Maxwell S Pfeifer and Maxwell S. Pfeifer and Myrna J. Pfeifer

UNITED STATES BANKRUPTCY COURT 	NOT FOR PUBLICATION
SOUTHERN DISTRICT OF NEW YORK
__________________________________________
) 	Chapter 11
In re: 	)
) 	Case No. 12-13852 (ALG)
MAXWELL S. PFEIFER and 	)
MYRNA J. PFEIFER, 	)
)
Debtors. 	)
__________________________________________)
MEMORANDUM OF DECISION
A P P E A R A N C E S:
RICH MICHAELSON MAGALIFF MOSER, LLP
Counsel for the Debtors
By: 	Howard P. Magaliff
340 Madison Avenue, 19th Floor
New York, NY 10173
THE LAW OFFICES OF MICHAEL T. SUCHER
Counsel to Plaintiff Funding Holding, Inc.,
By: 	Michael T. Sucher
26 Court St., Suite 2412
Brooklyn, New York 11242
ROSENBERG, MUSSO & WEINER, LLP
Counsel to the Official Committee of Unsecured Creditors
By: 	Bruce Weiner
26 Court St., Suite 2211
Brooklyn, New York 11242
ALLAN L. GROPPER
UNITED STATES BANKRUPTCY JUDGE
INTRODUCTION
Before the Court is the objection of creditor Plaintiff Funding Holding, Inc. (“Objectant”)
to the Debtors’ Joint Amended Plan of Reorganization (“Plan”). Objectant argues that the Plan
violates § 1129(a)(15) of the Bankruptcy Code in that the value of the property distributed to
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unsecured creditors is less than the Debtors’ projected disposable income. For the reasons set
forth below, the Objection is overruled, and the Plan is confirmed.
BACKGROUND
Maxwell and Myrna Pfeifer (collectively, the “Debtors”) are individual chapter 11
debtors who filed for bankruptcy on September 9, 2012. For many years, Mr. Pfeifer had a
thriving personal injury law practice; he claims he obtained so many large judgments that he
became known in legal circles as “Million Dollar Max”. Amended Disclosure Statement [ECF
No. 158] (“Disc. Statement”), at 7. In the past years, however, as Mr. Pfeifer’s health
deteriorated, his income from his law practice decreased substantially. His operating statements
show that as of August 31, 2013, his income from his law practice over the preceding 12 months
was only $74,546. Operating Statement for August 2013 [ECF No. 160]. In the eight months
preceding their bankruptcy filing, the Debtors’ reported only $5,887 in business income from
Mr. Pfeifer’s law practice. Statement of Financial Affairs [ECF No. 1]. Besides this income he
currently receives social security, and Mrs. Pfeifer, a retired teacher, receives pension and social
security income. Disc. Statement, at 8. At the same time as Mr. Pfeifer’s income from his law
practice decreased, the Debtors overextended themselves financially, causing them to borrow
money from several sources, and leading ultimately to their bankruptcy filing. Id.
The Debtors filed their Joint Amended Chapter 11 Plan of Reorganization on July 23,
2013 [ECF No. 132]. The Plan contemplates selling several properties that the Debtors own in
the Bronx, except for one apartment unit in which the Debtors reside and on which they will
continue to make payments in accordance with the terms of the original loan documents. The
sale proceeds from the other properties will be used to pay the Debtors’ secured creditors, with
any excess distributed in the manner described below. The Debtors also have one litigation claim
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relating to an investment in a property in Florida; the Debtors current intention is to pay a
$468,159 tax liability they anticipate from the sale of this property from the proceeds of any
settlement or judgment they receive from this litigation (Pfeifer v. Cronin, et. al. 13-1348-ALG).
A key feature of the Plan is the creation of a post-confirmation trust (“Trust”), which is
memorialized in a Post-Confirmation Trust Agreement [ECF No. 150]. The Trust will pay
unsecured creditors pro rata from the proceeds of various assets. The assets transferred to the
Trust include: (i) the Debtors’ avoidance causes of action under the Bankruptcy Code;
(ii) proceeds from the Cronin Adversary proceeding currently pending in this Court (after
payment of attorney’s fees, the anticipated tax liability, and $100,000 to the Debtors); (iii) the
remainder of the proceeds from the sale of one of the Bronx properties after payment of a
broker’s commission, the secured creditor’s claim, and $110,000 to the Debtors; (iv) a portion of
the proceeds from the sale of four other Bronx properties after payment of a broker’s
commission, real estate taxes, and the secured creditors’ claims; and (v) a portion of Mr.
Pfeifer’s referral fees relating to cases Mr. Pfeifer referred to other law firms in past years. Dis.
Statement, Exh. 3. The Debtors estimate that if events transpire favorably, general unsecured
creditors may receive up to 28.99% of the total value of their claims from the Trust; however, a
recovery to unsecured creditors is not assured, and unsecured creditors will only receive their
pro-rata distribution from the Trust “after the Post-Confirmation Trustee has reserved any Cash
required to pay Claims that are senior in priority and the fees and expenses of the Post-
Confirmation Trustee and his or her professionals, if any.” Plan, at 12.
The Plan was overwhelmingly supported by creditors as every class entitled to vote voted
affirmatively, including 93.1% of the general unsecured creditors representing 88.96% of the
total amount of general unsecured claims. Second Amended Certification of Voting and Ballot
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Tabulation [ECF No. 159]. Nevertheless, one unsecured creditor, the Objectant, objected to the
Plan and opposed confirmation. The Official Committee of Unsecured Creditors (“Committee”)
supported the Plan and also filed a response to the Objection in which it noted that the Trust was
“the result of negotiations between the Committee and the Debtors”, and “[t]he Committee voted
unanimously to support the plan. . . .” Committee’s Response [ECF No. 163], at ¶ 3.
As noted above, the Objectant argued in opposition to the Plan that it failed to satisfy
§ 1129(a)(15) of the Code; there were no other unresolved objections. At the confirmation
hearing, the Court took the matter under advisement, requesting additional briefing on the
§ 1129(a)(15) issue.
DISCUSSION
In 2005, amendments to the Bankruptcy Code added to the numerous requirements for
confirmation in a chapter 11 case the following:
In a case in which the debtor is an individual and in which the holder of an
allowed unsecured claim objects to the confirmation of the plan—
(A) the value, as of the effective date of the plan, of the property to be
distributed under the plan on account of such claim is not less than the
amount of such claim; or
(B) the value of the property to be distributed under the plan is not less
than the projected disposable income of the debtor (as defined in
section 1325(b)(2)) to be received during the 5-year period beginning
on the date that the first payment is due under the plan, or during the
period for which the plan provides payments, whichever is longer.
11 U.S.C. § 1129(a)(15); Pub.L. 109–8, 119 Stat. 23. The Debtors must comply with
§ 1129(a)(15) because the Objectant—an unsecured creditor in the Debtors’ case—has filed an
objection, and the Plan does not pay Objectant 100% of its allowed claim.
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The Mandate of § 1129(a)(15)
The Objectant argues that the Debtors’ Plan violates § 1129(a)(15)(B) because it does not
distribute property to unsecured creditors in an amount equal to or greater than the Debtors’
projected disposable income. Objection, at 5–6. Specifically, Objectant contends, (i) Mr. Pfeifer
is capable of earning $300,000 per year from his law practice, as he did in 2010 and 2011
(quoting the Disclosure Statement as to his legal success); (ii) the Debtors do not include
estimated payments they may receive from the Trust as projected disposable income; (iii) the
Debtors must distribute their “disposable income” for the life of the trust, not merely five years;
and (iv) the Debtors’ liability for professional fees in this case should not be included as an
expense in calculating the Debtors’ projected disposable income. Id. at 14–19.
Objectant’s position is based on a basic misconstruction of § 1129(a)(15), that an
individual chapter 11 debtor must under the circumstances of a case like this pay unsecured
creditors an amount equal to projected disposable income. As further discussed below,
§ 1129(a)(15) relies on and cross-references a chapter 13 provision, § 1325(b)(2), for its
definition of “projected disposable income”. Another subsection of § 1325, § 1325(b)(1)(B),
does require a chapter 13 debtor to pay all of his or her projected disposable income to
unsecured creditors.1 Section 1129(a)(15)(B) contains no such requirement and provides only
that “the value of the property to be distributed under the plan”—which would include property
1 Section 1325(b)(1) provides that
If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan,
then the court may not approve the plan unless, as of the effective date of the plan—
(A) the value of the property to be distributed under the plan on account of such claim is not
less than the amount of such claim; or
(B) the plan provides that all of the debtor’s projected disposable income to be received in
the applicable commitment period beginning on the date that the first payment is due
under the plan will be applied to make payments to unsecured creditors under the plan.
11 U.S.C. § 1325(b)(1) (emphasis added).
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distributed to administrative, priority, secured, and unsecured creditors—”is not less than the
projected disposable income of the debtor. . . .”
The Objectant’s argument is simply wrong when it contends that the phrase “property to
be distributed under the plan” in § 1129(a)(15)(B) means “property to be distributed under the
plan to unsecured creditors.” Objection, at 6 (emphasis in original). As the Supreme Court has
held, it is a court’s “duty to refrain from reading a phrase into the statute when Congress has left
it out.” Keene Corp. v. United States, 508 U.S. 200, 208 (1993). Moreover, “where Congress
includes particular language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (citing United States v.
Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)); Moreno-Bravo v. Gonzales, 463 F.3d 253,
261 (2d Cir. 2006).
There is no reason to read into § 1129(a)(15)(B) the requirement that an individual debtor
must pay unsecured creditors his or her projected disposable income, and there is every reason
not to do so. Section 1129(a)(15) is one subsection of a provision that sets forth a series of
requirements that every chapter 11 plan must satisfy—for example, that administrative and most
priority creditors be paid in full unless they agree otherwise. See 11 U.S.C. § 1129(a)(9). There is
no minimum payment that must be made to unsecured creditors unless the plan is rejected by a
more senior class.2 A requirement that property of a certain value be paid to unsecured creditors
is entirely foreign to this scheme.
2 There is some question whether the absolute priority rule applies at all in an individual chapter 11 case. Compare
In re Lively, 717 F.3d 406, 407 (5th Cir. 2013) (holding absolute priority rule applies in an individual chapter 11
case); In re Stephens, 704 F.3d 1279, 1286–87 (10th Cir. 2013) (same); In re Maharaj, 681 F.3d 558, 568–70 (4th
Cir. 2012) (same); with Friedman v. P + P, LLC (In re Friedman), 466 B.R. 471, 482 (B.A.P. 9th Cir. 2012) (“A
plain reading of §§ 1129(b)(2)(B)(ii) and 1115 together mandates that the absolute priority rule is not applicable in
individual chapter 11 debtor cases.”). This issue need not be decided here.
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Not surprisingly, the courts that have considered this issue have uniformly held that
§ 1129(a)(15)(B) does not require an individual debtor to pay an amount at least equal to his or
her projected disposable income to unsecured creditors. See In re Gbadebo, 431 B.R. 222, 226
(Bankr. N.D. Cal. 2010) (“The Debtor correctly notes that [§ 1129(a)(15)(B)’s] requirement goes
to the amount paid to all creditors under the Plan, not just to the Class 8 creditors or just to the
creditor who objects to the plan.”); In re Gordon, 465 B.R. 683, 693 fn. 8 (Bankr. N.D. Ga.
2012) (“11 U.S.C. § 1129(a)(15) only requires the amount of projected disposable income equal
the ‘value of the property to be transferred under the plan’ to all creditors, not just unsecured
creditors. Compare 11 U.S.C. § 1325(b)(1)(B).”); In re Ekstrom, 08-07750-SSC, 2010 WL
1254893, *7, 18 (Bankr. D. Ariz. Mar. 23, 2010) (holding that an individual debtor satisfied
§ 1129(a)(15) because “the value of the property to be distributed under the plan is not less than
the projected disposable income of the Debtor during the period for which the plan provides
payments”, even though most of the debtor’s plan payments went toward reducing his substantial
tax obligations). Instead, § 1129(a)(15)(B) requires that the total value of all property distributed
in a plan must be equal to or greater than the debtor’s projected disposable income.
Calculation of Projected Disposable Income
Most of the parties’ argument in this matter has centered on the calculation of the
Debtors’ projected disposable income. The Debtors and the Committee use a very simple
formula often used as a rule of thumb in chapter 13 cases. Thus, § 1325(b)(2) defines “disposable
income” in pertinent part as “current monthly income received by the debtor ” minus various
expenses and with certain exclusions. 11 U.S.C. § 1325(b)(2). Based on the Debtors’ income and
expenses for the six months prior to the petition, the Debtors calculate their disposable income at
$156.68 per month, which equates to a projected disposable income of $9,400.80 over five years.
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Debtors’ Response, at 3. The Debtors argue that “[t]he record before the Court is replete with
facts that are known or virtually certain from which the Court can conclude that the Debtors’
projected disposable income is $9,800.80.” Id. at 4.3
The Objectant argues with some force that this formula ignores Hamilton v. Lanning, 560
U.S. 505 (2010), where the Supreme Court held that in calculating “projected disposable
income” in a chapter 13 case, courts should employ a “forward-looking” approach, first
calculating disposable income, and then in unusual cases taking into account other known or
virtually certain information about the debtor’s future income or expenses. The Objectant argues
that the Plan miscalculates projected disposable income by ignoring all of the proceeds from the
Trust earmarked for the Debtors and by grossly underestimating Mr. Pfeifer’s earning capacity.
At least one bankruptcy court has applied Hamilton’s “forward-looking” approach in calculating
an individual chapter 11 debtor’s “projected disposable income.” See Gordon, 465 B.R. at 688–
89.
The short answer to the Objectant’s argument is that it does not matter whether projected
disposable income is calculated in the manner propounded by the Debtors/Committee or by the
Objectant. The Debtors’ calculation of their projected disposable income over five years is
$9,400.80. Even assuming that the Objection is correct and (i) Mr. Pfeifer would be able to earn
$300,000/year from his law practice for each of the next five years; (ii) the length of the Debtors’
Plan is the length of the Trust; (iii) the income he anticipates as possibly receivable from Trust
assets4 should be included in the Debtors’ disposable income; and (iv) the Debtors incorrectly
3 The Court assumes that the Debtors meant to state their projected disposable income as $9,400.80, as they did on
the previous page of their Response, instead of $9,800.80.
4 Estimated by the Debtors to be $284,350, which includes (i) $100,000 from the Cronin Adversary; (ii) $110,000
from the sale of Unit 8K; (iii) $39,150, equal to half of the estimated legal fee receivables pledged to Pre-Settlement
Finance, per the Debtors’ agreement with Pre-Settlement Finance; and (iv) $35,200 from the other legal fee
receivables not pledged to Pre-Settlement Finance. See Disc. Statement, Exh. 4.
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deducted as an expense in the calculation their liability for professional fees in this case,5 the
Debtors’ Plan would still distribute property with a value equal to or greater than the Debtors’
projected disposable income. The reason is that a conservative estimate of the value of the
property to be distributed in the Debtors’ Plan—including distributions on administrative claims,
priority tax claims, secured claims, priority non-tax claims, and general unsecured claims—is
approximately $3.5 million.6
For example, if the Debtors’ projected disposable income is recalculated as Objectant
suggests to include an income for Mr. Pfeifer of $300,000 per year over the next five years,7
$284,350 in receipts from Trust assets, twenty years’ worth of the Debtors’ current yearly
5 Estimated by the Debtors to be $135,000. See Disc. Statement, at 15.
6 This amount is based on estimated claims and the estimated recovery on these claims. See Disc. Statement, at 5 and
Exh. 4. The $3.5 million amount was arrived at by adding all of the estimated recoveries for each claim as outlined
below (except for Pre-Settlement Finance’s claim and the General Unsecured Claims because they may not receive
any distribution) and then reducing this amount by approximately $500,000 to account for the possibility that E.R.
Holdings, LLC and Hudson Valley Bank may receive a deficiency claim if the net sale proceeds are insufficient to
satisfy their secured claims that would be treated as a General Unsecured Claim. The relevant portions of the chart
that is included on page 5 of the Debtors’ Disclosure Statement is reproduced below:
Class 	Description 	Estimated Claim 	Estimated Recovery
N/A 	Admin Claims 	$603,000 	100%
N/A 	Priority Tax Claims 	$20,798 	100%
1 	Secured Tax Claims 	$71,418 	100%
2 	Priority Non-Tax Claims 	$48,879 	100%
3 	Secured Claim of Ridgewood 	$211,819 	100%
Savings Bank (Unit 8J)
4A 	Secured Claim of E.R. Holdings, LLC 	$1,502,000 	Up to 100%
(Bronx Property)
4B 	Secured Claim of Hudson Valley Bank 	$877,458 	Up to 100%
(Bronx Property)
4C 	Secured Claim of New York Community 	$190,777 	100%
Bank (Unit 8K)
4D 	Secured Claim of NCB, FSB (Unit 8F) 	$191,667 	100%
4E 	Secured Claim of Pre-Settlement 	$139,767 	TBD
Finance (Legal Fees)
4F 	Other Secured Claims 	$205,418 	Up to 100%
5 	General Unsecured Claims 	$1,782,165– 	Up to 28.99%
$2,725,039
7 Objectant argues that “[i]t is ‘known or virtually certain’, based on Debtors’ own projections and Max’s work and
income history, that Mr. Pfeifer will receive, sign up, and refer new cases over the next five (5) years. . . .”
Objection, at 14. As the Debtors point out, this would require Mr. Pfeifer to continue working at the same
profitability level achieved two years ago until he is 91, despite the fact that his health is deteriorating, and it is his
intent to wind down his practice over the next six months and to sell the property where he works. See Disc.
Statement, at 8.
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disposable income ($37,603.20),8 and if $135,000 in professional fees is not included as an
expense—which essentially increases projected disposable income by $135,000—the Debtors’
projected disposable income would still be slightly less than $2 million.9 This amount is much
less than the approximate $3.5 million the Debtors will distribute in their Plan. The Objection is
thus overruled because even assuming Objectant is correct in each of its assertions and the
Debtors’ projected disposable income must be increased accordingly, the Debtors’ Plan still
distributes property whose value is greater than their assumed projected disposable income, and
it satisfies § 1129(a)(15)(B).
Feasibility
Although Objectant did not object on the basis that the Debtors’ Plan is not feasible, “[i]n
considering confirmation of a plan of reorganization, a court has an affirmative obligation to
scrutinize the plan and determine whether it is feasible.” In re Young Broad. Inc., 430 B.R. 99,
128 (Bankr. S.D.N.Y. 2010); In re Las Vegas Monorail Co., 462 B.R. 795, 798 (Bankr. D. Nev.
2011) (quoting 7 COLLIER ON BANKRUPTCY ¶ 1129.05[1][e] (Henry Sommer & Alan
Resnick, eds., 16th ed. 2011) (“‘The court has a mandatory, independent duty to review plans
and ensure they comply with the requirements of section 1129.... The judge’s independent duty
will come into play often with respect to the feasibility requirement.’”). In this case the Debtors
are relying on the proceeds from the Cronin Adversary as the principal means of paying a
projected $468,159 tax liability. See Plan, at 12. The liability apparently arises out of the
disposition of a Florida property in which Mr. Pfeifer was an investor. The disposition took place
8 Twenty years is used as an example to show that even if the Court held that the Plan’s term would equal the length
of the Trust, the Trust would have to long outlive the Debtors for the Debtors’ projected disposable income to be
greater than the amount of property distributed in the Plan.
9 It should be clear that the Court is not finding that $2 million is the Debtors’ projected disposable income or that
any of these amounts are “known or virtually certain” as required by the “forward-looking” approach used in
Hamilton to calculate projected disposable income.
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post-petition, and the status and even the amount of the liability is not certain. Nevertheless,
since the Plan assumes it will be payable in the stated amount, the Court will examine whether
the Debtors would be able to pay such a large tax claim even if they do not receive sufficient
proceeds from the Cronin Adversary.
The feasibility standard examines “whether the plan offers a reasonable assurance of
success. Success need not be guaranteed.” Kane v. Johns-Manville Corp., 843 F.2d 636, 649 (2d
Cir. 1988); In re DBSD N. Am., Inc., 634 F.3d 79, 106–07 (2d Cir. 2011). “The key element of
feasibility is whether there exists the reasonable probability that the provisions of the Plan can be
performed.” In re Drexel Burnham Lambert Grp., Inc., 138 B.R. 723, 762 (Bankr. S.D.N.Y.
1992).
Here, if the Cronin Adversary is unsuccessful, the Debtors will have to rely on proceeds
received from the Trust to pay the assumed $468,159 tax liability. As discussed above, the Plan
provides that unsecured creditors will only receive payment from the Trust “after the Post-
Confirmation Trustee has reserved any Cash required to pay Claims that are senior in
priority. . . .” Plan, at 12. As a likely priority or possibly an administrative expense, the tax
liability is senior in priority to unsecured creditors. Based on the estimated Schedule of Estate
Assets included as Exhibit 4 to the Disclosure Statement, the Trust will distribute to unsecured
creditors $286,013.74, excluding the proceeds from the Cronin Adversary.10 In addition, the
Debtors anticipate receiving $184,350 from the Trust without considering the $100,000 in
proceeds from the Cronin Adversary. 11 Thus, the Trust is estimated to distribute $470,363.74 to
10 This amount includes (i) $43,379.21 from the sale of Unit 8K; (ii) $105,834.53 from the sale of the Bronx
Property; and (iii) $136,800 from the legal fee receivables. See Disc. Statement, Exh. 4.
11 This amount includes (i) $110,000 from the sale of Unit 8K; (ii) $39,150, equal to half of the estimated legal fee
receivables pledged to Pre-Settlement Finance, per the Debtors’ agreement with Pre-Settlement Finance; and
(iii) $35,200 from the legal fee receivables not pledged to Pre-Settlement Finance. See Disc. Statement, Exh. 4.
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the Debtors and unsecured creditors combined, which could be used to pay in full the $468,159
tax liability in the event the Debtors do not recover any money from the Cronin Adversary.
If the Debtors do not achieve a recovery from the Cronin Adversary, their projected cash
flow would be negatively impacted because they would not receive $100,000 from the Cronin
Adversary, and they might have to use all of the money projected to be received from the Trust
to pay the tax liability. See Disc. Statement Exh. 4. According to the Debtors’ 12-month
projections also attached as Exhibit 4 to the Disclosure Statement, this would reduce the
Debtors’ ending cash balance after 12 months by $284,350, but it would still leave the Debtors
with $67,639 in cash on hand at the end of that period. Id. Thus, based on the Debtors’
projections in their Disclosure Statement, they would be able to pay their $468,159 tax liability
from the Trust’s proceeds. The Debtors would also be able to make their other Plan payments
and continue to have some cash reserves 12 months into their Plan. Therefore, the Debtors’ Plan
satisfies § 1129(a)(11) because there is a reasonable probability that the provisions of the Plan
can be performed.
CONCLUSION
For the reasons set forth above, the Objection is overruled. The Debtors’ Plan satisfies
§ 1129(a)(15) because it distributes property to creditors with a value equal to or greater than
their projected disposable income, even under Objectant’s assumptions. The Debtors’ Plan also
satisfies § 1129(a)(11)’s feasibility requirement. The Court will enter an appropriate
confirmation order concurrently herewith.
Dated: October 18, 2013
New York, New York
s/Allan L. Gropper 	_
UNITED STATES BANKRUPTCY JUDGE
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