Solange D. Chadda

2:07-bk-12665PaebNov 9, 2007

Full text

The debtor improperly attempted to supplement the record by attaching1
documents to her post-hearing reply memorandum. Those documents cannot be considered, as
the objecting creditors and United States trustee had no opportunity to challenge their
authenticity or admissibility, cross-examine witnesses regarding those documents, or offer
rebuttal evidence. See, e.g., In re Millman, 2003 WL 716289, at *3 n.12 (Bankr. E.D. Pa. 2003);
(continued...)
UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In re : Chapter 11
SOLANGE D. CHADDA :
Debtor : Bankruptcy No. 07-12665bif
.................................................
MEMORANDUM
.................................................
Two matters are presently before me in this chapter 11 case. First, the
debtor seeks confirmation of an amended reorganization plan. Confirmation, however, is
opposed by creditors Certified Mortgage Investors, LLC, Security Union Title Insurance
Company, and Chicago Title Insurance Company. Confirmation is also opposed by the
United States trustee. As will be discussed, the objectors maintain, inter alia, that the
proposed plan is infeasible and speculative, as well as unfair and inequitable. The debtor
argues to the contrary.
In addition, Certified Mortgage has filed a motion to dismiss this case,
contending that the debtor has had sufficient opportunity to propose a viable
reorganization plan and has been unable to do so. Dismissal under section 1112 is
supported by the other creditors who objected to confirmation, as well as by the United
States trustee.
An evidentiary hearing was held and the following facts were proven.1
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(...continued)1
In re MacDonald, 222 B.R. 69, 72 (Bankr. E.D. Pa. 1998); In re Midway Airlines, Inc., 221 B.R.
411, 462-63 (Bankr. N.D. Ill. 1998); Matter of Holly’s, Inc., 190 B.R. 297, 301 (Bankr. W.D.
Mich. 1995).
The debtor also filed a bankruptcy case in the Central District of California2
docketed at 02-25414. See Debtor’s Voluntary Petition (Form B1, Attachment).
Bankr. No. 01-17570, docket entry # 60, dated May 22, 2002. The debtor’s3
petition in this bankruptcy case reveals that she commenced her California bankruptcy case on
May 28, 2002. Thus, it would appear that the California bankruptcy case was filed in violation of
this court’s bar order.
2
Those facts will be detailed in narrative form.
I.
On May 7, 2007, the debtor filed a voluntary bankruptcy petition under
chapter 11, captioned above. This is her second effort at a bankruptcy reorganization in
this district. See Bankr. No. 01-17570, and her third bankruptcy filing. Her first2
Pennsylvania bankruptcy case was dismissed for failure to tender plan payments, and an
order had been entered precluding her from filing any further bankruptcy cases without
obtaining prior court approval. See generally In re Casse, 198 F.3d 327 (2d Cir. 1999).3
By order dated May 7, 2007, I granted her approval for a second
Pennsylvania reorganization attempt based upon her testimony that she was making
progress toward refinancing or selling her real property, but directed, for reasons
explained in open court, that she obtain confirmation within 75 days. Cf. 11 U.S.C. §
1122(e) (fixing deadlines for chapter 11 plan submissions in small business cases); 11
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Although the debtor suggested in her motion seeking permission to file another4
bankruptcy petition that she was considering selling this realty, and although selling the property
appears logical, there was no evidence that she made any efforts to do so during the present
bankruptcy case.
Her bankruptcy Schedule A listed the value of this realty at $2 million, plus5
asserted that it has “oil rights” worth $5 million. There was no evidence offered concerning this
higher valuation, nor of any oil rights. For purposes of confirmation and dismissal, I have used
the value mentioned in the text above.
In her disclosure statement and amended Schedule B (which amendment was filed
after the confirmation hearing), the debtor asserts that she owns antiques and jewelry worth more
than $350,000, stock in “Solange, Inc.” worth $1 million, plus bottles of perfume, bath gel and
sunglasses branded with the name “Solange N9” worth collectively more than $400,000.
According to her amended disclosure statement, many years ago the debtor manufactured “her
own label ‘Solange’” for various retailers. Amended Disclosure Statement, at 9. Apparently, she
has retained unsold inventory for many years.
To the extent any evidence was offered about such personal property, I find the
debtor’s valuations not credible. Indeed, were those valuations truly accurate the debtor’s need
for bankruptcy reorganization would be unclear. As her Reply Memorandum at 6 intimates, she
could simply sell some of her property and repay her creditors.
3
U.S.C. § 1129(e) (directing that confirmation hearings be held, unless extended, within 45
days of filing a plan in small business cases).
As with her previous bankruptcy cases, Ms. Chadda’s present bankruptcy
filing was designed to prevent the foreclosure of real estate located at 507 North Highland
Avenue, Los Angeles, California. Ms. Chadda has title to that realty, but has lived in4
Philadelphia since 1994. She values that realty at $1.5 million (and claims that it was
appraised at $1.425 million).5
In order to prevent foreclosure of the California real estate, the debtor
previously refinanced the property, and Certified Mortgage currently holds the first
mortgage. That mortgage contained a balloon payment provision and became due on
December 31, 2005, well prior to the debtor’s latest bankruptcy filing. This mortgagee
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I take judicial notice of the claims docket in this case. See generally In re Indian6
Palms Associates, Ltd., 61 F.3d 197 (3d Cir. 1995).
The debtor’s amended disclosure statement, at 12, asserts that she paid a portion7
of this claim and will file an objection on that basis; no objection has yet been filed.
This judgment is purportedly on appeal in the state court system. Amended8
Disclosure Statement, at 12.
4
has filed a secured proof of claim in the amount of $1,043,697.20. Security Union filed6
a secured proof of claim, asserting a judgment lien in the approximate amount of
$87,000. Chicago Title filed an unsecured proof of claim in the approximate amount of7
$11,000. Other unsecured claims aggregate about $38,000. There are also priority tax
claims submitted by the Commonwealth of Pennsylvania and the Internal Revenue
Service totaling almost $75,000, plus a tax lien asserted by Los Angeles County for
$24,040.27, and a judgment lien held by the University of Pennsylvania Small Animal
Hospital for $3,777.56.8
The debtor’s amended Schedule I reports income earned by her of $2,000
per month for translation services, and $2,000 per month as an employee of Blue Sky
Resort and Spa, Inc. In addition, the debtor offered in evidence copies of two one-year
leases for a portion of her California property totaling $3,000. Ex. D-6.
The debtor’s proposed amended chapter 11 plan provides as follows
(according to classification of the claims):
First, all priority claims, other than tax priority claims, will be paid in full
on the effective date of the plan. The effective date is identified as 30 days from a final,
non-appealable order. The debtor estimates that such claims will be about $25,000.
Amended Disclosure Statement, at 11.
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The monthly payments are computed by fixing the remaining amount of the claim9
at $215,000, to be repaid at 7.03% interest.
The debtor testified that she was now willing to pay all allowed unsecured10
claims in full. The plan was not so modified. Nor did she explain the timing of such additional
payments to creditors.
5
Second, Certified Mortgage will receive on account of its secured claim
$825,000 from the proceeds of a refinancing loan, plus monthly payments of $2,500 for
ten years. The unpaid portion of the secured claim is to be subordinated to the9
refinancing lien.
Third, the property tax claim held by Los Angeles County will be repaid in
full within 90 days after confirmation from the refinancing proceeds.
Fourth, the judgment claims of Security Union and the University of
Pennsylvania will be paid 75% within 90 days from confirmation.
Fifth, secured and priority tax claims will be repaid over five years, with
statutory interest, beginning 90 days after confirmation.
Finally, allowed unsecured claims will receive a 75% dividend, 90 days
from confirmation.10
The debtor’s report of plan voting, Ex. D-2, reflects that impaired classes 2
(Certified Mortgage), 4 (Security Union and the University of Pennsylvania), 5 (tax
claimants) and 6 (unsecured creditors) all rejected the plan pursuant to 11 U.S.C. §
1126(c). The only class voting in favor of the plan was class 3 (Los Angeles County).
The evidence regarding plan funding consisted of the debtor’s testimony,
with virtually no corroborative documents. The debtor testified that she applied for a
refinancing loan and was orally approved to borrow $900,000, with the California realty
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Although the letter was inadmissible hearsay, Ex. D-3, the debtor testified to11
correspondence from Trojan Home Loans, without objection. This correspondence did not
commit to financing, nor mention repayment terms or interest rate. It also mentioned the need
for further property appraisal. The debtor believes that, if a loan were approved, her interest rate
would be 9%, with $8,000 monthly payments and a six-year balloon.
The objection to Ex. D-8, page 1, was sustained as hearsay.12
6
serving as collateral and the lender holding a first lien position. However, she offered no
written evidence of her loan application, loan commitment, or loan repayment terms.11
She also testified that she would fund the plan by establishing a gourmet, low
carbohydrate lunch-truck operation in Los Angeles, see Ex. D-8 (pages 2-3 ), by selling12
wine under her own label, and by renting the balance of her Los Angeles property (on a
bedroom by bedroom basis). She further testified that she receives about $10,000 each
month (7,000 euros) from relatives in France. See also Schedule I (filed on May 9, 2007).
None of the above-mentioned businesses were operational as of the time of
the confirmation hearing; indeed, the debtor had not obtained all necessary licenses for
her lunch-truck business. Start up financing for these business ventures would
purportedly be provided by her French relatives, but no start-up capital was in place. She
offered no contracts, had no employees, and owned no equipment related to these
businesses.
Finally, the debtor has little money saved, despite her purported receipt of
monthly assistance from relatives. She testified that in 2007 she spent considerable sums
on repairs to her Los Angeles property, but provided no receipts or corroboration at the
confirmation hearing, or as attachments to her monthly operating statements submitted to
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The objectors requested and the debtor agreed that I may take judicial notice of13
the filed operating reports. One report lists a $7,000 garage door repair, but attaches no invoice
or receipt.
In light of the passage of the Bankruptcy Abuse Prevention and Consumer14
Protection Act of 2005, and until official procedural rules are adopted under the Rules Enabling
Act, the Judicial Conference has recommended the adoption of “Interim” procedural rules. See
In re Kibbe, 361 B.R. 302 (B.A.P. 1st Cir. 2007). This district has accepted that
recommendation.
Indeed, the debtor’s original bankruptcy Schedule J filed in May 2007 disclosed15
only $1,100 of monthly expenses in addition to a purported $9,500 monthly expense for
mortgage payments. As Ms. Chadda’s mortgage matured in 2005, she has had no such expense.
Thus, her inability to pay her non-mortgage debts as they came due, and her lack of savings,
undermines her testimony that she receives roughly $10,000 per month in payments from French
relatives.
Perhaps sensing this credibility issue, on August 16, 2007, she filed an amended
schedule of expenses. On this amendment she lists an “improvement to real estate” expense of
$900 per month, a “miscellaneous” utility expense of $1,000 per month, and a monthly travel
expense of $5,000. There was no evidence offered to explain or corroborate those expense items.
7
the United State trustee. See generally Fed. R. Bankr. P. 2015(a) [Interim]. Moreover,13 14
some of the filed proofs of claims are for small amounts (e.g., claims ##3, 6), suggesting
(along with her unpaid tax obligations) that the debtor has had limited funds with which
to pay her creditors.15
II.
Confirmation of a chapter 11 plan requires that the plan proponent meet all
the requirements of section 1129(a), see, e.g., In re Dupell 2000 WL 192972, at *3
(Bankr. E.D. Pa. 2000); In re Future Energy Corp., 83 B.R. 470, 481 (Bankr. S.D. Ohio
1988), except that of 1129(a)(8) (requiring every impaired class of claims or interests to
accept the plan). If all the provisions of section 1129(a) are established, save that of
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8
section 1129(a)(8), then the plan proponent can seek confirmation under section 1129(b).
See 7 Collier on Bankruptcy, ¶ 1129.03[8], at 1129-58 (15th ed. rev. 2007) (“The
condition set forth in section 1129(a)(8) is the only condition precedent which is not
absolutely necessary for confirmation. If a plan satisfies the confirmation criteria set forth
in section 1129(a), including the requirement that if a class of claims is impaired, at least
one impaired class of claims accepts the plan, the plan may be confirmed notwithstanding
the opposition of one or more impaired classes of claims or interests, provided the plan
satisfies section 1129(b).”).
Here, the debtor concedes that not every impaired class of creditors
accepted her proposed amended chapter 11 plan. (Indeed, only one impaired class
supported her plan.) Thus, she seeks confirmation under section 1129(b)—the fair and
equitable provision. Although the plan objectors challenge that the requirements of
section 1129(b) were established, they also contend vigorously, inter alia, that section
1129(a)(11), the feasibility provision, has not been proven. Unless a proposed chapter 11
plan is feasible, a court need not consider the other objections to confirmation. See, e.g.,
In re Dupell 2000 WL 192972, at *6.
Section 1129(a)(11) provides:
(a) The court shall confirm a plan only if all of the following
requirements are met:
***
11) Confirmation of the plan is not likely to be followed by
the liquidation, or the need for further financial
reorganization, of the debtor or any successor to the debtor
under the plan, unless such liquidation or reorganization is
proposed in the plan.
Thus, to be confirmed, every chapter 11 plan must be “feasible” by virtue of
section 1129(a)(11).
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Section 1129(a)(11) codifies the feasibility requirement and
requires that confirmation of the plan is not likely to be
followed by liquidation or the need for further financial
reorganization, unless such liquidation or reorganization is
proposed in the plan. 11 U.S.C. § 1129(a)(11). To allow
confirmation, the bankruptcy court must make a specific
finding that the plan as proposed is feasible. . . . The standard
of proof required by the debtor to prove a Chapter 11 plan’s
feasibility is by a preponderance of the evidence . . . and we
review the bankruptcy court’s finding that a debtor’s plan is
feasible under the clearly erroneous standard. . . .
In determining whether a debtor’s Chapter 11 plan of
reorganization is feasible, we noted in Briscoe that “the
[bankruptcy] court need not require a guarantee of success . . .
[o]nly a reasonable assurance of commercial viability is
required.” Id. at 1165-66. . . . All the bankruptcy court must
find is that the plan offer “a reasonable probability of
success.” In re Landing Assoc., Ltd., 157 B.R. 791, 820
(Bankr. W.D. Tex. 1993).
Matter of T-H New Orleans Ltd. Partnership, 116 F.3d 790, 801 (5th Cir. 1997) (citations
omitted).
More recently, the Eighth Circuit Court of Appeals explained:
While a reorganization plan’s “[s]uccess need not be
guaranteed,” In re Monnier Brothers, 755 F.2d at 1341, the
bankruptcy court cannot approve a plan unless it has at least a
reasonable prospect for success. See id. . . . . The debtors
bear the burden of establishing the feasibility of their plans by
a preponderance of the evidence.
In re Danny Thomas Properties II Ltd. Partnership, 241 F.3d 959, 963 (8th Cir. 2001).
Accordingly, the purpose of the chapter 11 feasibility requirement is to
prevent confirmation of “visionary schemes.” Matter of Pizza of Hawaii, Inc., 761 F.2d
1374, 1382 (9th Cir. 1985); see, e.g., In re Pikes Peak Water Co., 779 F.2d 1456, 1460
(10th Cir. 1985); In re Monnier Bros., 755 F.2d 1336, 1341 (8th Cir. 1985) (“‘In
determining whether [a plan] is feasible, the bankruptcy court has an obligation to
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10
scrutinize the plan carefully to determine whether it offers a reasonable prospect of
success and is workable.’”) (quoting United Properties, Inc. v. Emporium Department
Stores, Inc., 379 F.2d 55, 64 (8th Cir.1967)); 7 Collier on Bankruptcy, ¶ 1129.03[11]
(15th ed. rev. 2007).
Therefore, in this chapter 11 case, Ms. Chadda had the burden to
demonstrate at her confirmation hearing that there is a reasonable likelihood that she can
fulfill the promises made by her proposed plan. Her sincerity and belief in her own
ability to do so are insufficient to meet this burden:
Feasibility, as noted in the case of In re Bergman . . .
contemplates “the probability of actual performance of the
provisions of the plan. Sincerity, honesty and willingness are
not sufficient to make the plan feasible, and neither are
visionary promises. The test is whether the things which are
to be done after confirmation can be done as a practical matter
under the facts.”
In re Hoffman, 52 B.R. 212, 215 (Bankr. D.N.D. 1985) (quoting In re Bergman, 585 F.2d
1171 (2d Cir. 1978)); see also In re Walker, 165 B.R. at 1004.
Here, the debtor’s proposed amended plan is expressly dependent upon her
obtaining a refinancing loan using her Los Angeles property as collateral. Although not
expressly stated in her plan, her testimony and amended disclosure statement also noted
that plan funding—after distribution of $900,000 refinancing proceeds to the mortgagee
($825,000), to repay her delinquent real estate taxes ($25,000), payment of administrative
expenses ($25,000), viz. her bankruptcy attorney fees and payment of closing fees
($25,000)—would be obtained from the successful operation of one or more new business
entities, plus the leasing of her realty.
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11
Based upon the evidence presented, or lack thereof, Ms. Chadda has not
met her evidentiary burden.
First, as all of the creditor objectors (and the United States trustee) observe,
the evidence is too speculative to accept that the debtor will obtain mortgage loan
refinancing. She offered no evidence of a loan commitment. Instead, at best, the debtor
appears to have applied for a loan—though there also was no evidence that she paid any
application fees—with the application under consideration.
There was also no evidence of the information she supplied with her loan
application regarding present income and her ability to repay any loan; nor was there
evidence of her disclosure of multiple bankruptcy filings. Moreover, as the debtor
acknowledges, Debtors’ Post-Hearing Memorandum, at 8, this is a period when mortgage
financing can be difficult to obtain, especially without income corroboration (of which
the debtor has little). Therefore, without evidence of an actual loan commitment (and a
commitment that promises a prompt loan closing, given the plan effective date), I must
conclude that her expectation of refinancing is speculative. See, e.g., In re Repurchase
Corp., 332 B.R. 336, 343 (Bankr. N.D. Ill. 2005) (“Allowing Debtor’s confirmation to be
based on a ‘hope against hope that the financing [would] actually materialize’
post-confirmation without some form of corroboration would go against a bankruptcy
judge’s duties of ensuring that the Plan complies with the provisions of the Bankruptcy
Code.”); In re Ralph C. Tyler, P.E., P.S., Inc., 156 B.R. 995, 997 (Bankr. N.D. Ohio
1993) (“Without evidence of a firm commitment of financing, this Plan does not meet the
feasibility requirement.”); In re Stratford Associates Ltd. Partnership, 145 B.R. 689, 699
(Bankr. D. Kan. 1992) (“Generally, without proper funding in place or a firm
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12
commitment of such funding, the Court cannot find the plan feasible.”); In re Haardt, 65
B.R. 697, 702 (Bankr. E.D. Pa. 1986) (lack of refinancing commitment rendered plan
infeasible); see also In re Made in Detroit, Inc., 299 B.R. 170, 176-77 (Bankr. E.D. Mich.
2003) (refinancing too speculative for confirmation); In re Kovalchick, 1995 WL 118171,
at *9 (Bankr. E.D. Pa. 1995) (same). Compare In re Global Ocean Carriers Ltd., 251
B.R. 31, 46 (Bankr. D. Del. 2000) (refinancing is feasible under section 1129(a)(11)
where lenders “have issued a commitment letter and/or agreed to term sheets which are
detailed and contingent only upon final documentation, confirmation of the Modified
Plan, and no materially adverse changes occurring.”).
The debtor faces a similar problem regarding her anticipated increases in
income sources from new business ventures. She plans on establishing, post-
confirmation, two business operations, both of which can be considered, at most, in their
planning stages. No needed licenses, employees, start-up capital, equipment, business
structure, or marketing efforts are in place. Neither business has any historical profit.
The debtor’s projected income for her lunch truck business, Ex. D-8 (pages 2-3), was
prepared by her and appeared to be no more than speculation without foundation.
The debtor’s contention in support of confirmation, in essence, is to accept
that she will be a successful entrepreneur who will create new businesses and will repay
creditors, because years ago she was such an entrepreneur. See Debtor’s Reply
Memorandum, at 5. Her burden under section 1129(a)(11) requires more than such belief
in her own abilities. See, e.g., In re Trevarrow Lanes, Inc., 183 B.R. 475, 482 (Bankr.
E.D. Mich. 1995):
A critical issue in assessing the feasibility of a plan which
provides for the debtor’s continued operation is whether the
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Chapter 13 has a feasibility provision, section 1325(a)(6), similar to section16
1129(a)(11). Courts have been reluctant to approve chapter 13 reorganization plans where the
funding is based upon a business to begin operation after confirmation, without persuasive
evidence that the new business will be successful. See In re Nesser, 206 B.R. 357, 367 (Bankr.
W.D. Pa. 1997) (confirmation of a chapter 13 plan whose funding, in part, would be based upon
the successful opening of a tavern is denied, where the business projections of the tavern are
speculative); see also In re Keach, 225 B.R. 264, 269-70 (Bankr. D.R.I. 1998) (chapter 13
confirmation denied where funding for proposed plan could be obtained only if debtor’s business
increased gross revenues by 37% and the debtor offered insufficient evidence that such an
increase was likely), vacated and remanded on other grnds, 243 B.R. 851 (B.A.P. 1st Cir. 2000).
As a result, I need not consider the many other confirmation issues directly or17
indirectly raised by the parties.
13
debtor can generate “sufficient cash flow to fund and maintain
both its operations and obligations under the plan.” In re SM
104 Ltd., 160 B.R. 202, 234 (Bankr. S.D. Fla. 1993). The
“income projections must be based on concrete evidence of
financial progress and must not be speculative, conjectural or
unrealistic.” In re Sound Radio, Inc., 103 B.R. 521, 524
(D.N.J. 1989), aff’d, 908 F.2d 964 (3d Cir.1990).
See also In re Hobble-Diamond Cattle Co., 89 B.R. 856, 858 (Bankr. D. Mont. 1988):
All of the Debtor’s projections for income are speculative and
visionary, and are not based on the Debtor’s past or present
performances. Where a Chapter 11 Plan contemplates
funding the Plan payments from operating revenues, its past
and present financial records are probative of feasibility. . . .
Speculative, conjectural, or unrealistic predictions cannot be
used to predict financial progress.
(Citations omitted).16
Accordingly, the debtor has not met her burden under section 1129(a)(11)
to warrant approval of her proposed chapter 11 plan over the objections of creditors and
the United States trustee. Thus confirmation of her amended plan will be denied.17
Finally, as the debtor was granted sufficient opportunity to present a viable
plan yet was unable to do so, and was on notice of her need to promptly present a viable
plan, Certified Mortgage’s motion to dismiss shall be granted pursuant to 11 U.S.C. §
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14
1112(b). As before, this dismissal shall preclude the debtor from filing future bankruptcy
cases without obtaining prior court approval. See 11 U.S.C. §§ 105(a), 349, and 1112(b).
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UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In re : Chapter 11
SOLANGE D. CHADDA :
Debtor : Bankruptcy No. 07-12665bif
.................................................
ORDER
.................................................
AND NOW, this 9th day of November 2007, for the reasons stated in the
accompanying memorandum, it is hereby ordered that confirmation of the debtor’s
proposed amended plan of reorganization, filed on July 30, 2007 is denied.
It is further ordered that the debtor shall not file any future bankruptcy cases
without obtaining prior approval from this court, which approval shall only be sought
upon notice to all parties in interest, including the United States trustee. See In re Casse,
198 F.3d 327 (2d Cir. 1999).
The clerk of court shall serve a copy of this order upon all creditors. See
Fed. R. Bankr. P. 2002(f)(2) [Interim].
_______________________
BRUCE FOX
United States Bankruptcy Judge
copies to:
Ms. Solange D. Chadda
408 South 47th Street
Philadelphia, PA 19143
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David A. Scholl, Esquire
Regional Bankruptcy Center of SE PA
Law Office of David A. Scholl
6 St Albans Avenue
Newtown Square, PA 19073
Andrew S. Kasmen, Esquire
Silverman Burns Kasmen & Krawitz
The Pavilion, Suite A-51
261 Old York Road
Jenkintown, PA 19046
Barbara K. Hager, Esquire
Reed Smith LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
Kevin P. Callahan, Esquire
Office of the U.S. Trustee
833 Chestnut Street, Suite 500
Philadelphia, PA 19107
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