FRANK J. BAILEY, Bankruptcy Judge.
The matters before the court are the proposed confirmation of the Seventh Modified First Amended Plan of Reorganization of debtor Charles Street African Methodist Episcopal Church of Boston ("CSAME") and the Motion of OneUnited Bank ("OneUnited") to Dismiss Chapter 11 Case for Cause. OneUnited objects to confirmation and CSAME to dismissal. For the reasons set forth below, including principally that the Plan would release a third-party guaranty without justification, the Court will deny confirmation; the court will also deny dismissal but order the appointment of an examiner.
CSAME is an incorporated congregation of the African Methodist Episcopal Church (the "AME Church"). OneUnited is CSAME's largest creditor, having extended to it two loans that, as of January 2012, were in default. On March 20, 2012, facing foreclosure on its church building and two other properties, CSAME filed a petition for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"). OneUnited moved to dismiss the case, arguing that CSAME was not eligible to be a debtor. By order of September 11, 2012, the court ruled that CSAME was eligible and denied dismissal. OneUnited appealed from that order; on September 30, 2013, the District Court affirmed, but that affirmance remains subject to possible further appeal.
OneUnited filed a proof of claim, asserting secured claims based on two loans made by OneUnited to CSAME on October 3, 2006: the "Church Loan," through which CSAME refinanced an earlier mortgage, under which CSAME borrowed $1,115,000, with principal and unpaid interest
The Loans are secured by CSAME's real property. The Church Loan is secured by mortgages on 551 and 553-565 Warren Street, Roxbury, Massachusetts and on 70 Summer Street, Milton, Massachusetts (the "Milton Parsonage"). The property at 551 Warren Street is the church building itself. CSAME and OneUnited agree that the current value of the properties securing the Church Loan exceeds the amount of OneUnited's claim on the Church Loan as of the date of the bankruptcy filing. The Construction Loan is secured by mortgages on 567-575 Warren Street, which is the site of the RRC, and on 5-15 Elm Hill Avenue, Roxbury, known as the Old Parsonage and an adjoining parking lot. CSAME and OneUnited agree that the current fair market value of the properties securing the Construction Loan is less than the amount of OneUnited's Claim on the Construction Loan as of the date of the bankruptcy filing. The Construction Loan was also originally secured by an $850,000 cash deposit of CSAME at OneUnited, but no one contends that a cash deposit continues to secure the loan.
In order to help CSAME obtain the Construction Loan, the First Episcopal District of the African Methodist Episcopal Church ("FEDAME"), of which CSAME is a member church, guaranteed CSAME's obligation to OneUnited on the Construction Loan (but not the Church Loan). Facing potential liability on the guaranty, FEDAME filed a proof of claim against CSAME in this case for rights of subrogation and contribution arising from the guaranty. OneUnited has objected to that proof of claim on two grounds: that FEDAME has waived any right of recourse it may otherwise have had against CSAME for liability arising from the guaranty; and that FEDAME's claim remains only a contingent claim — FEDAME disputes liability on the guaranty and to date has made no payment on it — which, for its contingency, must be denied. For the reasons set forth in a separate memorandum of decision issued today, the objection to claim has been overruled without prejudice as moot.
Early in the case, OneUnited moved to prematurely terminate the period in which a debtor enjoys the exclusive right to file a plan (the "Exclusivity Motion"). More to the point, OneUnited described in that motion, and attached to the motion a copy of, a proposed plan (the "OneUnited Plan") that it stood ready to file should its motion
With its bankruptcy petition, CSAME filed a plan of reorganization, then later an amended plan and a series of modified versions thereof. With respect to its Second Modified First Amended Plan, CSAME filed and, on June 11, 2012, the Court approved an Amended Disclosure Statement (the "Disclosure Statement"). Pursuant to approved solicitation procedures, CSAME solicited votes on the plan and obtained the acceptance of two of the plan's four impaired classes; OneUnited, the holder of the sole claim in each other impaired class, voted to reject as to both and objected to the plan's confirmation. No other creditor has opposed confirmation.
The court held an evidentiary hearing on confirmation of the Second Modified First Amended Plan, as further modified from time to time, on seven days over a period of ten months, commencing on August 15, 2012 and ending on June 28, 2013.
After approval of the Disclosure Statement as to the Second Modified First Amended Plan, CSAME moved repeatedly to make "nonmaterial" modifications to the plan, nonmaterial in the sense of requiring no resolicitation of votes or further disclosure. The Court granted these motions in part, resulting in the plan presently under consideration, CSAME's Seventh Modified First Amended Plan of Reorganization ("the Plan"). Its features are as follows.
Class Name Description Class 1 Other Priority Claims All priority claims (if any) that are not administrative claims or priority tax claims. Class 2 OneUnited Church Secured Claim OneUnited's secured claim on the Church Loan. Class 3 Tremont Secured Claim Any secured claim on a promissory note in favor of Tremont Credit Union. Class 4 OneUnited RRC Secured Claim OneUnited's secured claim on the Construction Loan. Class 5 General Unsecured Claims The claims of nonpriority unsecured creditors. Class 6 Other Secured Claims All secured claims other than those in Classes 2, 3, and 4.
Classes 1 and 6 are unimpaired. Each holder of a Class 1 claim will receive cash equal to the unpaid amount of its claim (except to the extent that it agrees to less favorable treatment) on or as soon as practicable after the latest of (x) the Plan's effective date, (y) the date on which the claim becomes allowed, and (z) such other date as the holder and CSAME may mutually agree. CSAME contends that there are no Class 1 claimants. Each holder of a Class 6 claim will have its agreement with CSAME reinstated. CSAME explains that the Class 6 claims total less than $18,000 and relate to payments CSAME makes in the ordinary course of business: ongoing utility and tax obligations, and purchase-money secured financing of CSAME's audio system.
All other classes are impaired. In addition, as to all other classes, the Plan provides for two possible treatments: one that would apply in the event the Court determined that the claims of OneUnited should, as CSAME would effect through diverse provisions of the Plan, be equitably subordinated to the claims in Classes 3 and 5, and another that would apply if not. Having determined that equitable subordination is not justified, I will limit the description of the treatment of Classes 2 through 5 to their non-subordination alternatives. Although the Plan requests equitable subordination, CSAME does not regard equitable subordination as necessary to the Plan, and CSAME asks that the Plan be confirmed even if equitable subordination is denied.
On its Class 2 claim, the secured claim on the Church Loan, OneUnited would receive in full satisfaction and discharge of such claim (i) the Milton Parsonage and (ii) a new promissory note from CSAME (the "New OneUnited Church Note"), secured by a new mortgage on the remaining properties that secure the Church Note. The
On its Class 4 claim, the secured claim on the Construction Loan, OneUnited would receive, in full satisfaction and discharge of such claim, a new promissory note from CSAME (the "New OneUnited RRC Note"), secured by a new mortgage on the properties that secure the Construction Loan note. The New OneUnited RRC Note would have the following terms: equal quarterly payments (which shall be paid into escrow between the Effective Date and the entry of a Final Order resolving the pending state court litigation), a 20-year term with 30-year amortization, an original principal amount equal to the Litigated OneUnited RRC Note Amount, and an interest rate equal to 5.75% per annum (non-compounding). The new promissory note and new mortgage would have fewer and different covenants from the note and mortgage that form the basis of the Class 4 claim. In addition, the Plan would release and discharge the liability of FEDAME to OneUnited on its Guaranty of the Construction Loan. However, by ¶ 4.6 of the Plan, if the Court determines that the New OneUnited RRC Note and OneUnited RRC Loan Mortgage do not provide treatment sufficient to confirm the Plan, then OneUnited shall instead receive, on its Class 4 claim, a modified New OneUnited RRC Note with an interest rate of 5.25% per annum (all other terms remaining the same), secured by the OneUnited RRC Loan Mortgage, which note would be guaranteed by a new guaranty from FEDAME of certain of the Debtor's obligations under the New OneUnited RRC Note (the "New Guaranty"). The proposed New Guaranty specifies (i) that it is a guaranty of CSAME's performance under the New OneUnited RRC Note ("each and every debt, obligation, and liability arising under that certain promissory note given by the Borrower to Bank under the Plan") and (ii) that "any contrary provision hereof notwithstanding, the Obligation of the Guarantor hereunder at any time shall be limited to [INSERT RRC LOAN AMOUNT MINUS DISTRICT'S PLAN CONTRIBUTION] (sic)." The terms RRC Loan Amount and District's Plan Contribution are not defined in the New Guaranty or the Plan.
With respect to Class 5, the class of general unsecured creditors, the Plan provides that if (as is the case) subordination is not approved, Class 5 claimants will receive no distribution.
In addition to the foregoing, the Plan includes four further provisions of note. First, it provides that on the effective date, FEDAME shall (i), as a condition of the Plan's becoming effective, provide a donation of cash to CSAME of $1.5 million, which donation shall be used exclusively for the costs associated with completion of the RRC, including payments to cure the Thomas Construction Contract (as described below), and (ii) waive its claims against CSAME, including its claim for contribution in connection with its guaranty of the Construction Loan. Second, the Plan further provides that, also on the effective date, CSAME shall assume its prepetition contract with Thomas Construction Company, Inc. ("Thomas" and the "Thomas Contract") — a 2006 agreement for construction and renovation of the RRC, for which CSAME ran out of funding before the project was completed — as amended by a negotiated amendment to the contract (the "Thomas Contract Amendment"), and shall cure all defaults thereunder by the payment on the Effective Date of $300,000 and allowing Thomas a general unsecured claim of $763,619.50.
Only OneUnited has objected to confirmation of the Plan, but it has done so on (by rough count) some 19 distinct grounds. For immediate purposes, it suffices to hit only the high points. First, OneUnited objects to the Plan's release of FEDAME's guaranty of the Construction Loan on jurisdictional, substantive, and equitable grounds. Second, it objects to the equitable subordination of its claims to those of Class 3 and 5 claimants. Third, it contends that the treatment of its claims is not fair and equitable under § 1129(b) because
On March 13, 2013, OneUnited filed its second motion to dismiss this bankruptcy case. It seeks dismissal for cause under 11 U.S.C. § 1112(b)(1) and (4). CSAME and Tremont have objected to the motion. The last three days of the evidentiary hearing on confirmation — June 24, 25, and 28, 2013 — also served as the evidentiary hearing on this motion to dismiss.
At the commencement of the last day of the evidentiary hearing, OneUnited's counsel brought to the Court's attention a concern about whether CSAME's properties continued to be insured. The Court inquired of CSAME's counsel, who stated: "I am informed that the two properties that are occupied that are used are fully insured and that the other three do not have current insurance.... I know that my client is working strenuously to try to rectify that today. They were working on that yesterday." This statement was not evidence; and no evidence was submitted regarding this apparent gap in coverage. OneUnited had not raised the insurance concern as "cause" under § 1112(b)(1) for dismissal of the case and did not then or at any time move to amend its motion or to reopen the evidence with respect to this issue.
As to both confirmation of the Plan and the Second Motion to Dismiss, the Court now makes the following findings of fact.
1. The AME Church was formed in Philadelphia, Pennsylvania in 1816.
2. Under the name "the First African Methodist Episcopal Society in the City of Boston," CSAME was incorporated by act of the Massachusetts General Court on January 28, 1839. Chapter 4 of the Acts of 1839. In 1978, the "Society" amended its name to Charles Street African Methodist Episcopal Church of Boston. CSAME has remained continuously incorporated in the Commonwealth of Massachusetts since its incorporation.
3. At all times from its incorporation through the present, CSAME has been and remains a congregation, or local church, of the AME Church and in good standing as such. It has no plans to sever its affiliation with the AME Church.
4. At present, CSAME has approximately 1,400 members on its rolls, 1000 of them active. It employs a pastor and other religious and administrative employees and pays their salaries. It conducts regular worship services, provides pastoral care and counseling, provides religious education, and engages in charitable activities of various sorts, much of it in the nature of activities, education, and support for children. It raises money through congregational giving in remarkable sums to support its regular program and special projects and to support the larger AME Church. It has expenses that it must and, for the most part, has paid.
5. Since 1994, the pastor of CSAME has been Rev. Gregory Groover. In accordance with AMEC polity, Rev. Groover became pastor by virtue of appointment by the bishop of CSAME's episcopal district, the appointments being always of a year's duration, subject to renewal. Rev. Groover serves not only as pastor and preacher
6. CSAME owns six parcels of real estate:
7. Prior to 2006, CSAME conducted a number of community development activities and programs through a separately incorporated Massachusetts nonprofit corporation that it formed. The corporation has been known since August 2005 as the Charles Street A.M.E. Roxbury Renaissance Center, Inc. ("CSRRC, Inc."), and for five years before that as the Charles Street A.M.E. Life Development Center, Inc., and before that as the Marcheta H. Taylor Life Enrichment Center, Inc. The by-laws of this corporation specify that the chairperson of its board of directors will always be the pastor of CSAME, and that at least 51 percent of the membership of the board will always be CSAME members. This corporation was dissolved on June 18, 2012 for failure to file seven annual reports but, upon application to revive it and cure of the deficiencies, revived on August 10, 2012. Also, its § 501(c)(3) status has lapsed and is in the process of being restored. Its executive director from 2005 through the bankruptcy filing in 2012 was Dennis Lloyd, who, during some of that period, was also the facilities manager for CSAME. The programs and activities of this entity have to date been conducted out of the Old Parsonage. They have included primarily an arts and music program for youths and an elder care program, both of which continue, and a now discontinued program for at-risk youths.
8. In 2006, following upon many years of planning, CSAME undertook to develop the RRC Property into a community center to be known as the Roxbury Renaissance Center ("RRC"). Though the RRC would be operated by CSRRC, Inc., its creation and the development of the building it will occupy are charitable initiatives of CSAME. CSAME anticipates that ownership of the RRC Property will remain in CSAME and that CSRRC, Inc. will occupy the RRC Property under a lease from CSAME. CSAME envisions the RRC as a mixed use facility. It would serve in part as space for charitable initiatives of CSAME, including as a community center for its neighborhood, the Grove Hall section of Boston. But CSAME also contemplates that the RRC would produce revenue through rental of its space — especially its ballroom for weddings and other functions, but also office space for nonprofit groups and perhaps for small for-profit start-ups — by which it would pay for its maintenance and staff and yield a surplus, payable to CSAME, as rent or some other contractual charge, to pay down the cost of its construction, especially the Construction Loan.
9. CSAME and CSRRC, Inc. have developed projections under which they anticipate that a portion of the debt service on the restructured Construction Loan obligation would be funded from RRC revenues. These projections, in more than one iteration, are useful but rough, incomplete (they include no line item for insurance), and necessarily somewhat speculative.
10. CSAME's decision and initiative to enter into the Construction Loan and Church Loan with OneUnited and to grant mortgages as security were the decision and initiative of CSAME. The rules of the AME Church required that the granting of these mortgages be approved by two ecclesiastical authorities — the Quarterly Conference and the Annual Conference (about which more below) — and the necessary permissions were granted, but the higher authorities did not direct that mortgages be granted. Their role was limited to oversight and permission; the initiative resided in the local church, CSAME, not in any other authority of the AME Church at any level.
11. The AME Church is structured, in its own nomenclature, as "a connection" or "connectional church." That is, although its "local churches," such as CSAME, may be separately incorporated, they are connected through a multi-tiered network of "conferences" of various regional breadths and of "episcopal districts," each having such authority as is specified in the AME Church's Book of Discipline. Local churches meet on their own, in Local Church Conferences presided over by the local church's minister in charge. For each local church, the pastor, ministers, and certain officers also meet in special quarter-annual meetings knows as Quarterly Conferences, presided over by a "presiding elder" for a given presiding-elder district (to be distinguished from an episcopal district). Each Quarterly Conference sends a representative to an annual District Conference for the presiding-elder district. Also annually, there is held a meeting of an Annual Conference, which is both an incorporated entity and a meeting, for the oversight of the local churches within the presiding-elder districts within the Annual Conference. The Annual Conferences are themselves organized into Episcopal Districts, of which (according to the 2008 Book of Discipline) there are twenty, each presided over by a bishop. Finally, the whole AME Church is overseen by a quadrennial General Conference, a legislative meeting of the bishops and an equal number of ministerial and lay delegates, which constitutes "the supreme body of the AME Church," and, between General Conferences, by a Council of Bishops, which is "the executive branch of the
12. The AME Church relies on the connections among its congregations to accomplish its mission and purpose and regards its various parts as interdependent. It defines "connectional" as "[a] structural organizational principle that all (national and international) AME church congregations are a connected network of unique, compatible, interdependent relationships to accomplish the mission and purpose of the church." The term is more than neutrally descriptive and clearly has ecclesiological significance for the denomination.
13. The structure and regulations of the AME Church are set forth in The Book of Discipline of the African Methodist Episcopal Church, the most-recently published (at least when this evidence was presented) being that of 2008. Subject to certain exceptions, the General Conference may make and amend the rules and regulations of the AME Church that are set forth in the Book of Discipline.
14. As a condition of making the Construction Loan, OneUnited insisted on receiving a guaranty of the loan from FEDAME, and FEDAME, at the request of CSAME, did give OneUnited a guaranty of the Construction Loan (the "Guaranty"). The Guaranty extends to all obligations of CSAME under the Construction Loan. It includes the following provisions:
15. Before the Construction Loan closed, FEDAME supplied to OneUnited a financial statement for the fiscal year ended May 31, 2006. The statement, which was prepared by an independent accountant, included the following note, known as "Note 1": "There are 330 associated churches in the First Episcopal District. The African Methodist Episcopal Church organization grants to the bishop of the First Episcopal District the authority to transfer funds at his discretion between organizations and member churches of the First Episcopal District and/or the district's central office. This authority also extends to any organization created or controlled by the district." This same statement, or a close variant thereof — modified only by substituting "direction" for "discretion" — appeared in several financial statements of FEDAME for succeeding years.
16. It is unclear whether, and to what extent, the bishop of FEDAME, or any bishop of the AME Church, has the authority represented in Note 1. One witness testified that the authority so described exists by tradition.
17. The FEDAME Financial Statement for fiscal year ended May 31, 2006, an unaudited, consolidated financial statement for the entire First Episcopal District, indicated that the entire District had cash of $23,588,192, of which $238,983 was in the District Office, $23,273,206 was in the Conference Churches, and another $76,003 was in certain District Activities. As is clear from its loan underwriting memo for the Construction Loan, OneUnited relied on these figures, and on the ability of the presiding Bishop to have recourse to the cash of the Conference Churches at his discretion, as represented in Note 1, in deciding to make the Construction Loan. There is no evidence that OneUnited, in relying on this critical, unusual, and intra-ecclesial language, ever inquired of FEDAME about the limits on and conditions under which the bishop would be exercising the discretion referred to in Note 1.
18. OneUnited maintains that Note 1 was a correct statement of the authority of a bishop. Nonetheless, OneUnited alleges that Note 1 and the financial documents containing it were produced, or at least given to OneUnited, with a belief that they were false and with intent to deceive. No evidence for this proposition was cited in OneUnited's proposed findings of fact,
19. OneUnited makes two related allegations [both in doc. #552, at p. 2] to support an overall allegation of bad faith by CSAME and FEDAME. The first is that someone — this allegation is in the passive voice, so the subject is unclear — renounced financial statements of FEDAME on which OneUnited relied. This allegation does not specify the subject, the financial statements (much less the specific content at issue), or the content and manner of the repudiation. The second is that CSAME and FEDAME have represented that, notwithstanding the Guaranty, FEDAME is in fact unable to satisfy the guaranteed obligations of CSAME. I am aware of no evidence as to either of these allegations, and OneUnited has proposed no findings as to either.
20. CSAME has since at least January of 2000 been conducting an internal capital campaign, known as Vision to Victory ("V2V"), to help fund the construction of the RRC. From January 2001 through April 2005, it raised $681,428. From May 2005 through November 2009, it raised a further $858,250.00. Thereafter, through December 2012, it raised at least another $308,000 and perhaps as much as $200,000 more (the overlapping of accounting periods makes a precise figure impossible). Virtually all of this money has now been expended on the RRC construction project.
21. The Church and Construction Loans closed in October 2006. (Their terms and collateralization are set forth in the Procedural History and need not be repeated here.) The RRC Loan, in the form of a construction line of credit, contemplated a term of 18 months, with a maximum of two 90-day maturity date extensions,
22. The construction work, for which CSAME had hired Thomas as general contractor, took longer and cost more than had been contemplated. CSAME had to and did fund, from its V2V fund, unanticipated costs of preparing the building before the loan-funded portion of the project could commence. This and the intervening winter delayed the project by many months. OneUnited granted two contractual 90-day extensions and three additional discretionary extensions of the maturity date, for a total of five such extensions. The last of these, dated September 1, 2009, was scheduled to expire on December 1, 2009.
23. On November 4, 2009, as the December 1, 2009 expiration of the fifth extension approached, RRC Executive Director Dennis Lloyd notified OneUnited that the construction work would not be completed until late April, 2010. OneUnited disallowed any further drawdown on the Construction Loan; by this point OneUnited had advanced only $2.8 million of the $3,652 million available under that loan. The Construction Loan facility expired on December 1, 2009.
24. When OneUnited and CSAME entered into the Construction Loan, both contemplated that OneUnited would refinance the Loan with a new five-year loan at prime plus one percent and a 30-year amortization. By the fall of 2009, however, the credit crisis of 2008 had made it much more difficult for CSAME to refinance with OneUnited or any other lender. Also, the resulting downturn in the economy caused a slowing in the V2V capital campaign needed to complete construction and otherwise fund the project.
25. Negotiations continued. With no progress, OneUnited declared the Construction Loan in default on April 19, 2010 but did not immediately undertake to enforce its rights against the collateral or under the Guaranty. Instead, it continued to work with CSAME to find an exit solution. By letter dated June 11, 2010, CSAME thanked OneUnited "for [its] extraordinary support and assistance ... stepping up to the plate when other lenders wouldn't even consider us."
26. In the summer of 2010, the amicable relationship soured. CSAME obtained the assistance of third-party benefactors, whose buy-out offer to OneUnited on behalf of CSAME appears to have elicited only resentment. Negotiations devolved into threats to defame and ad hominem attacks in both directions, many public, and differences became personal among the principals. On September 2, 2010, OneUnited filed suit on the Construction Loan against CSAME, as borrower, and against the First District, as guarantor, in the Suffolk County (Massachusetts) Superior Court (the "State Court Action"). CSAME and FEDAME responded with counterclaims. The Superior Court dismissed the counterclaims, but upon interlocutory appeal, the Appeals Court reinstated them. The claims and counterclaims remained pending when CSAME filed its bankruptcy petition.
27. Over the life of the Church Loan, CSAME made all but two of the monthly payments of interest (and even at least one of these was made but returned by OneUnited when it opted to proceed with foreclosure), albeit in many instances late, and also paid 43 of 46 assessed late charges. The Church Loan matured on December 1, 2011, at which point the entire principal balance came due and went unpaid. On December 12, 2011, OneUnited issued a Notice of Default and Demand for
28. The details of the Plan are set forth in the Procedural History and incorporated here by reference.
29. The Plan provides that the completion of construction of the RRC Building will be funded by a $1.5 million donation to the Debtor by FEDAME. The funds for the donation will be raised from donors in the greater Boston area. The fundraising effort is being led by Stephen Pagliuca, a managing partner of Bain Capital. An organization called the Friends of the First Episcopal District, of which Mr. Pagliuca is an authorized agent, has committed to pledge $750,000 toward the $1.5 million donation. Mr. Pagliuca remains committed to the pledge and raising the money for the donation. OneUnited has not disputed that, if the Plan is confirmed, the promised donation will be made; in any event, the Plan, by its own terms, cannot become effective unless it is made.
30. OneUnited has argued that it is a fiction to describe the above donation as being made by FEDAME; in fact, OneUnited contends, it is coming from Boston-area donors, was not raised by FEDAME, and is merely a device to help justify the Plan's release of the Guaranty. The Court disagrees. All of FEDAME's monies and assets originate in donations, so the donative nature of the fund is of no moment. Also, it is the joint intent of the originating donor and of FEDAME that the donation be FEDAME's; the evidence shows that, but for this structuring of the donation, the donation would be made at all.
31. Under the Plan, CSAME would assume the Thomas Contract for a cure cost of essentially $300,000; Thomas would also receive a sizable unsecured claim but, by virtue of the treatment of Class 5, get nothing for it. For this cure payment, Thomas would perform work remaining under the original contract valued at $262,350. In addition, Thomas would provide further services under an amendment to the contract for which CSAME would pay an additional $1.2 million. The total cost of Thomas's further work is thus $1.5 million, which would be paid in full by the FEDAME donation, which is itself earmarked for this purpose and would not be
32. CSAME's mission and program has for many decades included the training of new ministers. Since 2003, this effort has taken the form of a program known as the Pastoral Residency Program ("PRP"). The PRP permits seminary-educated but inexperienced ministers-in-training in the AMEC to train, in cohorts of three, for a two-year period at CSAME under the tutelage of CSAME's pastor, a program coordinator hired for this purpose, and (to lesser extents) CSAME's entire staff and congregation. As part of their training, the residents provide pastoral service to CSAME. The program pays the residents a stipend and health insurance, supplies them with a laptop, phone service, office space, and supplies, funds their travel to denominational meetings, and pays the salary of a program coordinator.
33. The program has been funded mostly by three grants from the Lilly Endowment, Inc. (the "Endowment"), each of four years' duration: $795,489, funded in December 2002 for operation of the PRP from December 1, 2002 through October 31, 2007;$850,000, funded in December 2006 for operation of the PRP from December 1, 2007 through October 31, 2010; and $875,000, funded in December 2010 for operation of the PRP from December 1, 2010 through August 31, 2015. Each grant was received subject to a grant agreement and the conditions specified therein, including: (i) that the grant be used solely for the PRP ("Under no circumstances may grant funds be expended, borrowed (inter-fund), pledged or transferred for reasons unassociated with the stated purpose of this grant."), (ii) that the grant be used in accordance with a budget appended to the agreement, with minor variations permitted, provided prior written notice is given to the Endowment, and larger variations permitted only on prior written approval, and (iii) that CSAME furnish the Endowment with annual written reports on the progress of the PRP and the financial management of the grant. The budget appended to the 2010 grant agreement contemplated that CSAME would itself contribute $275,888 to the PRP over the life of the grant, but the grant agreement did not require this contribution. CSAME has at all times administered the PRP not as or through a separate entity but as part of CSAME's own program; the PRP's income and expenses are CSAME's. Financial management and oversight of the PRP has been in the charge of Rev. Adams, but all disbursements of grant funds have required, and been made upon, the direction of Rev. Groover. Rev. Adams held the endowment funds in a segregated account, separate from other CSAME funds. None of the Endowment grants came with assurance of renewal, and, when it made the 2010 grant, the Endowment informed CSAME that it would be the last.
34. Upon application of CSAME, the Endowment also funded a two-year PRP grant in the approximate amount of $416,000, known as the Boston Cluster Grant, to be administered by CSAME but for the benefit of three other Boston-area congregations. This grant covered a two-year period ending in the summer of 2013.
35. Commencing in 2007 and in each year thereafter through 2012, Rev. Groover directed Rev. Adams to pay Endowment monies in satisfaction of obligations of CSAME that were not related to the PRP, and Rev. Adams, at Rev. Groover's direction (never on her own), transferred Endowment monies as so directed. These diversions occurred on numerous occasions and totaled $875,000, including $51,000 from the Boston Cluster Grant and one transfer, of $23,000 for insurance, that occurred after the bankruptcy filing, in April 2012. Rev. Groover and Rev. Adams made each diversion with knowledge that the funds in issue were restricted and, with one exception, that the diversions were contrary to the terms of the grants. The exception is that Rev. Groover was not aware that the monies diverted from the Boston Cluster Grant were being diverted from that grant; he believed they were being diverted from the third grant for CSAME's own PRP. That is, he knew he was violating grant terms but not that he was violating the terms of the Boston Cluster Grant — or a duty to the churches for whom CSAME was administering the Boston Cluster Grant. The diversions were made only to fund pressing needs of CSAME, including interest payments to OneUnited on the Church Loan, payments for work by Thomas that the Construction Loan would not fund, payments to OneUnited for extensions of the Construction Loan, denominational assessments, and insurance coverage. None of the monies were appropriated for the personal benefit of Rev. Groover or Rev. Adams. Rev. Groover has acknowledged the wrongfulness of, and his responsibility and regret for, the diversions and the misrepresentations and omissions they entailed.
36. Rev. Groover thought of and referred to these diversions as "borrowing." He understood and conceded that they were made without notice to the Endowment and were not consensual. Nonetheless, he and Rev. Adams both always intended that the diverted funds would be fully restored and that the PRP would suffer "no interruption or hiccup" on their account. He cannot always have been confident of achieving either goal, especially as total "borrowing" approached 80 percent of CSAME's annual budget. Still, I find that the intent was real; restoration began in 2010, long before the diversions were first disclosed. As of June 28, 2013, by payment from CSAME's own resources of expenses that would otherwise have been funded from the grants, some $288,000 of the diverted total had been restored, including the one post-petition diversion. I have no evidence that the diversions have disrupted or affected the PRP, either for CSAME's residents or for those of the Boston Cluster.
37. The diversions were made without prior notice to or the consent of the Endowment. In annual reports that Rev. Adams made to the Endowment from 2007 through 2012, she did not report the diversions, and Rev. Groover approved these reports. In the applications they made for the 2010 grant and the Boston Cluster Grant, Rev. Groover and Rev. Adams did not disclose the diversions. They did not list the Endowment as a creditor in their bankruptcy schedules, as a consequence of which the Endowment did not initially get notice of the bankruptcy case. Nor did Rev. Groover otherwise disclose the "borrowing" in the bankruptcy case, including in the Disclosure Statement. Until the fall of 2012, only Rev. Groover and Rev.
38. The Endowment, now aware of the diversions and of this bankruptcy case, has expressed disappointment about the diversions and pleasure at the congregation's commitment to replenish the restricted grant funds. It has not asserted a claim in the bankruptcy case or an objection to confirmation. CSAME disclosed the diversions in the Supplemental Disclosure and also indicated there that CSAME intends to continue to operate the PRP from its own resources at a level of approximately $162,000 per year (but with no indication of duration). The Boston Cluster Grant has expired by its own terms. By the budget that was approved with the third PRP grant, the PRP at CSAME is scheduled to continue through the end of the third grant, in August 2015. As Rev. Groover indicated in his communications with the Endowment, it is CSAME's intent to finish restoring the diverted funds by funding the PRP from CSAME's own resources
39. OneUnited has complained that Rev. Adams apparently accounted for the diverted funds in the financial records and reports of CSAME as income. Nowhere has OneUnited explained why it believes this was wrongful, as an accounting practice or otherwise. The grants were income to CSAME, albeit of restricted purpose. OneUnited does not allege that Rev. Adams was counting them as income twice, once when first received and again later when actually used. There is no evidence that they were counted as evidence when first received; better then to treat them as income when they are used than not at all. To be sure, the accounting at CSAME is no model, but counting the grant funds as income was neither deceptive nor intended by Rev. Adams to deceive. However, it is important to note that this particular source of revenue will not be available after confirmation.
40. OneUnited further alleges that Rev. Adams acted with intent to deceive by failing to distinguish the income from members' tithes and offerings from the Endowment income. It appears that Rev. Adams practice, beginning several years before the bankruptcy filing, was simply to list these two kinds of income together under a single line item in CSAME's records and in its self-generated financial reports. The latter apparently made their way into the CSAME's disclosure statement. OneUnited contends that was a deliberate deception that made CSAME's income from tithes and offerings seem considerably larger than it really was. This allegation is unsupported by the evidence. The practice in question commenced years
41. The diversions were not CSAME's first use of restricted Endowment funds. Notwithstanding that the Endowment's grant agreements expressly prohibited the pledging of these funds for reasons unassociated with the grant, OneUnited prevailed upon CSAME to pledge $850,000 of grant monies for 15 months to secure the Construction Loan, the funds to be held in an interest bearing certificate of deposit at OneUnited. This pledge was a condition of the granting of the loan. The pledge was subject to an agreement under which CSAME was permitted to withdraw "up to $150,000 for a related program," the PRP. Rev. Groover's understanding when the loan was negotiated was that the funds would not in fact be collateral for the loan. He testified: "There was an understanding, again by the Bank and the Church, that this $850,000 totally had to be used exclusively for the program," the PRP. The funds would simply be held on deposit at OneUnited. This agreement notwithstanding, in the letter by which OneUnited informed CSAME that its application for the Construction Loan was accepted, and which Rev. Groover signed on behalf of CSAME to accept the loan terms and conditions stated therein, the deposit is characterized as "additional collateral," with no stated limitation on its use as collateral except CSAME's right to withdraw up to $150,000. The deposit is also treated as collateral in OneUnited's loan underwriting memorandum. In that memorandum, the $850,000 deposit is referred to as a significant part of the "total collateral value"; and OneUnited further states:
Loan Underwriting Memorandum of May 4, 2006, OneUnited Exhibit 43 (emphasis added). It therefore appears that internally — but not in its mutual understanding with Rev. Groover regarding restrictions on the use of the deposit — OneUnited was treating the funds as collateral in the full sense: they were not an untouchable deposit but could be reached to cover debt service.
42. As of May 31, 2013, CSAME had unrestricted cash of only $5,400 and Endowment funds, for the PRP, of $7,500. The latter is by now exhausted. The Plan would bring $1.5 million into CSAME's coffers, but all of it would be dedicated to Thomas and completion of the RRC. None would be available as working capital, of which CSAME has virtually none. Without an appreciable level of savings, CSAME will be unable to address contingencies — from emergency roof repairs to cash flow interruptions occasioned by (among many other things) snow storms that cancel Sunday services.
44. CSAME's expert, Timothy Dragelin, painstakingly reconstructed from CSAME's accounting records the amount of CSAME's income from the donations of its members for the roughly six years ending December 31, 2012. In this reconstruction, he carefully identified and separated out income from Endowment funds. His results, which I find credible, are as follows:
12 mos end 12 mos end 12 mos end 12 mos end 12 mos end 12 mos end
Income $000s 3/31/08 3/31/09 3/31/10 3/31/11 3/31/12 12/31/12
General Offering 1,023 1,200 959 797 836 815
Special Events 2 66 -- 25 47 31
Interest 11 6 4 6 26 18
V2V 29 237 190 71 47 20
Totals 1065 1509 1143 899 956 884
45. Over the 15 months between the commencement of this case and the completion of the evidentiary hearing at the end of June 2013, CSAME has operated at an average deficit of approximately $14,166 per month.
46. In view of its debt service obligations and present deficit, CSAME would need, in order just to break even, some combination of increased giving and cuts in its expenditures totaling $330,000, plus its current annual deficit, approximately $170,000, plus at least a small cushion for contingencies, say $50,000, for a total of at least $550,000. After August 2015, this burden will lessen by approximately $100,000 with the scaling back of the PRP, and by another $62,000 two years later if the PRP is then fully eliminated.
48. Can CSAME generate the necessary increase in congregational giving for these periods and durations? CSAME argues that it can, pointing to the years just before litigation with OneUnited began, in which it achieved giving at or near the necessary level. It contends that the deterioration of relations with OneUnited, and then the bankruptcy filing, affected members' willingness to give and caused CSAME to suspend its RRC capital campaign, believing that OneUnited might be permitted to seize donations. CSAME maintains that with confirmation of the Plan, confidence and willingness would be restored, and giving at the necessary levels would once again be achieved. OneUnited says this is pure speculation and wildly improbable.
49. I find that confirmation of a Plan would likely enable giving to return to substantially higher levels than CSAME is presently achieving. There is evidence that CSAME has achieved higher levels in the past, that giving was actively suppressed, and, as the conditions attached to the $1.5 million Plan donation demonstrate, that confirmation of a plan that resolves all issues would restore confidence and lead to higher giving.
50. Each of the above concerns can be mitigated or allayed in part by development of cash reserves and demonstration that credit support from FEDAME (or another source) is a real, ready, and substantial supplement and backstop, both for short term cash flow issues and, in the event of default, for the whole of the obligations to OneUnited. At present, cash reserves are nonexistent; and CSAME has made little effort to demonstrate FEDAME's creditworthiness and willingness,
51. CSAME has appointed a committee of its members to recommend new procedures and measures to strengthen CSAME's ability to perform on the Plan, to stabilize its finances going forward, to approve its accounting and funds management procedures, and to avoid the possibility of future secretive diversions of resources. CSAME has adopted a raft of this committee's recommendations that will help with accountability, transparency, and fund-handling issues. OneUnited argues that these do not go far enough. I find that they at least go a long way and can be fine-tuned to address remaining concerns. Work is ongoing on the other issues. To date, however, I have no evidence of recommendations from this committee, or other initiatives from CSAME, regarding measures that might be taken to avoid cash flow issues that have plagued CSAME, especially routine and costly lateness of payments. A working capital reserve would be a large help here, but one that CSAME does not appear to have used its Chapter 11 respite from debt service to address. Also, as the present Plan indicates, CSAME has not made a priority of limiting its debt service obligations to manageable levels.
For reasons set forth below, the Court concludes that confirmation of the currently proposed plan must be denied. This conclusion could rest on a single blocking determination, such as the conclusion that the proposed release of FEDAME's guaranty is not justified, which by itself would require denial of confirmation. However, CSAME has indicated its intent to propose another plan (should this one be denied confirmation), and it is only fair, after their considerable expenditure of time and effort on the present plan, that the parties know where the Court stands on the various issues, especially those that may resurface in some form. Accordingly, the Court will address most of the issues in contention, albeit not in every instance with the detail that one might bring to that issue were it alone dispositive.
Given the vital mission of CSAME — vital to its members and its community — the debtor must be afforded considerable latitude in achieving financial stability. All constituents in this case were well aware of the core mission of CSAME; indeed they were motivated to deal with CSAME because of that mission and no doubt derived a benefit from its vitality. The Court will indulge all reasonable efforts to ensure reorganization.
The matter before the Court is the confirmation of a chapter 11 plan. It arises under the Bankruptcy Code and in a bankruptcy case and therefore falls within the jurisdiction given the district court in 28 U.S.C. § 1334(b) and, by a standing order of reference (codified in the district court's local rules at LR. 201, D. Mass.), referred to the bankruptcy court pursuant to 28 U.S.C. § 157(a). It is a core proceeding within the meaning of 28 U.S.C. § 157(b)(1). 28 U.S.C. § 157(b)(2)(L) (core proceedings include confirmations of plans). The bankruptcy court accordingly has authority to enter final judgment.
Section 1129 of the Bankruptcy Code governs confirmation of a chapter 11 plan and sets forth the requirements for confirmation. 11 U.S.C. § 1129. Where, as here, an impaired class has voted to reject a plan, the plan may be confirmed only if it (a) satisfies every applicable provision of § 1129(a) other than subsection
Section 1129(a)(1) of the Bankruptcy Code requires that "a plan comply with the applicable provisions of this title." 11 U.S.C. § 1129(a)(1). Courts have interpreted this provision as requiring that a plan comply with the requirements of §§ 1122 (governing classification of claims) and 1123 (governing the contents of a plan), as well as other Code provisions. OneUnited's objections implicate six of these: § 1122(a) (classification of Tremont and Lilly); § 1123(a)(5) (the release; lack of means to fund the Plan); § 1125(b) (adequacy of disclosure); § 109(d) (eligibility); § 510(c)(1) (equitable subordination); and § 365 (assumption of Thomas Construction Contract).
OneUnited argues that the Tremont claim is in fact wholly unsecured (because postpetition growth in the Church Claim has fully consumed the equity in the property securing it, leaving no value to fund Tremont's junior mortgage), and therefore that § 1122(a), in combination with § 1123(a) and the law construing these provisions in this circuit, requires that Tremont's claim be classified with the general unsecured creditors in Class 5, not separately in Class 3 and treated as fully secured. For the following reasons, the court disagrees. In doing so, the Court assumes for the sake of argument OneUnited's Church Claim fully consumes the equity in the property securing it, such that, under § 506(a), Tremont's claim is wholly unsecured and substantially similar to the claims in Class 5.
First, § 1122(a) states that, subject to an exception not applicable here, "a plan may place a claim or an interest in a particular class only if such claim or interest is substantially similar to the other claims or interests of such class." 11 U.S.C. § 1122(a). It thus limits the circumstances in which claims may be joined together in a single class. It does not require that substantially similar claims be joined together in the same class.
Second, in relevant part, § 1123(a) states that "a plan shall ... provide the same treatment for each claim or interest of a particular class, unless the holder of a particular claim or interest agrees to a
Third, the cited circuit-level authority states that "[t]he general rule regarding classification is that all creditors of equal rank with claims against the same property should be placed in the same class," and that "[s]eparate classifications for unsecured creditors are only justified where the legal character of their claims is such as to accord them a status different from the other unsecured creditors." Granada Wines, Inc. v. New England Teamsters and Trucking Industry Pension Fund, 748 F.2d 42, 46 (1st Cir.1984) (internal quotations omitted). On the basis of the rules thus stated, Granada Wines sustained the objection to confirmation of a plan by a creditor, a pension fund, whose claim would have been paid half the dividend that the other creditors in its class were to be paid. The Court of Appeals for the First Circuit held that the debtor did not and could not have separately classified the pension fund claim from those of other creditors; implicitly, it also held that the plan could not treat the pension fund differently from other creditors in the same class. In doing so, however, it did not address § 1123(a)(4) or § 1122(a) and was not faced with the disparate treatment of an assenting class. Moreover, insofar as the Court of Appeals appeared to be applying any provision of the Bankruptcy Code, it was § 1129(b)(2)(B)(ii), which, the Court noted, applies and is necessary only with respect to the treatment of classes that have not accepted the plan. Granada Wines, 748 F.2d at 46 ("Section 1129(b)(2)(B)(ii) of the Bankruptcy Code provides for a method of confirming a reorganization plan over the objection of an impaired class of creditors" (emphasis added)). Granada Wines differs from the present case in that the affected creditor in that case did not assent to its disparate, lesser treatment. Here, the affected creditors assent, a difference that, in view of § 1123(a)(4), makes a difference. Granada Wines therefore does not govern the present facts.
Fourth, the alleged impropriety in classification and treatment of Tremont's claim does not affect OneUnited or its treatment. OneUnited lacks standing to raise it.
I add that the same objection as OneUnited raises here on behalf of the Class 5 unsecured creditors could be made about the Plan's treatment of the Construction Loan: it treats the claim as secured to the extent of $3,815,795.70, but the value of the property securing that claim is much less, such that the Plan effectively prefers OneUnited's unsecured debt over that of the Class 5 claimants. Yet OneUnited does not raise this objection. More importantly, neither have the Class 5 claimants.
OneUnited argues that the Lilly Endowment has an unsecured claim for restoration of misapplied restricted-use funds and that, in violation of §§ 1122 and 1123(a), the Plan (i) does not classify the claim of the Lilly Endowment at all and (ii) affords the Endowment disparate treatment by promising full payment of its unsecured claim while, absent equitable
I do not understand OneUnited to be arguing that the Plan's classification of claims does not include whatever unsecured claim the Endowment may have. If the Endowment has an unsecured claim, that claim is part of Class 5. Nothing in the Plan's definition of the membership of Class 5 would exclude the Endowment's nonpriority unsecured claim (if any) from Class 5; and it is not necessary for the Plan to identify by name each member of such a class — most plans do not, and this one does not specifically identify any member of Class 5 (except Thomas Construction, and then only because that is part of the agreement for assumption of its contract).
Nor do I understand OneUnited to be complaining of unfairness or nondisclosure to the Endowment. Rather, the gist of this objection is that CSAME has, by means outside the Plan and without disclosure to other Class 5 claimants, promised to make the Endowment whole by continuing to fund the PRP at a particular level, and thereby has unfairly preferred the Endowment over similarly-situated class 5 claimants, without fair disclosure to them.
The Court agrees that OneUnited lacks standing to make this objection — it is not a member of Class 5. The Court nonetheless has an independent duty to determine that the requirements of confirmation are satisfied but finds no cause here for concern. The Plan itself is the governing document. It makes no specific provision for the Endownment. The Endownment is aware of the case and of the Plan and has not filed a proof of claim; but should it do so, that claim would be paid to the extent specified in the treatment of Class 5 (that is, no dividend) and would otherwise be discharged. In the Supplemental Disclosure, CSAME made clear its intent to continue funding the PRP at a specific level, which funding would effectively restore to the PRP what was diverted, but were the Plan confirmed, CSAME would have no obligation to the Endowment, on account of any claim it may have, to follow through on this intent. In any event, a debtor always retains the prerogative of honoring any discharged obligation. 11 U.S.C. § 524(f). And CSAME is being reorganized to carry on its mission and programs; this is no secret from any creditor. One long-standing part of that program is the PRP. CSAME would carry on this program regardless of any obligation to the Endowment. For these reasons, I conclude that disclosure to the Class 5 creditors was not inadequate concerning CSAME's intention to fund the PRP.
Section 1123(a)(5) states that "[n]otwithstanding any otherwise applicable nonbankruptcy law, a plan shall ... provide adequate means for the plan's implementation[.]" 11 U.S.C. § 1123(a)(5). OneUnited contends that the means of implementation are inadequate in three respects.
OneUnited argues that the Plan relies on income from the RRC and from rental of the Storefronts, but (i) the Plan provides no means to restore the Storefronts to rentable condition, (ii) the RRC cannot generate income while incomplete, and (iii) the RRC would be run by an entity that CSAME does not control. For reasons articulated in the findings above, the Court agrees that income from the Storefronts and the RRC cannot be counted on to fund the Plan. However, the Plan provides other means for its implementation, especially membership giving, the adequacy of which the Court will address in its feasibility analysis under § 1129(a)(11).
For the first time in the brief it filed after the evidentiary hearing on confirmation and even after CSAME had filed its post-trial brief, OneUnited objected to confirmation on the basis that "sections 9.3(a) and 9.4 of the Plan" — respectively, a release of the Chapter 11 Parties (a defined term) and an exculpation and limitation of liability for Chapter 11 Parties — "propose to release claims [CSAME] has or may have against non-debtor insiders (including First District and Rev. Groover) despite the fact such claims might arise from gross misconduct and fraud." In the circumstances of this case, OneUnited maintains, this release would be "contrary to substantive bankruptcy law." By virtue of its timing, this objection is deemed waived. I note, moreover, that the briefing of this objection is almost entirely undeveloped, that § 9.4 contains an express exception for gross negligence, willful misconduct, or bad faith, and that Rev. Groover does not appear to be a Chapter 11 Party.
In opposition to the Plan's release of FEDAME's liability to OneUnited on the Guaranty of the Construction Loan, One United contends that the release is an impermissible means of implementation, arguing that: (i) the bankruptcy court lacks subject matter jurisdiction to approve a plan containing a third-party release; (ii) the bankruptcy court, a non-Article III tribunal, lacks constitutional authority to adjudicate a plan containing a third-party release; (iii) Bankruptcy Code § 524(e) bars third-party releases; (iv) a third-party release cannot be approved where the affected party does not consent; (v) equity bars the release because FEDAME fraudulently induced OneUnited to rely on the Guaranty and approve the Construction Loan through financial statements it knew to be false; and (vi) even under the "Master Mortgage factors," the oft-cited factors articulated in In re Master Mortgage Investment Fund, Inc., 168 B.R. 930, 934-35 (Bankr.W.D.Mo.1994) that CSAME urges the Court to adopt, the release fails because (a) the affected party opposes it, (b) the Plan does not pay the released claim in full, (c) the release is unnecessary, (d) FEDAME is not contributing substantial assets to the reorganization, and (e) there is no indemnity relationship or identity of interest between the debtor and the party being released.
OneUnited argues that the Guaranty is unrelated to this bankruptcy case, and its release in the plan is a two-party
Citing Stern v. Marshall, ___ U.S. ___, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), OneUnited argues that approval of the release is tantamount to adjudication of the guaranty, which, as a two-party dispute that arises under state law between non-debtor parties, cannot constitutionally be adjudicated by a non-Article III judge, even if that controversy is part of a statutorily defined "core proceeding" in 28 U.S.C. § 157(b). Again, the Court disagrees. The matter before the Court is not a suit on the Guaranty; the merits of the Guaranty are not in controversy. To reiterate, the matter before the Court is the confirmation of a plan, a unitary omnibus civil proceeding for the reorganization of all obligations of the debtor and disposition of all its assets. Confirmation of a plan is not an adjudication of the various disputes it touches upon — the Guaranty being here but one of many; it is a total reorganization of the debtor's affairs in a manner available only in bankruptcy. The release may be proposed and approved only as part of a plan and only (if at all) pursuant to powers of adjustment afforded by the Bankruptcy Code, such as in sections 1123(a)(5) and 105(a). Accordingly, the confirmation of a plan — including any third-party release it may propose — is a matter of "public rights" that, under Stern, Congress may constitutionally assign to a non-Article III adjudicator. Stern, 131 S.Ct. at 2618 (the question is "whether the action at issue stems from the bankruptcy itself" and thus falls within one of the limited circumstances covered by the public rights exception). There is no constitutional infirmity in Congress's having provided, in 28 U.S.C. § 157(b)(1) and (b)(2)(L), that confirmation of a plan, including
The Plan proposes a third-party release, a release not of CSAME's rights, rights it undoubtedly controls, but rights belonging to OneUnited: specifically, OneUnited's rights under the Guaranty against FEDAME. The Bankruptcy Code does not expressly authorize third-party releases but neither does it expressly prohibit them. Section 524(e) states that "a discharge of a debt of the debtor does not affect the liability of any other entity on... such debt," 11 U.S.C. § 524(e), but it does not preclude the bankruptcy court from limiting the liability of co-obligors in appropriate circumstances. 11 U.S.C. § 524(e). In § 1123(a)(5), the Bankruptcy Code grants a debtor extraordinary — albeit not unlimited or clearly delimited — latitude to propose means for implementation of a plan, means that may preempt otherwise applicable nonbankruptcy law. See Irving Tanning Co. v. Maine Superintendent of Ins. et al. (In re Irving Tanning Co.), 496 B.R. 644, 661-66 (1st Cir. BAP 2013) and cases cited. And in § 105(a), the Bankruptcy Code grants to the court authority to issue "any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title." Against this statutory background, the Court cannot conclude, a priori, that no third-party release, however well-tailored and justified, may ever be permitted in a plan of reorganization.
The state of the law on third-party releases, unsettled in the First Circuit, was concisely summarized by Judge Hoffman of this district in In re Quincy Medical Center, Inc., 2011 WL 5592907 (Bankr.D.Mass.2011). I adopt his summary by reference and agree with him, with the circuit-level majority, and with Judge Hillman of this district that a chapter 11 plan may, in appropriate circumstances, include a third-party release, and that the Master Mortgage factors are useful considerations in assessing the propriety of a proposed release. Id. at *2. "These factors are neither exclusive nor conjunctive requirements." In re Washington Mutual, Inc., 442 B.R. 314, 346 (Bankr.D.Del.2011). They are a useful starting point.
The first consideration is whether there is an identity of interest between the debtor and the third party, FEDAME, usually an indemnity relationship, such that a suit against the non-debtor is, in essence, a suit against the debtor or will deplete assets of the estate. CSAME argues that the identity of interests is present here because any payment by FEDAME on the Guaranty gives rise to an equal claim by FEDAME against CSAME for indemnification or contribution. OneUnited argues that there is no such relationship here because (i) in the Guaranty, FEDAME waived any right of indemnification or contribution it may otherwise have had and (ii) FEDAME's claim remains contingent — because FEDAME has not yet made a payment to OneUnited on the Guaranty — and, 11 U.S.C. § 502(e)(1)(B) requires that a contingent claim be denied. FEDAME, in responding to OneUnited's objection to its claim, answered that the Guaranty contains no waiver of rights, only, at best, a covenant to forbear from suing CSAME or from sharing in a distribution of OneUnited's collateral.
The Court concludes that there is an identity of interest between CSAME and
The second Master Mortgage factor is whether the non-debtor, FEDAME, has contributed substantial assets to the reorganization. The short answer is: yes, but not in a way that matters much. In the findings of fact, I found that it is not a fiction to treat the promised contribution of $1.5 million as FEDAME's.
The third Master Mortgage factor is whether the injunction is essential to reorganization,
The fourth Master Mortgage factor is whether a substantial majority of the creditors, and especially the affected classes, agree to the release and have overwhelmingly voted to accept the proposed plan treatment. Master Mortgage, 168 B.R. at 935. The consent of the affected creditors can render irrelevant many other concerns. Here, the Class 3 and 5 claimants support the Plan, but OneUnited, holder of the vast majority of the debt and the sole affected creditor, opposes the release and the Plan. Among those courts that subscribe to the Master Mortgage approach to releases, some, including Judge Hoffman, take the position that "only consensual releases are permissible." In re Quincy Medical Center, Inc., 2011 WL 5592907, at *4 and cases cited. I do not hold that no nonconsensual release, however narrowly tailored and otherwise justified, can ever be approved. Certainly, however, no nonconsensual release can be approved where the plan does not replace what it releases with something of indubitably equivalent value to the affected creditor.
This raises the fifth Master Mortgage consideration: whether the plan provides a mechanism for the payment of all, or substantially all, of the claims of the class or classes affected by the injunction. Only Class 4, the class of OneUnited's Construction Loan Claim, is affected by the release. CSAME maintains that the Plan proposes to pay OneUnited "all obligations [CSAME] legally owes OneUnited in full, granting the Bank new notes in the amount of its outstanding obligations[.]" This is true in a sense, but not in the sense needed to justify the release. The Plan proposes to pay the Construction Loan only to the extent of the amount of the debt on the petition date. The Plan treats that sum as entirely secured, but because the value of the collateral has never exceeded that sum, by operation of 11 U.S.C. §§ 506(a) and 502(b)(2), any claim that OneUnited may have for postpetition interest, fees, and other charges is disallowed. Its claim is frozen at the amount owing on the petition date. On the Guaranty, however, FEDAME's liability extends to all of what CSAME owes on the Construction Loan, regardless of the Bankruptcy Code's limitations on the recoverability of those sums against CSAME. The Plan would pay postconfirmation
The parties would have the Court consider two further factors. First, CSAME asks the Court to consider that the Guaranty is subject to potentially serious counterclaims — serious because an appellate court has said that the counterclaims do not fail to state a claim on which relief can be granted — and therefore is of doubtful value. I give no weight to this argument. The merits of the Guaranty and counterclaims are in litigation in another forum, not here. For purposes of evaluating the merits of the release, I assume without finding or ruling that the Guaranty is enforceable and that FEDAME is solvent and can honor it — whether by recourse to the authority referenced in Note 1 or otherwise.
Second, OneUnited argues that the release, if otherwise meritorious, should nonetheless be disallowed in equity for unclean hands because, OneUnited alleges, FEDAME fraudulently induced OneUnited to make the Construction Loan by inserting Note 1 into financial statements that it gave OneUnited. Note 1 is a representation that the AMEC "grants to the bishop of the First Episcopal District the authority to transfer funds at his discretion between organizations and member churches of the First Episcopal District and/or the district's central office." Several individuals with knowledge of AMEC polity testified that Note 1 was inconsistent with their understandings or that they were unaware of authority for it; one testified that authority for the proposition exists by tradition. The burden of alleging and proving fraud here falls on OneUnited but has not been carried. Fraud would require a false statement, but OneUnited maintains that Note 1 is true, so whatever is alleged here, it is not fraud. In any event, OneUnited has not established that Note 1 and the financial documents containing it were produced, or given to OneUnited, with intent to deceive (the apparent theory being that an intended deception was bungled in the execution by the inadvertent truth of the intended falsehood). Accordingly, I give this argument no weight.
The Court is left with a release that is not essential to the debt repayment objectives of the Plan, that does not have the assent of the affected creditor, and that does not treat that creditor so well that the release is of virtually no concern. On these considerations, the release is an impermissible means of implementation.
Section 1123(b)(2) of the Bankruptcy Code states that subject to § 365, a plan may provide for the assumption of an executory contract. OneUnited contends that the Plan's proposed assumption of the Thomas Construction contract for a $300,000 cure payment, as part of an agreement in which Thomas Construction would also be hired at a cost of an additional $1.2 million to complete the RRC construction project and would get a general unsecured claim of $763,000, should be disallowed under § 365 as an abuse of the
When considering a debtor's request to assume an executory contract under § 365, "the only issue properly before a court is whether the assumption or rejection of the subject contract is based upon a debtor's business judgment." Eagle Ins. Co. v. BankVest Capital Corp. (In re BankVest Capital Corp.), 290 B.R. 443, 447 (1st Cir. BAP 2003). The business judgment standard "merely requires a showing" that assumption of the executory contract will benefit the estate. In re MF Global Holdings, Ltd., 466 B.R. 239, 242 (Bankr.S.D.N.Y.2012). Once a debtor articulates a valid business justification, "[t]he business judgment rule `is a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.'" Official Comm. of Subordinated Bondholders v. Integrated Res., Inc. (In re Integrated Res., Inc.), 147 B.R. 650, 656 (S.D.N.Y. 1992) (quoting Smith v. Van Gorkom, 488 A.2d 858, 872 (Del.1985)).
Assumption of the contract is well-justified. Thomas Construction is known to and a neighbor of CSAME, is familiar with the project, and has demonstrated commitment to the project and to CSAME, all of which reduces the risk that Thomas Construction would abandon the project or seek to alter terms at a key construction juncture. The assumption agreement, a compromise, was negotiated at arm's length. By accepting most of its cure in the form of an unsecured claim, which without equitable subordination is entitled to no distribution, it has effectively agreed to accept a cure payment, $300,000, that is close in value to the work remaining on the original contract, which OneUnited itself fairly estimates to be worth $262,350. The premium being paid, if there is one at all — OneUnited has adduced no evidence that the work might be contracted to another builder for less — is more than justified by the fact that any other contractor would be unknown and unfamiliar with the project, and would have to add cost for coming up to speed. Thomas Construction will likely complete the RRC in a reasonable time. Significantly, all funds to pay Thomas Construction are coming from outside sources and earmarked for such payment; the assumption therefore does not affect other creditors or the estate except by enhancing the value of the RRC.
The Plan proposes, in the first instance, to subordinate OneUnited's claims to the claims in Classes 3 and 5. The Court has addressed the issue of equitable subordination in a separate memorandum of decision issued today (the findings and rulings in which I incorporate by reference) and, for the reasons stated therein, has denied subordination. The Plan provides for alternative treatments of the affected classes, and therefore denial of subordination does not itself require denial of confirmation.
Section 1129(a)(2) is a requirement that the proponent of the plan comply with the applicable provisions of the Bankruptcy Code. OneUnited would find fault here in two respects.
Section 1125(b) requires that the solicitation of votes occur with the benefit of a written disclosure statement approved as containing adequate information. As required, the Court did approve both the Disclosure Statement and later the Supplemental Disclosure as containing adequate information before the solicitations occurred. Section 1129(a)(2) permits the court to revisit the adequacy of disclosure in light of what is known at confirmation. OneUnited argues that the requirement of adequate information was not satisfied because (i) the Disclosure Statement's presentation of historic financial data was erroneous, (ii) other financial reports from an outside accountant were not included in the Disclosure Statement, (iii) CSAME's accounting erroneously counted the Lilly Endowment monies as income, (iv) the diversion of restricted Lilly Endowment funds was not initially disclosed, and (v) CSAME's schedules did not list the Endowment as a creditor or the Endowment's funds among its cash assets. All of this, OneUnited concludes, amounted to a purposeful withholding of accurate financial information from creditors, including OneUnited, and the presentation of misleading information to the unsecured creditors.
The question presented here is not good or bad faith — the Code treats that issue separately in § 1129(a)(3) — but whether the solicitation and voting occurred with adequate information. The Court continues to find that they did. OneUnited, having twice voted to reject the Plan, was not misled into acceptance. The Class 5 unsecured creditors, who did vote to accept, clearly did not do so for the dividend they would receive without equitable subordination, which is nothing. If they were self-interested at all, they must have accepted because the Plan proposed equitable subordination that, if permitted, would pay their claims from the first dollars that would otherwise go to OneUnited, their only hope of recovery; none of the alleged inaccuracies in disclosure would affect that dynamic. Tremont, which has had legal representation throughout and was supplied the Supplemental Disclosure and permitted to change its vote, is aware of all the alleged inadequacies of disclosure that OneUnited cites — the Supplemental Disclosure expressly put Tremont on notice of those issues — and elected not to change its vote; it supports confirmation. Under a different heading, OneUnited raised and the Court has addressed other disclosure issues raised by CSAME's intent to carry on the PRP. The Court is satisfied that disclosure has been adequate.
OneUnited objects to confirmation on the basis that the CSAME, the Plan proponent, is ineligible to be a debtor under § 109(d) of the Bankruptcy Code: that is, not eligible for bankruptcy relief at all. By order of September 11, 2012, and on the basis of findings and rulings articulated with the order [doc. # 359], the Court denied dismissal and ruled that CSAME was eligible. That order has been affirmed on appeal but remains subject to possible further appeal. The Court need not address the issue anew but incorporates by reference its earlier findings and rulings.
Section 1129(a)(3) requires that CSAME have proposed the Plan "in good faith and not by any means forbidden by law." 11 U.S.C. § 1129(a)(3). This is "generally interpreted to mean that there
This objection is now moot: the Court ruled above that the release is impermissible, which requires denial of confirmation; and any succeeding plan will be another plan, with its own separate manner of proposal, subject to its own good faith analysis. Because the good faith requirement figured so large in OneUnited's efforts, however, I note for the record the following. It was not bad faith to file a plan featuring a third party release, especially where the scope of the release has considerably narrowed over time, and a plan is always in bankruptcy as much a tentative negotiating position as a litigation position. CSAME was either entitled to the release or not — and if not, confirmation would be denied on that basis, not for requesting it — but testing the waters was not bad faith. The provenance of the FEDAME donation is also of no moment; the parties can argue about whether it should properly be credited to FEDAME, but the origins of the funds have always been clear and fully and fairly disclosed. The financial errors in the Disclosure Statement were pointed out by CSAME itself, which is highly inconsistent with an intent to deceive; the implication that the errors had their origins in bad faith is not proven. And the diversions of restricted — use funds were not part of the proposal of the Plan, the focus of § 1129(a)(3). The nondisclosure and misrepresentations concerning the diversions are germane, but they do not taint or derail the whole effort, which in substance represents a fair and serious effort by a 1400 member congregation, not Rev. Groover or Rev. Adams, to address CSAME's obligations to OneUnited and the universe of its solvency issues. Certainly the Plan promises to OneUnited a far better recovery than it can hope for in a liquidation or dismissal scenario (especially if, as OneUnited contends, the Guaranty is worthless), all by the membership's putting itself under considerable debt service strain that it has no obligation to undertake. This is not bad faith.
Sections 1129(a)(5)(A)(i) and (ii) require that the Plan proponent disclose the "identity and affiliations of any individual proposed to serve, after confirmation of the plan, as a director, officer or voting trustee of the debtor," and requires a finding that "the appointment to, or continuance in, such office of such individual, is consistent with the interests of creditors and equity security holders and with public policy." 11 U.S.C. § 1129(a)(5)(A)(i), (ii). OneUnited argues that the Court cannot find that the continuance in office of Rev. Groover and Rev. Adams is consistent with the interests of creditors and with public policy. Specifically, under the Plan, Rev. Groover would be tasked with receiving $1.5 million for completion of the RRC, but Rev. Groover, and Rev. Adams at his direction, diverted restricted funds from
Section 1129(a)(7), known as the "best interest of creditors test," provides (in relevant part):
11 U.S.C. § 1129(a)(7)(A). OneUnited argues that this requirement is unsatisfied for two sets of reasons. The first concerns the interests of the impaired claims in classes 3 and 5 and of CSAME, all of whom OneUnited argues would fare better, or no worse, in a chapter 7 liquidation. This argument is irrelevant: § 1129(a)(7) is satisfied as to Classes 3 and 5 by their acceptance of the plan, see § 1129(a)(7)(i), and it does not inquire at all into the interests of the debtor. After completion of the evidentiary hearing, OneUnited raised for the first time a second set of concerns, arguing that OneUnited itself would do better in a chapter 7 liquidation because the Plan deprives it of the value of the Guaranty, an asset it would retain in chapter 7. CSAME responds that this argument is untimely and that, in any event, the retention of outside assets, assets that don't belong to the estate, should not be considered in the § 1129(a)(7) calculus. In view of the rulings above on the proposed release of the Guaranty, this argument is now moot. OneUnited does not deny, and I readily conclude, that, if the Guaranty is not part of the calculus, the best interest test is satisfied as to both claims of OneUnited.
Section 1129(a)(8) requires that each impaired class of claims or interests accept the Plan. Here, two impaired classes have voted to reject. The Plan may therefore be confirmed only by satisfaction of the requirements of § 1129(b) as to each impaired class that has not accepted the Plan, the classes of OneUnited's claims.
Section 1129(a)(9) sets forth requirements for the payment through a plan of priority claims. No administrative or other priority claim has been filed or asserted in the case, and CSAME's professionals' services have been provided pro bono. Therefore this requirement is not applicable. OneUnited nonetheless objects, arguing that CSAME's cash on hand is insufficient to pay any administrative claims that
If any class of claims is impaired, § 1129(a)(10) requires that the plan have been accepted by at least one impaired class, determined without including any acceptance of the plan by an insider. 11 U.S.C. § 1129(a)(10). CSAME contends that this requirement is satisfied, citing the undisputed acceptance of the Plan by Classes 3 and 5, both impaired (and the acceptance of Class 5 having being determined without the vote of FEDAME).
Section 1129(a)(11) requires a showing that
11 U.S.C. § 1129(a)(11). This "feasibility test" requires the court to make an independent determination as to whether the Plan is workable and has a reasonable likelihood of success. See In re SW Boston Hotel Venture, LLC, 460 B.R. 38, 58 (Bankr.D.Mass.2011). A plan proponent need only demonstrate that there exists a reasonable prospect of success and a reasonable assurance that proponents can comply with the plan. Berkeley Fed. Bank & Trust v. Sea Garden Motel & Apartments (In re Sea Garden Motel & Apartments), 195 B.R. 294, 304-05 (D.N.J.1996). "A plan proponent need not guarantee the success of the plan, but rather must introduce evidence that its plan is realistic." SW Boston Hotel, 460 B.R. at 58. A court scrutinizing a plan should consider "(1) the adequacy of the capital structure; (2) the earning power of the business; (3) economic conditions; and (4) the ability of management." In re Agawam Creative Mktg. Assocs., Inc., 63 B.R. 612, 619-20 (Bankr.D.Mass.1986).
In view of the Plan's high level of debt service, the extraordinary demands
Where a plan proponent has satisfied all the applicable requirements of § 1129(a) except only the requirement in paragraph (8) that each impaired class of claims or interests accept the plan, "the court ... shall confirm the plan ... if the plan does not discriminate unfairly, and is fair and equitable, with respect to each class of claims or interests that is impaired under, and has not accepted, the plan." 11 U.S.C. § 1129(b)(1). Certain requirements of fair and equitable treatment for secured claims are set forth in § 1129(b)(2)(A). OneUnited argues that the treatment of its claims is less than fair and equitable in five ways; and it argues that the treatment of Class 5 unsecured creditors falls short in another.
OneUnited takes issue with the 20-year term of the two promissory notes it would receive in the Plan, arguing that notes of longer than ten years for "loans" of this kind are "wholly detached from market realities and fall far short of the indubitable equivalent treatment" that § 1129(b)(2)(A) requires. I conclude that the 20-year term is not in itself inadequate. The touchstone in § 1129(b)(2)(A) is whether the proposed treatment provides to OneUnited the indubitable equivalent of the value of its secured claim. A plan's treatment of a secured claim is not a loan, and "conformity to market realities" does not appear in the statutory language. I will consider the term and rate of amortization, especially the risks these entail, in determining whether the overall treatment of OneUnited's secured claims satisfy the indubitable equivalent standard and are otherwise fair and equitable. Provided they do, however, the 20-year term, standing alone, is no problem. This is especially so where the actual value of OneUnited's collateral is far less than the present value of what the Plan is proposing to give OneUnited for its secured claim.
OneUnited objects to the almost complete lack of covenants in the promissory notes and mortgages it would be given under the Plan. The parties are in agreement about the state of the law on this question. The Bankruptcy Code requires no particular set of covenants in restructured loans. The issue is whether the terms are fair and equitable, considering all the circumstances. The Court must consider "(1) whether the proposed terms and covenants unduly harm the secured creditor with respect to its collateral position; and (2) whether the inclusion of terms and conditions from the pre-bankruptcy loan documents would unduly impair the debtor's ability to reorganize." In re Am. Trailer & Storage, Inc., 419 B.R. 412, 441 (Bankr.W.D.Mo.2009). CSAME emphasizes the second prong, arguing that it would now be reasonable to expect that at the first technical breach of even the most minor covenant, OneUnited would not act as a normal lender, but would accelerate and thus cause the Plan to fail; and CSAME further points out that before the deterioration in relations between the parties, OneUnited showed little concern for the covenants. OneUnited emphasizes the first prong, arguing that the standard covenants are so wholly lacking that its collateral position is severely compromised,
The Court agrees with CSAME that, in view of OneUnited's conduct in this case and since its declaration of default, it should be expected that OneUnited would use standard covenants for maximum leverage, beyond their intended purpose. The Court would insist that collateral be insured (with due regard for the fact that three of the six properties have virtually no value beyond that of their land) and that nonpayment be an event of default after a suitable grace period. Beyond that, the Court will consider other covenants provided they are fashioned in a manner acceptable to CSAME or to otherwise allay CSAME's valid concern.
OneUnited objects to the interest rates of the promissory notes and mortgages it would be given under the Plan: for the Church Loan, 5.75 percent; for the Construction Loan, 5.75 percent, unless the Plan cannot be confirmed with that rate, in which event OneUnited would be given the New Guaranty and the interest rate would be reduced to 5.25 percent. As a preliminary matter, I find that the feasibility of the proposed repayment of the Construction Loan at 5.75 percent is far too risky to confirm without benefit of third-party credit support. With respect to the Construction Loan, I therefore would evaluate the proposal to pay interest at 5.25 percent with the New Guaranty.
I need not settle on a number here; the next Plan will be different, and the details matter. I offer the following observations to assist in further plan formulation. CSAME's expert defended the proposed rates, and OneUnited's expert opined that the appropriate rates would be at least 15.5 percent for the Church Loan and 18 percent for the Construction Loan. OneUnited's expert was less than convincing in a number of respects, among them arithmetic errors and his opinion that a 20-year term should have the same effect on the rate as a 30-year. Also, for each risk factor that should affect the rate calculus — among others, the inadequacy of collateral, the insufficiency of current income to cover debt service, the bare margin that even augmented income would supply, the terms of the replacement notes, the lack of cash reserves, and the history of cash flow and financial management issues — he increased the rate by an amount of his choosing, but he offered no reasons for the amounts he chose, a problem of calibration, precisely what his testimony was most meant to address. He also assumed that FEDAME's New Guaranty would have no mitigating effect on the risk of nonpayment, something that has not been established; his failure to address the curative effects of credit support is a major omission that would affect much else in his analysis. With respect to calibration, CSAME's expert was more persuasive, but he too made assumptions about the guarantor: that its creditworthiness was established by the fact that OneUnited relied on it in making the Construction Loan. I do not regard the creditworthiness of FEDAME as so established, both because OneUnited's opinion in the matter has changed since it made the loan — to what is not clear, perhaps not even to OneUnited, but it has changed — and because CSAME has simply not addressed the issue. In view of the strain that the Plan's debt service would place on CSAME, much rests on this issue that neither side has seen fit to address, and also on CSAME's ability to obtain a sizable working capital reserve.
In the Plan's treatment of OneUnited's Class 2 Claim, regarding the Church
In its § 8.7, the Plan dictates that it will be deemed "substantially consummated" as of the Plan's effective date; and, under the Plan's definition of Effective Date, the Plan could conceivably become effective on the date of confirmation. Substantial consummation can render an appeal moot. OneUnited objects, arguing that the occurrence of substantial confirmation on the effective date could unfairly deprive OneUnited of its right of appeal. This raises questions of whether a plan can artificially accelerate the date of substantial consummation and, conversely, whether for the sake of a creditor wanting to appeal, substantial consummation can be deemed to occur later than it actually does occur. For simplicity, and to preserve intact the right of appeal, if the Court were to confirm a future plan iteration containing this same language, the Court would simply add to the confirmation order a proviso that the Effective Date shall in no event occur until after expiration of 14 days from the date of confirmation.
In its earliest objection to confirmation [doc. # 261], OneUnited objected on the basis that Plan violates the absolute priority rule, § 1129(b)(2)(B)(ii), one of the conditions of a plan's being fair and equitable with respect to a class of unsecured creditors. OneUnited did not reiterate this objection in later statements of its position and thus appears to have abandoned it. In any event, the absolute priority rule is irrelevant because the class of unsecured creditors has accepted the plan. Section 1129(b)(1) requires a showing that a plan is fair and equitable only "with respect to each class of claims or interests that is impaired under, and has not accepted, the plan." 11 U.S.C. § 1129(b)(1) (emphasis added).
Having sustained OneUnited's objections concerning release of the Guaranty, inadequacy of covenants, and valuation of the Milton Parsonage, the Court will enter a separate order denying confirmation of the Seventh Modified First Amended Plan of Reorganization.
OneUnited has moved under 1112(b)(1) of the Bankruptcy Code to dismiss
11 U.S.C. § 1112(b)(1). The parties and the Court agree that conversion to chapter 7 is not a viable or useful option here, and therefore this motion is about dismissal only. Subsection 1112(b)(4) sets forth a non-exhaustive list of examples of "cause" within the meaning of § 1112(b)(1). These include "substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation," § 1112(b)(4)(A); "gross mismanagement of the estate," § 1112(b)(4)(B); "failure to maintain appropriate insurance that poses a risk to the estate," § 1112(b)(4)(C); and "unexcused failure to satisfy timely any filing or reporting requirement established by this title or by any rule applicable to a case under this chapter," § 1112(b)(4)(F). OneUnited relies on each of these and others not enumerated. "One ground, however, is sufficient, standing alone, to establish cause under the statute." In re Colon Martinez, 472 B.R. 137, 144 (1st Cir. BAP 2012) (internal quotations and citations omitted). The burden of proving cause is on the party moving to convert, and the standard is a preponderance of the evidence. In re Cranney, 2013 WL 2383594, *2 (Bankr.D.Mass.2013). Once cause is established, the court "shall" convert or dismiss unless doing so is excused by subsection (b)(1) or (b)(2). 11 U.S.C. § 1112(b)(1) & (2). The first step, however, is to determine the existence of cause.
OneUnited first contends that cause exists under § 1112(b)(4)(A). This subsection requires proof of "substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation." 11 U.S.C. § 1112(b)(4)(A). Both prongs must be satisfied.
OneUnited has not established an absence of a reasonable likelihood of rehabilitation. CSAME is being denied confirmation of its present ambitious plan — primarily for its third-party release and debt burden — but many alternatives are conceivable. CSAME has benefactors interested in helping it to succeed. CSAME can adjust its ambitions regarding the RRC and the amount of debt service it takes on in a plan. CSAME can increase its level of donations. It can liquidate properties in partial satisfaction of secured debt. It may be able to cram down remaining secured debt. It may even hit upon a proposal that OneUnited would accept, which in theory should be achievable. The possibilities are numerous, CSAME has able counsel, and, contrary to OneUnited's urgings, there exists no a priori reason why none of these possibilities can be confirmed.
In view of the above ruling on the rehabilitation prong of § 1112(b)(4)(A), there can be no "cause" within the meaning of that subsection. Nonetheless, under the banner of the other prong, OneUnited alleges not just loss and diminution but administrative
Three may be quickly rejected. First, OneUnited alleges that CSAME has suffered the Storefronts and the Milton Parsonage to exist in a continuing state of disrepair. This is not cause for dismissal because there is no evidence that the properties have deteriorated in value or condition since the filing of the bankruptcy petition. Second, OneUnited alleges that CSAME lacks equity in any of its real property. This is a nonstarter. A debtor's lack of equity in its property is not loss to or diminution of the estate. I do not understand OneUnited to allege that the CSAME has less equity today than it did on the petition date; if it does so allege, the allegation is not proven.
The fourth allegation is that "[a]n analysis of the Monthly Operating Reports [`MORs'] filed by CSAME with the Office of the U.S. Trustee (March 2012 through January 2013) reveals a substantial post-Petition operating loss." OneUnited did not supply the analysis in its motion to dismiss or in its separate memorandum. After trial it now argues that the MORs show a negative post-petition cash flow of $300,877.40, an average loss of $20,058.49 per month. CSAME responds that these "losses" are nothing but the expenditure of restricted grant funds for grant purposes, which is not properly characterized as a loss, and CSAME's non-restricted accounts have shown a slight increase.
I need not decide the proper characterization of the use of grant funds. CSAME has used up, and not been replenishing, its cash; and this has occurred notwithstanding a suspension of debt service. The average monthly deficit is substantial, at least $14,166 (Mr. Dragelin's reconstructed figure) if not $20,056 (if the MORs are taken at face value). CSAME's remaining cash is near to nothing. After the evidentiary hearing, OneUnited requested a further finding that administrative expenses now render the estate administratively insolvent, citing two potential claims that have neither been filed nor tested. On both substantive and due process grounds, I do not so find. Nonetheless, CSAME can now avoid administrative insolvency only by some combination of spending cuts and increases in donations. It has recognized the need for spending cuts and begun to implement them. For these reasons, I find cause for concern but not administrative insolvency of any degree and not cause for dismissal.
Under § 1112(b)(4)(B), cause includes "gross mismanagement of the estate." OneUnited argues that CSAME has grossly mismanaged the bankruptcy estate by failing to restore or maintain the Storefronts and the Milton Parsonage, by concealing the prepetition diversion of Endowment funds, and by failing to raise more money in congregational giving than it has during the post-petition period. None of this is mismanagement of the estate, which is concerned with the handling of estate assets. In support of its position, OneUnited offered no evidence whatsoever that restoration of either the Storefronts or the Milton Parsonage was in the best interest of the estate. The concealment of Endowment diversions, though wrongful, involved no management of estate assets. And the potential contributions of CSAME's members are not property of CSAME or its estate.
Section 1112(b)(4)(C) states that cause includes "failure to maintain appropriate insurance that poses a risk to the estate or to the public." 11 U.S.C. § 1112(b)(4)(C). OneUnited seeks relief on this basis in its post-trial arguments, but it did not articulate this basis for relief before the evidentiary hearing, either in its motion or in the memorandum later filed in support of it. The facts that constitute the basis for dismissal under this subsection were the subject of a late interruption in the evidentiary hearing, but they were not the subject of the evidentiary hearing itself. OneUnited might have moved to amend its motion and to reopen the evidence, to add this subsection and the underlying facts as a basis, but it did not do so. Not surprisingly, CSAME did not address this issue in its otherwise comprehensive post-trial brief on the motion to dismiss. For lack of due process, then, this subsection may not be the basis for a finding of cause.
Even substantively, cause has not been demonstrated. OneUnited relies on a statement by CSAME's counsel to the effect that three of five properties were uninsured for some unspecified time; the properties in question were not identified except as unoccupied. CSAME, however, owns six properties, including four that are unoccupied. OneUnited itself asked for clarification as to which of the properties were uninsured, but no answer was supplied on the record. Of the four unoccupied properties, three — the Milton Parsonage, the Storefronts, and the Parking Lot — have no demonstrated value above the value of the land they occupy, which, being land, is not at risk. Therefore, even if there was a lapse in "appropriate insurance" of some appreciable length, the case has not been made that the estate was put at risk. "Cause" in this subsection requires proof not just of a failure to maintain appropriate insurance but also that the estate was thereby put at risk.
Under § 1112(b)(4)(D), cause includes the unauthorized use of cash collateral substantially harmful to one or more creditors. 11 U.S.C. § 1112(b)(4)(D). In its motion to dismiss, OneUnited "preserved the argument" that cause for dismissal includes CSAME's use of "cash collateral" belonging to the Endowment, but OneUnited acknowledged uncertainty about
Under § 1112(b)(4)(F), cause includes "unexcused failure to satisfy timely any filing or reporting requirement established by this title or by any rule applicable to a case under this chapter." The movant must specify a filing or reporting requirement and prove a failure to satisfy it. In its post-trial brief, OneUnited's entire argument under this subsection is founded on an alleged failure of CSAME to satisfy investigation and reporting requirements that OneUnited contends were imposed upon CSAME, as debtor in possession, by § 1106(a)(3) and (4) (defining duties of a trustee) via § 1107(a) (specifying the duties of a trustee that a debtor in possession shall perform). But the duties imposed on a trustee by § 1106(a)(3) and (4) are expressly excepted from those that § 1107(a) imposes on a debtor in possession. 11 U.S.C. § 1107(a) ("a debtor in possession ... shall perform all the functions and duties, except the duties specified in section 1106(a)(2), (3), and (4), of a trustee serving in a case under this title"). The requirement in question did not apply to CSAME.
In its Motion to Dismiss, OneUnited also complains that CSAME failed to list the Endowment on its schedule of creditors holding nonpriority unsecured claims ("Schedule F") and on the list of the twenty largest unsecured creditors. CSAME does not dispute this allegation but contends that, where CSAME did file its schedules and list of unsecured creditors, and where it has undertaken remedial measures with respect to the omitted creditor, its omission of the Endowment from the schedule and list is not cause for dismissal.
While I do not find these factors wholly irrelevant to § 1112(b), their relevance to a determination of cause under subsection (b)(4)(F) is limited to whether the failure in question was, as that subsection requires, "unexcused." 11 U.S.C. § 1112(b)(4)(F). Not every minor omission or inaccuracy in complex and voluminous schedules is cause for dismissal. However, this failure was the omission of a creditor that CSAME does not contend was inadvertent. Even if there had been no diversion here, the Endowment would have had a claim — because CSAME had not yet fully performed under the latest grant agreement. The Endowment was entitled to notice of the case. The failure to schedule the debt to the Endowment frustrated the notice purpose and served to disenfranchise the Endowment. The diversion and the affirmative measures by which they were hidden from the Endowment: these only make matters worse. So the failure here was not insignificant or "excused." The omission of the endowment from Schedule F and from the list of the twenty largest unsecured creditors is cause under § 1112(b)(4)(F).
Under the heading of § 1112(b)(4)(F), OneUnited also lists other alleged misrepresentations and omissions that are not tied to specific filing or reporting requirements. I need not address these. Cause under this subsection is limited to failure to satisfy a specific filing or reporting requirement.
The list of items constituting cause in § 1112(b)(4) is not exclusive. OneUnited urges the Court to find cause in a raft of alleged misrepresentations and material omissions. I find no intent to deceive in
I find far less cause for dismissal than OneUnited alleges, but one ground is sufficient. Cause exists under § 1112(b)(4)(F) for omission of the Endowment from Schedule F and from the list of the twenty largest unsecured creditors.
Once cause is established, conversion or dismissal may be avoided only by showing that the case falls into one of the exceptions set forth in § 1112(b)(1) and (2). Subsection (b)(1) specifies that conversion or dismissal is not mandatory if "the court determines that the appointment under section 1104(a) of a trustee or an examiner is in the best interests of creditors and the estate." 11 U.S.C. § 1112(b)(1). As each party for its own reasons agrees, the appointment of a trustee would be neither useful nor appropriate here. Section 1104(c) states that the court may appoint an examiner at any time before the confirmation of a plan "to conduct such an investigation of the debtor as is appropriate ... if such appointment is in the interests of creditors, any equity security holders, and other interests of the estate." 11 U.S.C. § 1104(c).
CSAME's position is that there is no cause to appoint an examiner, but also that if the Court finds such cause, then the appointment of an examiner, with duties appropriately limited to protect the religious liberty interests of CSAME, is preferable to dismissal of the case, the former being more in the interests of creditors and the estate. OneUnited does not dispute that there is cause to appoint an examiner but argues that dismissal of the case better serves the interests of creditors and the estate because (i) there is no prospect of a confirmable plan, despite substantial resources and competent representation, (ii) the case is administratively insolvent, such that further administrative costs will accrue to the detriment of creditors and the estate, and (iii) unsecured creditors stand to recover nothing even under the proposed plan.
There is cause to appoint an examiner. CSAME apparently allowed insurance coverage to lapse on three of its properties. The circumstances of this lapse are unclear, but whatever they are, the lapse is reason to appoint an examiner to monitor the existence and continuance of insurance coverage. Also, CSAME's accounting standards and practices have left something to be desired in this case. While the church is entitled to its own standards for its own internal purposes — and I do not find that its records, in combination with Rev. Adams's familiarity with them and the peculiar needs of CSAME and the denomination, are inadequate for internal purposes — the Court and creditors are entitled to more reliability and clarity. Therefore, especially as CSAME's cash reserves have dwindled to nothing, it would be useful for an examiner to review CSAME's MORs going forward.
These limited duties would not require the examiner to cross boundaries protecting the religious liberty interests of CSAME. They fit comfortably within parameters that CSAME has indicated would
I further find that the interests of creditors and the estate are better served by not dismissing the case. It has not been established that CSAME cannot reorganize and confirm a plan. The current plan cannot be confirmed, but others, especially of more modest ambition, could well succeed. Any number of proposals would supply to both OneUnited and to unsecured creditors substantially more value than each would receive from CSAME outside of bankruptcy. Outside of bankruptcy, the unsecureds would likely receive nothing; OneUnited would receive, at best, the liquidation value of its collateral, and probably not for quite some time; OneUnited's litigation with CSAME and FEDAME would continue; Tremont might bring a marshaling complaint against OneUnited; Thomas would seek to establish the priority of its claim as against the RRC; and a 200-year-old congregation of 1400 members with the ability and willingness to repay a substantial portion of its debt might well be foreclosed out of existence, a needless loss to its members, denomination, and community.
It may be that OneUnited would object to any plan that CSAME might propose, regardless of its merits, preferring evidently to be able to use a threat of foreclosure on CSAME's most necessary properties as leverage against FEDAME. During closing arguments, the Court inquired of counsel to OneUnited: "What's [OneUnited] going to do [if the case is dismissed] that I can take into account in deciding whether it's in the best interests of creditors and the estate?" Counsel had no answer other than that OneUnited has mortgages and powers of sale, armed with which it would attempt to negotiate with FEDAME and CSAME. It conceded that unsecured creditors — virtually every creditor other than OneUnited — would get nothing and that litigation would continue, possibly on multiple fronts. In essence, OneUnited wants dismissal in order to be able to threaten foreclosure against CSAME as leverage in negotiations with FEDAME — to treat CSAME as a pawn or hostage on a claim against a third party. As against CSAME itself, however, dismissal would not be in the best interest of any constituency in this case, not even OneUnited. All stand to get more from CSAME — the appropriate focus of this analysis — through a chapter 11 plan.
This analysis gets to the very core of chapter 11. The Bankruptcy Code offers a collective action that preserves the going concern of the debtor while preventing undue damage to creditors. Dismissing this case would serve no purpose. It would launch CSAME into a destructive spiral from which it might well not recover. Moreover, despite judicial probing, even OneUnited could not explain how it would be advantaged by dismissal.
The appointment of an examiner requires payment of the examiner's fee as an administrative expense. In view of the limited resources available in this case for that purpose, the examiner's fees should be kept to a minimum, and the examiner's charge shall be narrow and limited. Accordingly, by separate order, the Court will deny dismissal and order the appointment of an examiner.
For the reasons set forth above, the Court will enter separate orders denying confirmation of the Plan and dismissal of the case and ordering the appointment of an examiner.
