TERRY L. MYERS, Chief Bankruptcy Judge.
Thomas Ricks ("Debtor"), filed a chapter 11 petition
Debtor subsequently filed a motion for reconsideration. This motion was based in large part on Debtor's contention that the sole testimonial evidence on the question of whether he was a farmer and, thus, whether conversion to chapter 7 was prohibited, was his own. He supported his request with amended tax returns designed to bolster his testimony, but those returns were manufactured after the hearing and after the decision. That motion was denied in a written decision. See In re Ricks, 2015 WL 6125559 (Bankr. D. Idaho Oct. 16, 2015).
The Order converting the case has been appealed. Debtor now seeks a stay pending appeal under Rule 8007. Doc. No. 546 ("Motion"). That request was opposed. It came on for hearing on November 16, and was taken under advisement following argument. This Decision resolves the Motion.
This Court has recently explained the authorities applicable to a motion for stay pending appeal.
In re Frantz, 534 B.R. 378, 384-86 (Bankr. D. Idaho 2015).
Frantz stated:
Id. at 386.
The likelihood of success on appeal also depends on the standard of review. Id. The standard of review on a decision to convert a case under § 1112 is abuse of discretion. Pioneer Liquidating Corp. v. U.S. Trustee (In re Consol. Pioneer Mortg. Entities), 264 F.3d 803, 806 (9th Cir. 2001). The same standard applies to denial of the motion for reconsideration. First Ave. W. Bldg., LLC v. James (In re OneCast Media), 439 F.3d 558, 561 (9th Cir. 2006).
"A bankruptcy court abuses its discretion if it applies an incorrect legal standard, or misapplies the correct legal standard, or if its factual findings are illogical, implausible or without support from evidence in the record." Frantz, 534 B.R. at 386 (quoting Bonnett v. Gillespie (In re Irish Pub-Arrowhead, LLC), 2014 WL 486955 (9th Cir. BAP Feb. 6, 2014) (citing United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) and Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010)). See also Pioneer Liquidating Corp., 264 F.3d at 806 ("Such a decision will be reversed only if based on an erroneous conclusion of law or when the record contains no evidence on which [the bankruptcy court] rationally could have based that decision.") (internal quotation and citation omitted).
Debtor emphasizes repeatedly that "the only testimony" regarding his status as a farmer was his own. The contention is unpersuasive for several reasons and does not support a conclusion that Debtor has a strong likelihood of prevailing on appeal.
First, the assertion is inaccurate. As the Court noted in denying reconsideration, Ryan McHugh testified regarding the manner in which Debtor reported his, and Ricks Ranches, Inc.'s, operations and income. Second, a focus on Debtor's testimony alone ignores the fact that this Court was entitled, indeed obligated, to consider the totality of the evidence in evaluating the issue of Debtor's status as a farmer.
Third, Debtor treated Ricks Ranches, Inc. as "the farming entity" throughout the case including filing Rule 2015.3 reports for that entity, obtaining approval of his personal guarantee of the corporation's operating loan with Farm Services Agency ("FSA"), and even in his disclosure statement.
Debtor's counsel at hearing acknowledged that this Rule 8007 factor was probably the most difficult for him to overcome. That observation is certainly accurate. The Court finds this factor strongly weighs against granting a stay pending appeal.
Conversion of the case means that Debtor loses the control over his personal nonexempt assets, including his ownership interest in Rick's Ranches, Inc. In argument, Debtor clarified that the stay is only sought to protect against the Trustee's administration of Debtor's ownership interest in Ricks Ranches, Inc. and the possible dissolution and winding up of that corporation under Idaho law. Debtor is not asking to stay Trustee's liquidation of other assets of Debtor, for example the development property that has been the subject of this and his other bankruptcies for years.
The possibility of Debtor controlling the process of the use and disposition of his assets through a chapter 11 was lost when the Court found no basis to grant relief from the earlier stipulated order requiring confirmation of a plan by September 25, 2015. Cause under § 1112(b) existed and the only issue remaining was whether the case would be converted rather than dismissed with a § 349 bar under on refiling. Thus, if Debtor is successful in appealing the § 1112(c) issue, the case would be so dismissed. Debtor's nonexempt assets (including his ownership interest in the corporation) would still be subject to the claims and collection efforts of his creditors, and without bankruptcy stay or protection.
That being said, the Court finds that this factor weighs in Debtor's favor, though not as strongly as Debtor urges.
As Trustee and creditors note in opposition to the Motion, a stay delays the effective and orderly administration of the assets of this estate, which is now approaching its third year. And they recognize that conversion, in part, effected a termination of Debtor's § 1107 rights to control the management, protection, treatment and disposition of assets. A stay as requested would restore some of those rights to Debtor. This places the estate and its creditors at risk. There are unanswered questions as to how property of the estate would be effectively protected from loss or diminution in value, and how additional costs including operating and other expenses will be covered. Debtor's Motion asserts that he will, as the corporation's owner, continue the corporation's farming operations at a profit and that FSA will continue to fund that operation. However, Trustee questioned these assertions, noting that, at the chapter 7 § 341(a) meeting, he learned Ricks Ranches, Inc. had to seek a lien release from FSA in order to pay current wages, and FSA had balked at its request for a lien release required to pay a farm chemical and fertilizer creditor. Trustee suggested a bond should be required, and noted that Debtor had neither provided nor proposed one.
This factor tilts toward denial of the Motion.
As noted in Frantz, imposition of a stay retards the orderly and expeditious bankruptcy process of estate administration by an independent trustee. Staying that chapter 7 process does not advance this public interest.
Frantz also noted that there is a public interest in ensuring due process is afforded. Here, Debtor has been given such process. While an appeal is raised as to the ultimate decision to convert and the denial of reconsideration, no issues have been raised as to the notice or process provided or the fairness and deliberativeness of the proceedings.
In addition, to evaluate the public interest, the request for a stay has to be viewed in context. That context includes the number of previous filings, and what occurred in them.
Debtor filed a chapter 11 case in 2009. Case No. 09-00215-JDP. It was later converted to a chapter 7. As Debtor's disclosure statement in the instant case, Doc. No 495, notes, conversion was based on Debtor's "gross mismanagement of the estate," and the Court's finding it could not trust Debtor to handle the finances of the estate given such mismanagement including egregious violations. Id. at 5. The conversion was appealed and, eventually, an agreed resolution was negotiated that resulted in dismissal of the appeal and the case. There, after Debtor transferred real property to Ricks Ranches, Inc., the corporation filed a chapter 12 bankruptcy in 2011. Case No. 11-03196-JDP.
This brief summary is telling. Debtor and his corporation have been in serial bankruptcies since 2009. Creditors have been held at bay, agreements have been breached, conversion of one case was ordered on grounds of gross mismanagement, and cases have been filed despite patent ineligibility. Through it all, Debtor has never been denied due process and, in the present case, was allowed ample time and opportunity to reorganize within the strictures of chapter 11. Having failed, his case was converted, though only after full notice and evidentiary hearing.
His Motion now seeks to preserve his control in derogation of the statutory rights of Trustee as the representative of the creditors. A stay, under these circumstances, does not serve the public interest. Rather, after some 5 and a half years of unsuccessful reorganization, and given the conduct of Debtor therein, the public interest in a fair, deliberate and orderly bankruptcy system is served by allowing the liquidation process in chapter 7 to proceed. This factor weighs against Debtor and his Motion.
Based on the foregoing, the Court finds that the objections to the Motion are well taken, and that Debtor has failed to carry his burden to show that imposition of a stay pending appeal under Rule 8007 is warranted. The Motion will be denied. The Court will enter an Order so providing.