Pioneer Liquidating Corp. v. United States Trustee (In Re Consolidated Pioneer Mortgage Entities)

248 B.R. 368, 4 Cal. Bankr. Ct. Rep. 54, 2000 Cal. Daily Op. Serv. 3684, 2000 Daily Journal DAR 5011, 2000 Bankr. LEXIS 492
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedApril 11, 2000
DocketBAP No. SC-99-1158-MaPRy. Bankruptcy No. 91-00214-M11
StatusPublished
Cited by27 cases

This text of 248 B.R. 368 (Pioneer Liquidating Corp. v. United States Trustee (In Re Consolidated Pioneer Mortgage Entities)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pioneer Liquidating Corp. v. United States Trustee (In Re Consolidated Pioneer Mortgage Entities), 248 B.R. 368, 4 Cal. Bankr. Ct. Rep. 54, 2000 Cal. Daily Op. Serv. 3684, 2000 Daily Journal DAR 5011, 2000 Bankr. LEXIS 492 (bap9 2000).

Opinions

OPINION

MARLAR, Bankruptcy Judge.

OVERVIEW

Appellant Pioneer Liquidating Corporation (“PLC”) was formed in 1992 to imple[371]*371ment the confirmed Joint Plan in the consolidated debtors’ bankruptcy case. In 1998, the bankruptcy court granted the United States Trustee’s motion to convert the case to chapter 7,1 a motion that was prompted, in part, by the investor claimants’ dissatisfaction with their distributions to date. The conversion order, among other things, required PLC to file accountings of its receipts and disbursements. PLC contends that the bankruptcy court abused its discretion by converting the case for cause, and that PLC was an independent corporation which was not answerable to the court. We are not persuaded by PLC’s arguments, and AFFIRM.

FACTS

A. The Joint Plan

On January 9, 1991, six debtors filed voluntary petitions for relief under chapter ll.2 Consolidated Pioneer Mortgage Entities (“Debtor”) was the umbrella name for the debtors whose cases were substantively consolidated. Prepetition, Debtor sold fractionalized interests in promissory notes and security agreements or deeds of trust to approximately 2,800 investors. ■ At the time of the bankruptcy, the investors were fragmented, and disputes arose concerning their expected returns.

The Debtor and the Official Creditors’ Committee filed a Joint Plan of Reorganization, as Amended, (“Joint Plan”). One of the purposes of the reorganization was to resolve differences among the fragmented investors and Debtor by treating all investors equally and by operating independently of the conflicting investor factions. Thus, PLC was created under the Joint Plan to take title to all of the estate assets and claims, including claims against third parties. Article 5 of the Joint Plan provided that title to all the investor interests and assets of the estate “shall automatically vest in the Liquidating Corporation as of the Effective Date.” Joint Plan at 23.

The investors were not given any ownership or voting interest in PLC. The Joint Plan called for the voluntary transfer to PLC of any and all investors’ interests in the notes and deeds of trusts as well as any proceeds thereof, in exchange for a right to payment from PLC, to be satisfied from PLC’s assets based on each investor’s net loss.

PLC consisted of a seven-member board of directors, whose members were authorized to serve for five years, or longer with court approval. The directors were also shareholders in the new corporation. PLC was given the authority to compensate its CEO, directors, and employees, and by the time of this appeal, it had expended hundreds of thousands of dollars on salaries and attorneys’ fees.

The Joint Plan defined PLC as the “Liquidating Corporation ... formed to operate in a manner to implement and fulfill the purposes of the Plan,” which were: (1) to take title to, and liquidate all of the assets of the debtors and the alleged investor interests; (2) to resolve claims disputes; and (3) to disburse to creditors and investors their entitlements under the Joint Plan. Joint Plan at 2,11.

PLC’s broad duties and powers included, among other things, management and disposition of all estate properties, compromise of claims, examination of and objection to proofs of claims, and employment of professionals. PLC was further charged:

(e) To pursue all actions necessary or appropriate to collect indebtedness
# % * %
[372]*372(n) To investigate and/or pursue or terminate actions on behalf of the Estates of the Debtors where appropriate and cost-effective.
(o) To disburse to Creditors and Investors their entitlements under the Plan.

Joint Plan at 23-30.

In soliciting for the Joint Plan, PLC sent correspondence to the investors which projected a return on their claims of 35 cents on the dollar. In addition, PLC stated that the unconditional transfer of assets to PLC gave the investors the best chance to claim over $100 million in tax deductible losses immediately in 1992, by vesting the ownership of PLC solely in the board of directors.

The Joint Plan was overwhelmingly accepted by the investors, and was confirmed on June 19, 1992. Post-confirmation, the six debtors were dissolved under California law.

B. Post-Confirmation Activity

The disclosure statement and Joint Plan did not guarantee a specific amount of distribution to the investors. The parties in interest understood that “the whole basis of this plan is an opinion ... an estimate of what could be done by this liquidating entity.” Transcript of May 5, 1992 hearing on Disclosure Statement at 60.

The method of payment to the investors was to be by a pro rata distribution of the proceeds from the liquidation of Debtors’ assets that were not otherwise utilized or expended to implement the Joint Plan, such as those needed for operating expenses. Following an initial distribution, investors who voted for the Joint Plan were to receive payments as soon as the amount of unrestricted available cash equaled or exceeded $1,000,000. PLC was also required to place all proceeds on account of non-electing investors into an interest-bearing trust account.

Article 12 of the Joint Plan expressly provided for the court’s retention of broad jurisdiction, including, in paragraph (G), that the bankruptcy court would retain jurisdiction over “all controversies, suits and disputes that may arise in connection with the interpretation, enforcement or consummation of this Plan, including, without limitation, the actions of the Board of Directors and the shareholders of the Liquidating Corporation.”

At the time of plan confirmation, Debtors’ assets were valued at approximately $80 million. Within the first five years of the Joint Plan, virtually all existing assets had been liquidated. PLC distributed more than $21.6 million to the investors. In addition, the investors had been able to claim deductible losses of more than $100 million in 1992. PLC had also made the required distribution to the general unsecured creditors, and the final distribution to that class was approved by the bankruptcy court on September 30,1994.

Still, PLC anticipated a future income from its largest potential asset — a pending, estimated $125 million dollar lawsuit brought by PLC against San Diego Trust & Savings Bank and its successors in interest by merger, First Interstate Bank of California and Wells Fargo Bank (“the bank litigation”). These claims arose pre-confirmation.3

In addition, PLC anticipated a benefit to the investors from reported losses in connection with the disposition of its assets, including a federal net operating loss (“NOL”) carryover of approximately $31.3 million on its federal income tax return for fiscal year ending June 30, 1996. PLC [373]*373alleged that the NOL could result in a tax savings of more than $12.1 million.

Due to the nature of the payments made upon liquidation of assets, over the years of the Joint Plan’s existence, the investors and the United States Trustee made certain requests of PLC to provide financial information.

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248 B.R. 368, 4 Cal. Bankr. Ct. Rep. 54, 2000 Cal. Daily Op. Serv. 3684, 2000 Daily Journal DAR 5011, 2000 Bankr. LEXIS 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pioneer-liquidating-corp-v-united-states-trustee-in-re-consolidated-bap9-2000.