THOMAS M. LYNCH, Bankruptcy Judge.
Movant SummitBridge National Investments III LLC ("SummitBridge") seeks to reopen this jointly administered Chapter 11 case, in which a plan was confirmed and final decree entered, for the sole purpose of then dismissing the case. SummitBridge alleges that RBS Citizens, N.A. ("RBS Citizens"), whose claim was allowed and provided for in the confirmed Chapter 11 plan, transferred its interest after the closure of the bankruptcy case to SummitBridge by means of an allonge to the original promissory note and assignment of certain security interests granted by T&A Holdings, LLC on or about December 19, 2014.
SummitBridge and Debtors T&A Holdings, LLC, All Smiles Dental, PC and Timothy Stirneman were given the opportunity for extensive briefing, which the court has reviewed. The parties declined the opportunity for an evidentiary hearing, instead opting to rest on their written submissions and oral argument. The court finds that SummitBridge has failed to meet its burden of demonstrating cause to reopen the case, and therefore the Motion to Reopen will be denied.
Debtor T&A Holdings, LLC filed a voluntary petition under Chapter 11 on April 1, 2011. Debtors Timothy Stirneman and All Smiles Dental, PC each subsequently filed voluntary petitions under Chapter 11 on March 23, 2012. As of T&A Holding's petition date, Dr. Stirneman, a dentist, was the 100% owner of T&A Holdings and All Smiles. As of that petition date and through at least November 21, 2012, when the Debtors' disclosure statement was approved, All Smiles was the operating entity for Dr. Stirneman's practice and employed Dr. Stirneman as well as several other employees. T&A Holdings owned real estate in Algonquin, Illinois (the "Algonquin Property") which it leases to All Smiles and out of which the practice operates. On May 11, 2012, this court granted the Debtors' motion for joint administration of the three cases. Although a single joint plan for all three Debtors was confirmed, the Debtors have not been substantively consolidated.
RBS Citizens, N.A. filed a proof of claim for $3,381,694.67, of which it asserted $1,475,000 to be secured by a first mortgage in the Algonquin Property and $1,064,289.00 to be secured by certain personal property owned by All Smiles. (Claim No. 3-2.)
T&A Holdings filed its initial proposed Chapter 11 plan of reorganization on April 11, 2012.
Counsel for the Debtors, for RBS Citizens and for the U.S. Trustee appeared at the confirmation hearing held January 16, 2013. No objections to confirmation were raised and the court confirmed the November 20, 2012 plan, asking Debtors' counsel to prepare and submit a proposed order.
As confirmed the Chapter 11 plan of reorganization states that Dr. Stirneman "shall be responsible for making payments required under this Plan" and that he "will continue in the dental operations of ASD, which will allow T&A and ASD to make its payments under this Plan in the ordinary course, out of funds generated by the business." The plan lists nine different classes of creditors, but makes no express distinction as to whether any such creditors have claims solely against one Debtor as opposed to all three. With respect to RBS Citizens and the Small Business Administration, however, the plan states in a footnote that when RBS Citizens "and the SBA obtained their judgment against T&A, it also obtained a joint judgment against ASD and Dr. Stirneman. However, [RBS Citizens] and the SBA can only receive payments equal to the total amount of the judgment."
The plan provides for two possible repayment schedules for RBS Citizens' allowed claim depending on whether or not it made an election under Section 1111(b) of the Bankruptcy Code. In either case, RBS is to be paid its principal on the entire claim in full. In both cases the plan provides that RBS Citizens is to retain its lien in the collateral of T&A Holdings and All Smiles to secure its claim under the plan.
If the Section 1111(b) election is not made, the plan provides that RBS Citizens is to be paid the secured portion of its claim (based on the value of the collateral securing the claim) in full with 6.0% per annum interest in monthly payments over 7 years based on a 25-year amortization schedule, with a balloon payment at the end. The unsecured portion is to be paid in full, but without interest, in "annual quarterly payments" over 7 years. RBS Citizens' proof of claim, in which the creditor claimed a secured claim of $2,539,289.00 and unsecured deficiency of $842,405.07, was allowed in full. Applying the formula for amortization, this results in monthly payments of $16,360.67 on the secured portion and payments of $30,085.90 every three months on the unsecured portion over the term of the plan. Over the course of the ensuing 84 months RBS Citizens would be paid $2,216,701.35, together with an additional balloon payment of $2,157,938.71 in the final month of the plan, for a total payment of $4,374,640.06 to this creditor.
In the event that RBS Citizens made a Section 1111(b)(2) election, the plan provides that RBS Citizens' "combined total of its secured and unsecured claims [will be] treated as if it were totally secured by the Property" and the bank would be paid "in monthly payments over seven (7) years based on a twenty five (25) year amortization rate that both total the allowed amount of the claim and have a value on the effective date of the plan at least equal to the value of its security interest in the Property." This provision makes clear that RBS Citizens must be paid at least its total allowed claim of $3,381,694.67 by the 84th month. The provision is also clear that if interest is to apply, it will run at 6.0% APR. From there, however, the provision is unclear as to how the payments are to be amortized other than to provide that they will be made in monthly installments with a balloon payment due in the 84th month. A document filed by the Debtor without leave and after confirmation on January 28, 2013, entitled "Amended Exhibit `C' to Fifth Amended Disclosure Statement only as to RBS Citizens Bank in light of §1111(b) election," seems to suggest that the monthly payments will be at least $16,360.67.
In any case, the plan also provides that if RBS Citizens is paid the full amounts provided for in the plan, the personal guarantee of Dr. Stirneman will be discharged. Other than this reference, neither the plan nor the confirmation order references discharge or any injunction under the plan,
On March 21, 2013, the court entered a final decree on the Debtors' motion, finding that the order confirming the plan had become final, the Debtors had commenced payments under the Plan, the deposit required by the Plan had been distributed, all payments had been made to the U.S. Trustee and any contested matters and motions had been fully resolved.
On March 23, 2016, SummitBridge, claiming to be the successor in interest to RBS Citizens, filed this motion to reopen the Chapter 11 bankruptcy case. SummitBridge brings the motion to reopen the jointly administered cases for the purpose of filing a motion to dismiss the bankruptcy cases, alleging that the Debtors failed to make certain payments required by the confirmed plan and failed to pay certain real estate taxes for the Algonquin Property. The Debtors oppose the motion, arguing that SummitBridge has adequate remedies to enforce its rights under the plan in state court through foreclosure of its collateral and that dismissal of the bankruptcy would not be in the best interests of other creditors who are being paid under the terms of the confirmed plan.
A bankruptcy court has the power to reopen a closed bankruptcy case "to administer assets, to accord relief to the debtor, or for other cause." Brown v. UAL Corp. (In re UAL Corp.), 809 F.3d 361, 364 (7
SummitBridge argues that it is entitled to dismissal of the case because both a "material default by the debtor with respect to a confirmed plan" and "failure timely to pay taxes owed after the date of the order for relief" expressly constitute "cause" for dismissal of the case. 11 U.S.C. § 1112(b)(4)(I), (N). But, this case is now closed and SummitBridge has not demonstrated that any legitimate purpose will be served by reopening the case only to then immediately dismiss it.
The authority cited by SummitBridge for dismissal of the case on the basis of a default under the terms of a confirmed plan all involve cases that remained open and pending, and where no final decree had been entered. In re Potts, 188 B.R. 575 (Bankr. N.D. Ind. 1995); In re T.S.P. Industries, 117 B.R. 375 (Bankr. N.D. Ill. 1990); In re Jartran, Inc., 71 B.R. 938 (Bankr. N.D. Ill. 1987); In re AMC Morg. Co., 213 F.3d 917 (6
As noted in Potts, the terms of a confirmed Chapter 11 plan remain binding post-dismissal as does the discharge granted through or in connection with such plan. 188 B.R. at 581-82. This case is now well past the 180-day deadline for revocation of an order of confirmation pursuant to Section 1144 for the revocation of confirmation orders "procured by fraud." 11 U.S.C. § 1144. See also In re Longardner & Assocs., Inc. 855 F.2d 455, 460 (7
Dismissal post-confirmation can also serve a purpose for certain open cases such as when dismissal may be necessary for a creditor to enforce its rights under the plan in another court. Dismissal can work to free creditors from the automatic stay to permit them to take action to enforce the terms of the plan or other claims that have not been discharged. See 11 U.S.C. § 362(c)(2)(B) (automatic stay other than against property of the estate terminates upon dismissal); 11 U.S.C. § 362(c)(1) (automatic stay as against property of the estate terminates when property is no longer property of the estate); 11 U.S.C. § 349(b)(3) (unless court orders otherwise, upon dismissal property of the estate revests in the entity in which such property was vested as of the petition date). But here property of the estate vested in the Debtors upon confirmation, 11 U.S.C. § 1141(b), and the automatic stay as against the Debtors already terminated when the case was closed. 11 U.S.C. § 362(c)(2)(A).
Nor should a state court have concerns about concurrent jurisdiction in the interest of comity or abstention. Again, this case is long closed. As stated in Potts, "[f]ollowing confirmation, the bankruptcy court retains jurisdiction for limited purposes. Following dismissal, the bankruptcy court has no further jurisdiction and creditors are free to enforce their plan created contractual rights in the appropriate state court forum." 188 B.R. at 582 (quoting In re Page, 118 B.R. 456, 460 (N.D. Tex. 1990)). SummitBridge has not demonstrated why this court should exercise jurisdiction over enforcement of the plan, particularly when SummitBridge admits that it intends to seek enforcement through a state court. As to this point, this court finds the reasoning of the court in In re Canal St. Ltd. Partnership to be particularly instructive. 260 B.R. 460 (Bankr. D. Minn. 2001). In that decision, the court rejected the "broad-brushed theory that post-confirmation conversion should always be ordered merely because [the predecessors to renumbered Sections 1112(b)(4)(M) and (N)] contemplate post-confirmation conversion without language of limitation by time or event." 260 B.R. at 462 n.2. The court went on to explain that bankruptcy courts do "not have exclusive jurisdiction over issues stemming from a post-confirmation default" and the "call for exercising concurrent jurisdiction is increasingly tenuous as time passes after confirmation." Id.
SummitBridge cites language from In re Jordan Mfg. Co., Inc. where the court, quoting from the Advisory Notes to Bankruptcy Rule 3022, stated that a "final decree closing the case after the estate is fully administered does not deprive the court of jurisdiction to enforce or interpret its own orders and does not prevent the court from reopening the case for cause pursuant to Section 350(b) of the Code." 138 B.R. 30, 35 (Bankr. C.D. Ill. 1992). But Jordan involved objections to the entry of a final decree and did not involve a request to reopen a closed case. Indeed, immediately after the language quoted by the movant here the Jordan Mfg. court went on to state:
138 B.R. at 35-36. This court, too, does not need to determine the full extent of its potential post-decree jurisdiction to enforce or interpret its orders because SummitBridge admits that what it seeks is the dismissal of this case, and that it intends to enforce its rights in the state court and not in the bankruptcy court.
In similar situations other bankruptcy courts have denied requests to reopen a Chapter 11 case after confirmation and entry of the final decree on the basis of a default under the terms of the plan and at the request of a single creditor. For example, in In re OORC Leasing, Inc., the court held that, because "[o]ther courts are available to vindicate [a creditor's] rights under the confirmed plan," it was not appropriate to reopen a Chapter 11 case post-confirmation and post-final decree for the purpose of seeking to convert the case to Chapter 7, even if the creditor believed the bankruptcy court would be a more convenient forum. 359 B.R. 227 (Bankr. N.D. Ind. 2007).
The Seventh Circuit, too, has emphasized that it is incorrect to believe "that anyone who has been a debtor in bankruptcy has eternal access to federal court for all disputes related in some way to the debts handled in the bankruptcy proceeding." In re Zurn, 290 F.3d 861, 864 (7
Pettibone Corp. v. Easley, 935 F.2d 120, 122 (7
SummitBridge's supplemental briefings, recognizing that "dismissal will not unwind the Confirmed Plan," instead request for the first time that in addition to reopening and dismissing the case, the court "clarify that the Confirmed Plan did not invalidate the pre-petition Judgment Orders" entered by the state court in the foreclosure case. (See ECF No. 316.) SummitBridge's supplemental briefings also suggest that the Debtors did not receive a discharge at confirmation and that the confirmed plan did not modify RBS Citizen's rights.
SummitBridge is correct that Dr. Stirneman did not receive a discharge upon confirmation. The plan is clear that "the personal guarantee of Stirneman [as to T&A Holdings' and All Smiles' obligations to RBS Citizens] shall be discharged" only if the claims of RBS Citizens "are paid pursuant to the terms of this Plan." It is undisputed that Dr. Stirneman has not completed all payments under the plan and that this court has not granted him a discharge. Pursuant to 11 U.S.C. § 1141(d)(5), in "a case in which the debtor is an individual . . . unless after notice and a hearing the court orders otherwise for cause, confirmation of the plan does not discharge any debt provided for in the plan until the court grants a discharge on completion of all payments under the plan."
In contrast, T&A Holdings and All Smiles both received discharges of pre-confirmation debts upon confirmation, subject to the terms and conditions of the plan. For non-individual debtors, confirmation of the plan discharges them from debts as specified unless "otherwise provided . . . in the plan, or in the order confirming the plan." 11 U.S.C. § 1141(d)(1).
SummitBridge next argues that the exception found in Section 1141(d)(3) applies here:
11 U.S.C. § 1141(d)(3). But the plan is not a liquidating plan and it appears that the Debtors engaged in business post-consummation. Indeed, the confirmed plan provides for periodic payments over a period of seven years and expressly states that "Dr. Stirneman will continue in the dental operations of [All Smiles], which will allow T&A and [All Smiles] to make its payments under this Plan in the ordinary course, out of funds generated by the business." SummitBridge argues that the Section 1141(d)(3) exception applies because the plan states that if the Debtors are unable to refinance or pay the balloon payment owing to RBS Citizens at the end of seven years, the Debtors "will agree to a liquidation of its assets by the Bank either in or out of Bankruptcy Court." But for the exception contained in Section 1141(d)(3) to apply, "all three elements must be met." In re Jahelka, 442 B.R. 663, 673 (Bankr. N.D. Ill. 2010) (emphasis supplied) (citing In re T-H New Orleans Ltd. P'ship, 116 F.3d 790, 803 (5
SummitBridge points out that the plan provides for payment of RBS Citizens' claim in full, whether or not the Section 1111(b)(2) election is made, and expressly provides that RBS Citizens "shall retain its lien in the collateral of T&A and [All Smiles]." That does not mean, however, that the Debtors' obligations were not modified from the rights RBS Citizens would have had in the absence of the bankruptcy. RBS Citizens' claim as of the petition date was allowed in its entirety and provided for under the confirmed plan. But its post petition rights have been modified, at least with respect to T&A Holdings and All Smiles. In allowing RBS Citizens' claim as filed, including the amounts secured and unsecured, this court has already determined that the value of the collateral securing RBS Citizens' claim was less than the claim. Therefore, RBS Citizens is not entitled to subsequently add to its claim unmatured interest that otherwise would have accrued between the petition date and the confirmation date. 11 U.S.C. §§ 502(b)(2), 506(b). Additionally, the plan modified RBS Citizens' right to post-confirmation interest, limiting it to 6% APR and accruing solely on the value of the collateral securing its claim. The plan as confirmed did not provide for a different rate of interest upon default or any late fees or other specific ramifications upon default under the plan. Thus, any right to interest above and beyond that provided for under the terms of the plan was discharged as to T&A Holdings and All Smiles, though not as to Dr. Stirneman.
As to the pre-petition foreclosure judgments, the discharge of T&A Holdings and All Smiles voided such judgments only "to the extent that such judgment is a determination of the personal liability of the debtor with respect to" a discharged debt. Thus, the discharge does not prevent RBS Citizens or its proper successor from recommencing the foreclosure action solely as against the collateral. However, a Chapter 11 plan may either "modify the rights of holders of secured claims . . . or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims." 11 U.S.C. § 1123(b)(5). The terms of a confirmed plan are binding on both the debtor and any creditor of the debtor or entity acquiring property under the plan, whether or not the claim or interest of such creditor is impaired under the plan and whether or not such creditor has accepted the plan. 11 U.S.C. § 1141(a).
In In re Arns, the court found that the terms of the confirmed plan did not prohibit the creditor from enforcing its rights under the plan after default by recommencing a pre-petition foreclosure case in which it had received a pre-petition judgment of foreclosure and sale. 372 B.R. 876 (Bankr. N.D. Ill. 2007). The court, noting that in drafting the plan the debtor could have inserted a provision "requiring the dismissal of the pending state foreclosure action without prejudice if that was really intended," construed the ambiguity in the plan against the debtor. 372 B.R. at 885. Unlike this case, however, in Arns, the creditor alleged that it and the debtor had specifically entered into a side agreement allowing it to recommence the foreclosure proceeding upon plan default. It argued that this agreement was memorialized in language added to the confirmation order providing that:
372 B.R. at 880. The confirmation order had similar language permitting the creditor "to pursue its contractual rights and state remedies with regards to the Burr Ridge Property" after a two month default in plan payments and after a 14-day cure period. Id. Here, the confirmed plan contains no express provisions on remedies following a default in periodic plan payments. The plan does contain a provision that if the Debtors fail to pay the balloon payment to RBS Citizens by the 84
Additionally, an introductory paragraph in the plan expressly references the state court proceeding, stating that on "December 16, 2010 RBS and the SBA obtained a judgment for foreclosure and sale in the Circuit Court of the 22
The Debtors and SummitBridge dispute whether or not RBS Citizens made a proper election to have its claim treated as fully secured pursuant to Section 1111(b)(2) of the Bankruptcy Code. SummitBridge suggests that the election was filed by RBS Citizens and procedurally incorrect and thus invalid. However, since the plan has been long confirmed, the issue is really one of interpretation of the confirmed plan.
For the foregoing reasons, the motion to reopen the bankruptcy case will be denied. As such, the motion to dismiss the case will be denied as moot. A separate order shall be entered giving effect to the determinations reached herein.