Darby General Contracting, Inc.

UNITED STATES BANKRUPTCY COURT 	FOR PUBLICATION
EASTERN DISTRICT OF NEW YORK
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In re:
Case No. 08-74755-AST
Darby General Contracting, Inc.
d/b/a Darby Glass Company, 	Chapter 11
Debtor.
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APPEARANCES:
Ronald D. Weiss, Esq.
734 Walt Whitman Road
Suite 203
Melville, New York 11747
Diana G. Adams, Esq.
United States Trustee
Office of the United States Trustee
Alfonse M. D’Amato Federal Courthouse
560 Federal Plaza - Room 560
Central Islip, New York 11722-4437
MEMORANDUM OPINION AND ORDER DENYING DEBTOR’S MOTION TO
EXTEND TIME TO CONFIRM A PLAN OF REORGANIZATION
AND DENYING EMERGENCY MOTION TO RECONSIDER
Issues Before the Court and Summary of Ruling
Debtor, Darby General Contracting, Inc. (“Debtor”) filed a Motion to Extend
Time to Confirm a Plan of Reorganization Pursuant to Sections 1129(e) and
1121(e)(3) of the Bankruptcy Code (the “Confirmation Deadline Motion”) on July
21, 2009. [dkt item 55 ] Debtor sought an emergency hearing on the
Confirmation Deadline Motion, pursuant to E.D.N.Y. LBR 9077-1. On July 21,
2009, this Court entered an Order that the Confirmation Deadline Motion would
be heard on August 4, 2009, at 2:00 p.m. [dkt item 56]
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The hearing was held as scheduled, and for the reasons stated on the
record, the Confirmation Deadline Motion was denied. That denial was “So
Ordered” on the record and appears on the August 4, 2009, written entry on the
Court’s CM/ECF docket.
On August 5, 2009, Debtor filed an Emergency Motion to Authorize/Direct
an Expedited Hearing Prior to August 8, 2009 to Reconsider the Debtor’s
Previous Order to Show Cause Requesting an Extension of Time to Confirm a
Plan of Reorganization Pursuant to Sections 1129(e) and 1121(e)(3) of the
Bankruptcy Code (the “Motion to Reconsider”). [dkt item 61] Because the Motion
to Reconsider presents no contrary controlling decisions and no data that the
Court overlooked in denying the Confirmation Deadline Motion, and simply seeks
to reargue what could have been argued on August 4, 2009, the Motion to
Reconsider will also be denied.
Jurisdiction
This Court has jurisdiction over this core proceeding pursuant to 28 U.S.C.
§§ 157(b)(2)(A) and (L), and 1334(b), and the Standing Order of Reference in
effect in the Eastern District of New York.
Findings of Fact and Conclusions of Law
The Court makes the following findings of fact and conclusions of law, in
accordance with Rule 7052 of the Federal Rules of Bankruptcy Procedure.
Procedural History
Debtor filed a petition for relief under Chapter 11 with this Court on
September 4, 2008 (the “Petition Date”). Debtor made a timely election to be
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treated as a “small business debtor” within the meaning of Section 101(51D) of
the Bankruptcy Code. The election was made as a part of Debtor’s voluntary
petition. [dkt item 1]
Debtor did not initially file its small business balance sheet, its small
business cash flow statement, its small business statement of operations, or its
small business tax return. Debtor did, however, file its schedules on the Petition
Date. [dkt item 1] Debtor filed amended schedules on October 1, 2008 [dkt item
15], and again on November 6, 2009. [dkt item 18] Debtor filed a cash flow
statement on September 26, 2008. [dkt item 13]
On October 3, 2008, Debtor filed a Motion denominated as Motion to
Assume Nonresidential Lease for Real Property (the “Assumption Motion”). [dkt
item 16] The Assumption Motion related to Debtor’s lease of its primary business
location (the “Lease”). However, Debtor attached the Assumption Motion to a
Notice of Motion, which represented that the Assumption Motion was actually an
expedited Motion to Extend Time to Assume or Reject Lease to Non-Residential
Real Property (the “Notice”). [dkt item 16]
On October 14, 2008, Debtor filed a letter asking the Court to adjourn the
hearing on the Assumption Motion, on consent of the United States Trustee, to
December 3, 2008. Debtor’s request for adjournment was granted.
On December 2, 2008, Debtor asked to again adjourn the hearing on the
Assumption Motion. Debtor asked for an adjournment of several months, “as far
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out as possible.1 Based on Debtor’s request, the hearing on the Assumption
Motion was adjourned until February 4, 2009.
On December 12, 2008, Debtor filed a Motion to Extend Time to Assume
Lease for Non-Residential Property (the “Extension Motion). [dkt item 24] The
Extension Motion also addressed the Lease, and had an attached stipulation with
the landlord that extended the time to seek to assume or reject the lease for one
hundred and twenty (120) days from the date of this Court’s approval (the
“Stipulation”). On January 21, 2009, this Court approved the Stipulation. [dkt
item 27]
On February 4, 2009, Debtor appeared at the hearing on the Assumption
Motion. At that hearing, Debtor requested a further adjournment because it was
still evaluating whether to assume the Lease. In light of the Stipulation, this
Court granted a further adjournment, and rescheduled a hearing on the
Assumption Motion for April 15, 2009.
On April 15, 2009, Debtor appeared at the hearing on the Assumption
Motion. Debtor again requested a further adjournment, and like its prior
requests, Debtor stated it was still evaluating whether to assume the Lease. The
time for assumption or rejection agreed to in the Stipulation would expire in May
2009. The outside period of 210 days which this Court could allow for Debtor to
seek assumption or rejection under § 365(d)(4) without the landlord’s consent
1 This Court’s published procedures in effect prior to and in December 2008 allowed requests for
adjournments to be submitted by email to the courtroom deputy, but such requests are required to be
submitted no less than two business days prior to the scheduled hearing.
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had already run before the April 15 hearing. Therefore, this Court granted a brief
adjournment until May 6, 2009. In addition, due to the lack of progress toward
confirmation in this case, and due to the Debtor’s failure to file operating reports
as and when due, on April 15, this Court issued an Order (“April 15 Order”)
setting a general case status conference for May 6, 2009 (“May 6 Hearing”). [dkt
item 35] The April 15 Order provided as follows:
ORDERED, that the Debtor shall file with the Court, and
serve upon the Office of the United States Trustee, monthly
operating reports during the pendency of this case; that the
operating reports shall be in the form prescribed by the
Office of the United States Trustee’s Operating Guidelines
and Reporting Requirements for Debtors-in-Possession and
Trustees for cases pending in this District; and that the
operating reports shall be served and filed on or before the
20th day of the month following the reporting period; and it is
further
ORDERED, that unexcused failure to comply with the
foregoing 	paragraphs 	of 	this 	Order 	may 	constitute
cause 	for 	conversion 	of 	the 	case 	to 	Chapter 	7 	or
dismissal of the case pursuant to 11 U.S.C. § 1112[.]
[dkt item 35](emphasis in original).
At the May 6 Hearing, this Court reminded Debtor’s counsel of the strict
time requirements affecting confirmation deadlines in this small business case,
and scheduled a further status hearing for July 15, 2009, at 9:30 am. This Court
also directed Debtor to file a Plan and Disclosure Statement in time for same to
be considered by the Court on July 15, 2009, and also set time aside on July 15
for a confirmation hearing. This Court further instructed Debtor to submit a copy
of its disclosure statement upon filing to the office of the United States Trustee
(“UST”) for consideration, after which this Court would consider conditional
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approval in accordance with Bankruptcy Rule 3017.1.
On June 5, 2009, per this Court’s instruction, the Debtor filed its proposed
Plan of Reorganization (“Plan”) [dkt item 43], and an accompanying Disclosure
Statement (“Disclosure Statement”). [dkt item 44]
On June 19, 2009, Debtor filed an Amended Disclosure Statement
(“Amended Disclosure Statement”)[dkt item 53], as well as an Affidavit Re:
Extension of Deadline to Obtain Conditional Approval of U.S. Trustee for
Disclosure Statement. [dkt item 51] In that Affidavit, Debtor requested to be
given until June 22, 2009, to obtain the consent of the UST to conditional
approval of its Amended Disclosure Statement because it had “just filed an
amended disclosure statement with projections and a liquidation analysis,” and
that Debtor needed this time because it was delayed by its bookkeeper. Debtor’s
initial Disclosure Statement was completely lacking in any projections and
contained only a minimal liquidation analysis. The lack of projections was
astonishing, given that Debtor’s Plan called for payments to be made over a five
(5) year period following confirmation. Further, Debtor’s request to be given until
June 22 to obtain UST consent was difficult to fathom, since a June 22
conditional approval of the Amended Disclosure Statement would not provide the
required twenty-five (25) days’ notice of a July 15 hearing on final approval of the
Disclosure Statement and confirmation of the Plan. See FED . R. BANKR . P.
2002(b), 3017(d), and 3017.1(c).
On July 8, 2009, Debtor requested an adjournment of the July 15 hearing.
The stated reason for this adjournment request was because Debtor still had not
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provided the information requested by the UST in order for the UST to state a
lack of objection to the Amended Disclosure Statement, and that Debtor had
tentatively agreed to a meeting with the UST for July 17, 2009. Debtor requested
an adjournment of the status conference until July 28, 2009.
This Court denied this adjournment request and required Debtor to appear
on July 15, 2009.
At the July 15 hearing, Debtor’s counsel still seemed to be unaware of the
deadlines imposed by the Bankruptcy Code for obtaining confirmation of a plan
of reorganization in a small business case. This Court reminded counsel of the
deadlines, and also recommended that Debtor’s counsel read this Court’s
published opinion on this particular topic, In re AMAP Sales & Collision, Inc., 403
B.R. 244 (Bankr. E.D.N.Y.2009), as well the opinion in In re Save Our Springs
(S.O.S.) Alliance, Inc., 393 B.R. 452 (Bankr. W.D. Tex. 2008), which includes
Judge Gargotta’s extensive analysis of the timing mechanics and other important
issues affecting confirmation in a small business case. This Court admonished
Debtor’s counsel that if he intended to seek an extension of the Debtor’s deadline
to obtain confirmation, he needed to act with all dispatch, and needed to present
evidence from which this Court could find that an extension was warranted.
Notwithstanding the events of July 15, 2009, Debtor waited until July 21,
2009, to file the Confirmation Deadline Motion seeking an extension of the
confirmation deadline. The Confirmation Deadline Motion was, therefore, filed on
the forty-sixth (46th) day following the June 5, 2009, filing of the Plan. In
addition, as cause for the extension, Debtor recited only that it “is earnest in
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moving toward confirmation and per the representation of the U.S. Trustee
appears likely to have a plan confirmed[.]” [dkt item 55 ¶ 5] The notice of the
Confirmation Deadline Motion initially provided by Debtor on July 21 was the
mailing of the motion only to the UST, the Debtor, and two creditors (Utica Mutual
and Caterpillar Finance) [dkt item 57]. However, Debtor did provide
supplemental service on the same day by mail to “[a]ll unsecured creditors.” [dkt
item 58]
This Court also notes that, even though this case was filed on September
4, 2008, it was not until late July 2009 that Debtor requested this Court set a bar
date for the filing of claims. The initial bar date order submitted by Debtor was
inadequate. On July 30, 2009, that Debtor filed a motion to set a bar date (“Bar
Date Motion”). [dkt item 59] However, the Bar Date Motion incorrectly referred to
a non-existent “Rule 23" of the Eastern District of New York Local Rules, and
contrary to published procedures, 2 referred to a self-selected deadline of
September 3, 2009, for objections to the Bar Date Motion to be filed.
Debtor’s Request for Extension of the Confirmation Deadline
In the Confirmation Deadline Motion, Debtor alleged, inter alia, as follows:
1. On September 4, 2008 (the “Filing Date”), the Debtor, as a
“small 	business 	debtor” 	within 	the 	meaning 	of 	section
101(51D) of the Bankruptcy Code, (the “Code”), filed with
this 	Court 	a 	voluntary 	petition 	under 	chapter 	11 	of 	the
Bankruptcy Code. As a small business debtor, the Debtor is
subject to the provisions of the Code that are applicable in a
“small business case”. See Section 101(51C) of the Code.
2 This Court considers applications to set a bar date in a Chapter 11 case ex parte .
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2. The Debtor has continued in the possession of its assets
and the operation of its business as a debtor-in-possession.
No Creditors’ Committee has been appointed in the case.
3. Section 1121(e) of the Code requires that the Debtor file
its “plan and disclosure statement not later than 300 days
after the date of the filing of the order for relief.” On July 1,
2009 would have been the 300th day after the filing of the
petition. Prior to the 300th day, on June 5, 2009, per this
Court’s instruction, the Debtor filed its proposed disclosure
statement and plan of reorganization (Doc. 43) (the “Plan”),
and an accompanying disclosure statement (Doc. 44) (the
“Disclosure Statement”).
4. Under Section 1129(e) of the Code, the Plan must be
confirmed within 45 days after it is filed “unless the time for
confirmation 	is 	extended 	in 	accordance 	with 	section
1121(e)(3).” On August 15, 2009 would be the 345th day
after the filing of the petition.
5. The Code allows an extension of the time for confirmation.
Section 1121(e)(3) provides that the 45 days period may be
extended only if –
(a) the debtor, after providing notice to parties in
interest 	(including 	the 	United 	States 	Trustee),
demonstrates by a preponderance of the evidence
that it is more likely than not that the court will confirm
a plan within a reasonable time;
(b) 	a 	new 	deadline 	is 	imposed 	at 	the 	time 	the
extension is granted; and
(c) the order extending time is signed before the
existing deadline has expired.
The 	45 	day 	period 	to 	obtain 	confirmation 	of 	the 	Plan
presently expires on August 15, 2009 and because the
Debtor is earnest in moving toward confirmation and per the
representation of the U.S. Trustee appears likely to have a
plan confirmed the Debtor requests an extension of time to
confirm its plan.
6. By this Motion, and for the reasons set forth below, the
Debtor respectfully requests that the Court enter an Order
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extending the Debtor’s time to confirm the Plan for ninety
(90) days from the present deadline of August 15th, 2009
until approximately November 12, 2009.
[dkt item 55](emphasis supplied by the Court).
Debtor’s lead counsel, Ronald D. Weiss, Esq., did not appear at the
August 4, 2009, hearing. Instead, Mr. Weiss sent an associate of his firm who,
while well meaning, admitted he was unfamiliar with all of the facts of the case,
had been handed the file that afternoon, and mostly practiced in chapter 7 and
chapter 13 cases. In addition, neither the principal nor any other agent of the
Debtor attended this hearing, and no evidence was submitted to support the
requested extension. The UST did attend and stated that it did not oppose the
extension.
The Court denied the extension on two grounds. First, that it was untimely
under Section 1129(e). Second, even if considered timely, Debtor failed to meet
its burden of proof under Section 1121(e)(3).
According to Debtor’s Plan, the Debtor’s primary creditors are the New
York State Department of Taxation and Finance (“NYS Tax”), the Internal
Revenue Service (“IRS”), Colonial Glass, and Ford Motor Credit.3 Debtor did not
list Caterpillar, Utica Mutual, or the landlord as creditors in its Plan. Without a bar
date, it is extremely difficult for the Court to gauge who the creditors are that are
likely to be affected by the Plan, and, therefore, whether confirmation is likely.
3 Although the “amended” affidavit of service on July 21, 2009 [dkt item 58], states that Debtor
served the Confirmation Deadline Motion on “all unsecured creditors,” it remains unclear whether it
included the creditors listed above, and these creditors are not separately listed on the service list.
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Further, Debtor’s Plan is internally inconsistent. Debtor’s Plan proposes in
Article VI to pay all of its secured, administrative, priority, and general unsecured
claims over five (5) years. However, Debtor’s Plan proposes in Article II to pay
the secured, administrative, and priority claims of NYS and IRS in full on the
effective date of the Plan. This internal inconsistency had not been reconciled by
an amended plan.
Legal Analysis
Debtor is a “small business debtor” within the meaning of Section
101(51D) of the Bankruptcy Code. In the 2005 amendments to the Bankruptcy
Code, 4 Congress added certain specific, time-sensitive provisions for small
business debtors seeking to confirm a plan or reorganization.5 In Section
1121(e)(1), the Code addresses the small business debtor’s time to file a plan
and disclosure statement, by first providing that only the debtor may file a plan for
the first 180 days after the date of the order for relief, but that the debtor must file
a plan within 300 days. 11 U.S.C. § 1121(e)(1). Under Section 1121(e)(2), the
180-day exclusivity period may be extended for cause, but only to a date which is
no more than 300 days after the date of the order for relief.
4 Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. No.
109-8, 119 Stat. 23 (2005).
5 The Bankruptcy Code and Rules also contain specific provisions governing approval of a
disclosure statement in a small business case. Under Section 1125(f), the Court may dispense with a
separate hearing on a disclosure statement by, inter alia, “finding that the plan itself provides adequate
information and that a separate disclosure statement is not necessary” (§ 1125(f)(1)), or by conditionally
approving a disclosure statement “on application of a plan proponent,” subject to final approval in
conjunction with the hearing on confirmation of the plan. § 1125(f)(3); FED. R. B ANKR. P ROC. 3017.1.
Adequacy of a small business disclosure statement is addressed in In re J.D. Mfg., Inc., No. 07-36751,
2008 WL 4533690 (Bankr. S.D. Tex. Oct. 2, 2008).
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Regardless of the date on which the plan is filed, the Court must confirm
an appropriate plan within forty-five (45) days after filing of the Plan, pursuant to
Section 1129(e), which provides as follows:
In a small business case, the court shall confirm a plan that complies with
the applicable provisions of this title and that is filed in accordance with
section 1121(e)(3) not later than 45 days after the plan is filed unless the
time for confirmation is extended in accordance with section 1121(e)(3).
28 U.S.C. § 1129(e).
Moreover, Section 1121(e)(3) provides as follows:
(3) the time periods specified in paragraphs (1) and (2), and the time fixed
in section 1129( e) within which the plan shall be confirmed, may be
extended only if-
(A) the debtor, after providing notice to parties (including the United
States trustee), demonstrates by a preponderance of evidence that it is
more likely than not that the court will confirm a plan within in a reasonable
amount of time;
(B) a new deadline is imposed at the time the extension is granted; and
(C) the order extending the time is signed before the existing deadline
has expired.
28 U.S.C. § 1121(e)(3).
In AMAP, this Court noted that limited case law has developed interpreting
Section 1121(e)(3), and, specifically, the evidence required for the Court to find
by “a preponderance of evidence that it is more likely than not that the court will
confirm a plan within in a reasonable amount of time.” AMAP, 403 B.R. at 247;
see also In re Save Our Springs (S.O.S.) Alliance, Inc., 388 B. R. 202, 229
(Bankr. W.D. Tex. 2008) (denying extension after a five-day confirmation trial).
As stated in AMAP, when the debtor fails to appear for the hearing on the
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extension request or fails to submit any evidence in support of the motion, the
court should deny the request:
[T]he debtor failed to appear and also failed to file any documents in
support of such an extension. As a consequence and as required by 11
U.S.C. § 1121(e)(3), no evidence meeting the preponderance standard
having been submitted, the court entered an Order denying extension of
confirmation deadline [-].
AMAP, 403 B.R. at 247 (citing In re Luther, No. 066-16303DK, 2007 WL 1063008
*2 (Bankr. D. Md. Mar. 22, 2007).
In this Court’s view, and as stated in AMAP, the plain language of Section
1121(e)(3) requires only that “the Court find by a preponderance of evidence that
it is more likely than not that the court will confirm a plan within a reasonable
amount of time, not necessarily the plan which is before the Court at the time of
hearing on the extension motion.” AMAP, 403 B.R. at 247 (emphasis in original).
Further, as also stated in AMAP, “the debtor is not required to put on a
confirmation trial in order to obtain an extension of time to obtain confirmation.”
Id. at 248.
However, Debtor must provide sufficient evidence for the Court to make
the required findings. Congress intended that bankruptcy courts be more active
in “judicial oversight of small business bankruptcy cases, which often are the
least likely to reorganize successfully.” H. COMM. ON THE JUDICIARY , BANKRUPTCY
ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005, H. Rep. No. 109-
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31, pt. 1, at 92 (2005) (the “Report”). 6 To obtain an extension, a debtor must
submit some evidence from which the Court can find that confirmation within a
reasonable amount of time is likely. At the August 4, 2009, hearing, Debtor was
unable to state what progress, if any, it had made with either NYS Tax or the
IRS.
This Court has fulfilled its function in this case by actively monitoring this
case, and by closely reviewing the evidence submitted by Debtor to support the
Confirmation Deadline Motion. 7 Debtor failed to submit any evidence from which
the Court could determine that the Court will confirm a plan within a reasonable
amount of time. Unlike the debtor in AMAP, the Debtor in this case simply has
not acted with the diligence required in a small business case, nor demonstrated
that it has made progress such that confirmation within a reasonable amount of
time is likely. On that alternative basis, the Confirmation Deadline Motion was
denied.
6 As cited in AMAP, in the Report, at page 19, Congress further stated as follows: “Most chapter
11 cases are filed by small business debtors. Although the Bankruptcy Code envisions that creditors
should play a major role in the oversight of chapter 11 cases, this often does not occur with respect to
small business debtors. The main reason is that creditors in these smaller cases do not have claims large
enough to warrant the time and money to participate actively in these cases. The resulting lack of creditor
oversight creates a greater need for the United States trustee to monitor these cases closely.
Nevertheless, the monitoring of these debtors by United States trustees varies throughout the nation.
S[enate Bill] 256 addresses the special problems presented by small business cases by instituting a
variety of time frames and enforcement mechanisms designed to weed out small business debtors who
are not likely to reorganize. It also requires these cases to be more actively monitored by United States
trustees and the bankruptcy courts.” AMAP, 403 B.R. at 248.
7 The Court also notes that it cannot ascertain if service was properly effected in accordance with
Section 1121(e)(3)(A).
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The Motion to Reconsider Will Also Be Denied.
While not citing to any statute or rule, Debtor’s Motion to Reconsider
should be and is treated under Rule 9023 of the Federal Rules of Bankruptcy
Procedure, which incorporates Rule 59 of the Federal Rules of Civil Procedure.
Generally, motions for reconsideration are not granted unless “the moving party
can point to controlling decisions or data that the court overlooked”—matters, in
other words, that might reasonably be expected to alter the conclusion reached
by the court. Rafter v. Liddle, 288 Fed. Appx. 768, 769 (2d Cir. 2008)(citing
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995)). Further, to the
extent that facts stated by Debtor in the Motion to Reconsider are not in the
original record, neither this Court nor any reviewing court on appeal need
consider same. Motions to reconsider under Bankruptcy Rule 9023, as motions
to reconsider under Federal Rule of Civil Procedure 59, “are not vehicles for
‘taking a second bite at the apple[.]’” Rafter, 288 Fed.Appx. at 769 (citing Sequa
Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.1998)). Facts that are not in the
record of the original hearing cannot be said to be facts that the court
“overlooked.” Rafter, 288 Fed. Appx. at 769. In its Motion to Reconsider, Debtor
has pointed to no facts which were overlooked by this Court in denying the
Confirmation Deadline Motion.
As for controlling decisions, Debtor cites only to In re JMC Outfitters Co.,
No. 08-314390-C, 2009 WL 2046043 (Bankr. W.D. Tex. May 25, 2009), as
authority that this Court may have overlooked. First, JMC Outfitters is not
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controlling precedent. Second, the court in JMC Outfitters did not reach a
contrary conclusion on the statutory contours of either Section 1129(e) or Section
1121(e)(3). The construction of the statute and the proper method of counting
the time periods for confirmation was not at issue in JMC Outfitters. While Judge
Clark did comment on the demands imposed on a small business debtor to
comply with its statutory requirement to confirm a plan within 45 days after the
plan is filed, he did not, as Debtor suggests, hold that the 45-day requirement
can be varied and extended to 345 days just because the plan is filed before the
expiration of the 300-day deadline to file a small business plan imposed by
Section 1121(e)(2). Debtor has misread JMC Outfitters, and therefore failed to
cite controlling contrary precedent.
Therefore, the Motion to Reconsider will also be denied.
ORDER
Based upon the foregoing, the Court has denied Debtor’s Confirmation
Deadline Motion, and denies Debtor’s Motion to Reconsider.
16
____________________________
Alan S. Trust
United States Bankruptcy Judge
Dated: August 14, 2009
Central Islip, New York
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