten-cob-2012.