- Category: Judge Nugent
- Published on 23 March 2011
- Written by Judge Nugent
SIGNED this 07 day of March, 2011.
ROBERT E. NUGENT
UNITED STATES CHIEF BANKRUPTCY JUDGE
OPINION DESIGNATED FOR ON - LINE PUBLICATION
BUT NOT PRINT PUBLICATION
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS
IN RE: )
GARY A. WOODS, ) Case No. 10-12397
KAREN E. WOODS, ) Chapter 11
Secured creditor Hillcrest Bank, N.A. filed two motions in this case, one for stay relief and
the other to dismiss.1 The Court heard evidence on both motions on November 23, 2010, reviewed
the exhibits and evidence presented then, together with the parties’ stipulations,2 and is now
1 Dkt. 27 and 29.
2 Dkt. 63.
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prepared to rule.3
Debtors Gary and Karen Woods farm at Clearwater, Kansas. The Woods filed a previous
chapter 11 case in this Court in 2002.4 They confirmed a chapter 11 plan in that case that provided
for Hillcrest’s predecessor’s secured claim to be allowed in the approximate amount of $1.4 million
and approximately $62,000 allowed as an unsecured claim.5 The debtors and Hillcrest stipulated
that Hillcrest’s secured claim would be treated first by the application of $250,000 stock sale
proceeds.6 The approximately $1.15 million remaining would be repaid annually over four years
based upon a 20-year amortization at 6% interest with a balloon payment being due at the end of five
years. This restructured obligation would continue to be secured by Hillcrest’s pre-petition
mortgages on real estate in Sedgwick County, Kansas and would be further secured by a new
mortgage covering real estate in Butler County, Kansas. Once the Bank received the new mortgage,
it would release its security interests in the debtors’ crops, livestock, and equipment. The debtors
filed a plan that incorporated this treatment that this Court confirmed on January 22, 2004.7
Under the terms of the confirmed plan, the amortization and payment periods were to begin
3 Gary and Karen Woods appeared by J. Michael Morris. Mr. Woods was also present.
Hillcrest Bank, N.A. appeared by Terry C. Cupps and by Ms. Sue Drakeford, a commercial loan
officer with the Bank.
4 Case No. 02-13368.
5 Hillcrest Bank was placed in receivership by the Federal Deposit Insurance corporation
on October 22, 2010 and the day after, its assets were acquired by Hillcrest Bank, N.A. For
convenience, both entities will be referred to as “Hillcrest” or “Bank.”
6 Ex. 1. This stipulated treatment was entered and approved by the Court in May of
7 Ex. 3.
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one year after the effective date. The plan defined the effective date as the day the confirmation
order became final and non-appealable. Under the version of Fed. R. Bankr. P. 8002(a) in effect
at that time, the appeal period was 10 days long. The tenth day after January 22, 2004 was Sunday,
February 1, 2004, making the effective date February 2, 2004. Therefore, the first four annual
payments were due on February 2 of 2005, 2006, 2007, and 2008. The balloon payment was due
on February 2, 2009. The unsecured obligation, which bore no interest, was also due and payable
in full on February 2, 2009. In October of 2003, Hillcrest recorded the new mortgage on the Butler
County land to further secure the restructured secured claim.8
In the meantime, the Woods pursued refinancing by contacting a bank in Parsons, Kansas
in 2008. Gary Woods testified that he supplied that bank with financial statements and cash flow
data, but the bank declined his application. He also testified that he inquired about selling some of
his land during the five-year period. He made the four annual instalment payments as agreed, but
defaulted on the balloon in February of 2009.
After the default, Woods gave Hillcrest a renewal note for each of the obligations.9 These
renewals matured on April 12, 2009. The large note bore interest at 6 per cent and the formerly non-
interest obligation now bore interest at 4 per cent. He paid interest to Hillcrest monthly in March
and April and, on April 12, executed an extension agreement with Hillcrest.10 Under this agreement,
the Bank allowed him until February 12, 2010 to refinance or sell-down his real estate holdings to
reduce the principal. Woods was to continue to make monthly interest payments on both notes and,
8 Ex. 4.
9 Ex. 6 and 7.
10 Ex. 8 and 9.
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in addition, agreed to cross-collateralize both obligations with the both the Sedgwick and Butler
County mortgages. The interest rate of both notes was increased to 7 per cent and Woods agreed
to pay a one per cent “exit fee” at payoff.
Woods attempted to refinance his obligations with a bank in Conway Springs, Kansas, in
August of 2009 but was again unsuccessful. When he was unable to pay in February, 2010, he
began to list property for sale.11 Woods made a monthly interest payment in March of 2010. He
asked Hillcrest to extend his maturity until June to “give him the Spring” to find purchasers for some
of the land and Hillcrest agreed. Woods was to execute an extension agreement that memorialized
this agreement and pay the ad valorem taxes on the land. He did neither. Thereafter, the Bank
called the notes and re-commenced the foreclosure sale that his earlier 2002 filing had stalled.12 In
addition, Hillcrest filed a new action in Butler County to foreclose the later mortgage.13 On July 16,
2010, debtors filed this bankruptcy case, again forestalling the foreclosure cases.
Throughout 2009 and 2010, Woods’ loan officer at Hillcrest was Sue Drakeford. Ms.
Drakeford testified that her communications with him were almost entirely initiated by her and that
Woods was oftentimes difficult to reach. Nonetheless, she indicated that the Bank had been willing
to grant the extensions detailed above in the hope that Woods will be able to sell land or refinance
his debt. The Bank did not expect Woods to sell all of his land or to pay off the note via land sales,
but it did desire partial principal reduction. The Bank believed that its collateral value exceeded the
11 Woods listed two 80-acre parcels at a listing price of $330,000. He received a couple
of offers in the $210,000-$220,000 range in the January or February 2010 time frame but the
land was not sold.
12 Ex. 10. The sheriff’s sale of the Sedgwick County land was set for July 21, 2010.
13 Ex. 11.
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debt by some $800,000. She also stated that Woods had paid as agreed on the extension agreements
until he declined to sign the last one and failed to make the balloon payment.
Woods asserts that he could not refinance the Hillcrest debt because of the international
credit crisis that began in the Fall of 2008. As noted, he sought alternative financing from two banks
in 2008 and 2009, but was unsuccessful. He offered no evidence concerning the reasons for either
bank declining his business. The only evidence Woods offered in support of his “crisis” theory was
the opinion testimony of Robert Minter, Esq. Mr. Minter is a long-time Wichita lawyer and a well-
respected member of the Bar of this Court. His practice is almost entirely focused on all phases of
banking law. In addition, Minter has served and continues to serve on bank boards and on loan and
audit committees. Woods offered Minter’s expert testimony to support the idea that lending
standards changed substantially from the time of the 2003 treatment stipulation made in Woods’ first
case to 2009, and that no one could have reasonably anticipated those changes. Minter testified that,
based on his work for other bank clients, as of late 2008 and early 2009, bank regulators declared
the existence of a “farm bubble” that undermined the value of farmland as collateral for asset-based
loans. The regulators adopted policies that disfavored those kinds of loans. This was the only
evidence that the Court allowed Mr. Minter to give. When debtors’ counsel inquired as to Mr.
Minter’s expert opinion about whether Woods could have refinanced these loans in 2004 or whether
he could have foreseen that refinancing would be unavailable in 2009, Hillcrest challenged his
standing as an expert and whether his opinion met the standards of Fed. R. Evid. 702. The Bank
asserted that Minter had never applied his knowledge and expertise to the set of facts before the
Court so that even though he might be qualified, his testimony was not admissible. In addition, no
written expert report was tendered to Hillcrest’s counsel as required by Fed. R. Bankr. P. 7026 and
Case 10-12397 Doc# 107 Filed 03/07/11 Page 5 of 11
Fed. R. Civ. P. 26. This matter was tried on a Tuesday; Hillcrest’s counsel learned the identity of
the expert late afternoon of the preceding Friday. In answers served November 1, 2010 to
previously-submitted interrogatories, the debtors identified no experts. In light of the failure to
provide a report which the Court deemed prejudicial to the Bank, the Court excluded further expert
testimony from Mr. Minter, without reaching whether his intended testimony met the standards of
Mr. Woods presented a proposed cash-flow document and indicated his desire to continue
farming as well as his willingness to sell some of his land.14 He has confirmed that willingness by
asking the Court to allow his employment of an auctioneer and grant a § 363 motion to sell some
of the land.15 Nonetheless, Woods’ cash flow suggests that he will only generate enough disposable
income in 2011 to pay accruing interest on Hillcrest’s obligation and that further operations without
substantial sales will not materially reduce that obligation.
At issue today are Hillcrest’s motions for stay relief and to dismiss the case. As grounds for
both motions, Hillcrest alleges cause. Section 362(d) provides that stay relief may be granted for
cause, including lack of adequate protection. Section 1112(b) provides that a case may be dismissed
for cause. Woods did not pay his ad valorem taxes in 2010. Because unpaid property tax is a lien
on the real estate in question and because that lien primes a pre-existing mortgage, the Bank’s
14 Ex. 19.
15 In Dkt. 100, the Court granted a motion to sell one 80 acre tract. In Dkt. 89, the Court
approved the debtors’ employing Gene Francis as an auctioneer.
16 The Court has jurisdiction of this core proceeding, 28 U.S.C. § 157(b)(1) and (b)(2)(A)
and (G) and § 1334.
Case 10-12397 Doc# 107 Filed 03/07/11 Page 6 of 11
position has been impaired. Because Hillcrest appears to have a massive equity cushion and if
adequate protection were the only issue, this problem could be easily remedied by an order
conditioning the continuation of the stay on payment of taxes as they come due and servicing the
interest on the past-due taxes going forward.
Unfortunately, adequate protection is not the only issue. Hillcrest argues on both motions
that the present chapter 11 filing is a serial filing that is not made in good faith, but is an improper
back-door modification of the debtors’ 2004 confirmed plan that amounts to cause sufficient to lift
the stay and dismiss the case. Debtors respond that their second chapter 11 filing is justified by the
drying up of the credit markets which is a circumstance he could not have reasonably foreseen in
2004 when the initial plan was confirmed.
The Bankruptcy Code does not expressly prohibit the filing of serial chapter 11 cases. As
the Supreme Court held in Johnson v. Home State Bank, had Congress intended to outlaw successive
chapter 11 filings, it would have included that prohibition in § 109 where it explicitly conditioned
or prohibited successive chapter 7 and 13 filings.17 Still, many courts have held that a reorganized
debtor may only file a subsequent case in certain circumstances. In In re Adams, a Kansas
bankruptcy court considered this issue in the context of a second filing by a debtor whose rangeland
was burned in a fire that consumed part of his cowherd after his first plan was consummated. In that
case, the court stated:
Courts agree that the general rule is that a reorganized debtor may not file a new plan
to effect a modification of its substantially consummated plan. The terms of a
confirmed plan are binding on the parties and should be given res judicata effect.
The terms of a confirmed plan usually represent the results of negotiations between
the debtor and its creditors, and the parties should be able to rely on the finality of
17 501 U.S. 78, 87, 111 S.Ct. 2150, 115 L.Ed. 2d 66 (1991).
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Because § 1127 prohibits a reorganized debtor from modifying its plan once that plan has been
substantially consummated, many courts conclude that permitting that debtor to accomplish the same
end via a new filing would circumvent that section’s clear prohibition.19 Moreover, as these courts
point out, permitting a debtor to make a serial filing allows it to evade binding responsibilities it
incurred in proposing and confirming the previous plan. Because the creditors have acted in reliance
on the earlier plan, it should not be subject to further modification.20 Only where there has been a
showing of “genuine need” for further reorganization that is established by an extraordinary change
of circumstances that were unanticipated and not reasonably foreseeable at the time of the first plan,
should a debtor be given a second opportunity to reorganize.21 Even so, extraordinary circumstances
will not support a new case where the changes do not substantially impair the debtor’s performance
under the confirmed plan.22 In Adams, the burnt pasture and destroyed cattle met the extraordinary
circumstances test and the court allowed the second filing to go forward.
18 In re Adams, 218 B.R. 597, 600 (Bankr. D. Kan. 1998).
19 As did Woods’ counsel in argument, we note that BAPCPA amended § 1127 to add
new subsection (e) allowing an individual to modify a confirmed plan at any time prior to the
completion of payments under the plan whether or not substantial consummation has occurred.
The Court doubts that this provision should be applied to modify a plan confirmed in a case filed
before October 17, 2005, BAPCPA’s effective date, and debtors do not rely on this provision for
relief in any event.
20 Adams, supra at 600-01.
21 Id. at 601-02.
22 Id. at 602.
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Many courts have applied rules similar to those found in Adams.23 Judge Norton’s treatise
notes that there are several other judicially-recognized “exceptions” to the case law ban on serial
chapter 11 filings.24 If the reorganized debtor proposes to liquidate in the later case, dismissal is not
always indicated, although, as Norton notes, conversion to chapter 7 may well be in order. If the
reorganized debtor is a “large debtor” with many employees, some courts permit a serial filing. In
this case, the Woods are farmers who may not be subjected to liquidation in chapter 7 over their
consent.25 Nor are they “large debtors” with many employees.
The Court cannot conclude on this record that the Woods’ inability to refinance in the Fall
of 2008 and 2009 constitutes an “extraordinary change of circumstances.” It may be that no one
could have anticipated the precipitous economic decline that occurred in 2008, yet there is simply
no evidence at all concerning why the banks in Parsons and Conway Springs turned Mr. Woods
down. While the Court can generally conclude that asset-based loans are harder to get than they
were, and that there may well be a farmland “bubble,” that is not the same as demonstrating that the
Woods could not refinance because of the bubble or because of changing loan standards. The best
evidence of this would have been testimony or documentary evidence of what Woods’ prospective
bankers said or wrote to him on this subject.26 Setting aside the “bubble” issue, the Woods knew
from the summer of 2003 onward that they would have to refinance the Hillcrest obligation
23 See, e.g., In re Tillotson, 266 B.R. 565, 569 (Bankr. W.D.N.Y. 2001) (granting motion
to dismiss serial filing unless debtor files plan that is “fundamentally fair” in 20 days).
24 Hon. William L. Norton, Jr. and William L. Norton III, 6 NORTON BANKR.L.&PRAC.
§111:4 (3d ed. Thomson/West 2008).
25 See § 1112(c).
26 The Court also notes that Woods did not offer into evidence the loan applications and
supporting financials that he submitted to these prospective lenders.
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sometime in the ensuing five to six years. The record reveals no effort made to do that until the end
was very near. Any balloon loan bears with it the risk of inability to pay. Here, even after being
given an additional year to repay, the Woods were still unable to complete a refinancing or sell
enough ground to pay down their debt to satisfy Hillcrest.27 While these circumstances are
undoubtedly sad, inability to refinance is not the unforeseeable intervening cause that the range fire
in the Adams case was.
The debtors also argue that the existence of “unusual circumstances” should prevent
dismissal of this case in the best interest of the creditors under newly-added language in §
1112(b)(2). In order for a court to find such circumstances, however, some party in interest must
establish that there is a reasonable likelihood of a plan’s being confirmed within the § 1121(e) and
1129(e) time-frames or that the grounds for dismissal other than those in § 1112(b)(4)(A) are
reasonably justified and may be cured in a reasonable time. Here, the “cause” relied upon by the
Bank and found by the Court is the lack of extraordinary circumstances to warrant a second filing
merely to recast the provisions of the first plan. It is true that there is substantial equity in the real
property for the estate, but the debtors have not filed a plan and did not even really speculate at trial
about what such a plan might say. Moreover, the Court observes that there are only seven claims
filed in this case, six of which are amply secured by collateral. The claim of PHI Financial Services,
filed in the amount of $33,173, is the only unsecured claim. While a complete liquidation of the
debtors’ assets might well provide PHI a dividend, such a liquidation does not appear to be what the
debtors have in mind. In any event, PHI has taken no position in the matter.
27 By the Court’s rough calculation from debtors’ Schedule A, they own some 1,000
acres of land, including their unencumbered and exempt homestead situated on approximately 95
acres and valued in excess of $500,000.
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Finally, the strong prohibition on post-consummation modifications in § 1127(e) preserves
an important finality principle in reorganizations. Creditors will be less likely to accept and rely on
chapter 11 debt restructuring if they know that the deals can be undone any time the debtor’s
fortunes wane. Creditors deserve to be able to rely on confirmed plans, particularly when the plan
is the result of negotiations and agreements between debtors and the creditor, as this plan was in
2003.28 The Court therefore must conclude that cause exists for relief from the stay and dismissal
of this case. Hillcrest’s motions are GRANTED.
# # #
28 Creditors of individuals filing chapter 11 cases after BAPCPA are on notice of the
liberalized modification rules contained in § 1127(e) and presumably factor those rules into their
decision-making. Hillcrest did not have that notice in 2003.
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