Beneath The Trees, LLC

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WILMINGTON DIVISION
IN RE:
BENEATH THE TREES, LLC, 07-01664-8-JRL
Debtor. Chapter 11
______________________________________________________________________________
ORDER
This case is before the court on the United States’ motion to appoint a Chapter 11 trustee. The
court conducted a hearing on this matter on July 12-13, 2007 in Raleigh, North Carolina, and July 19,
2007 in Wilmington, North Carolina.
The United States filed the motion seeking the court to appoint a Chapter 11 trustee, pursuant
to 11 U.S.C. § 1104(a)(1), (a)(2), and (a)(3), on the basis of gross mismanagement, incompetence,
unauthorized use of cash collateral, failure to comply with court orders, failure to make required post-
petition tax deposits, conflicts of interest, dishonesty, and possible fraud. “The appointment of a
trustee in a Chapter 11 case is an extraordinary remedy and the party seeking the appointment bears
the burden of proof.” In re Sovereign Estates, Ltd., 104 B.R. 702, 704-05 (Bankr. E.D. Pa. 1989). The
court has discretionary authority to determine whether a debtor’s conduct rises to a level sufficient
SO ORDERED.
SIGNED this 27 day of July, 2007.
________________________________________
J. Rich Leonard
United States Bankruptcy Judge
____________________________________________________________
Case 07-01664-8-JRL Doc 104 Filed 07/27/07 Entered 07/27/07 11:26:03 Page 1 of 2

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to warrant the appointment of a trustee. Committee of Dalkon Shield Claimants v. A.H. Robins Co.,
Inc., 828 F.2d 239, 242 (4t h Cir. 1987). “There is a strong presumption that a debtor remains in
possession absent a showing of need.” In re General Oil Distributors, Inc., 42 B.R. 402, 409 (Bankr.
E.D.N.Y. 1984). This is consistent with “the overriding philosophy of Chapter 11, which is to give
the debtor a second chance.” A.H. Robins Co., 828 F.2d at 240-41.
After carefully considering the exhibits and testimony provided at the hearing, the court does
not find cause to appoint a trustee at this time. The court announced its findings of fact and conclusions
of law at the close of the hearing. Based on the foregoing, the court denies the United States’ motion
to appoint a Chapter 11 trustee without prejudice.
END OF DOCUMENT
Case 07-01664-8-JRL Doc 104 Filed 07/27/07 Entered 07/27/07 11:26:03 Page 2 of 2