Monday, January 21, 2013

Recent Opinions from the First Circuit BAP - 2013

Appeal of reduction in Debtor's counsel's fees dismissed as moot:

RICHMOND, Appellant, v. SOVEREIGN BANK and DAVID M. NICKLESS, Chapter 7 Trustee, Appellees, BAP NO. MW 12-013 (Before Judges Lamoutte, Kornreich, and Cab├ín, Per Curiam)( 1st Cir.  BAP 1/8/13).  Attorney Richmond, Debtor’s Ch. 11 counsel,  appeals from the bankruptcy court's order reducing his fees, which is dismissed as moot on appeal. Mootness will deprive the Bankruptcy Appellate Panel of jurisdiction to review a final order; and, because mootness is a threshold issue, the court may determine it sua sponte. See GE Capital Franchise Fin. Corp. v. Richardson (In re Newport Creamery, Inc.), 295 B.R. 408, 417 (B.A.P. 1st Cir. 2003). Mootness is present when no meaningful relief is available on appeal. See In re Cont’l Mortgage Investors, 578 F.2d 872, 877 (1st Cir. 1978). We are unable to fashion meaningful relief because no source exists for the payment of Richmond’s fees and expenses in any amount. This is so for two reasons: first, Richmond has acknowledged that the chapter 11 bankruptcy estate (Formatech) is without resources; and, second, there is no longer a possibility that the estate will be enhanced from the proceeds of the sale because no timely appeal was taken from our order dismissing the appeal of the bankruptcy court’s denial of Formatech’s § 506(c) motion.
For the full Opinion:

Creditors challenge to Debtor’s discharge properly dismissed as untimely where complaint filed after expiration of extended bar date;  Equitable tolling, and counsel’s alleged excusable neglect did not change the result; Ch. 7 Trustee’s extension did not apply to the individual creditor:

COSTA, Defendant-Appellee v. SULLIVAN, Plaintiff-Appellant, BAP NO. MB 12-032, (Before Judges Haines, Deasy, and Tester, Opinion by Tester) (1st Cir. BAP 1/3/13).                                                                                                             
Appeal: Creditor, Gilbert C. Sullivan (“Sullivan”), appeals from a bankruptcy court order: (1) denying his untimely motion to amend his original § 523(c) complaint to add § 727 claims against the debtor, (“Costa”); (2) denying his untimely motion for an extension of time, nunc pro tunc, to file an adversary complaint under §§ 523(c) and 727(a); (3) granting Costa’s motion to dismiss; and (4) dismissing the adversary proceeding with prejudice.
Outcome: Affirmed.
                                                                                                                               Background:  Costa filed a petition for chapter 7 and on Schedule D, he listed Sullivan as the holder of a $400,000.00 undersecured claim. Although Costa’s schedules are not included as part of the record, we may take judicial notice of bankruptcy court proceedings. See Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990).  Sullivan filed timely motions to further extend the discharge complaint deadline, extending the deadline to September 15, 2011. Sullivan filed neither a complaint nor a motion to extend by the September 15, 2011 deadline.
Two weeks later, however, on October 4, 2011, he filed a belated, unsupported motion to extend the complaint deadline to November 22, 2011, to permit the continued investigation of his claims against Costa.  Costa objected the next day, asserting that Sullivan’s request was untimely. On October 21, 2011, without a hearing, the bankruptcy court entered an order granting the October 2011 Extension Motion and setting the complaint deadline for November 22, 2011. Costa did not seek reconsideration of the October 2011 Extension Order.  On November 21, 2011, Sullivan filed a multi-count complaint against Costa, seeking only a determination of dischargeability under § 523.  In his answer, Costa asserted as an affirmative defense that the complaint was time-barred. Thereafter, Sullivan filed a motion to amend the complaint to add his three § 727 counts, representing that his counsel, “through mistake and inadvertence, neglected to include a reference to § 727” in the original complaint, which Costa opposed emphasizing that the requested amendment was time-barred under Rules 4004(a) and 4007(c), and that the court allowed the October 2011 Extension Motion without specifically overruling his objection. Costa simultaneously filed a motion to dismiss, reiterating the timeliness issue and asking the court to dismiss the adversary proceeding with prejudice.   Sullivan did not oppose the motion to dismiss and instead, he filed another extension motion, this time seeking to enlarge the time for filing both his initial complaint and subsequent amended complaint, nunc pro tunc, to November 22, 2011.                                                                                            

Discussion:  Unpersuaded by Sullivan’s arguments, the bankruptcy court entered the Order which is the subject of this appeal. At the outset of its accompanying memorandum of decision, the court acknowledged that the October 2011 Extension Order “was entered by administrative error, the Court having been unaware of the Debtor’s timely filed objection to it.” Accordingly, the court concluded that the October 2011 Extension Order was “infirm from the standpoint of due process,” and treated it “as subject to reconsideration de novo in light of Debtor’s objection to that motion.” The court rejected Sullivan’s argument that his reliance on the October 2011 Extension Order precluded reconsideration, stating “I need not determine whether reliance should preclude reconsideration because there was no reliance that made a difference.”
The bankruptcy court observed that “Rules 4007(c) and 9006(b)(3) operate mechanically to preclude a court from granting an extension of time to file a complaint required by § 523(c) unless the plaintiff has complied with the requirement in Rule 4007(c) that a motion to extend be filed before the time has expired.” Noting that Sullivan failed to seek an extension until October 4, 2011, after the expiration of the September 14, 2011 deadline, the court concluded that the initial complaint was untimely under Rule 4007(c). Accordingly, the court granted the motion to dismiss, treating it as a motion for judgment under Fed. R. Civ. P. 12(c). It next denied the motion to amend, “for the same reasons it granted the motion to dismiss.”                                                                                                                                            

The bankruptcy court rejected Sullivan’s six arguments: First, it dismissed as meritless Sullivan’s excusable neglect argument, stating that excusable neglect does not apply to motions for enlargement of time under Rules 4004 and 4007; Second, the court disagreed with Sullivan’s contention that § 105 permitted it to override the express limitations on a court’s authority to extend set forth in Rules 4004(b), 4007(c), and 9006(b)(3). The court reasoned that “[§] 105(a) may not be invoked where the result of its application would be inconsistent with any other Code provision or it would alter other substantive rights set forth in the Code.” ; Third, the court rejected Sullivan’s waiver argument and his corresponding reliance on Kontrick v. Ryan, supra, because Costa raised the timeliness defense in his answer; Fourth, the court summarily rejected Sullivan’s reliance argument reiterating that “[t]here was no reliance that made a difference, the dispositive lapse having occurred before the entry of the erroneous order.”;  Fifth, the court was unpersuaded by Sullivan’s argument that the time limits in Rules 4004(b) and 4007(c) are subject to equitable tolling, concluding “[a]s a matter of law, the facts alleged by the Plaintiff do not constitute the extraordinary circumstances required to apply the doctrine of equitable tolling.”; and,  Sixth, the court rejected as baseless the argument that the extensions granted on behalf of the trustee should apply equally to Sullivan.             
For the full Opinion:

Bankruptcy Court significantly reduces Debtor's counsel's fee application, even though neither the Ch. 13 Trustee nor the Debtors objected to it:

 STONE, Appellant v. LITTLE [Ch. 13 Debtors] , Appellee, BAP NO. MW 12-029 (Before Judges Haines, Deasy, and Tester, Opinon by Haines) (1st Cir. BAP 1/4/13)
Attorney Philip M. Stone appeals the bankruptcy court’s order limiting the fees to be allowed in connection with his representation of chapter 13.
OUTCOME: Affirmed.
The Littles hired Stone to represent them in bankruptcy. They agreed to pay him $2,500.00 for preparing and filing their petition, schedules, statements, and a chapter 13 plan. The parties agreed that additional services would be billed at Stone’s hourly rate. The Littles’ initial plan proposed payments of $35.00 for 60 months, providing a 1 percent dividend to unsecured creditors. Additional, unpaid legal fees of $900.00 were to be fully paid through the plan. The trustee objected, arguing that the Littles were not providing all of their projected disposable income to fund the plan as required by § 1325(b)(1)(B), and that they were not proceeding in good faith as required by §§ 1325(a)(3) and (7). The bottom line showed that, although together the Littles earned more than $111,000.00 per year, they were proposing to fund the plan at only $35.00 a month. The court sustained the objection, and ordered them to amend their plan. The Littles’ first amended plan set monthly payments at $860.00 for 60 months, providing a 44 percent dividend to unsecured creditors. But, this time, M & T Bank objected to the cramdown of its secured claim (an auto loan). Although the initial plan contained the same cramdown provision with respect to M & TBank’s claim, it did not object until the Littles filed their first amended plan. So, the Littles filed a second amended plan, resolving the M & T Bank objection, and calling for monthly payments of $860.00 for 60 months. The plan yielded a 47 percent dividend to unsecured creditors. In this incarnation, the plan also proposed to pay Stone’s legal fees, estimated to be $6,000.00, subject to application and allowance. The second amended plan was confirmed.

Stone filed his fee application, seeking fees and costs in the total amount of $9,102.10.  That sum included his pre-filing retainer of $2,500.00, over $4,000.00 for additional services, and more than $1,700.00 for preparing the fee application. After crediting payments of $3,474.00 (directly from the Littles and via the confirmed plan), he asked that the remaining balance of $5,628.10 be paid through the plan as an administrative expense. Neither the trustee nor any party-in-interest objected.  The court convened a total of three hearings to address Stone’s application. It noted that Stone’s fees were significantly higher than a typical fee for an uncomplicated chapter 13 case. Stone rejoined that the fees resulted from extensive communications with the trustee’s counsel regarding the Littles’ allowable expenses, and from preparation and filing of amended schedules and plans. The court characterized much of Stone’s work as “meritless.” In its view, had Stone appropriately limited the Littles’ expenses to those which above median income debtors could lawfully claim, then a plan calling for devotion of the proper projected disposable income could have been prosecuted to confirmation straightforwardly, at far more modest cost. Thus, the court allowed Stone’s fees in the reduced amount of $3,982.10 ($3,500.00 in fees; $482.10 in expenses). This appeal ensued.

DISCUSSION: The order before us finally adjudicated the attorneys’ fees and costs to be paid to Stone through the Littles’ confirmed plan. See Torres Lopez v. Consejo de Titulares del Condominio Carolina Court Apts. (In re Torres Lopez), 405 B.R. 24, 30-31 (B.A.P. 1st Cir. 2009). Thus, we have jurisdiction.Although the court did not consider Stone’s rates excessive, it determined that many of the hours he devoted to the case were unnecessary and reduced his fee accordingly. On the record before us, we cannot conclude that the bankruptcy court’s decision to reduce the fee award was an abuse of discretion.
For the full Opinion:

Debtor’s experience rate for unemployment purposes is an “interest” within the meaning of Section 363(f); and as such, Debtor may sell its business free and clear of it, which preempts the Massachusetts statute imposing the Debtor’s bad experience rating upon the Debtor’s successor (purchaser of Debtor’s business); defective service upon the DUA caused the bankruptcy court to rehear the matter as to the DUA but the rehearing did not change the ultimate result, which was affirmed on appeal:

MASSACHUSETTS DEPARTMENT OF UNEMPLOYMENT ASSISTANCE, Appellant, v. OPK BIOTECH, LLC, Appellee,  BAP NO. MB 12-042 (Before Haines, Deasy, and Tester, Opinion by Deasy) (1st Cir. BAP 1/17/13). The Massachusetts Department of Unemployment Assistance (the “DUA”) appeals from the bankruptcy court order enforcing the sale of the debtor’s assets free and clear of any interest in said assets, including the DUA’s right to tax the purchaser at the debtor’s unemployment contribution rate. 

OUTCOME: AFFIRMED. The debtor filed chapter 11 with limited operations and only five employees. On the petition date, the Debtor filed a motion seeking approval of bid procedures and ultimately the sale of substantially all of its operating assets, free and clear of liens, claims, charges, security interests, restrictions, and encumbrances of any kind or nature, pursuant to § 363(f). The Debtor served the court approved notices and orders related to the auction and sale (the “Sale Notices”) on, inter alia, the attorney general for the Commonwealth of Massachusetts. The local rules for the United States Bankruptcy Court for the District of Massachusetts provide that: Whenever notice is required to be given to the Massachusetts Division of Unemployment Assistance, it shall be mailed to:Commonwealth of Massachusetts Department of Unemployment Assistance, Legal Department, 1st Floor, Attn. Chief counsel,19 Staniford Street, Boston, MA 02114.  The bankruptcy court entered an order approving the sale to OPK (the “Sale Order”). The Sale Order provided, among other things, that: (1) the transfer to OPK would be free and clear of all encumbrances, including any claims pursuant to any successor or successor-in-interest liability theory; (2) OPK would not be deemed a successor of the Debtor; and (3) OPK would not have any liability for any obligation of the Debtor or any claim against the Debtor related to the purchased assets by reason of the transfer of such assets. In the Sale Order, the bankruptcy court found that OPK would not have purchased the Debtor’s assets unless the transfer was “free and clear of all [e]ncumbrances of any kind or nature” including, but not limited to, successor liabilities for unemployment related claims including “claims that might arise under . . . state unemployment compensation laws or any other similar state laws.” Additionally, the Sale Order provided that, except as otherwise specifically set forth in the Asset Purchase Agreement, OPK neither assumed nor was obligated to pay or otherwise discharge any debts, obligations, or liabilities of the Debtor arising pursuant to the Debtor’s ownership or operation of its facilities before the purchase. Because the Debtor had laid off nearly all of its employees at the end of 2008, its experience rating was very high, which resulted in an unemployment contribution rate of 12.27 percent. 

The DUA Proceedings: Following the closing, OPK advised the DUA of its acquisition of the Debtor’s assets. The DUA, in turn, notified OPK that it was considered a “successor employer” within the meaning of the Massachusetts unemployment insurance statute, and that OPK’s contribution rate for 2009 and 2010 was 12.27 percent, and that as a successor employer, it was “liable for any past or future benefit charges attributable to the predecessor[’]s account.”  OPK filed an administrative appeal, challenging the DUA’s imposition of successor status on the grounds that OPK and the Debtor lacked substantially common ownership, interest, or control, which might give rise to a successor relationship under the Massachusetts unemployment insurance statute. The DUA refused to change its determination. Consequently, in March 2011, OPK moved the bankruptcy court to enforce the Sale Order (the “Motion to Enforce”), and the parties agreed to postpone further administrative proceedings pending the bankruptcy court’s disposition of the motion. 

The Bankruptcy Court Proceedings: In the Motion to Enforce, OPK sought an order: (1) declaring that the sale to OPK was free and clear of the Debtor’s experience rate and contribution rate as those terms are defined in state law; (2) requiring the DUA to refund to OPK overpayments resulting from the attribution of the Debtor’s experience rate; and (3) compelling the DUA to assign to OPK a 2.89 percent contribution rate as an employer newly subject to Mass. Gen. Laws ch. 151A, § 14, retroactive to the sale date and without regard to the Debtor’s pre-sale ratings.  In support of its request, OPK advanced five core arguments. First, OPK asserted that because the Debtor served the Sale Notices on the attorney general of the Commonwealth of Massachusetts, and neither the Commonwealth nor the DUA objected, the DUA irrevocably waived its right to object to the sale itself or the terms of the Sale Order. Second, OPK contended that § 363(m) protected the Sale Order from attack and reconsideration. Third, OPK asserted that, even assuming the Sale Order was subject to attack, the proper vehicle would have been a motion to reconsider or modify the order. Fourth, OPK argued that the bankruptcy court should enforce the Sale Order because at least four of the five disjunctive requirements for a sale free and clear under § 363(f) were satisfied. Lastly, OPK asserted that even if the DUA had timely objected to the Sale Notices, § 363(f) and the underlying policies of the Bankruptcy Code preempted the successor liability provision in the Commonwealth’s unemployment compensation statute. 

The Bankruptcy Court Decision:  The bankruptcy court issued its Memorandum of Decision, wherein it held that the Debtor’s experience and contribution rate were interests within the meaning of § 363. See In re PBBPC, Inc., 467 B.R. 1 (Bankr. D. Mass. 2012). In reaching this conclusion, the court determined as a preliminary matter that it had authority to revisit the Sale Order on two grounds. First, it found that the DUA did not receive proper notice of the sale. Accordingly, the court stated, “[a] judgment obtained without notice to a party is invalid against that party and therefore can have no preclusive effect as to that party.” Id. at 7. Second, the bankruptcy court concluded that it need not address OPK’s argument that the Sale Order was protected from collateral attack by § 363(m), reasoning as follows: This argument requires a difficult decision as to whether [ ] § 363(m), and the policy of finality it embodies, should override constitutional concerns about lack of notice. However, were the Court to find that the Sale Order is now subject to collateral attack and reconsider the merits in light of the objections and arguments the DUA now adduces, the Court would, for the reasons set forth below, conclude (i) that authority to sell pursuant to § 363(f) was properly granted and (ii) that the debtor’s experience rating is an “interest” within the meaning of § 363(f) that, in view of the authorization under § 363(f), the Commonwealth may not apply to OPK. Accordingly, the court may sustain the Sale Order on the merits and need not address the § 363(m) issue. The court’s analysis then proceeded to the requirements of § 363(f). It readily found the presence of one the five predicate conditions enumerated in § 363(f) for a sale free and clear, concluding that the DUA “could be compelled to accept a money satisfaction.”  Thus, the only issue that remained for the court to address was “whether the right of taxation that the DUA [was] charged with enforcing [was] an ‘interest’ in property of the estate within the meaning of § 363(f).” Id. For purposes of this analysis, the bankruptcy court “assume[d] without deciding that OPK [was] a successor employer within the meaning of” the applicable statute. Id. at 9. Acknowledging that an employer’s contribution rate was an “atypical” interest in property, the court nonetheless determined that there was still: [A] good reason to view this right as an interest in estate assets: it imposes a debtor’s experience rating on the buyer precisely because, and only because, the buyer purchased assets of the bankruptcy estate. 

By operation of the state statute, the debtor’s experience rating travels with the assets and encumbers their purchaser.  The relationship between the asset and the right in question is dispositive. The clear relationship between the DUA’s right to tax according to the debtor’s experience rating and the asset transfer on which that right is predicated makes the DUA’s right an interest within the meaning of § 363(f). Section 363(f) therefore applies to the DUA’s interest. As OPK argues and the DUA does not dispute, where § 363(f) does apply, it preempts any state law to the contrary. The [S]ale [O]rder thus preempts the application of successor status to OPK under [Mass. Gen. Laws. ch.] 151A, § 14. Id. at 10.  Accordingly, on July 2, 2012, the court entered the Order, which provided: For the reasons set forth in the Court’s earlier memorandum of decision [#444] on OPK’s Motion to Enforce Order Authorizing Sale [#403], the Court hereby (i) declares that the sale to OPK pursuant to the Sale Order was free and clear of the Debtor’s experience rate and contribution rate as those terms are defined in Mass. Gen. Laws c[h]. 151A, § 14, and (ii) orders the DUA to refund to OPK overpayments attributable to its attribution to OPK of the Debtor’s experience rate. The Court further hereby allows the Motion of OPK to Approve Stipulation [#444] and accordingly now approves the stipulation, which stipulation quantifies the refund required by this order and specifies the manner in which the refund has been and is to be effected. This appeal followed.  THREE 

ISSUES RAISED ON APPEAL AND ONE DECIDED: (1) whether the seller’s experience rate is an interest within the meaning of § 363(f); and (2) if so, does § 363(f) preempt Mass. Gen. Laws ch. 151A, § 14(n). However, the DUA did not brief the second issue and, therefore, has waived it. See Eakin v. Goffe, Inc. (In re 110 Beaver Street P’ship), 355 Fed. Appx. 432, 437 (1st Cir. 2009) (“An appellant waives any issue which it does not adequately raise in its initial brief.”). Therefore, the sole issue on appeal is whether the DUA’s right to tax OPK based on the Debtor’s high experience rating is an interest in property within the meaning of § 363(f). The parties do not dispute that at least one of the statutory conditions for approval of a sale free and clear of an interest in property is satisfied.  We conclude that the more expansive reading of the term “any interest” advanced by the Seventh, Fourth, Third, and Second Circuits in the cases cited is more consistent with the language of the Bankruptcy Code and the policy expressed in § 363. We therefore conclude that the term “any interest” as used in § 363(f) is sufficiently elastic to include the Debtor’s experience rate. Indeed, the record reflects that the transfer of an employer’s contribution rate to a successor asset purchaser is really an attempt to recover the money that the predecessor employer would have paid if it had continued in business.

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