Cheryl A. Reagan v. Frederick S. Wetzel, III ( 2009 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
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No. 08-6023
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In re: *
*
Cheryl A. Reagan, *
*
Debtor. *
*
Cheryl A. Reagan, * Appeal from the United States
* Bankruptcy Court for the Western
Debtor - Appellant, * District of Arkansas
*
v. *
*
Frederick S. Wetzel, III, Trustee; *
1919 M Street Associates, L.P.; *
G. Latt Bachelor, Personal *
Representative of the Estate of *
Ronald E. Reagan, *
*
Objectors - Appellees. *
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Submitted: February 24, 2009
Filed: March 30, 2009
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Before KRESSEL, Chief Judge, FEDERMAN and VENTERS, Bankruptcy Judges.
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KRESSEL, Chief Judge.
Cheryl A. Reagan appeals from orders of the bankruptcy court1 which approved
the sale of Federal News Service, Inc., denied her motion to dismiss the case or
remove the trustee, and approved the conversion of her case from a case under chapter
11 to a case under chapter 7.
BACKGROUND
Cheryl A. Reagan’s husband, Ronald E. Reagan, died in 2000, leaving her
$16.9 million out of his estate of nearly $20 million. More than $13.1 million of
Reagan’s inheritance was in the form of cash from the sale of Ronald’s businesses.
She was appointed executrix of Ronald’s estate, with an obligation to fund a qualified
terminable interest property trust. See 26 U.S.C. § 2056(b)(7)(B). As the beneficiary
of the trust, Reagan would have received a sizeable income. Although it is unclear
from the record exactly how Reagan used her inheritance in the months and years that
followed, it is clear that the QTIP trust was not fully funded, and that instead, the
funds rapidly dissipated primarily due to her failed investment strategies. One
business she acquired was FNS, which produces transcripts of government briefings,
speeches, and press conferences for news agencies. It is based in Washington, D.C.,
but also had international offices, including an office in Israel. She purchased FNS
because of its Israel office, and because she believed it would further her goal of
correcting what she saw as inaccuracies in Western media coverage of the Israeli-
Palestinian conflict.
1
The Honorable Ben T. Barry, United States Bankruptcy Judge for the Eastern
and Western Districts of Arkansas.
2
Reagan’s plans went awry. The Garland County probate court froze all of
Ronald’s estate’s assets in April of 2004. Then 1919 M Street Associates, L.P.
obtained a $1.5 million judgment against her. Meanwhile, Ronald’s estate was suing
FNS for over $1 million loaned to it during Reagan’s tenure as executrix. Reagan filed
a voluntary chapter 11 petition on November 17, 2004.2
In August of 2005, the United States Trustee filed a motion to convert Reagan’s
case from chapter 11 to chapter 7, or in the alternative, to dismiss it. The hearing on
the motion was continued several times. In June of 2006, the probate court removed
Reagan as executrix of Ronald’s estate because of a conflict of interest and appointed
G. Latta Bachelor, III in her place. The probate court ordered Bachelor to liquidate
Ronald’s estate’s claims against Reagan, which he did in a settlement agreement for
approximately $5.6 million.
Reagan unsuccessfully attempted to confirm four chapter 11 plans. On March
21, 2007, Bachelor brought a motion on behalf of Ronald’s estate for the appointment
of a chapter 11 trustee, which he followed with a motion on March 23, 2007 to
convert or dismiss. On April 12, 2007, the court held a hearing on Bachelor’s motions
and the United States Trustee’s August 2005 motion to convert or dismiss. The court
agreed with Bachelor and the United States Trustee that Reagan had not been fulfilling
her fiduciary duties and that appointment of a chapter 11 trustee was necessary,
2
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.
L. No. 109-8, 119 Stat. 23 (codified as amended in scattered sections of 11 U.S.C.),
governs cases filed on or after October 17, 2005. Since this case was commenced
before the 2005 bankruptcy amendments, the prior version of the statute applies and
all references are to the pre-BAPCPA statute in effect in 2004.
3
although it still might not be enough to accomplish a successful reorganization. The
court commented that if the trustee were unable to confirm a plan in six months,
conversion might then be appropriate. Frederick S. Wetzel was appointed as the
trustee.
On March 21, 2008, approximately one year after his appointment as the
chapter 11 trustee, Wetzel filed a notice of the sale of the assets of FNS, the largest
asset of Reagan’s bankruptcy estate. The creditors and the United States Trustee
supported the sale but Reagan objected, arguing that FNS was worth more than the
proposed sale price. Reagan, who had been through three lawyers (by the time she
brought this appeal, there had been four), became frustrated with the progress of the
case and her lack of control over the estate. In response to the trustee’s sale motion,
on April 2, 2008, she filed a motion to dismiss her chapter 11 case or in the alternative
to remove the trustee. The trustee then filed a motion to convert the case to chapter 7.
Combined Hearing on the Motions to Convert or Dismiss,
Remove the Trustee, and Approve the Sale of FNS
The court held a combined hearing on April 11 and 12, 2008 on the motions to
convert, dismiss, remove the trustee and approve the sale of FNS. The court
announced its findings of fact on the record in open court and issued two orders on
May 16, 2008 (Order Denying Debtor’s Motions to Dismiss Case or Remove the
Trustee and Concerning Trustee’s Motion to Convert Case and Order Approving Sale
of Federal News Service, Inc.). In the first order, the court found that cause existed for
dismissal or conversion and that conversion was in the best interest of the creditors
and the estate. The court concluded that there was no cause to remove the trustee,
4
whom the court found to have been acting competently and reasonably. It declined to
remove the trustee, denied Reagan’s motion to dismiss the case, and ordered the case
converted to chapter 7 after the sale of FNS closed.
In the second order, the bankruptcy court approved the sale of FNS to a stalking
horse bidder3, Congressional Quarterly, conditioned on the following: 1) payment of
Reagan’s severance package in full; 2) a sixty-day waiting period beginning April 18,
2008 to allow for additional offers from other buyers; and 3) notification by the trustee
of the proposed sale to all other identifiable entities in the same business as FNS in
order to solicit additional offers. If the trustee’s efforts resulted in a competing bid
with terms no less favorable to the estate than those proposed by CQ (including a
$100,000.00 premium in the agreement), the competing bid could be accepted without
notice to the court but CQ would be awarded a $50,000.00 break-up fee. In addition,
the court required the sale to be pursuant to a definitive agreement, the proceeds had
to be free and clear of any liens or interests of Reagan’s creditors, and the proceeds
3
“In the bankruptcy context, a stalking horse bidder reaches an agreement with
the debtor-in-possession [or trustee] to purchase assets prior to the court-supervised
auction of those assets.” M & M Holdings, LLC v. Unsecured Creditors Comm. (In re
SpecialtyChem Prods. Corp.), 372 B.R. 434, 436 (E.D. Wis. 2007). The parties
anticipate that the “bid will be exposed to higher and better bids at auction.” Id. The
purpose of a stalking horse bid is merely to “set the floor” on the auction price. Bret
Rappaport & Joni Green, Calvinball Cannot Be Played on this Court: The Sanctity of
Auction Procedures in Bankruptcy, 11 J. Bankr. L. & Prac. 189, 194-95 (2002).
Stalking horse bids may generate interest in the assets and create a sense of confidence
in the value of the assets among prospective buyers who might assume that a willing
buyer has conducted due diligence. In the event that the stalking horse bidder is
outbid, courts often approve break-up fees “[t]o compensate the stalking horse for the
‘cost’ of showing its hand before the auction, conducting due diligence and otherwise
facilitating the creation of a market.” Id.
5
had to first be applied to the valid debts of FNS with any surplus retained by the
trustee.
Reagan argued that the trustee should have engaged in formal and more
extensive marketing prior to the sale, but the bankruptcy court disagreed. Extensive
marketing was not necessary, the court found, because there were few businesses like
FNS, the number of potential buyers of such a specialized business is limited, and any
potential buyers who were interested in purchasing and able to purchase FNS had
already come forward. The court found that the sale was based upon good business
judgment and that it was proposed in good faith.
The bankruptcy court addressed Reagan’s concern that the proposed sale price
of FNS was approximately three-quarters of the $4 million she had paid for it several
years earlier. The court considered CPA Stephen Leek’s testimony that, assuming the
annual future income was $400,000.00, the net value would be between $2 million
and $3 million. The court also considered FNS’s balance sheets and other documents,
which reflected a $2.6 million net worth. The court noted that FNS’s future operations
were uncertain; that if FNS were liquidated, it would result in a lower amount being
paid to creditors; that everyone other than Reagan, including the United States
Trustee, approved of the sale; and that Ronald’s estate had a lien against the assets of
FNS and could possibly pursue attachment of the assets, which would leave the
business with no assets for its operations. As a result, the court found that the price
was fair and reasonable under the circumstances. The court noted that its order would
not prohibit Reagan from contacting potential bidders to convince them that the
business was worth more.
6
Appeal
Reagan appeals both orders.4 Reagan filed a motion for stay of the May 16,
2008 orders pending appeal but withdrew her motion. Reagan missed the deadline for
appeal, but the bankruptcy court granted her an extension on June 13, 2008 under
Federal Rule of Bankruptcy Procedure 8002(a), after finding that she had alleged a
proper showing of excusable neglect pursuant to Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship., 507 U.S. 380 (1993).5 The bankruptcy court denied Reagan’s
motion to stay the May 16 order pending this appeal.
At our request, the trustee reported that he received a bid for FNS from The
Investment Group. Pursuant to the court’s terms, the trustee accepted the bid and
proceeded with the sale. In his report, he stated that the sale had closed.
4
While not raised by either party, we are concerned about the finality of the
order as it relates to conversion. It seems to us, however, that the conversion order can
be considered final because the entry of the order of conversion following the sale is
only a mechanical or ministerial task, it does not require the court to exercise further
discretion, and the court has already resolved the merits of the controversy. Lewis v.
United States, Farmers Home Admin., 992 F.2d 767, 771 (8th Cir.1993).
5
Although the bankruptcy court lacked the authority pursuant to Rule
8002(c)(1)(B) to extend the time to appeal the sale order, no one has challenged the
extension so it is effective. See Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612 (8th Cir.
2008).
7
Standard of Review
The bankruptcy court has broad discretion in deciding whether to dismiss or
convert a chapter 11 bankruptcy case, and its decision is reviewed for an abuse of
discretion. Hedquist v. Fokkena (In re Hedquist), 450 F.3d 801, 804 (8th Cir. 2006);
Cedar Shore Resort, Inc. v. Mueller (In re Cedar Shore Resort, Inc.), 235 F.3d 375,
379 (8th Cir. 2000); Lumber Exch. Bldg. Ltd. P’ship v. The Mut. Life Ins. Co. of New
York (In re Lumber Exch. Bldg. Ltd. P'ship), 968 F.2d 647, 648 (8th Cir. 1992). The
decision to deny a motion to remove a trustee is reviewed for an abuse of discretion.
Contractors, Laborers, Teamsters & Eng'rs Health & Welfare Plan v. M & S Grading,
Inc. (In re M & S Grading, Inc.), 541 F.3d 859, 867 (8th Cir. 2008). “The bankruptcy
court abuses its discretion when it fails to apply the proper legal standard or bases its
order on findings of fact that are clearly erroneous.” Official Comm. of Unsecured
Creditors v. Farmland Indus., Inc. (In re Farmland Indus., Inc.), 397 F.3d 647, 651
(8th Cir. 2005). The appellant does not dispute any of the bankruptcy court’s findings
of fact.
DISCUSSION
1. Because the sale has already occurred, the appeal of the sale order is moot.
Although Reagan attempted to stay the sale of FNS pending appeal, her motion
was denied. The relief she seeks is to have the sale overturned and to have FNS
returned to her bankruptcy estate, but after Reagan filed her appeal, the sale of FNS
proceeded and closed. “If, while an appeal is pending, an event occurs that eliminates
8
the court's ability to provide any effectual relief whatever, the appeal must be
dismissed as moot.” Nieters v. Sevcik (In re Rodriquez), 258 F.3d 757, 759 (8th Cir.
2001) (per curiam) (citing In re Security Life Ins. Co., 228 F.3d 865, 870 (8th Cir.
2000)). 11 U.S.C. § 363(m) provides:
The reversal or modification on appeal of an authorization
under subsection (b) or (c) of this section of a sale or lease
of property does not affect the validity of a sale or lease
under such authorization to an entity that purchased or
leased such property in good faith, whether or not such
entity knew of the pendency of the appeal, unless such
authorization and such sale or lease were stayed pending
appeal.
Consequently, courts of review are unable to supply a remedy after a sale under 11
U.S.C. § 363 (b) or (c) has occurred. Wintz v. American Freightways, Inc. (In re Wintz
Cos.), 219 F.3d 807, 811 (8th Cir. 2000) (where appellants failed to obtain a stay
pending appeal and property had been transferred to a bona fide third party purchaser,
11 U.S.C. § 363(m) bars the attempt to overturn the § 363 sale on appeal); United
States v. Fitzgerald, 109 F.3d 1339, 1342 (8th Cir. 1997) (“a debtor who fails to
obtain a stay of the sale has no remedy on appeal and the appeal is moot”); Van Iperen
v. Prod. Credit Assoc. of Worthington- Slayton Branch (In re Van Iperen), 819 F.2d
189, 191 (8th Cir. 1987) (per curiam) (“Once collateral is taken and converted into
cash, no court is able to formulate adequate relief to the debtor.”). Because the sale of
FNS to a third party purchaser has already occurred, we must dismiss her appeal from
the sale order as moot.
9
2. The court did not abuse its discretion in declining to dismiss the case and
instead converting it.
The bankruptcy court denied Reagan’s motion to dismiss her case and approved
the conversion of Reagan’s case from chapter 11 to chapter 7 pursuant to 11 U.S.C. §
1112(b), which provided in relevant part:
on request of a party in interest or the United States trustee
or bankruptcy administrator, and after notice and a hearing,
the court may convert a case under this chapter to a case
under chapter 7 of this title or may dismiss a case under this
chapter, whichever is in the best interest of creditors and
the estate, for cause . . . .
The bankruptcy court found that there was cause for conversion or dismissal.
No one except Reagan disputed that there was little chance of a successful
reorganization, and the court found Reagan’s hope that the business would turn
around to be “a lot of pie in the sky.” “However honest in its efforts the debtor may
be, and however sincere its motives, the ... Court is not bound to clog its docket with
visionary or impracticable schemes for resuscitation.” Tenn. Publ’g. Co. v. Am. Nat'l
Bank, 299 U.S. 18, 22 (1936).
The Bankruptcy Code contains a lengthy but non-exclusive list of examples of
cause for dismissal or conversion of a chapter 11 case, which the bankruptcy court
may take into consideration in its decision of whether to dismiss or convert. 11 U.S.C.
10
§ 1112(b). Pre-BAPCPA6 examples included: “(1) continuing loss to or diminution
of the estate and absence of a reasonable likelihood of rehabilitation” and “(2)
inability to effectuate a plan.” 11 U.S.C. § 1112(b)(1)-(2). Reagan does not dispute
that cause existed for “dismissal or conversion,” and in fact she conceded in her
dismissal motion that the bankruptcy estate was experiencing “a substantial and
continuing loss and diminution without any reasonable likelihood of rehabilitation.”
Although “one ground for cause is sufficient standing alone,” the second example of
cause was also met. Loop Corp. v. United States Trustee, 290 B.R. 108, 112 (D. Minn.
2003). Reagan had unsuccessfully attempted to confirm four plans in four years, and
since the appointment of the chapter 11 trustee, over six months had passed without
anyone, including Reagan, attempting to confirm a plan. The court found that it was
highly unlikely a plan would be confirmed in the future because there was not enough
money available to fund an adequate plan.
In her motion to dismiss, Reagan claimed that creditors would be treated more
favorably if the case were dismissed rather than remaining in chapter 11 or converting
to chapter 7, essentially because she believed she would be able to pay her creditors
in full outside of bankruptcy over three to four years. However, she planned to fund
those payments with “earnings of FNS,” which are no longer available to the estate
now that FNS has been sold. Moreover, the court found that without the protection of
6
11 U.S.C. § 1112(b) was amended in 2005 to include additional examples of
cause such as: “(B) gross mismanagement of the estate; (C) failure to maintain
appropriate insurance that poses a risk to the estate or to the public; (D) unauthorized
use of cash collateral substantially harmful to 1 or more creditors; (E) failure to
comply with an order of the court; (F) unexcused failure to satisfy timely any filing
or reporting requirement established by this title or by any rule applicable to a case
under this chapter” and others.
11
the automatic stay, Reagan would be vulnerable to immediate action by two
aggressive creditors. The court doubted that her strategy of “talking” with those
creditors would be fruitful. Reagan also argued that dismissal would allow her to
“protect the interests of FNS” by preventing its sale, but the sale has now occurred.
Finally, she was frustrated with the trustee for not pursuing a frivolous appeal of the
January 5, 2007 settlement entered in probate court and believed she might
successfully appeal the settlement if her case were dismissed.
Having concluded that cause existed, the court found that conversion, not
dismissal, was in the best interest of the creditors and the estate. A crucial advantage
of converting the Reagan case rather than dismissing it is that following a conversion,
the case would be administered by a chapter 7 trustee while a dismissal would return
all control to Reagan. The record is replete with detailed findings about Reagan’s
mismanagement and foundering reorganization attempts, all of which support the
court’s conclusion that it is in the best interest of the creditors and the estate for the
case to be converted and overseen by a trustee rather than returning control to Reagan.
In support of its finding that conversion was in the best interest of the creditors
and the estate, the court noted that all parties except Reagan supported conversion.
However, Reagan admitted that in her business endeavors, she had “a penchant for
hooking up with outlaws.” The court found that Reagan had taken an estate of nearly
$20 million and, over the course of just a few years, “invested in no less than three or
four corporations that are either defunct, bankrupt, or have no value or minimal
value.” Reagan’s mismanagement and dysfunctional approach to her affairs not only
12
contributed to the need for reorganization in the first place but also undermined the
estate’s reorganization attempts.
The court noted that Reagan had been removed from management of Ronald’s
probate estate as a result of a conflict of interest, and that the court had removed her
as debtor-in-possession because she had failed to file operating reports or income tax
returns, paid professionals without permission, and had taken extraordinary risks with
money. In light of that history, the court found that her management would be no less
disastrous in the future, and could be even worse because she would no longer owe
a fiduciary duty to the estate and because without the protection of the automatic stay,
she could find one major creditor, 1919 M Street, “jumping on her with both feet,”
while the other major creditor, Ronald’s estate, would similarly be free to go after any
remaining assets.
The court expressed concern that if it dismissed the case, Reagan would be free
to file another chapter 11 petition. Finally, the court noted that Reagan had filed her
chapter 11 petition voluntarily, her estate had benefitted from the automatic stay and
staved off creditors for four years, and that she should not be able to walk away from
the bankruptcy now that she felt it did not suit her purposes. Reagan’s personal
preference for dismissal must yield to the best interest of the creditors and the estate.
“[A] debtor seeking relief in a bankruptcy court must travel a two-way street.” In re
Kang, 18 B.R. 680 (Bankr. Ill. 1982). Because the best interest of the creditors test
was applied correctly and is fully supported by the record, we affirm.
13
3. The court did not abuse its discretion in denying the motion to remove the
trustee.
Reagan argued that the trustee had exercised poor business judgment by: 1)
causing the value of FNS to decrease dramatically; 2) firing most of the senior
management and employees of FNS; 3) hiring management and employees for FNS
who were “unqualified”; 4) filling FNS’s CEO position with a “former disgruntled
employee” who was not loyal to FNS and who had allegedly disabled an FBI-installed
surveillance system intended to track criminal acts of information theft; 5) not
remedying the “old and worthless” transcripts being produced by FNS’s Mideast
office; 6) closing FNS’s Israel and Moscow offices; 7) selling assets of the estate
below market value; 8) selling an asset to an insider; and 9) proposing to sell FNS to
CQ, which she believed would violate limitations imposed on FNS and CQ by the
Federal Trade Commission.
Although Reagan did not cite a statutory basis for her motion to remove the
chapter 11 trustee in her case, it presumably arose under 11 U.S.C. § 324(a), which
provides: “The court, after notice and a hearing, may remove a trustee, other than the
United States trustee, or an examiner, for cause.” “Cause” is not a defined term, but
removal is an extreme remedy and some courts have construed it to require the
moving party to prove actual injury or fraud. See, e.g., Morgan v. Goldman (In re
Morgan), 375 B.R. 838, 848 (B.A.P. 8th Cir. 2007); In re Olympia Holding Corp.,
305 B.R. 586, 591 (Bankr. M.D. Fla. 2004); In re Sheehan, 185 B.R. 819, 822 (Bankr.
D. Ariz. 1995). “A conclusory contention unsupported by specific facts does not
constitute sufficient grounds for the removal of a trustee.” Alexander v. Jensen-Carter
14
(In re Alexander), 289 B.R. 711, 714 (B.A.P. 8th Cir. 2003) (citing In re Schultz Mfg.
Fabricating Co., 956 F.2d 686, 692 (7th Cir. 1992)). Removal of a trustee is not
appropriate where a movant only alleges “mistakes in judgment where that judgment
was discretionary and reasonable under the circumstances.” In re Lundborg, 110 B.R.
106, 108 (Bankr. D. Conn. 1990) (citing In re Haugen Constr. Serv., Inc., 104 B.R.
233, 240 (Bankr. D. N.D. 1989)).
The bankruptcy court found no evidence of any misconduct by the chapter 11
trustee, nor any evidence of mistakes in judgment. Reagan did no more than raise
conclusory contentions unsupported by specific facts and disagree with the trustee’s
business management. The court rejected Reagan’s arguments, and found that the
trustee had handled the case and the sales exactly as he should have, that he handled
them in a manner similar to most trustees, and that the trustee was competent,
knowledgeable, and level-headed.
Although Reagan appears to have abandoned the argument on appeal, she had
argued that part of the trustee’s alleged mismanagement was his failure to pursue a
claim against CQ, the stalking horse bidder. The court found that “proof is sorely
lacking that that’s a viable asset for which this estate ought to be placed into
suspension.” On appeal, Reagan argues that the trustee’s failure to file a chapter 11
plan constituted cause for removal. The bankruptcy court found, however, that the
trustee was not at fault for not having proposed or confirmed a plan at that point, and
noted that his liquidation of some assets was not necessarily inapposite to chapter 11
reorganization. The bankruptcy court’s findings are supported by the record.
15
Reagan is upset that she has lost control of the bankruptcy estate and the fate
of her case, but her opportunity to manage the bankruptcy case has passed because of
her own mismanagement, not because of an underhanded conspiracy among her
creditors and the trustee. Because the bankruptcy court did not abuse its discretion in
denying the motion to remove the trustee, we affirm.
4. Other issues raised in the appellant’s brief are unrelated to the appealed
orders and we decline to address their merits.
Reagan asks us to intervene in several other matters not before us on appeal:
to make the sale of her homestead “null and void”; to grant to her the right to purchase
a house in Poriyya Ilit, Israel “out of income due her from the Ronald E. Reagan
Estate”; to “return” FNS to her; and to “rule on the Marshal v. Marshal Supreme Court
ruling regarding the authority of the bankruptcy court to sell Probate assets.” In
addition, she raises other issues, which include: a settlement of $500,000.00 “given
to 1919 M. Street” because “there were ‘causes of action’ against them that need to
be addressed”; compensation and fees for attorneys of Ronald’s probate estate; several
attorneys’ “illegal” representation of her step-sons; those attorneys’ breach of
fiduciary duty; failure of the trustee to reimburse Reagan from either Ronald’s probate
estate or FNS; her step-sons’ “freezing the funds” of Ronald’s probate estate; and
finally, that the trustee and “opposing counsel have worked ‘in concert’ to keep any
funds legally due” her so that she would not have money for adequate legal counsel.
These additional issues raised in the appellant's brief appear to refer to orders
of the bankruptcy court which were not timely appealed, and even to orders of the
probate court in Garland County. In either case, we lack the jurisdiction to review
16
them. Because only the May 16, 2008 orders are before this court on appeal and her
other concerns are outside the scope of those orders, we decline to address their
merits.
CONCLUSION
The appeal of the order approving the sale of FNS is dismissed. The appeal of
the order denying Reagan’s motion to remove the trustee or dismiss her case and
granting the trustee’s motion to convert this case to chapter 7 is affirmed.
17