Rafik Youssef Kamell

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UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In re:
RAFIK YOUSSEF KAMELL,
Debtor(s).
Case No: 8:10-bk-15501-TA
Chapter: 11
AMENDED ORDER DENYING
CONFIRMATION OF DEBTOR’S FIRST
AMENDED CHAPTER 11 PLAN OF
REORGANIZATION
Date: April 21, 2011
Time: 11:00 AM
Location: 5B
This case involves the perplexing question of whether the “absolute priority rule”
survives the BAPCPA1 amendments to individual Chapter 11 proceedings. This question has
divided bankruptcy courts across the country. The court appreciates the learned and eloquent
opinions of some judges to the contrary. But this court finds that there is no good reason to
conclude that Congress intended to abrogate this long-standing and important centerpiece of
Chapter 11 jurisprudence based on the ambiguous language of the BAPCPA amendments.
1 Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. 109-8,119 Stat. 23 (2005).
FILED & ENTERED
MAY 04 2011
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	ngo
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The Chapter 11 debtor, Rafik Youssef Kamell, is a lawyer with an active personal injury
practice. The debtor also owns three real properties, his Whittier residence and two rental
properties, one in Anaheim and the other in Newport Beach. The confirmation hearing was
continued for further briefing on the question of whether the plan is “fair and equitable” within
the meaning of 11 U.S.C. §1129(b)2 and/or feasible within the meaning of §1129(a)(11). The
debtor has provided additional declaration testimony which seems to resolve the feasibility
question. The remaining “fair and equitable” issue is raised because the objecting creditor, JP
Morgan Chase Bank (“the bank”), is an unsecured creditor by reason of the §506 bifurcation of
its claim under the court’s valuation at $1.6 million of its collateral, commonly known as 4004
W. Ocean Front, Newport Beach. The valuation order results in two claims of the bank, one a
claim secured by a trust deed at $1.6 million and the second is an unsecured claim of
$1,324,062 for the deficiency. Although not made clear in the papers, it would appear that the
dissent and objection to confirmation from the bank on account of its $1,324,062 unsecured
claim is large enough to prevent the Class 5 unsecured class from accepting the plan within
the meaning of §1126(c).
There is no dispute that the plan does not provide for payment in full of the Class 5
unsecured claims. Instead, Class 5, including the bank’s deficiency, is promised only a pro
rata portion of the debtor’s projected disposable income for the period of five years following
confirmation. Because of the dissent of Class 5, not all impaired classes have accepted the
plan as required in §1129(a)(8), so the debtor to confirm must resort to the cram down
provisions of §1129(b). Cram down may be accomplished under §1129(b)(1) if only
compliance with §1129(a)(8) is lacking and “if the plan does not discriminate unfairly, and is
2 All statutory citations are to Title 11, United States Code, unless otherwise indicated.
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fair and equitable, with respect to each class of claims or interests that is impaired under and
has not accepted the plan…” Unfair discrimination is not contested here; the bank only
contends that the plan as to Class 5 is not “fair and equitable.” “Fair and equitable” is defined
when applied to a dissenting class of impaired unsecured creditors at §1129(b)(2)(B), to allow
confirmation notwithstanding the dissent if:
(B)(i) the plan provides that each holder of a claim of such class
receive or retain on account of such claim property of a value, as of
the effective date of the plan, equal to the allowed amount of such
claim; or
(ii) the holder of any claim or interest that is junior to the claims of
such class will not receive or retain under the plan on account of
such junior claim or interest any property except that in a case in
which the debtor is an individual, the debtor may retain property
included in the estate under section 1115, subject to the
requirements of subsection (a)(14) of this section. (Italics and
emphasis added).
The provisions not italicized in subsection (ii) are commonly referred to as the “absolute priority
rule.” The question arises whether the language italicized above, which was added under
BAPCPA, has effectively abrogated the absolute priority rule entirely for individual Chapter
11s. This question has engendered a split of authority because the additional language in this
section and in new §1115, also added under BAPCPA and referenced in §1129(b)(2)(B)(ii), is
worded vaguely. Section 1115 in pertinent part reads:
(a) In a case in which the debtor is an individual, property of the
estate includes, in addition to the property specified in section 541–
(1) all property of the kind specified in section 541 that the
debtor acquires after the commencement of the case but before the
case is closed, dismissed, or converted to a case under chapter 7,
12 or 13, whichever occurs first; and
(2) earnings from service performed by the debtor after the
commencement of the case but before the case is closed,
dismissed , or converted to a case under chapter 7, 12 or 13,
whichever occurs first…”
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An ambiguity arises over what is meant by the term “included in the estate under section 1115”
(emphasis added) as used in §1129(b)(2)(B)(ii) since §1115 begins by providing that the usual
definition of “property of the estate” defined at §541 is now augmented in individual 11s by
certain after-acquired property and post-petition earnings. Indeed, new §1115 echoes this
question by use of the very word “includes” in the initial paragraph, suggesting that new
categories of property are “in addition to” what has historically defined property of the estate in
§541.
The first three courts to take up the issue as well as some of the commentators ascribe
to the “broad view” that Congress intended to entirely abrogate the absolute priority rule in
individual cases. See In re Tegeder, 369 B.R. 477 (Bankr. Neb. 2007); In re Roedemeir, 374
B.R. 264 (Bankr. D. Kan. 2007) and In re Shat, 424 B.R. 854 (Bankr. D. Nev. 2010). The
“broad view” holds that the entirety of §1129(b)(2)(B), including both subsections (i) and (ii)3,
simply have no continued application at all in individual cases. Courts ascribing to the “broad
view” infer a Congressional intent to make individual Chapter 11’s parallel to Chapter 13, which
has never contained any version of the “absolute priority rule.” Some BAPCPA additions do
show intent to make some aspects of individual Chapter 11’s more parallel to Chapter 13. For
example: post petition earnings and acquisitions are now property of the estate under §1115,
similar to §1306; under §1123(a)(8) debtors are now called upon to contribute all or a portion
3 The “broad view” necessarily eliminates subsection (B)(i) as well, even though none of its language was
amended in BAPCPA, because otherwise the statute would express a nonsensical and harsh alternative in (B)(i)
to a much more lenient if not entirely inapplicable subsection (B)(ii) which, in the “broad view,” allows the
individual debtor to keep all of his pre-petition property and all post-petition property not already dealt with at
§1129(a)(15). This is another reason the court doubts the “broad view,” because it makes subsections (B)(i) and
(B)(ii), expressed as alternatives, into an absurdity. Since the BAPCPA language referencing individuals is only
included in alternative (B)(ii), (B)(i) remains there as a nullity respecting individuals in the “broad view.” Statutes
are better interpreted so as to give some operative effect to all of their language. TRW, Inc. v. Andrews, 534 U.S.
19, 31, 122 S.Ct. 441, 449 (2001) citing Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120 (2001); U.S. v.
Nordic Village, Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 1015 (1992).
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of post-petition earnings to repay creditors, not unlike §1322(a); like §1328, discharge is now
delayed in most cases until all payments are made under §1141(d)(5), and modification,
notwithstanding substantial consummation, is permitted in individual 11’s just like in §1329. So
the “broad view” courts read into the language of §§1129(b)(2)(B)(ii) and 1115 an intent to
abrogate the absolute priority rule entirely, like in Chapter 13. However, this may be a “bridge
too far.”4 As discussed herein, that reading seems rather convoluted and strained considering
the language Congress actually used and further considering that, in general, BAPCPA has
been read to tighten, not loosen, the ability of debtors to avoid paying what can reasonably be
paid on account of debt. In re Gbadebo, 431 B.R. 222, 229 (Bankr. N.D.Cal. 2010). It seems
to the court that had such a major protection for creditors as the absolute priority rule been
abrogated, not only would this have been a theme counter to the rest of BAPCPA, but
Congress would have said so more clearly.
The more recent trend, and now the clear majority of courts, ascribe to the so-called
“narrow view.” See e.g. In re Gbadebo, 431 B.R. 222; In re Mullins, 435 B.R. 352 (Bankr. W.D.
Va. 2010); In re Steedley, No. 09-50654, 2010 WL 3528599 (Bankr. S.D.Ga. Aug. 27, 2010); In
re Gelin, 437 B.R. 435 (Bank. M.D. Fla. 2010); In re Karlovich, _B.R._, 2010 WL 5418872
(Bankr. S.D.Cal. Nov. 16, 2010); In re Stephens, _B.R. _, 2011 WL 719485 (Bankr. S.D.Tex.
Feb. 22, 2011); In re Walsh, _B.R._, 2011 WL 867046 (Bankr. D. Mass. March 9, 2011). Many
of the “narrow view” courts observe that had Congress intended to abrogate the absolute
priority rule entirely, rather than only partly, they could scarcely have chosen a more
4 Attributed originally to Lt. General Frederick “Boy” Browning who reportedly commented that British General
Montgomery’s WWII “Operation Market Garden” was overambitious in its plan to capture the bridge at Arnhem in
occupied Holland which resulted in the disastrous loss of thousands of British soldiers, although several closer
bridges were captured successfully by Allied forces. In popular idiom it has come to describe any plan that is
flawed because it is excessive or goes too far.
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convoluted and ambiguous way to go about it. As several “narrow view” courts have observed,
it would have been easier and more logical to simply insert “except in individual cases” at the
beginning of §1129(b)(2)(B). Karlovich, 2010 WL 5418872 at *4.
The court disagrees with both debtor’s and the bank’s arguments that the “plain
meaning rule” has any application here. See e.g. Lamie v. United State Trustee, 540 U.S. 526,
534, 124 S.Ct. 1023 (2004); In re Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct.
1026 (1989). The language used in both §§1129(b)(2)(B)(ii) and in 1115 is ambiguous as
many of the “narrow view” and “broad view” courts have noted. Moreover, the legislative
history is also scarce, equivocal and altogether unhelpful. In re Gbadebo, 431 B.R. at 228-29
citing In re Roedemeir, 374 B.R. at 264-65 and In re Shat, 424 B.R. at 859-60. The court is left
unaided by any general precepts of statutory interpretation in its task of making some sense of
ambiguous language.5 Does “included in” as used at §1129(b)(2)(B)(ii) mean the equivalent of
“added to” through §1115, since property of the estate has long been defined under §541?
This interpretation would be somewhat consistent with the language of §1115 itself which
begins with an introductory reference of “in addition to the property specified at section 541…”
(italics added) Or does this language “included in” mean something closer to “referenced”
which the Shat court thought meant §541 was merely “absorbed” and “superseded” into §1115
for individual 11’s? Shat, 424 B.R. at 864-65
The court does agree that in situations like this one statutory analysis is a “holistic
endeavor” which means that insight can be garnered by considering how the same terminology
5 However, see note 3 in which the court observes that the “narrow view” has the virtue of making sense of all of
the statutory language and avoids leaving any portion a nullity.
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is used elsewhere in a context that makes its meaning clear or because only one of the
permissible meanings produces a substantive effect that is compatible with the rest of the law.
United Savings Assn. of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365,
371, 108 S. Ct. 626, 630 (1988).
The court is not persuaded by this vague language that Congress meant to abrogate
the absolute priority rule out of individual chapter 11s entirely. The absolute priority rule has
been a mainstay of Chapter 11 and predecessor practice since at least the 1930’s. Case v.
Los Angeles Lumber Products Co., 308 U.S. 106, 60 S. Ct. 1 (1939). If the railroad
reorganization cases are also considered, the absolute priority rule or something very like it
has been acknowledged as far back as at least the 1890’s. See e.g. Norwest Bank
Worthington v. Ahlers, 485 U.S. 197, 202, 108 S. Ct. 963, 966 (1988) citing Louisville Trust Co.
v. Louisville N.A. & C.R. Co., 174 U.S. 674, 684, 19 S. Ct. 827, 830 (1899). It has long been
held that major changes to existing practice will not be inferred unless clearly mandated.
Dewsnup v. Timm, 502 U.S. 410, 112 S. Ct. 773 (1992) citing United Savings Assn. of Texas
v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 380, 108 S.Ct. 626, 634 (1988);
Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 563, 110 S.Ct. 2126, 2133
(1990); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 244-245, 109 S. Ct. 1026,
1032-1033 (1989). Further, as observed by the U.S. Supreme Court when it upheld
application of the “absolute priority rule” in Norwest Bank Worthington v. Ahlers, despite the
newly enacted Chapter 12, “[W]here, as here, Congress adopts a new law…[it] normally can
be presumed to have had knowledge of the interpretation given to the [old] law.” 485 U.S. at
211, 108 S. Ct at 971 citing Lorillard v. Pons, 434 U.S. 575, 581, 98 S. Ct. 866, 870 (1978).
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From such awkward and convoluted language the court cannot infer that Congress truly
intended such a wide and important change to individual Chapter 11 practice as discarding the
absolute priority rule. This is particularly so since the whole “sweat equity” theory of “new
value” was so carefully discussed by the Supreme Court in Norwest Bank Worthington v.
Ahlers, which held that contributions of new value must be “money or money’s worth.” 485
U.S. at 202-203, 108 S. Ct. at 966-67, citing Case v. Los Angeles Lumber, 308 U.S. at 121-22,
60 S. Ct. at 967-68. Presumably, post-petition earnings contributed to a plan indeed constitute
“money or money’s worth,” and are not mere “sweat equity,” as indeed now these kinds of
property are part of the estate. In this the court both agrees and disagrees with the Shat
court, which noted the “broad view” effectively overrules Norwest Bank Worthington v. Ahlers
in individual cases. The court agrees that such a momentous change should have at least
merited a mention in the legislative history. Shat, 424 B.R. at 867. But the court infers from
this omission the opposite conclusion, i.e. that there was no intent to abrogate the absolute
priority rule by including into the estate future earnings since this inclusion does not address
existing property one way or the other. So it is easier for the court to view the BAPCPA
amendments as complimentary to the existing jurisprudence surrounding the “absolute priority
rule.” Indeed, as discussed below, the careful distinction in the BAPCPA amendments between
that portion of post petition earnings which must be devoted to a plan in the event of objection
of a single creditor under §1129(a)(15), and the entirety of the post petition earnings and
acquisitions until the case is closed, dismissed or converted which are now defined as property
of the estate in §1115(a), suggests to the court that the drafters intended to keep the absolute
priority rule as pertains to pre-petition assets as a further barrier to cram down under
§1129(b)(2)(B).
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The court unlike the “broad view” courts finds no clear indication that Congress intended
that individual chapter 11’s become just like large 13’s. Just because Chapter 13 does not
have the absolute priority rule is not alone sufficient to justify the rather tortured reading of
§§1129(b)(2)(B)(ii) and 1115 engaged in by the “broad view” courts. Why couldn’t the debt
limitations of §109(e) have been simply raised had Congress intended to make all larger
individual reorganization cases alike? Clearly, Congress instead intended that the separate
requirements of disclosure, voting, determination by percentages of “consenting” impaired
classes and other protections unique to Chapter 11 continue to have some application in larger
individual reorganization cases. Moreover, resort to the tortured interpretation found in the
“broad view” cases is unnecessary given a likely better explanation of how the statutes are
supposed to work in tandem, as discussed below.
The court finds it at least equally plausible that Congress merely intended to make
individual and non-individual Chapter 11 debtors more alike by including in the estate of an
individual under §1115 post-petition property and earnings, but at the same time avoiding
through §1129(b)(2)(B)(ii) the untenable situation that an individual cannot keep any of his
post-petition earnings for the entire period of his plan nor any pre-petition property if he must
resort to cram down. There is clearly a distinction after BAPCPA between what an individual
chapter 11 debtor facing objection may devote in post-petition property and earnings, and what
post-petition property he must devote to the plan. Section 1115 provides that all post petition
earnings and acquisitions until the case is closed, converted or dismissed are property of the
estate. The debtor facing objection of a single creditor must in any case devote at least a value
equivalent to what he earns as “projected disposable income” in the 5-year period beginning
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with the first payment under 11 U.S.C. §1129(a)(15)(B), or for any longer term of the plan. But
without some amelioration in §1129(b)(2)(B)(ii), there would be, in effect, an oppressive and
lengthy servitude imposed upon the individual Chapter 11 debtor for the entire period of the
plan as a price for achieving any cram down. Unlike Chapter 13, a Chapter 11 plan might last
for many years more than the 5-yr maximum since there is no Chapter 11 analog to
§1325(b)(4). Further, the minimum contribution required in §1129(a)(15)(B) is carefully
expressed in terms of “projected disposable income,” which necessarily implies deduction of
certain living expenses as described in §707(b)(2)(A). In contrast, the property included in the
estate under §1115 includes all post petition earnings, not limited by deduction for monthly
expenses. So, if the “absolute priority rule” persisted after BAPCPA it would have prevented
the debtor from keeping any of his post-petition earnings as the price for cram down; thus
enters the necessary amelioration in §1129(b)(2)(B)(ii). Obviously, forfeiting all post-petition
income would have been at least difficult if not impossible in almost all individual cases. So,
the “absolute priority rule” had to be amended to let the debtor keep enough of his post petition
earnings to sustain his livelihood. But this is as far as one needs to go to make sense of the
new statutory scheme. There is simply no reason to include the further subject of existing, pre-
petition property.
The court sees instead a Congressional effort to balance benefits and hardships in
cram down for Chapter 11 individuals. After BAPCPA, the debtor facing opposition of any one
unsecured creditor must devote 5 years worth of “projected disposable income,” at a minimum
(or longer if the plan is longer). But debtor is not compelled to give also his additional earnings
or after-acquired property net of living expenses beyond five years unless the plan is proposed
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for a period longer than five years. But there is no compelling reason to also conclude that
prepetition property need not be pledged under the plan as the price for cram down, just as it
has always been. This does unnecessary violence to well-established jurisprudence. Cram-
down is not necessary to deal with a single unsecured creditor’s objection which is already
addressed at §1129(a)(15). Cram-down is only triggered where an entire class of unsecured
creditors have dissented from the plan. Therefore, it is logical to assume that Congress
understood that, in cram-down, the stakes should be a notch higher, i.e. no pre-petition assets
and only a portion of post-petition assets can be kept under §1129(b)(2)(B)(ii). This “narrow
view“ better explains the peculiar wording of §1115 and the reference of “included in” found at
§1129(b)(2)(B)(ii). In overall effect, application of the absolute priority rule is the same both
before and after BAPCPA. See e.g. Karlovich, 2011WL 5418872 at *4. Moreover, the careful
reference in §1129(b)(2)(B)(ii) to only §1115 and not to §541 preserves the distinction between
existing assets and those acquired post-petition because of the way §1115 is worded (which
clearly makes post-petition earnings and acquisitions an addition to §541 property). Had the
“broad view” been correct it would have been far more logical to simply reference “property of
the estate” generally or, better yet, to simply make application of §1129(b)(2)(B) inapplicable in
individual cases.
Moreover, the court is not impressed with the argument that continued application of the
absolute priority rule makes Chapter 11 unworkable in most individual cases. The debtor may
still negotiate plan acceptance from impaired unsecured classes, pay dissenting classes in full,
contribute the pre-petition property and/or contribute “new value” in order to achieve
confirmation in compliance with the absolute priority rule. Retention of these limitations is
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more consistent with general approach of BAPCPA, which is to make individual debtors pay
more within their means toward debt, not less.
In sum, the court finds the “narrow view” more persuasive and holds that the absolute
priority rule for individual Chapter 11 debtors was only modified, not fully abrogated, by
BAPCPA. This court therefore adds its voice to the “narrow view” courts. Since in this plan
debtor proposes to keep substantial prepetition property without paying the dissenting Class 5
unsecured creditors in full, the plan cannot be confirmed in its current form.
###
United States Bankruptcy Judge
DATED: May 4, 2011
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NOTE TO USERS OF THIS FORM:
1) Attach this form to the last page of a proposed Order or Judgment. Do not file as a separate document.
2) The title of the judgment or order and all service information must be filled in by the party lodging the order.
3) Category I. below: The United States trustee and case trustee (if any) will always be in this category.
4) Category II. below: List ONLY addresses for debtor (and attorney), movant (or attorney) and person/entity (or
attorney) who filed an opposition to the requested relief. DO NOT list an address if person/entity is listed in category I.
NOTICE OF ENTERED ORDER AND SERVICE LIST
Notice is given by the court that a judgment or order entitled (specify) AMENDED ORDER DENYING
CONFIRMATION OF DEBTOR’S FIRST AMENDED CHAPTER 11 PLAN OF REORGANIZATION was
entered on the date indicated as AEntered@ on the first page of this judgment or order and will be served in the
manner indicated below:
I. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (ANEF@) B Pursuant to controlling
General Order(s) and Local Bankruptcy Rule(s), the foregoing document was served on the following
person(s) by the court via NEF and hyperlink to the judgment or order. As of May 3, 2011, the following
person(s) are currently on the Electronic Mail Notice List for this bankruptcy case or adversary proceeding to
receive NEF transmission at the email address(es) indicated below.
Robert P Goe kmurphy@goeforlaw.com, rgoe@goeforlaw.com;mforsythe@goeforlaw.com
Michael J Hauser michael.hauser@usdoj.gov
Christopher M McDermott ecfcacb@piteduncan.com
Ramesh Singh claims@recoverycorp.com
Nathan F Smith nathan@mclaw.org
Eric J Testan ecfcacb@piteduncan.com
United States Trustee (SA) ustpregion16.sa.ecf@usdoj.gov
Service information continued on attached page
II. SERVED BY THE COURT VIA U.S. MAIL: A copy of this notice and a true copy of this judgment or order
was sent by U.S. Mail to the following person(s) and/or entity(ies) at the address(es) indicated below:
Rafik Youssef Kamell
800 South Beach Blvd Ste F
La Habra, CA 90631
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III. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this judgment or
order which bears an AEntered@ stamp, the party lodging the judgment or order will serve a complete copy
bearing an AEntered@ stamp by U.S. Mail, overnight mail, facsimile transmission or email and file a proof of
service of the entered order on the following person(s) and/or entity(ies) at the address(es), facsimile
transmission number(s) and/or email address(es) indicated below:
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Case 8:10-bk-15501-TA Doc 123 Filed 05/04/11 Entered 05/04/11 16:27:45 Desc
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