Winery Disposition Group, LLC

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
WINERY DISPOSITION GROUP, LLC, No. 08-11466
Debtor(s).
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Memorandum on Motion to Enforce Settlement
_________________
Creditor Robert Wyndelts objected to the debtor’s first amended plan in this Chapter 11 case. At
the final confirmation hearing, the parties reached a settlement which was placed on the record. Counsel for
the debtor then filed a second amended plan supposedly containing the terms of the settlement but also
containing a term not agreed to by Wyndelts. The court did not confirm the second amended plan because of
Wyndelts’ objection. He has now moved the court for an order confirming the second amended plan after
extracting the offending language.
It is clear that the court should not confirm a plan containing language not agreeable to Wyndelts, and
he may be entitled to other relief. However, there is no basis in the law for the court to re-write a Chapter 11
plan. The requirements for confirmation are set forth in § 1129(a) of the Bankruptcy Code, and that section
requires the court to confirm the plan if all of the requirements are met. The second amended plan is
materially different from the first amended plan which was noticed to all creditors along with statutory
disclosure. If, after further disclosure, the court finds that the second amended plan meets all the requirements
of § 1129(a), it must confirm the plan. If not, it cannot confirm it. There is no provision in the Bankruptcy
Entered on Docket
January 12, 2009
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 08-11466 Doc# 81 Filed: 01/10/09 Entered: 01/12/09 12:05:24 Page 1 of 2

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Code for the court to create a third amended plan on its own, let alone confirm it without notice. Nor is there
any way a plan proponent can be forced to prosecute a plan it no longer wishes to have confirmed.
For the foregoing reasons, the court will not approve the second amended plan and will vacate its
approval of the first amended plan (announced in court when it appeared there was a settlement) but the
prayer for unilateral modification of the second amended plan will be denied, without prejudice to any other
relief to which Wyndelts may be entitled. Counsel for the debtors shall submit an appropriate form of order
which counsel for Wyndelts has approved as to form.
Dated: January 10, 2009
SAlan Jaroslovsky
U.S. Bankruptcy Judge
Case: 08-11466 Doc# 81 Filed: 01/10/09 Entered: 01/12/09 12:05:24 Page 2 of 2