MB Squared, Inc. v. Encotech, Inc. (In re MB Squared, Inc.)

171 B.R. 765, 1994 Bankr. LEXIS 2120
CourtDistrict Court, W.D. Pennsylvania
DecidedAugust 17, 1994
DocketBankruptcy No. 93-21258-JKF; Motion No. GWS-17
StatusPublished

This text of 171 B.R. 765 (MB Squared, Inc. v. Encotech, Inc. (In re MB Squared, Inc.)) is published on Counsel Stack Legal Research, covering District 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
MB Squared, Inc. v. Encotech, Inc. (In re MB Squared, Inc.), 171 B.R. 765, 1994 Bankr. LEXIS 2120 (W.D. Pa. 1994).

Opinion

MEMORANDUM OPINION

JUDITH K. FITZGERALD, Bankruptcy Judge.

The matter before the court is a motion filed on behalf of Debtor for reconsideration of our order of March 24, 1994, denying confirmation of the joint plan of reorganization filed by Debtor and the law partnership of Marriner and Crumrine on feasibility grounds. Objections to the motion were filed by Encotech, Inc., Bernard Lalli, Rosalyn Lalli, the Middle Monongahela Industrial Development Association, Inc. (MIDA), and the Pennsylvania Industrial Development Au[766]*766thority (PIDA). An evidentiary hearing on the motion for reconsideration was held on May 31 and June 1, 1994. For the reasons which follow, we will deny the motion.

Pursuant to our finding that the plan of reorganization1 as submitted was infeasible, we appointed an examiner, Mark M. Gleason, a certified public accountant. Gleason filed 30-day and 60-day reports of his findings and recommendations. The 60-day report was filed May 26, 1994. It reflects the following:

1. Accounts receivable of $143,626 are currently uncollectible. The uncollectible amount includes a large (approximately $60,-000) receivable from American Bradford Corporation (ABC), Debtor’s affiliate. (We note that Debtor’s financial statements do not recognize any of the receivables as uncollectible.)

2. Debtor’s reported inventory balance in the amount of $84,684 was not adjusted on an on-going basis throughout the chapter 11 and should be reduced on Debtor’s books to the sum of $5,000 to reflect current status. The examiner also suggested that a current physical inventory be conducted.

3. Because of the situation with the inventory, Debtor’s assessment of the cost of goods sold was understated and gross profits were overstated.

4. Balance sheet asset and liability accounts on Debtor’s monthly financial reports filed with the court were inconsistent with financial reports issued by Debtor’s accountant. However, the examiner was able to reconcile the differences. In the examiner’s opinion, Debtor requires assistance (perhaps an employee with some accounting expertise) to maintain records, prepare budgets, and do cost accounting.

5. As a result of the above, as well as Debtor’s failure to account for inter-company transactions with ABC, the financial projections Debtor submitted in connection with its disclosure statement were based on improper assumptions. Assumptions need to be adjusted in the areas of sales, cost of goods sold, other expenses and asset balances.

6. Debtor is in need of a better budgeting process and job cost system to provide management with financial information, to control costs, and to assist in bidding and pricing future jobs.

7. Because Debtor’s sales are concentrated among only a few large customers, Debtor must analyze and plan for the impact of a potential loss of any one of them.

8. Various types of insurance are necessary and Debtor should provide proof that such insurance is in place.2

9. Debtor should report and document transactions between it and related parties.

10. Monthly and year-to-date income statements should be part of the financial statements prepared by Debtor’s outside accountant.

11. Depreciation expense or some similar category should be included in financial statements as a method of projecting future capital expenditures.

12. A comprehensive accounts receivable policy with respect to credit standards and terms is needed in order to facilitate prompt payment by customers.

Debtor’s motion for reconsideration is based on various grounds and at the eviden-tiary hearing on May 31 and June 1, 1994, Debtor’s principal, Martin Doctorick, testified that, in his opinion, certain receivables are collectible. Debtor also produced financial statements with adjustments. Debtor characterizes the evidence it submitted at this hearing as unchallenged. In addition, Debtor presented “new evidence” in support [767]*767of its motion for reconsideration. This evidence consisted of Doctorick’s agreement to reduce his annual salary from $60,000 to $42,000 which will result in a decrease in monthly expenses including salary and payroll taxes and increased monthly net income for Debtor. Debtor also proposed changes in stock ownership. In addition, Debtor cites various “equitable considerations” which are relevant to the instant matter only insofar as they evidence litigation in which Debtor is or may become involved, and the corresponding effect such litigation may have on a plan.

MIDA and PIDA object to reconsideration on the grounds that this court heard and fully considered the evidence submitted at the plan hearing conducted on March 14 and 15, 1994. These creditors also argue that postpetition accounts receivable are uncol-lectible and that Debtor’s average net monthly income is decreasing.

Encotech, Inc., and the Lallis object to Debtor’s motion on various grounds. They first challenge Debtor’s assertion that Doc-torick’s testimony must be accepted without question because no witnesses contradicted it. Encotech and the Lallis describe Doctor-ick’s testimony on behalf of Debtor as inconsistent and inaccurate and find significant Debtor’s failure to timely file a response to the examiner’s findings and recommendations in light of a court order which set a date for the filing of a written response.3

Insofar as it is alleged that there was no challenge to Doctoriek’s testimony, we note that the examiner testified that in his opinion Doetorick’s assumptions and conclusions were faulty. In addition, § 1129 requires that before confirming a proposed plan of reorganization a court must find that the plan is feasible. In order to do so the court must take into consideration all the facts and circumstances of the matter before it. Our order of March 24, 1994, sets forth the reasons for denying confirmation of Debtor’s plan and we incorporate that order herein. Nothing presented at the evidentiary hearing was sufficient to change those findings based upon the plan Debtor presented for confirmation. In fact, most of the testimony and evidence offered by Debtor was relevant only to modifications to the plan that Debtor would propose, but Debtor has not filed a disclosure statement or plan which incorporates the proposals. Debtor has filed a proposed modification to the plan which offers unsecured creditors the option to accept stock in lieu of cash under the plan. This modification was filed to address a concern over the current deadlock on Debtor’s board due to a 50-50 stock ownership split. The modification was filed after Debtor solicited votes on the plan and after the order denying confirmation of the plan was entered. ' Debt- or filed a certificate of service indicating service of the modification on all creditors. However, we cannot confirm a modified plan with respect to which insufficient disclosures as to the effect of the modifications have been made and as to which creditors have not been afforded an opportunity to be heard.

The examiner, appointed because we found the plan Debtor submitted to its creditors to be infeasible, made the recommendations recited above, among others. Under the current plan, the success of the production or machine end of Debtor’s business depends on Doetorick who is the party with the necessary knowledge of that side of Debtor’s business.

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Bluebook (online)
171 B.R. 765, 1994 Bankr. LEXIS 2120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mb-squared-inc-v-encotech-inc-in-re-mb-squared-inc-pawd-1994.