In re East Coast Diesel (Case No. 22-80197)

Printer-friendly versionPrinter-friendly version

Order Granting Bankruptcy Administrator’s Motion to Dismiss. The Bankruptcy Administrator filed a motion to dismiss the Debtor’s case or convert to chapter 7 under 11 U.S.C. § 1112(b)(1). The Debtor did not object to the motion. First, the Court determined that cause existed to dismiss or convert under each of the § 1112(b)(4) grounds asserted by the BA. For example, there was continuing and substantial loss to the estate based on the uncontested allegations that the Debtor operated at break-even level since the petition date and failed to pay required expenses. There was also evidence of gross mismanagement of the estate, as the Debtor’s management failed to fix operational problems and was unable to reasonably estimate revenues or adequately identify expenses.
 
Second, although the BA announced that he had reached an agreement with the Debtor to dismiss the case with conditions, the Court conducted its own analysis to determine whether dismissal or conversion was in the best interest of creditors and the estate under § 1112(b)(1). The Court exercised its discretion to consider various “best interest” factors, such as: the low likelihood that a chapter 7 trustee could reach the Debtor’s assets; the small benefit of pursuing avoidable transfers due to potentially high administrative costs; and the support for dismissal from the Debtor’s biggest secured creditor. In exercising its discretion, the Court determined that dismissal, rather than conversion, was appropriate.
 
Third, the Court considered whether it would allow the parties’ agreement to dismiss the case with the condition that the Debtor pay the subchapter V trustee’s fees, including fees incurred in preparing a report under § 1183(b)(2), and income-based taxes that had accrued post-petition. The Court classified this agreement as a structured dismissal, which cannot be approved unless, at a minimum, any required distributions are made in accordance with the Bankruptcy Code’s priority scheme. See Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 978 (2017). The Court did not approve the structured dismissal because it was not shown that the contemplated payments complied with the priority rules of § 507.

Date: 
Thursday, December 29, 2022
Published: 
No
Index Heading: 
Dismissal
Affirmed: