802 F.2d 774 | 4th Cir. | 1986
In April of 1984 A-1 Trash Pickup (A-1) filed a petition for reorganization under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq., in the Bankruptcy Court for the Eastern District of Virginia. A-l filed a disclosure statement and a plan of reorganization along with its petition, but the bankruptcy court approved neither. A-l then filed two more disclosure statements and plans of reorganization, but these also did not receive approval. It then developed that A-l had not disclosed that its sole shareholder had filed for a Chapter
Opposing this motion, A-l argued that the United States trustee was not a “party in interest” within the meaning of 11 U.S.C. § 1112(b)
The legislative history of the Bankruptcy Reform Act of 1978 indicates that Congress expected for United States trustees to oversee administration of bankruptcy cases and act as “watchdogs ... preventpng] fraud, dishonesty, and overreaching in the bankruptcy arena.” H.Rep. No. 989, 95th Cong., 2d Sess. 88, reprinted in 1978 U.S. Code Cong. & Ad. News 5787, 5963, 6049. The previous bankruptcy system had relied on creditors to play a large part in administering bankruptcies through selecting a trustee and overseeing his collection of assets, but by 1978 Congress recognized that many creditors simply “wrote off” debts to bankrupts and ignored bankruptcy proceedings rather than incur legal fees. Id. at 88-99, U.S. Code Cong. & Ad. News at 6049-61. As a result, circumstances frequently forced bankruptcy judges into the role of administering bankruptcies, and this often included actually overseeing the identification, collection, and liquidation of assets. Id. at 89-91, U.S. Code Cong. & Ad. News at 6051-52. Of course, this administrative role was inconsistent with the judge's role as an impartial arbiter of disputes.
Unfortunately, when Congress enacted § 1112(b), it did not make it clear that a United States trustee was a “party in interest” with the ability to perform his duty by moving for a conversion or dismissal of Chapter 11 proceedings.
Similarly, the only courts to consider this issue have concluded that the trustee can move under § 1112(b) whenever such a motion would advance administration of the case. Relying on this rationale, the court in In re Commercial Finance Corp. of Nevada, 16 B.R. 98, 101 (Bankr.D.D.C. 1981), ruled that a United States trustee had standing “to file a motion to convert a Chapter 11 to a Chapter 7 when there [were] allegations made that the debtor [had] an inability to pay the administrative costs associated with a Chapter 11.” Relatedly, although making the statement only as dicta, the court in In re Gusam Restaurant Corp., 32 B.R. 832, 834 (Bankr.E.D.N.Y.1983), rev’d on other grounds, 737 F.2d 274 (2d Cir.1984), stated that the “United States Trustee [is] a recognized party-in-interest for the purposes of § 1112(b),” and the Second Circuit in In re Tiana Queen Motel Inc., 749 F.2d 146, 150 (2d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2681, 86 L.Ed.2d 699 (1985) observed that “[t]here is support for the proposition that the United States Trustee should be considered a ‘party in interest’ within the meaning of § 1112(b).” In fact, in its opinion in In re Gusam Restaurant, 737 F.2d 274, 276-77 (2d Cir.1984), the Second Circuit convincingly demonstrated that Congress actually inserted the “party in interest” language into § 1112(b) to avoid the problem of courts acting sua sponte to dismiss or convert Chapter 11 proceedings.
As a consequence, under these authorities, it appears that a United States trustee can move for conversion or dismissal under § 1112(b), at least where the motion advances the trustee’s interest in administration of the bankruptcy proceedings. In this case, a year after filing for bankruptcy, A-l still had not achieved approval of either a disclosure statement or a plan of reorganization despite three attempts at each. A-l, moreover, had also failed to disclose that its sole shareholder had filed
Whether the United States trustee has standing should be determined by reference to the grounds upon which the application is made. Since the United States trustee has supervisory power in a chapter 11 case, a motion based on the debtor’s failure to comply with the provisions of the Code would be proper. An example of a case where the United States trustee would have standing would be where the motion to convert or dismiss was based upon the debtor’s failure to prosecute the case to the detriment of the creditors. 5 Collier on Bankruptcy, 111112.03 at 1112-12 (15th Ed. 1984).
Of course, this view is consonant with the authorities discussed before, and Collier chose to illustrate the point with an example which encompasses the basic facts of our case. As a consequence, in a case such as this, where the trustee has moved to further administration of the case and to prevent an abuse of the bankruptcy process, the authorities agree that the trustee is a “party in interest” within the meaning of § 1112(b). Accordingly, the judgment of the district court is
AFFIRMED.
. The Eastern District of Virginia is participating in the pilot bankruptcy program which includes United States trustees as participants in bankruptcy proceedings. See 11 U.S.C. § 1501 et seq.
. 11 U.S.C. § 1112(b) provides that:
(b) Except as provided in subsection (c) of this section, on request of a party in interest, and after notice and a hearing, the court may convert a case under this chapter [11 USCS §§ 1101 et seq.] to a case under chapter 7 of this title [11 USCS § 701 et seq.] or may dismiss a case under this chapter [11 USCS §§ 1101 et seq.], whichever is in the best interest of creditors and the estate, for cause, including____
. The House report noted, as an example of the inconsistency of the roles, that in his administrative function a bankruptcy judge might suggest that the trustee pursue a cause of action on behalf of the estate and then in his judicial function sit as the judge on that cause of action. H.Rep. No. 989, 95th Cong., 2d Sess. 90-91, reprinted in 1978 U.S.Code Cong. & Ad.News, 5963, 6052.
. A-l points out that under 11 U.S.C. § 151104(a) "a party in interest or the United States trustee” may request appointment of a trustee. A-l then cleverly relies on Congress' use of "or” in the section as indicating that Congress must not have intended for United States trustees to be parties in interest. The legislative history explaining the process of trustee appointment, however, provides that “on request of any party in interest, including the United States trustee” the court may order an appointment. H.Rep. No. 595, 95th Cong., 2d Sess. 104, reprinted in U.S. Code Cong. & Ad. News 5963, 6065. As a result, the legislative history appears to assume that a United States trustee is a party in interest on the issue of trustee appointment, and so § 151104(a) is inconclusive on the question of the party in interest status of trustees.
. The Gusam Restaurant court concluded that "the very purpose of inserting the phrase ‘on request of a party in interest’ in the final version of section 1112(b) was to keep the court from acting sua sponte." 737 F.2d 277.