Manhattan Jeep Chrysler Dodge, Inc.

1
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
__________________________________________x
:
In re: 	: 	Chapter 11
:
MANHATTAN JEEP CHRYSLER DODGE, 	: 	Case No. 18-10657 (MEW)
INC., et al.,1 	:
: 	Jointly Administered
Debtors. 	:
__________________________________________x
DECISION REGARDING OBJECTIONS TO CONFIRMATION
OF DEBTORS’ PROPOSED PLAN OF LIQUIDATION
A P P E A R A N C E S:
WILK AUSLANDER LLP
Attorneys for Debtors
1515 Broadway
New York, NY 10036
BY: ERIC SNYDER, ESQ.
ELOY A. PERAL, ESQ.
ARCHER, BYINGTON, GLENNON & LEVINE LLP
Attorneys for Local 868 International
Brotherhood of Teamsters Pension Fund
One Huntington Quadrangle
Suite 4C10
Melville, NY 11747
BY: JOHN H. BYINGTON III, ESQ.
MICHAEL E. WILES
UNITED STATES BANKRUPTCY JUDGE
Debtors Manhattan Jeep Chrysler Dodge, Inc. (“Manhattan Jeep”) and Manhattan
Automotive, LLC (“ARF” and together with Manhattan Jeep, the “Debtors”) seek confirmation
of their Amended Plan of Liquidation [Dkt. No. 181]. Objections to confirmation were filed by
1 	The last four digits of each Debtor’s taxpayer identification number are as follows:
Manhattan Jeep Chrysler Dodge, Inc. (2520); Manhattan Automotive, L.L.C. (3993). The
Debtors’ addresses are 678 Eleventh Avenue, New York, NY 10019 and 629 West 54 th
Street, New York, NY 10019, respectively.
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the trustees of Local 868 Pension Fund (the “Fund”) and by the New York City Department of
Finance. The Court heard argument and the parties presented evidence with respect to the
request for confirmation and the objections on May 10, 2018. At the conclusion of the hearing
the Court announced its decisions and indicated that it would incorporate its rulings into this
written decision.
The Objectors’ Claims
The Fund. Manhattan Jeep filed Schedules of Assets and Liabilities in which it listed a
debt owed to the Fund in the amount of $2,994. [Dkt. No. 36]. The claim was not listed as
contingent, unliquidated or undisputed. In the absence of an amendment to the Schedules, or an
objection by a party in interest, the scheduled claim constitutes an allowed unsecured claim in
Manhattan Jeep’s chapter 11 case. See 11.U.S.C. § 1111(a). The Schedules filed by ARF,
however, did not list any claim in favor of the Fund.
On April 12, 2018, the Court entered an order, pursuant to Rule 3003 of the Federal
Rules of Bankruptcy Procedure, that established May 23, 2018 as the deadline (or “bar date”) by
which all proofs of claim against the Debtors needed to be filed. Governmental units were
entitled to additional time by virtue of section 502(b)(9) of the Bankruptcy Code, so that the
deadline for the filing of claims by governmental units was September 5, 2018. The Order
notified all potential claimants that “pursuant to Bankruptcy Rule 3003(c)(2), all holders of
claims that fail to comply with this Order by timely filing a proof of claim in appropriate form
shall not be treated as a creditor with respect to such claim for the purposes of voting and
distribution.” [Dkt. No. 35.]
The Fund did not file a proof of claim prior to the deadline set by the Court. At the end
of January 2019, however, the Fund filed motions seeking permission to file proofs of claim
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against both Debtors based on alleged withdrawal liabilities due to the termination of Manhattan
Jeep’s participation in a multi-employer pension plan. The Fund contended that its claims were
not subject to the bar date, but the Court rejected that contention for the reasons set forth in a
Bench Decision dated March 4, 2019. [Dkt. No. 165.] The Court scheduled an evidentiary
hearing to consider the Fund’s alternative request for permission to file late claims on the
grounds of excusable neglect pursuant to Rule 9006 of the Federal Rules of Bankruptcy
Procedure, and it conducted that evidentiary hearing on March 28, 2019. At the conclusion of
the hearing, the Court held that the Fund had failed to prove excusable neglect and it denied the
request for relief from the deadline imposed by the bar date order. The decision that was
announced by the Court on March 28 was incorporated into a written Bench Decision that was
filed on April 3, 2019. [Dkt. No. 187.] The Fund has filed appeals from the Court’s rulings.
During the March 28, 2019 hearing the Court noted that the Fund had asked that it be
granted a subordinated claim that would receive the same treatment in the Debtors’ chapter 11
cases that a late-filed claim would receive in a chapter 7 liquidation pursuant to section 726 of
the Bankruptcy Code. The Court noted that in chapter 11 cases claims are normally either
allowed or disallowed, and also that Rule 3003(c)(2) of the Federal Rules of Bankruptcy
Procedures states that if a claim is not timely filed then the holder of that claim “shall not be
treated as a creditor with respect to such claim for the purposes of voting and distribution.” Fed.
R. Bankr. P. 3003(c)(2). The Court therefore expressed some skepticism at the notion that the
Court could grant the relief the Fund suggested. However, the issue before the Court at the prior
hearing was whether the late filings should be excused, and not how the late-filed claims were
treated under the proposed Plan, and issues regarding the proposed allowance of a subordinated
claim had not been raised in the initial motion papers. The Court held that the Fund could object
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to the Plan if the Fund believed that the Bankruptcy Code required that the Fund’s late-filed
claims be treated as subordinated claims in the Debtors’ chapter 11 cases, and if the Fund made
such an objection the Court would consider the issue at the confirmation hearing. See Bench
Decision, April 3, 2019 [Dkt. No. 187], at 15. The Fund has now made such an objection, and it
has asserted other objections as well.
The NYC Department of Finance. The New York City Department of Finance filed a
proof of claim on April 26, 2018, and it amended the claim on April 8, 2019. The claim asserts
that the Debtors owe commercial rent taxes, general corporate taxes and unincorporated business
taxes for various periods, plus interest and statutory penalties. The Debtors contended that the
filed claim should be treated as though it had only been filed against Manhattan Jeep and not
against ARF, but the Court rejected that contention for reasons that were stated on the record on
May 10, 2019. 2 The Department of Finance has objected to certain exculpation provisions in the
Plan, as described below.
The Fund’s Objections
The Fund asserted a number of objections to confirmation of the Debtors’ plan of
liquidation. The Court has carefully considered each objection and has determined that each
objection lacks merit.
1. 	The Failure to Identify Each Retained Cause of Action
Section 1125 of the Bankruptcy Code requires debtors to prepare a disclosure statement
that will explain the relevant terms of a plan of reorganization to creditors. In this case the draft
disclosure statement was made available for comment or objection by parties in interest. No
2 	Disputed issues regarding the amounts of the claim and the portions of the New York City
Department of Finance claim that may be entitled to priority under section 507 of the
Bankruptcy Code are still outstanding.
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party in interest objected to the proposed disclosure statement. The Court entered an Order that
approved the disclosure statement on March 20, 2019 [Dkt. No. 179], and the final version of the
disclosure statement was filed on March 21, 2019 and mailed to creditors.
The disclosure statement and the Plan each plainly state that the Debtors will retain the
right to pursue any and all causes of action that they may have, including actions to recover
preferences or fraudulent transfers. See Amended Disclosure Statement [Dkt. No. 180] at 23;
Amended Plan of Liquidation [Dkt. No. 181] at 3, 4, 19. They also state that the failure to
identify any individual cause of action “shall not constitute, nor be deemed to constitute, a
release or waiver of such cause of action,” and that the intent was to preserve “any and all”
causes of action except as expressly stated otherwise in the Plan. Id.
In its confirmation objection, the Fund argues that the disclosure statement and Plan do
not provide sufficient detail about the causes of action that might be available. The Fund does
not take issue with the clarity of the statements in the Plan and disclosure statement that preserve
“all” causes of action. Instead, the Fund argues that a detailed listing of each claim, and its
prospects, was necessary so that creditors could make informed decisions. The Fund also argues
that the Bankruptcy Code requires a detailed listing of each cause of action in order for the
Debtor to retain the rights to pursue them, and that the failure to list causes of action therefore
means that valuable assets might be lost.
To the extent that the Fund is complaining about the adequacy of the disclosures that
were provided to creditors, the objection is too late. The Court already entered an Order that
found that the disclosure statement provided adequate information and approved the disclosure
statement, without objection by the Fund or by any other party. That Order is final and binding
and no motion to modify its terms has been filed.
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The disclosure objection also is without merit, even if it were treated as timely. The Plan
provides that all recoveries will be allocated to creditors in order of priority and then to equity if
(but only if) creditors are paid in full, so that there is nothing about the allocations of the
proceeds of possible litigation that required greater disclosure about individual claims. There are
cases in which a particular litigation is of such significance that there ought to be disclosure
about its prospects and its possible effects on creditors, but no such contention is made here. The
Debtors have stated that they are not aware of any claim of such significance that its pursuit
would make a material difference in creditors’ recoveries, and the Fund has not questioned that
conclusion or identified any such claim.
The Fund also suggests that the Debtors may lose the right to pursue causes of action that
are not explicitly listed in the Plan and disclosure statement. The Court disagrees.
Section 1123(b) of the Bankruptcy Code lists permissible provisions in a plan or
reorganization. Section 1123(b)(3) states that a plan may provide for “the retention and
enforcement” by the debtor of any claim or interest. The Plan and disclosure statement plainly
provide in this case for the retention and enforcement of all claims and interests. There is no
requirement in section 1123(b)(3) that each retained claim be specifically identified in order to
be retained.
The Fund nevertheless argues that a detailed list is required as a matter of law. In making
this argument the Fund relies primarily on the decision in Harstad v. First Am. Bank, 39 F.3d
898 (8th Cir. 1994). 	In Harstad, however, the proposed plan of reorganization said nothing
about preserving the right to pursue claims, and also said nothing about who would be entitled to
the proceeds of such claims. The only arguably relevant provision of the Plan was found in the
retention of jurisdiction section, which said the court would have jurisdiction over the
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determination of causes of action. In other words, the problem in Harstad was that there was not
even a general reservation of a right to pursue the estate’s claims. That is not the case here. The
Plan in this case clearly provides that the debtors reserve the rights to pursue all claims and that
the proceeds will be paid out to creditors or, if creditors are paid in full, to holders of equity
interests.
The Fund also relies on other decisions from other jurisdictions and circuits in arguing
that a detailed list of retained claims is required as a matter of law. To the extent that those
impose such requirements the Court disagrees with them. The better view, and the one that
reflects the prevailing practice in this district, was described in MF Global Holdings USA Inc. v.
Heartland Co-Op (In re MF Global Holdings Ltd.), 2017 Bankr. LEXIS 1025 (Bankr. S.D.N.Y.
Apr. 13, 2017). In that decision, Judge Glenn noted that “bankruptcy courts, and subsequent
appellate rulings in the Second Circuit, in Chapter 11 cases, have adopted the view that a debtor
is not required to provide a specific description of every claim the debtor intends to pursue.
Doing so would serve no useful purpose where claims are not being extinguished.” See also In
re American Media, Inc., 2010 WL 5483463, at *10 (Bankr. S.D.N.Y. Dec. 20, 2010) (noting
that “the Plan appropriately provides for the preservation by the Debtors of any [causes of
action] whatsoever, whether known or unknown, in law, equity or otherwise . . . in accordance
with Bankruptcy Code section 1123(b)(3)(B). The [plan] provisions regarding the retained
[causes of action] are appropriate and are in the best interests of the Debtors, the Estates and all
Holders of Claims and Interests.”) (emphasis added).
The inclusion in a plan of reorganization of a general provision retaining claims, without
a listing of individual claims, was approved and given effect in In re I. Appel Corp., 300 B.R.
564, 569 (S.D.N.Y. 2003), and that approval was affirmed by the Second Circuit Court of
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Appeals at 104 Fed. Appx. 199 (2d Cir. 2004). The approval of the practice by the Court of
Appeals removes any doubt, in this Circuit, as to the effectiveness and propriety of such a
general retention provision.
The Fund cites to two decisions from this district that purportedly reached contrary
conclusions, but the cited decisions are not on point. The Fund has cited to Kunica v. St. Jean
Fin., Inc., 233 B.R. 46, 56 (S.D.N.Y. 1999), but that was a case where a debtor was faulted for
trying to hide claims in order to keep them from being pursued for the benefit of creditors. The
Fund has also cited to In re Galerie Des Monnaies, Ltd., 62 B.R. 224 (S.D.N.Y. 1986), but that
was a case where the debtors had explicitly stated in their disclosure statement that they had
reviewed potential preference actions and had determined that no valid preference claims could
be pursued. In Galerie Des Monnaies the Court held that the debtor’ prior statement estopped
the debtor from later pursuing a preference action. No such thing is alleged here.
Requiring a specific list of retained claims is not required by the Bankruptcy Code, and
also would be a bad idea. It is often the case that an analysis of preference claims is made by a
post-confirmation liquidation trust. There is simply no reason why the confirmation of a plan
should be held up, or why a debtor’s emergence from bankruptcy should be delayed, or why the
onset of creditor distributions should be delayed, just because all potential causes of action have
not yet been fully identified and evaluated. See Cooper v. Tech Data Corp. (In re Bridgeport
Holdings, Inc.), 2005 Bankr. LEXIS 1552 (Bankr. D. Del. Aug 12, 2005) (holding that a general
reservation of rights to pursue claims was sufficient, and distinguishing Harstad and other prior
decisions); Cohen v. Tic Fin. Sys. (In re Ampace Corp.), 279 B.R. 145, 160 (Bankr. D. Del.
2002) (“[I]n my opinion, a general provision in a plan of reorganization indicating the type or
category of claims to be preserved should be sufficiently specific to provide creditors with notice
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that their claims maybe challenged post-confirmation[.]”); Peltz v. Worldnet Corp. (In re USN
Communs., Inc.), 280 B.R. 573 (Bankr. Del. 2002) (holding that there is nothing in section 1123
that could be construed as requiring that every claim and interest be listed in order to be
preserved).
2. 	Decisions Regarding the Pursuit of Claims
The Fund also argued that the Debtors might not pursue potential causes of action with
the same vigor that a chapter 7 trustee might exhibit. The Court noted that the Schedules
included lists of persons who had received transfers that could be the subject of avoidance
actions, and suggested that the confirmation order could require the Debtors to file a statement,
within forty-five days after confirmation, listing the avoidance actions that the Debtors wished to
pursue and those claims that would be dropped. The Court also suggested that the confirmation
order could further provide that parties would have the right to object to the Debtor’s decisions
and that the Court would retain the right to appoint an independent party to pursue avoidance
actions if the Court determined that the Debtors’ decisions not to pursue them were
unreasonable. The Fund’s counsel agreed that this would be acceptable and would resolve the
Fund’s objection, and after discussion the Debtors’ counsel agreed. Those terms will be
incorporated into the confirmation order as an agreed modification to the Plan.
3. 	Claims Filed by Insiders
The Fund noted that the Debtors had amended their statements of financial affairs to
reflect the fact that three insiders had filed proofs of claim based on loans they had made. The
Fund objected that the Debtors might not have sufficient incentive to pursue objections to such
claims. The Fund’s counsel then questioned the Debtors’ witness about the insiders’ claims.
After such questioning the Fund’s counsel acknowledged that the Fund was not aware of any
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ground to object to the claims and that the Fund had no objection to confirmation of the Plan
based on the insider claims.
4. 	Objections Based on the Failure to Classify the Fund’s Late-Filed Claims For
Purposes of Distribution Under the Plan
The Fund argued that its late-filed claims would be entitled to a subordinated position in
the distribution hierarchy if these were cases under chapter 7 of the Bankruptcy Code, because
section 726(a)(4) of the Bankruptcy Code provides for distributions on late-filed claims if
timely-filed claims have been paid in full. It therefore argued that it should receive the same
treatment under the Debtors’ chapter 11 plans. However, section 726 is part of Subchapter II of
chapter 7. Section 103(b) of the Bankruptcy Code states clearly that the provisions of
Subchapter II apply “only” in a chapter 7 case, and not in a chapter 11 case. See 11 U.S.C.
§ 103(b).
Late-filed claims are treated differently in chapter 7 cases than in chapter 11 cases.
Section 502 of the Bankruptcy Code provides generally that a proof of claim should be allowed
except to the extent it is objectionable on various grounds. One of the grounds for objection is
that the claim “is not timely filed.” See 11 U.S.C. § 502(b)(9). As noted in the Collier’s treatise,
this language was added to section 502 “to overrule case law holding that tardily filed claims
were allowable.” See 4 COLLIER ON BANKRUPTCY ¶ 502.03[10][a] (16 th ed. 2019); see also In re
Husmann, 276 B.R. 596 (Bankr. N.D. Ill. 2002) (noting that one impetus for section 502(b)(9)
was the desire to overrule cases that had held that late-filed claims could be allowed in chapter
13 cases). There is an exception to this exception if a claim is late-filed “as permitted under
paragraph (1), (2) or (3) of section 726(a) of this title.” Id. However, as noted above section
726(a) only applies in a chapter 7 case. Section 726 does not “permit” a late filing in a chapter
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11 case, because section 726 does not apply in a chapter 11 case. See In re Tribune Company,
506 B.R. 613, 617 (Bankr. D. Del. 2013).
Rule 3002 of the Federal Rules of Bankruptcy Procedure governs the filing of claims in a
chapter 7 case, but a different rule (Rule 3003) governs the filing of claims in chapter 11 cases.
Rule 3003(c)(2) states explicitly that if a claim is not timely filed in a chapter 11 case the holder
of that claim “shall not be treated as a creditor” with respect to that claim for purposes of voting
and distribution. See Fed. R. Bankr. P. 3003(c)(2). In other words, a claimant in a chapter 11
case whose claim is not scheduled as being due and owing without dispute or contingency, and
who does not file a timely proof of claim, and whose failure to file a timely claim is not excused
(either on grounds of excusable neglect pursuant to Rule 9006 or perhaps on due process grounds
due to a lack of proper notice), is to be treated as though the claimant were not a creditor at all
for purposes of receiving distributions under a plan. The relief that the Fund seeks – namely, to
be placed in a newly-created class of late claimants, and to be granted a subordinated right of
distribution rather than no right of distribution – is in direct conflict with the terms of Rule
3003(c)(2).
There are good reasons why late-filed claims are treated differently in chapter 11 cases.
The distributions that creditors receive in chapter 11 are determined by the provisions of a
confirmed plan of reorganization. The participants in the chapter 11 process need to know what
claims are entitled to receive distributions so that the value of a reorganized enterprise can be
divided among the constituents. If late-filed claims automatically were to be recognized (even
on a basis that was subordinated to general unsecured creditors), then the constituents in a
chapter 11 case, including the existing equity owners, could not negotiate with confidence as to
how to divide the value of the reorganized business. As one court observed:
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There are important policy reasons why tardily filed claims are allowed in
Chapter 7 cases and disallowed in Chapter 11, 12 and 13 reorganizations. In a
reorganization, the debtor must know, with certainty, the amount owed to
creditors so as to formulate a feasible reorganization plan. Thus, a bar date
for claim allowances is necessary for the administration of the reorganization.
In a Chapter 7 liquidation case, the policy reasons to set a bar date for claims
is much weaker. The allowance of a late claim is less harmful to other
creditors. In a Chapter 7 case, the balance of any unclaimed funds is paid to
the debtor. 11 U.S.C § 726(a)(6). While Sections 726(a)(2)(C) and (a)(3) do
not guarantee payment of late claims, any late claims could be subtracted
from the surplus funds that would otherwise be returned to the debtor.
Perry v. First Citizens Fed. Credit Union, 304 B.R. 14, 22 (D. Mass. 2004) (internal citations
omitted) see also Midland Cogeneration Venture Ltd. P’ship v. Enron Corp. (In re Enron Corp.),
419 F.3d 115, 127-28 (2d Cir. 2005) (bar date orders serve an essential function in bankruptcy
proceedings and that in the absence of finality complex negotiations would be undermined and
“reorganization would be impossible”).
In short, late-filed claims are not “allowed” claims in chapter 11 cases. The gist of the
Fund’s motion is that the Court and the parties should nevertheless merely subordinate the late-
filed claims rather than disallowing them. But that is not the result for which Congress has
provided in chapter 11 cases. None of the provisions of section 510 (which address the
subordination of claims) relate to late-filed claims. The Bankruptcy Code contemplates the
disallowance of late-filed claims in chapter 11, not their reclassification or their conversion into a
different, subordinated form of allowed claim.
The Fund urges me to hold that Rule 3003(c)(2) is contrary to the provisions of section
502(b)(9) and therefore is invalid insofar as it bars a late-filed claim from sharing in distributions
in a chapter 11 case. But the more natural interpretation of section 502(b)(9) is that the
exception for the allowance of late-filed claims applies only in chapter 7 cases, for the reasons
stated above. In my view, it would be a misinterpretation of section 502(b)(9) to hold that it
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conflicts with the terms of Rule 3003(c)(2). I note that the Federal Rules of Bankruptcy
Procedure are promulgated by the United States Supreme Court pursuant to the authority granted
under section 2075 of title 28 of the United States Code. See 28 U.S.C. § 2075. I ought to be
very cautious in holding that any such rule is in conflict with the statute, and in this particular
case the alleged “conflict” is without substance.
One could argue as a policy matter that where (as here) a chapter 11 plan provides for a
liquidation rather than a reorganization there is no need to apply a rule regarding the treatment of
late-filed claims that differs from the rule that prevails in chapter 7. But that is an argument to be
addressed to Congress. Congress has permitted a chapter 11 plan to provide for a liquidation
rather than a reorganization. See 11 U.S.C. §§ 1123(a)(5)(D), 1123(b)(4). There is no room in
the language of section 103(b) of the Bankruptcy Code, or in section 502(b)(9), for a court to
hold that the late-claim provisions of section 726 apply in some chapter 11 cases (those that
involve a liquidation) but not in those chapter 11 cases that involve a reorganization. The issue
before the court is a binary one – the late-claim provisions of section 726 either apply in chapter
11, or they do not. The Court believes that applying the late-claim provisions of section 726 in a
chapter 11 case would require an illogical interpretation of section 503(b)(9) of the Bankruptcy
Code and would run afoul of the clear terms of section 103(b) and Rule 3003(c)(2).
5. 	Objection that the Plan Fails to Meet the “Best Interests of Creditors” Test Because
It Fails to Provide Subordinated Distribution Rights to Late-Filed Claimants
The Fund also argues that its late-filed claim must be given the same treatment that it
would receive in a chapter 7 case, because otherwise the plan would violate the “best interests of
creditors” test that is embodied in section 1129(a)(7) of the Bankruptcy Code.
Section 1129(a)(7) provides that a plan may not be confirmed unless “each holder of a
claim” in an “impaired class” of creditors either has accepted the plan or “will receive or retain
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under the plan on account of such claim or interest property of a value, as of the effective date of
the plan, that is not less than the amount that such holder would so receive or retain if the debtor
were liquidated under chapter 7 of this title . . .” 11 U.S.C. § 1129(a)(7). There are two
problems with this argument.
First, it is possible that the general unsecured creditors of ARF may be paid in full, but no
party has contended that there is any likelihood that the general unsecured creditors of Manhattan
Jeep will be paid in full. Accordingly, a subordinated class of “late filed” creditor claims would
receive nothing if Manhattan Jeep were liquidated in a chapter 7 case, just as they will receive
nothing under the proposed Plan. As to Manhattan Jeep, no “best interests” issue could exist.
Second, the Fund’s “best interests” argument wrongly presumes that the Fund’s late-filed
claims are entitled to the protections of section 1129(a)(7). The Plan specified classes of holders
of “allowed” claims. The Fund’s late-filed claim would have been part of that class if it had
been timely filed, but the claim was not timely filed. It is not an allowed claim and is not entitled
to be treated as one, and it is not part of any “class” of claims specified in the Plan. Nor is the
Fund entitled to insist that the plan establish a separate, new “class” for late-filed claims, for the
reasons stated above. As a holder of late-filed claims the Fund is not a member of any “class” of
claims under the Plan and is not entitled to the protections of section 1129(a)(7).3
The Fund argues that holders of equity interests should never receive distributions if any
creditors (late-filed or otherwise) are left unpaid, and that this might occur in the case of ARF.
3 	The primary relief sought by the Fund in its prior motions, and on appeal, is the inclusion of
its claims as general unsecured claims, and not for their classification as subordinated
claims. If the Fund were to obtain such relief from the bar date then it would share equally
with other general unsecured creditors, and no “best interests” issue would exist. The “best
interests” issue arises only to the extent that the Fund, as a form of alternative relief,
contends that a new class of subordinated late-filed claims should be created and that its
claims should be “allowed” as part of that newly-created class.
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The Court has sympathy for the contention, but once again the Fund’s displeasure with the
structure of chapter 11 is an issue for Congress to address. One could argue that many kinds of
“disallowed” claims should more fairly be treated as subordinated claims that should retain a
right to be paid before distributions are made to equity, including claims by landlords and others
whose claims are restricted by various provisions in section 502 of the Bankruptcy Code. But
that is not the result that Congress has specified. Chapter 11 of the Bankruptcy Code
contemplates that the holders of “allowed” claims and “allowed” interests will share in
distributions. The consequence of the Fund’s failure to file a timely withdrawal liability claim is
that the Fund has no allowed withdrawal liability claim in the Debtors’ chapter 11 cases. The
Fund therefore “shall not be treated as a creditor with respect to such claim for the purposes of
voting and distribution.” Fed. R. Bankr P. 3003(c)(2). “Shall not” means exactly that – the Fund
is not entitled to any distribution or any voting rights. The “best interests” test protects claimants
who are entitled to be treated as creditors in the chapter 11 process, not parties whose claims are
late-filed. See In re Tribune Company, 506 B.R. 613, 617 (Bankr. D. Del. 2013) (holding that
the best interests test is applicable to the treatment of claims that are allowed in a chapter 11 case
but not to the treatment of tardy claims).
The Court therefore rejects the Fund’s contention that the Debtors’ plan of reorganization
was required to classify the Fund’s late-claim and was required to provide a subordinated
treatment of the late-filed claim that would have been similar to the treatment that the Fund
would have received in a chapter 7 liquidation.
6. 	Objections Based on the Failure to Subordinate Penalty Claims
The Fund has made another “best interests” objection: namely, it contends that the failure
of the Plan to subordinate “penalty” claims means that general unsecured creditors (including the
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Fund with respect to its $2,994 allowed claim against Manhattan Jeep) will not receive
distributions under the Plan that are at least equal to the distributions they would have received in
a chapter 7 case, because the penalty claims would be subordinated in a chapter 7 case. See 11
U.S.C. § 726(a)(4). There are two problems with this contention.
First, the Fund has standing to assert this objection in the Manhattan Jeep case by virtue
of the claim that was listed in favor of the Fund on the Manhattan Jeep Schedules of Assets and
Liabilities. However, the Fund has no allowed claim against ARF. As such, the treatment of
other creditors does not affect the treatment of any claim owned by the Fund and raises no “best
interests” issue as to how the Fund is treated under the Plan insofar as it relates to ARF.
Second, the evidence made clear that no “best interests” issue exists. In order to compare
each creditor’s potential recovery under chapter 11 versus chapter 7, one must calculate a ratio
that is equal to (a) the amount of the assets that would be available for distribution in each case,
divided by (b) the total amount of the claims that would be entitled to share in a distribution. In
this case, the Fund accepted the Debtors’ estimate that in a chapter 7 liquidation the
administrative expenses would be approximately $200,000 higher than they would be if the
chapter 11 plan were to be approved – meaning that there would be $200,000 less for distribution
in a chapter 7 liquidation. The Debtors estimated that approximately 80% of the expenses would
be allocable to the Manhattan Jeep case. The evidence at the confirmation hearing also showed
that most of the penalty claims filed against the Debtors were the claims filed by the New York
City Department of Finance, and that the total of all of the penalty claims against Manhattan Jeep
in both cases does not exceed approximately $140,000 (and probably is significantly less in the
Manhattan Jeep case since the foregoing figure includes the entire penalty asserted with respect
to commercial rent taxes, some part of which is attributable to ARF and not to Manhattan Jeep).
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If the recoveries of creditors in chapter 7 versus chapter 11 are calculated in the manner
described above, and if in a chapter 7 case for Manhattan Jeep the numerator (assets available for
distribution to creditors) would be $160,000 less than in chapter 11, and the denominator (claims
entitled to share in the distribution) would be reduced by no more than $140,000 – so that the
reduction in assets would be greater than the reduction in claims entitled to distributions – then
mathematically the recoveries in chapter 7 would necessarily be lower than the recoveries under
the proposed chapter 11 plan.
In this case, the disclosure statement estimated that general unsecured creditors of
Manhattan Jeep would receive distributions that could reach 40% of their allowed claims, though
the estimate provided at the Confirmation Hearing (which no party challenged) was that
recoveries are likely to be approximately 30%. If the assets available for distribution to
Manhattan Jeep’s creditors were to be reduced by $160,000 in a chapter 7 case, then the recovery
percentages for those creditors in a chapter 7 liquidation could not equal or exceed 30% unless
the subtraction of penalty claims were to reduce the amount of claims that were entitled to share
in a distribution by $533,333 or more ($160,000 divided by .3). At a recovery percentage of
40% there would have to be more than $400,000 of penalty claims ($160,000 divided by .4) in
order for a chapter 7 recovery to exceed a chapter 11 recovery. The amount of penalty claims
that have been filed are far less than those amounts, so the different treatment of penalty claims
in a chapter 7 liquidation would not result in a higher recovery for other general unsecured
creditors.
Accordingly, the treatment of penalty claims under the Plan cannot and does not create a
“best interests” issue and does not violate the terms of section 1129(a)(7).
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The NYCDOF Objection
The New York City Department of Finance objected to provisions of the proposed Plan
that it believed could limit the Department’s rights to complain, or to hold people accountable,
for the manner in which they responded to the Department’s requests for further information
regarding taxes that were owed. At the Confirmation Hearing the Court presumed that the Plan
must have contained an “exculpation” provision that freed the Debtor and its officers from
liability for acts taken during the course of the bankruptcy case, and suggested that any such
exculpation provision could be modified to address the Department’s objection. However, a
closer look at the Plan reveals that there is no such “exculpation” provision. Instead, the
“release” cited by the Department of Finance is a provision under which the “Debtors shall be
deemed to have released” certain claims owned by the Debtors themselves. See Plan, § 11.2.
The simple answer to the Department’s objection is that section 11.2, by its terms, does not even
purport to modify, release or affect in any way any rights or remedies that the Department may
have with respect to the handling of tax audits or responses to the Department’s requests for
information. The objection therefore has no merit.
Conclusion
The Debtors have established that the Plan meets the requirements for confirmation, and
the objections to confirmation are overruled for the reasons stated above. A separate Order will
be entered that confirms the Plan.
Dated: New York, New York
May 15, 2019
/s/ Michael E. Wiles
HON. MICHAEL E. WILES
UNITED STATES BANKRUPTCY JUDGE
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