Official Comm. of Unsecured Creditors v. Moultrie (In re Moultrie)

586 B.R. 498
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedJune 14, 2018
DocketCASE NUMBERS BANKRUPTCY CASE 17–11208–WHD
StatusPublished
Cited by2 cases

This text of 586 B.R. 498 (Official Comm. of Unsecured Creditors v. Moultrie (In re Moultrie)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Official Comm. of Unsecured Creditors v. Moultrie (In re Moultrie), 586 B.R. 498 (Ga. 2018).

Opinion

W. Homer Drake, U.S. Bankruptcy Court Judge

Before the Court is the Official Committee of Unsecured Creditors' (hereinafter the "Committee") and Allan Lamport's, filing pro se , Motions To Convert Chapter 11 Case to Chapter 7 (hereinafter the "Motions") filed in the above-captioned proceeding. Upon proper service and notice to all parties, the matter came before the Court for hearing on May 30, 2018. The Committee's Counsel, Mr. Lamport, United States Trustee, and Debtor's Counsel were present at the hearing. At the conclusion of the hearing, after presentation of arguments by the aforementioned parties, the Court took the matter under advisement.

Background

The instant Chapter 11 case was filed on June 6, 2017. The Debtor is a non-business individual who owns a majority interest in Facility Design Group (hereinafter "FDG"), where Debtor is employed as the sole, although unlicensed, engineer. FDG has not been profitable for several years. Debtor has not received a regular salary from FDG during this case. However, Debtor has sold the majority of his real property assets to satisfy creditor obligations.

On February 5, 2018, Debtor's Counsel filed a Motion to Withdraw as Attorney of Record. Debtor's Counsel informed the Court that Debtor had participated in an undisclosed post-petition sale of estate property. On April 20, 2017, Debtor and Debtor's wife (the Sellers) jointly entered into a Timber Sales Contract with Cox Land Timber Inc. (the Buyer) allowing Cox to harvest timber from Debtor and Debtor's wife's real property. Subsequent to the commencement of the instant case, Cox harvested the timber and made a payment of over $35,000 to Debtor's wife only. The Debtor did not disclose any of this information in any bankruptcy filings. On February 12, 2018, Debtor, after finding new Counsel, amended his schedules to *501disclose the Timber Sales Contract and filed a Motion to Assume Executory Contract Nunc Pro Tunc , which came before the Court for hearing on March 7, 2018.

At the hearing, it came to light that Debtor's wife, not the Debtor, had signed Debtor's name on the contract. Debtor testified that this was a common practice when Debtor and Debtor's wife's jointly owned property was involved, and that Debtor was aware of the Timber Sales Contract sometime before the harvesting of the timber occurred. Although the proceeds were property of the estate, Debtor's wife turned over only half of the proceeds to the Debtor and retained the rest. At the conclusion of the hearing, the Court issued a ruling from the bench that the Timber Sales Contract, although an undisclosed post-petition sale of property of the estate, would be deemed assumed upon remittance by Debtor's wife of the balance of the sale into the Debtor-in-Possession (hereinafter "DIP") account.

On April 25, 2018, the Committee filed the instant Motion requesting the Court convert the case from Chapter 11 to Chapter 7. On April 27, 2018, Allan Lamport, acting pro se , also filed a Motion to Convert.1 The Movants believe that cause for conversion exists because allowing the case to continue in Chapter 11 will result in continuing loss to the estate. The only significant asset that can be used to satisfy the claims of creditors is the Debtor's residential property (hereinafter the "Residence"), which Debtor has been trying to sell since 2010. Movants assert that there is a continuing loss or diminution of the estate because the Debtor resides at the Residence rent and adequate protection payment free, interest on claims secured by the Residence continue to erode equity, and growing administrative expenses will consume the proceeds of the sale. Movants contend that the above facts, coupled with the Debtor's inability to contribute income to the estate, cause diminution to the estate. The Movants also believe that there is no reasonable likelihood of rehabilitation due to Debtor's inability to contribute income to the case in that he has not received a regular salary since the filing of this case.

Additionally, they allege that cause for conversion exists because of the Debtor's gross mismanagement of the estate. During prior litigation involving the Debtor's divorce, the Debtor identified property of some value, but such property is not disclosed on the Debtor's schedules.2 Also, the Movants assert that Debtor's wife has not turned over the proceeds from the Timber Sale Contract, an assertion that the Debtor does not dispute.

On May 9, 2018, the Debtor filed his Response to the Motions. The Debtor claims that the value of the Residence is not diminishing because he maintains the Residence by keeping the Residence insured and by expending time and money performing general upkeep of the Residence.3 The Debtor believes that the Movants' concern regarding administrative expenses are ill founded since administrative expenses will exist and increase regardless of whether the case is in Chapter 7 or 11. Further, the Debtor insists that the lack of income is not an issue because he uses social security income to pay certain post-petition *502expenses, including domestic support obligations and property taxes. Addressing the likelihood of rehabilitation, the Debtor testified that his business has recently been awarded two contracts that will allow him to receive a salary for possibly the next 6 months. He believes this income will be enough to outweigh any deficiencies in monthly income/expenses that have been disclosed in monthly operating reports. Furthermore, he believes that FDG will acquire additional contractual bids that may result in funds adequate to cure accruing deficiencies.

In response to Movants' allegation of mismanagement of the estate, the Debtor contends that his conduct in turning over half of the proceeds refutes Movants' concerns and is evidence of his good faith in the matter. The Debtor relies on the Court's March 7th ruling allowing assumption of the Timber Sales Contract as evidence that his actions in that matter do not support any allegation of mismanagement of the estate.

Upon consideration of the parties' motions and testimony presented at the hearing, the Court, for the reasons stated below, finds that the Debtor's Chapter 11 case should be converted to Chapter 7.

Discussion

This contested matter is a core proceeding under 28 U.S.C. § 157(b)(2)(A) over which this Court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334. Venue is proper pursuant to 28 U.S.C. § 1408.

The Court, on request of a party in interest, and after notice and hearing, shall for "cause" convert or dismiss a case, whichever is in the best interest of creditors and the estate.

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Cite This Page — Counsel Stack

Bluebook (online)
586 B.R. 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/official-comm-of-unsecured-creditors-v-moultrie-in-re-moultrie-ganb-2018.