DocketNumber： CASE NO. 00-51897-NPO
Citation Numbers： 533 B.R. 532
Judges： Olack
Filed Date： 7/23/2015
Status： Precedential
Modified Date： 11/22/2022
MEMORANDUM OPINION AND ORDER: (1) OVERRULING OBJECTION TO ABANDONMENT; (2) GRANTING THE GROUPED SETTLING DEFENDANTS JOINT MOTION TO SETTLE; AND (3) DENYING THE CONQUEST JOINT MOTION TO SETTLE
This matter came before the Court
At the Hearing, Jeffrey P. Reynolds (“Reynolds”) argued on behalf of the Reynolds Parties, Samuel J. Duncan (“Duncan”) argued on behalf of the Trustee, and Sean S. Cassidy (“Cassidy”) argued on behalf of the Debtor. Elizabeth Crowell (“Crowell”) argued on behalf of Conquest in support of the Conquest Joint Motion to Settle, but she joined in Reynolds’ arguments regarding the Notice of Abandonment. Counsel for Chevron/Shell and Moon-Hines-Tigrett appeared at the Hearing and joined in Reynolds’ arguments on all issues. The Court, being fully advised in the premises, finds that the Objection to Abandonment should be overruled, the Grouped Settling Defendants Joint Motion to Settle should be granted, and the Conquest Joint Motion to Settle should be denied for the reasons that follow.
Jurisdiction
The Court has jurisdiction over the parties to and the subject matter of this case pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (0). Notice of the Notice of Abandonment, the Objection to Abandonment, and the Joint Motions to Settle was proper under the . circumstances.
Facts
1. In 1991, the Debtor’s father, Gerald Donald (“Donald”), acquired real property located in Wayne County, Mississippi (the “Subject Property”) from a bank that had foreclosed on the Subject Property.
2. In 1996 and 1998, Donald filed two (2) nearly-identical lawsuits
3. On May 5, 2000, the Debtors initiated the Bankruptcy Case by filing a petition for relief (Bankr.Dkt.1) pursuant to chapter 13 of the Bankruptcy Code. On August 7, 2000, the Debtors filed statements and schedules regarding their income, expenses, and creditors (the “Statements and Schedules”) (Bankr.Dkt.2). At that time, no information relating to the Subject Property, the Circuit Court Lawsuit, or the District Court Lawsuit appeared in the Statements and Schedules.
4. On November 6, 2000, the Court entered the Order Confirming Plan, Awarding Fees,.and Adjudicating Related Matters (Bankr.Dkt.21) confirming the Debtors’ chapter 13 plan.
6. On February 1, 2001, the Debtor filed the Petition for Probate of Will and Letters Testamentary (Adv. Dkt. 45, Ex. 17 at 8) in the Chancery Court for the Second Judicial District of Jones County, Mississippi (the “Chancery Court”) and was appointed the executrix, of Donald’s estate pursuant to the Chancery Court’s Order Admitting Will to Probate and Granting Letters Testamentary. (Id. at 24-26).
7. The Debtor filed the Motion to Substitute Plaintiffs (Adv.Dkt.1, Ex. 7) in the Circuit Court on March 29, 2001. On April 6, 2001, the Debtor, in her capacity as the executrix of Donald’s estate, was substituted for Donald as the plaintiff in the Circuit Court Lawsuit. (Adv.Dkt.1, Ex. 10).
8. On February 18, 2005, the Debtor, in her capacity as the executrix of Donald’s estate, was substituted for Donald as the plaintiff in the District Court Lawsuit (Adv.Dkt.1, Ex. II).
9. On August 10, 2005, the Trustee filed the Final Report and Account (the “Final Report”) (Bankr.Dkt.42). On August 15, 2005, the Court entered the Discharge of Debtor After Completion of Chapter 13 Plan (Bankr.Dkt.43) and the Final Decree/Order Closing Case (Bankr. Dkt.44).
10. On December 12, 2005, the Circuit Court issued a Memorandum Opinion (Adv.Dkt.1, Ex. 12) directing the Debtor either to exhaust her administrative cleanup remedies with the Mississippi Commission on Environmental Quality (“MCEQ”), which has the exclusive authority over such matters, or to proceed with the Circuit Court Lawsuit without being allowed to seek damages for the possible clean-up of the Subject Property. The Debtor then filed the Petition and Request for Hearing (Adv.Dkt.1, Ex. 5) with the MCEQ on January 9, 2006 (the “MCEQ Litigation”).
11. On December 8, 2011, the Chancery Court entered the Order Baring [sic ] Claims, Waiving First and Final Accounting, Distributing Assets, Discharging Executrix and Closing Estate (Adv.Dkt.50, Ex. 9) closing Donald’s estate, discharging the Debtor as executrix of the estate, and distributing the estate’s assets.
12. The Defendants discovered the existence of the Bankruptcy Case in July 2013. Soon thereafter, the Defendants raised the defense of judicial estoppel in the Circuit Court Lawsuit, the District Court Lawsuit, and the MCEQ Litigation (collectively, the “Related Proceedings”). According to the Debtor and the Defendants, all of the Related Proceedings are currently stayed.
13. On September 24, 2013, the Debtor filed the Motion to Vacate Final Decree and to Re-open Case to Amend Schedules and State [sic] of Financial Affairs (the “Motion to Reopen”) (Bankr.Dkt.50) requesting the Court to reopen the Bankruptcy Case so that the Statements and Schedules could be amended “to disclose Mrs. Howard’s interest in civil actions (one
14. On February 12, 2014, the Reynolds Partiés initiated the Adversary by filing the Complaint for Declaratory Judgment (Adv.Dkt.1) arguing that the Debtor should be judicially estopped from pursuing her claims in the Related Proceedings because she never disclosed her inheritance of the Subject Property or the Related Proceedings to the Court or the Trustee during the pendency of the Bankruptcy Case. Conquest, Moon-Hines-Tigrett, and Chevron/Shell subsequently intervened in the Adversary.
15. On May 1, 2014, the Reynolds Parties filed the Plaintiffs’ Motion for Summary Judgment (the “Defendants .Summary Judgment Motion”)
16. Also on May 1, 2014, the Debtor filed the Motion for Summary Judgment (the “Debtor Summary Judgment Motion”) (Adv.Dkt.49).
17. The Defendants Summary Judgment- Motion and the Debtor Summary Judgment Motion came before the Court for hearing on September 3, 2014. The Court took the matter under advisement and then issued the Memorandum Opinion and Order: (1) Granting the Plaintiffs’ Summary Judgment Motion and (2) Denying the Debtor’s Summary Judgment Motion (Adv.Dkt.81) and the Final Judgment on the Plaintiffs’ Summary Judgment Motion and the Debtor’s Summary Judgment Motion (Adv.Dkt.82) (collectively, the “Court’s Summary Judgment Opinion”) on October 27, 2014. In the Court’s Summary Judgment Opinion, the Court held that the Debtor is judicially estopped from pursuing her claims in the Related Proceedings. The Court, however, held that the Trustee is not judicially estopped from pursing the Debtor’s claims in the Related Proceedings for the benefit of the Debtor’s creditors. The Court provided that if the Trustee does pursue the Debtor’s claims and obtains a recovery, any funds that remain after the distribution to any creditors and the payment of the Trustee’s statutory fees will be refunded to the Defendants who paid such funds ánd not to the Debtor.
18. On April 12, 2015, the Trustee filed the Notice of Abandonment providing notice of his intent to abandon the Subject Property under 11 U.S.C. § 554.
19. On April 23, 2015, the Reynolds Parties filed the Reynolds Parties Brief in Support of Abandonment.
20. On April 27, 2015, the Debtor filed the Objection to Abandonment requesting the Court to order the Trustee to retain the property until the completion of the Related Proceedings.
21. On May 1, 2015, the Reynolds Parties filed the Reynolds Parties Response to Objection to Abandonment. Chevron/Shell
22. On May 8, 2015, the Reynolds Parties and the Trustee filed the Reynolds Parties Joint Motion to Settle. Chevron/Shell and Moon-Hines-Tigrett subsequently joined in the the Reynolds Parties Joint Motion to Settle. (Bankr.Dkts. 145 & 147).
23. On May 15, 2015, Conquest and the Trustee filed the Conquest Joint Motion to Settle.
24. On May 28, 2015, the Debtor filed the Debtor Response to Reynolds Parties Joint Motion to Settle opposing the settlement between the Reynolds Parties and the Trustee.
25. On June 5, 2015, the Debtor filed the Debtor Response to Conquest Joint Motion to Settle opposing the settlement between Conquest and the Trustee.
26. On June 9, 2015, the Reynolds Parties filed the Reynolds Parties Reply to Debtor Response to Reynolds Parties Joint Motion to Settle. Chevron/Shell and Moon-Hines-Tigrett subsequently joined in the Reynolds Parties Reply to Debtor Response to Reynolds Parties Joint Motion to Settle. (Bankr.Dkts. 174 & 175).
27. At the Hearing on June 16, 2015, the Court heard the issues related to the Notice of Abandonment, the Objection to Abandonment, the Joint Motions to Settle, the Debtor Response to Reynolds Parties Joint Motion to Settle, and the Debtor Response to Conquest Joint Motion to Settle. At the conclusion of the Hearing, the Court announced that it would take the abandonment and settlement issues under advisement and issue a written opinion.
28. On June 18, 2015, the Debtor filed the Debtor’s Motion to Supplement List of Witnesses and Exhibits from June 16, 2015 Hearing (the “Debtor Motion to Supplement”) (Bankr.Dkt.178) requesting the Court to allow the Debtor to admit an additional exhibit (a January 5, 2015 email (the “Smith Stagg-Duncan Email”) from Julie F. Batt, an employee of Cassidy’s law . firm, Smith Stag, L.L.C. (“Smith Stag”) to Duncan) into evidence regarding the Objection to Abandonment. No party filed a timely response to the Debtor Motion to Supplement, and it was granted by the Court on July 20, 2015. (Bankr.Dkt.189). Accordingly, the Smith Stag-Duncan Email was admitted into evidence as (Debtor Ex. 2 on Abandonment).
Discussion
The terms of the Grouped Settling Defendants Joint Motion to Settle provide that it is contingent upon the Trustee’s successful abandonment of the Subject Property. Further, Crowell stated at the Hearing that the Conquest Joint Motion to Settle is contingent upon both the Trus
I. Notice of Abandonment and Objection to Abandonment
Pursuant to § 554, a trustee may abandon property of the estate if the property is either burdensome to the estate or of inconsequential value and benefit to the estate. 11 U.S.C. § 554(a). Here, the Trustee wishes to abandon the Subject Property because he alleges that it is both burdensome to the Debtor’s bankruptcy estate and of inconsequential value and benefit to the estate. The Trustee argues that the retention of the Subject Property is burdensome to the Debtor’s bankruptcy estate because the property is hindered by the Related Proceedings that have been pending in some form or another for nearly twenty (20) years whereas abandoning the property will enable the Trustee, pending Court approval, to settle the Related Proceedings. The Trustee also contends that the Subject Property exposes the bankruptcy estate to potential liability because there is old equipment, a ramp, maintained ATV trails, and evidence of trespassing on the property. In addition, the Trustee asserts that there is no fence surrounding the Subject Property nor are there any signs posted on the property prohibiting hunting, prohibiting trespassing, or warning the public of possible hazards or contamination.
As for the Subject Property’s value and benefit to the Debtor’s bankruptcy estate, the Trustee pointed to the Debtor’s Amended Schedule A — Real Property (Bankr.Dkt.86) filed on January 29, 2015, which provides that the value of the Subject Property is “unknown.” The Trustee also introduced into evidence two (2) printouts showing that (a) the Wayne County Tax Assessor has determined that the Subject Property’s total value is $7,800.00 and its assessed value is $1,170.00 and (b) the Subject Property’s “LAND USE CODE CLASS” is commercial forestry. (Tr. Exs. 4a & 4b on Abandonment). The Trustee introduced into evidence maps and photographs that show the Subject Property is located in a wooded rural area of Mississippi at least fifteen (15) miles away from the nearest town. (Tr. Exs. 1-3 & 5-7 on Abandonment). According to the Trustee, the abandonment of the Subject Property will actually benefit the Debtor’s bankruptcy estate because it is a necessary condition to the pending settlements with the Defendants that will result in the full payment of all of the Debtor’s unsecured creditors who filed proofs of claims.
The Debtor does not contest that the Subject Property is of inconsequential value or that the retention of the Subject Property is burdensome to the Debtor’s bankruptcy estate.
The Defendants and the Trustee respond to the Debtor’s arguments in several ways. As a procedural matter, the Defendants argue that the Debtor does not have standing to object to the Trustee’s proposed abandonment because she is judicially estopped from pursuing her claims in the Related Proceedings. As for the Trustee’s ability to abandon the Subject Property, the Defendants and the Trustee argue that the Trustee should be able to abandon the Subject Property because no imminent and identifiable harm exists in relation to the property. Finally, in response to the Debtor’s arguments regarding the Trustee’s duty to the Debtor, the Trustee argues that his primary duty is to assist the Debtor in her chapter 13 case, which he is doing in this instance by abandoning the Subject Property and, thus, enabling the Debtor’s unsecured creditors to be paid in full through the proposed settlements of the Related Proceedings.
A. Standing to Object to the Notice of Abandonment
As a threshold matter, the Court will first address the Defendants’ argument that the Debtor lacks standing to object to the Notice of Abandonment. In the Grouped Settling Defendants Response to Objection to Abandonment and at the Hearing, the Defendants briefly argued that the Debtor does not have standing to object to the Notice of Abandonment because she is judicially estopped from pursuing her claims in the Related Proceedings. Although the Defendants do not specify what type of standing the Debtor lacks to object to the Notice of Abandonment, they do cite two (2) cases in support of their position: In re Davidson, 402 B.R. 877 (Bankr.S.D.Ind.2009) and In re Drost,
Although the traditional constitutional requirements represent the mandatory minimum requirements for a party to have standing, Congress can “modify or even abrogate prudential standing requirements, thus extending standing to the full extent permitted by Article III.” St. Paul Fire & Marine Ins. Co., 579 F.3d at 539 (quoting another source). In Rule 6007 of the Federal Rules of Bankruptcy Procedure (“Rule 6007”), Congress has extended standing to the full extent permitted by Article III by allowing any “party-in-interest” to object to a proposed abandonment of property. See In re C-Power Prods., Inc., 230 B.R. 800, 804 (Bankr.N.D.Tex. 1998). Therefore, in lieu of prudential “bankruptcy standing” requirements, the Debtor must satisfy the statutory “party-in-interest” requirement.
The term “party-in-interest” appears in many different sections of the Bankruptcy Code but is not defined in § 101. The legislative history suggests the term intentionally was omitted from the list of definitions in § 101 to allow some flexibility in its use. See In re N. Am. Oil & Gas, Inc., 130 B.R. 473, 479 (Bankr.W.D.Tex.1990), abrogated on other grounds by Pritchard v. U.S. Trustee (In re England), 153 F.3d 232 (5th Cir.1998). Specifically, the Fifth Circuit Court of Appeals has broadly interpreted the term to include any creditor of the debtor “as well as any other person with a sufficient stake in [the] outcome of a [bankruptcy] proceeding so as to require representation.” Int’l Transactions, Ltd. v. Embotelladora Agral Regiomontana, S.A. de C.V., 347 F.3d 589, 595 (5th Cir.2003); see also Johnson v. Deutsche Bank Nat'l Trust Co., No. 3:12-CV-3542-L, 2013 WL 3810715, at *6 (N.D.Tex.2013); In re Presto, 376 B.R. 554, 564 (Bankr.S.D.Tex.2007). The outcome of the current proceeding before the Court (whether the Trustee may abandon the Subject Property) hinges on whether the Trustee has a duty to ensure that the Subject Property owned by the Debtor is remediated. If the Trustee were not allowed to abandon the Subject Property because of environmental concerns, the Trustee may then have additional duties in relation to the Debtor’s Subject Property. In addition, if the abandonment were not approved, the proposed settlements of the Related Proceedings would be withdrawn,
B. Abandonment of the Subject Property
As the Court previously stated, a trustee may abandon property of the estate pursuant to § 554 if the property is either burdensome to the estate or of inconsequential value and benefit to the estate. 11 U.S.C. 554(a). The Court finds that the Trustee has established that the Subject Property is both burdensome to the estate and of inconsequential value and benefit to the estate. In light of the nearly twenty (20)-year old litigation involving the Subject Property, the purported environmental concerns and code violations, and the potential liability regarding trespassers, the Court finds .that the Subject Property is burdensome to the estate. In addition, the minimal reported value of the Subject Property and its alleged contamination make it very unlikely that the property could be sold for the benefit of the Debtor’s bankruptcy estate. Thus, the Court also finds that the Subject Property is of inconsequential value and benefit to the estate.
Having determined that the proposed abandonment of the Subject Property satisfies the requirements set forth in § 554, the Court will now address the merits of the Objection to Abandonment. The Debtor’s overarching argument in opposition to the Trustee’s proposed abandonment of the Subject Property is that the Trustee owes a duty to the Debtor to ensure that the Subject Property is environmentally remediated. In support of this position, the Debtor largely relies on the Supreme Court’s decision in Midlantic. Before discussing Midlantic and its progeny, the Court will first address what appears to be a misunderstanding on the part of the Debtor regarding a chapter 13 trustee’s general duties.
Section 1302 governs the duties of a chapter 13 trustee. 11 U.S.C. § 1302. Despite the Debtor’s insistence that the Trustee has a duty to the Debtor to ensure that any contamination on the Subject Property is cleaned up, no such duty is enumerated in § 1302(b) or the provisions of § 704(a) that are made applicable to chapter 13 cases by § 1302(b)(1). As the Trustee stated at the Hearing, a trustee does have duties relating to the Debtor, such as to “advise, other than on legal matters, and assist the debtor in performance under the plan” and “ensure that the debtor commences making timely payments under section 1326 of this title.” 11 U.S.C. § 1302(b)(4), (5). None of these obligations specifically requires a trustee to seek the remediation of a debtor’s purportedly contaminated property. Moreover, although a chapter 13 trustee has a broad array of duties and powers under the Bankruptcy Code, the trustee’s primary duty, as the legal representative of bankruptcy estate, is owed to all of the bankruptcy estate’s creditors. Overbaugh
Here, the Debtor has not provided any statutory basis for the Trustee’s purported duty to the Debtor to ensure the remediation of the Subject Property. Instead, the Debtor has cited two (2) cases at the Hearing, neither of which supports her position: Gower v. Farmers Home Administration (In re Davis), 899 F.2d 1136, 1143 n. 15 (11th Cir.1990) and Midlantic. In In re Davis, the Eleventh Circuit Court of Appeals echoes the Court’s point by stating that “[t]he bankruptcy trustee does not represent the interests of the debtor alone; rather, he owes a complex set of obligations and fiduciary duties to the court, the debtor, the shareholders (in the case of a bankrupt corporation), and, most importantly, the creditors.” 899 F.2d at 1143 n. 15 (emphasis added). The Debtor’s reliance on Midlantic for the proposition that the Trustee owes a fiduciary duty to the Debtor is also misplaced as the Supreme Court in that case recognized an exception to a trustee’s abandonment power in light of a trustee’s duty to yield to governmental interests in the public health and safety, not a trustee’s duty to remediate property for a debtor’s personal benefit.
Having generally discussed a chapter 13 trustee’s statutory duties, the Court will now address Midlantic and its exception to a trustee’s abandonment power in more detail. As previously stated, in Midlantic, the Supreme Court discussed a trustee’s duties concerning environmentally impacted property and held that a trustee may not abandon property in contravention of a state statute or regulation that is reasonably designed to protect the public health or safety from identified hazards. 474 U.S. at 502-07, 106 S.Ct. 755. The Supreme Court, however, qualified that holding by stating:
This exception to the abandonment power vested in the trustee by § 544 is a narrow one. It does not encompass a speculative or indeterminate future violation of such laws that may stem from abandonment. The abandonment power is not to be fettered by laws or regulations not reasonably calculated to protect the public health or safety from imminent and identifiable harm.
Id. at 507, 106 S.Ct. 755 n.9. The majority of Courts that have interpreted footnote nine (9) in Midlantic have held that the “narrow” exception to a trustee’s abandonment power only applies in situations where an imminent and identified harm to the public health and safety exists. See N.M. Env’t Dep’t v. Foulston (In re L.F. Jennings), 4 F.3d 887, 890 (10th Cir.1993) (“[BJefore abandonment of a property can violate Midlantic the property must represent an immediate and identifiable harm to public health or safety.”) (citations omitted); Borden, Inc. v. Wells-Fargo Business Credit (In re Smith-Douglass, Inc.), 856 F.2d 12, 16 (4th Cir.1988) (“[T]his narrow exception applies where there is a serious health risk, not where the hazards are speculative or may await appropriate action by an environmental agency.”); Minn. Pollution Control Agency v. Gouveia (In re Globe Bldg. Materials), 345 B.R. 619, 629 (Bankr.N.D.Ind.2006) (“This Court also deems the Midlantic decision to stand solely for the proposition that a Chapter 7 trustee may not abandon property from a bankruptcy estate under 11 U.S.C. § 554(a) without taking actions necessary to abate conditions which pose an ‘imminent and identifiable harm’ to ‘the public health or safety’ ”); In re Guterl
Having considered the reasoning of the cases interpreting Midlantic, the Court agrees with the majority view and holds that the exception to a trustee’s abandonment power set forth in Midlantic is limited to situations where an imminent and identified harm to the public health ■ and safety exists. Applying this standard to the situation at hand, the Court finds that the purported contamination of the Subject Property does not present an imminent and identified harm to the public health and safety that would warrant the application of Midlantic’s narrow exception to the Trustee’s abandonment powers.
The Debtor has the burden of proving that the condition of the Subject Property-creates an imminent and identified harm to the public. See In re St. Lawrence Corp., 239 B.R. at 726-27 (explaining that after the party proposing the abandonment satisfies their initial burden under § 554 of proving that the property to be abandoned is either burdensome to the estate or is of inconsequential value and benefit to the estate, the burden then shifts to the party opposing abandonment under Midlantic to prove that the contamination of the property creates an imminent and identifiable harm to the public). According to the Debtor, the Environmental Assessments demonstrate an imminent harm to the public health and safety. This Court disagrees. The Court has examined the Environmental Assessments but has found no information, evidence, or opinions showing that the condition of the Subject Property poses a potential harm to the public-health or safety, much less that such harm is imminent.
The Environmental Assessments consist of documents prepared by three individuals: William Clay Kimbrell (“Kimbrell”), John M. Jarrett (“Jarrett”), and Edwin M. Cargill (“Cargill”).
Based on the reconnaissances and the review of other expert’s reports and analysis ... it is my opinion that the [Subject Property] has surface soil/sediment contamination from oilfield service related activities. From the visual reconnaissances, sampling and other experts findings, it is my opinion that all three of these sites (pit areas) need to be properly remediated and cleaned-up.
(Id. at 108).
In the Cargill Affidavit, Cargill states that he identified five (5) areas of significant Technically Enhanced Radioactive Material (TERM) contamination on the Subject Property and that in his opinion, the Subject Property “has surface/soil contamination from oilfield service related activities, including but not limited to TERM contamination.” (Id. at 196). In the Cargill Survey, Cargill stated that the Subject Property contained five (5) areas with significant TERM contamination. Specifically, he concluded that “[t]here is approximately ... 628 cubic yards of TERM contaminated material to be removed from [the Subject Property] for disposal.” (Id. at 201).
Nowhere in the Environmental Assessments, however, is there any information regarding how the presence of the materials can or will affect the public health or safety. Further, the Debtor did not submit any evidence (documentary, testimonial, or otherwise) at the Hearing as to the effect of the described contamination, its extent, or its imminence. Instead, the Debtor simply introduced the Environmental Assessments into evidence and asserted a conclusory allegation that the presence of “radioactive materials” and “known human carcinogens” creates an imminent harm. But as the majority of cases have held since Midiantic, a trustee is not prohibited from abandoning property just because it is contaminated or does not comply with various state environmental regulations. The critical inquiry is whether the property represents an imminent and identified harm to the public health and safety. The Court notes that
In addition, the Court finds it is reasonable to conclude that MDEQ’s inaction as to the Subject Property for nearly a decade indicates that the property’s condition does not pose an imminent threat to the public health and safety. See In re Smith-Douglass, Inc., 856 F.2d at 16 (finding that the bankruptcy court’s determination that there was no threat of immediate harm was not erroneous because the state environmental agency had not pursued any enforcement action); In re Shore Co., 134 B.R. at 579 (“Given the lack of action on the part of the [state water commission], this Court can only conclude that it has long been the judgment of the [commission] that the refinery property constituted more of an environmental concern than an immediate danger.”); In re Anthony Ferrante & Sons, Inc., 119 B.R. at 50 (considering the state department of environmental protection’s eight-year wait before bringing an enforcement action against the debtor as additional support for its conclusion that the property in question did not pose an imminent threat of harm to the health of the debtor’s customers); White v. Coon (In re Purco, Inc.), 76 B.R. 523, 533 (Bankr.W.D.Pa.1987) (inferring from the state department of environmental resources’ lack of interest in the abandonment proceeding that there is no threat to the public health or safety which warrants the department’s participation); In re Franklin Signal Corp., 65 B.R. 268, 269 n. 1 (Bankr.D.Minn.1986) (“The logical inference of the State’s inaction [regarding drums filled with possibly hazardous waste] is that the drums do not pose any imminent threat to the public.”)
The MCEQ has known about the Debt- or’s allegations regarding the purported contamination of the Subject Property since at least January 9, 2006, when the Debtor filed her initial Petition and Request for Hearing (Adv.Dkt.1, Ex. 5). Thus, the MCEQ has been involved in this matter for more than nine (9) years, but has not ordered any party to remediate the Subject Property. The Debtor insists that the reason the MCEQ has not taken any steps to ensure remediation of the Subject Property is because of the pending MCEQ Litigation. The - MCEQ has the power to “enforce rules and regulations implementing the powers and duties of the commission under any and all statutes within the commission’s jurisdiction, and as the commission may deem necessary to prevent, control and abate existing or potential pollution.” Miss.Code Ann. § 49-2-9. The MCEQ has delegated several enforcement powers to the MDEQ, such as the power to issue administrative orders to “Prohibit, Control or Abate Discharges of Contaminants and Wastes into Air and Waters of the State,” “Require Appropriate Remedial Measures to Prevent, Control or Abate Air and Water Pollution or to Cause the Proper Management of Solid Wastes,” and “Require Compliance with Permits and Regulations.” 11-001 M iss. Code R. 1.1(E) (LexisNexis 2015); see also Miss.Code Ann. § 49-2-13(j) (granting the executive director of the MDEQ the power to “issue, modify or revoke any and all orders under authority granted by the commission”). Assuming, as the Debtor
At the Hearing, the Defendants collectively introduced into evidence multiple court orders and letters of correspondence involving the MDEQ and the Circuit Court (the “MDEQ and Circuit Court Documents”) (Reynolds Parties Ex. 1 on Abandonment).
In total, the MDEQ and Circuit -Court Documents indicate that the condition of the Subject Property does not pose an imminent and identified harm to the public health and safety. Further, the MCEQ has not appeared or taken part in any of the proceedings before the Court since the Bankruptcy Case was reopened in Novem
II. Joint Motions to Settle
Having determined that the proposed abandonment satisfies § 554 and ‘ Objection to Abandonment should be overruled, the Court now turns to the Joint Motions to Settle. Under Rule 9019(a) of the Federal Rules of Bankruptcy Procedure (“Rule 9019(a)”), bankruptcy courts are empowered to approve a compromise and settlement of a lawsuit if the settlement is “fair and equitable and in the best interest of the estate.” Official Comm. of Unsecured Creditors v. Cajun Elec. Power Coop., Inc. (In re Cajun Elec. Power Coop., Inc.), 119 F.3d 849, 355 (5th Cir.1997) (internal citation omitted). In deciding whether a settlement is “fair and equitable,” the Court must make a well-informed decision “comparing the terms of the compromise with the likely rewards of litigation.” Id. at 356 (citing Rivercity v. Herpel (In re Jackson Brewing Co.), 624 F.2d 599, 602 (5th Cir.1980)). Specifically, the Court must weigh: “(1) The probability of success in the litigation, with due consideration for the uncertainty in fact and law, (2) The complexity and likely duration of the litigation and any attendant, expense, inconvenience and delay, and (3) All other factors bearing on the wisdom of the compromise.” Id. (citing In re Jackson Brewing Co., 624 F.2d at 602). As previously discussed, the Conquest Joint Motion to Settle is contingent upon the Grouped Settling Defendants Joint Motion to Settle being granted by the Court. Therefore, the Court will first address the Grouped Settling Defendants Joint Motion to Settle.
A. Grouped Settling Defendants Joint Motion to Settle
Under the proposed settlement between the Trustee and the Grouped Settling Defendants (the “Grouped Settling Defendants Proposed Settlement”) (Bankr. Dkt.143-1) attached to the Grouped Settling Defendants Joint Motion to Settle, the Trustee, on behalf of the Debtor’s bankruptcy estate, agrees to a full and complete release of all possible claims against the Grouped Settling Defendants relating to the Subject Property, including those set forth in the Related Proceedings. In consideration of this release, the Grouped Settling Defendants agree to pay the Trustee $2,700.00, which is enough to pay all unpaid creditors who have filed proofs of claim in the Bankruptcy Case and the Trustee’s statutory fees. Any surplus after distribution to such creditors and the Trustee will be returned to Reynolds on behalf of the Grouped Settling Defendants. In addition, the Grouped Settling Defendants agree to indemnify the Trustee, individually and in his official capacity, from any claims instituted by gov
After considering the three (3) factors set forth in In re Cajun Electric Power Cooperative, Incorporated, 119 F.3d at 355 (“In re Cajun Elec.”), the Court finds that the Grouped Settling Defendants Proposed Settlement is fair and equitable and in the best interest of the Debtor’s bankruptcy estate. The Court will now elaborate on those factors.
1. Probability of Success in the Litigation
The first factor the Court must 'weigh is the Trustee’s probability of success in the Related Proceedings, with due consideration for the uncertainty in fact and law. “With respect to the first factor, it is unnecessary to conduct a mini-trial to determine the probable outcome of any claims waived in the settlement.” In re Cajun Elec., 119 F.3d at 356. “The judge need only apprise himself of the relevant facts and law so that he can make an informed and intelligent decision.” Id. (footnote omitted) (citing LaSalle Nat’l Bank v. Holland (In re American Reserve Corp.), 841 F.2d 159, 163 (7th Cir.1987)). With respect to this factor, the Reynolds Parties introduced into evidence at the Hearing the Circuit Court Lawsuit Complaint and Jury Demand (the “Circuit Court Complaint”) (Reynolds Parties Ex. 1 on Settlement) and the District Court Lawsuit Supplemental and Amended Complaint (the “District Court Complaint”) (Reynolds Parties Ex. 2 on Settlement).
As previously stated, the Related Proceedings have been pending in one form or another for nearly twenty (20) years. According to the October 2013 MCEQ Order, the Subject Property was originally owned by Davis Brothers Contracting Company (“Davis”), who used the property to wash out the vacuum tanks on trucks used to haul oilfield wastes for customers. (Reynolds Parties Ex. 1 on Abandonment at 75). Davis contracted with as many as a hundred (100) or more companies, including the Defendants. (Id.) Roughly “five (5) years after purchasing the Subject Property from a bank foreclosure sale, Donald initiated the Circuit Court Lawsuit, the first of the (3) three Related Proceedings. (Id.). In the Circuit Court Complaint, the Debtor
Following the issuance of the March 2011 Circuit Court Order, in which the Circuit Court indicated that it would dismiss the Debtor’s claims regarding clean up and remediation of the Subject Property as soon as the MDEQ issued a final order on the lack of evidence, the Debtor filed the MDEQ Petition formally adding the Defendants as defendants in the MCEQ Litigation. In March 5, 2013, the MCEQ set the MCEQ Litigation for hearing in January 2014. (Id. at 75-76). In April 2013, the Debtor filed and served, inter alia, (1) a notice requesting the Defendants to take part in twenty-one (21) video depositions, (2) a set of interrogatory requests, and (3) a request for production of documents. (Id. at 77). The Defendants then filed a motion requesting the MCEQ to deny the Debtor’s discovery requests, to which the Debtor responded by filing a motion requesting the MCEQ to compel the Defendants to comply with her requests (Id.). The MCEQ then issued the October 2013 MCEQ Order that, inter alia, granted the Defendants’ request to deny the Debtor’s discovery requests. According to the MCEQ, it does not have the authority to compel discovery sought by the Debtor through depositions, interrogatories, and requests for production. (Id. at 79). The MCEQ then stated that it had already exercised its authority to subpoena the documents from the Defendants and that although the Defendants only “produced some documents in response to the Commission’s subpoenas,” the Defendants sufficiently explained their inability to provide the majority of documents. (Id. at 81-82). Thus, the MCEQ also denied the Debtor’s motion to compel. (Id.).
The Court finds that the MDEQ and Circuit Court Documents, when read as a whole, indicate that the Trustee does not have a probability of success in pursuing the Debtor’s claims in the Related Proceedings. While the fact that the Debtor is suing under many different legal theories in the Related Proceedings might suggest that the Trustee is likely to be successful on at least one of the Debtor’s claims, the MDEQ and Circuit Court Documents suggest otherwise. The documents establish that, as of October 11, 2010, the MDEQ (after conducting a visual
As for the Circuit Court Lawsuit and the District Court Lawsuit, if there is no specific evidence of responsibility on the part of any Defendant to the alleged contamination, it is not probable that the Trustee will succeed in pursuing the Debt- or’s claims for negligence, nuisance, trespass to land, breach of contract, waste, strict liability, outrageous conduct, or under CERCLA, all of which are premised on the Defendants’ connection to the presence of hazardous materials on the Subject Property. The Court thus finds that the first factor weighs in favor of granting the Grouped Settling Defendants Joint Motion to Settle.
2. Complexity and Likely Duration of the Litigation
The second factor the Court must weigh in considering whether to approve a settlement is the complexity and likely duration of the litigation and any attendant expense, inconvenience and delay. As the Court has frequently noted, the oldest of the Related Proceedings has been pending for more than nineteen (19) years. The Trustee stated at the Hearing that he could not afford to pursue the Related Proceedings by himself because of the scope and complexity of the collective litigation. As described in the Court’s analysis of the first factor, the Debtor is pursuing at least eight (8) different legal theories in three (3) separate forums against more than twenty (20) defendants. Although the parties did not cite any specific costs of litigation,' it is apparent that the litigation involved in the Related Proceedings is expert-intensive and, thus, would likely be expensive. Although the Debtor has already obtained the Environmental Assessments regarding the alleged contamination of the Subject Property, the Court can anticipate that there may be a need for additional and/or updated environmental reports since the Environmental Assessments were compiled more than fifteen (15) years ago. As the Trustee noted at the Hearing, no eligible
3. Other Factors Bearing on the Wisdom of the Compromise
With respect to the third, “catchall provision,” the Fifth Circuit has specified two (2) additional factors for a bankruptcy court to weigh when determining whether to approve a proposed settlement: (1) “the best interest of the creditors, “with proper deference to their reasonable views’” and (2) “the extent to which the settlement is truly the product of arms-length bargaining, and not of fraud or collusion” In re Cajun Elec., 119 F.3d at 356 (citing Conn. Gen. Life Ins. Co. v. United Cos. Fin. Corp. (In re Foster Mortg. Corp.), 68 F.3d 914, 917 (5th Cir. 1995)). The Court finds that the Grouped Settling Defendants Joint Motion to Settle is in the best interest of creditors. The Grouped Settling Defendants Proposed Settlement is specifically tailored to provide for the full payment of all of the Debtor’s unsecured creditors who filed proofs of claim in the Bankruptcy Case but were not paid in full when the case was closed in August 2005.
Relevant to the next factor (the extent to which the settlement is truly the product of arms-length bargaining, and not of fraud or collusion), the Reynolds Parties collectively introduced into evidence at the Hearing, a series of emails (the “Reynolds-Duncan Emails”) (Reynolds Parties Ex. 3 on Settlement) between Reynolds and Duncan regarding settlement discussions. After reviewing the Reynolds-Duncan Emails, whidh span over the course of one and a half (l]é) months, the Court is convinced that the Grouped Settling Defendants Proposed Settlement is the product of an arms-length negotiation, and not the product of fraud or collusion. Indeed, the emails reveal a thorough and legitimate negotiation between Duncan and Reynolds as to whether the Grouped Settling Defendants would agree to indemnify the Trustee and what would be the scope of said indemnification. Further, the numerous attachments to the Reynolds-Duncan Emails show the parties’ many drafts of the Grouped Settling Defendants Proposed Settlement throughout the negotiation process. For these reasons, the Court finds that the settlement is the product of arms-length bargaining.
Another factor relevant to the Court’s evaluation of the Grouped Settling Defendants Joint Motion to Settle was pointed out by the Trustee at Hearing when he noted that there is no incentive for the bankruptcy estate to pursue the Debtor’s claims in the Related Proceedings. Pursuant to the Court’s Summary Judgment Opinion, the Debtor is judicially estopped from pursuing her claims in the Related Proceedings. Even though the Trustee
At the Hearing, Cassidy stated that the Debtor opposes the Grouped Settling Defendants Joint Motion to Settle for the same reasons she objected to the Notice of Abandonment. Specifically, Cassidy argued that the proposed settlement is not fair and equitable because it would abrogate the Trustee’s duty to the Debtor concerning the environmental condition of the Subject Property. As the Court stated in its analysis of the Notice of Abandonment and the Objection to Abandonment, no such duty exists under the Bankruptcy Code. See supra Part I.B. Therefore, the Court, after weighing all of the relevant factors, finds that the Grouped Settling Defendants Joint Motion to Settle should be granted.
B. Conquest Joint Motion to Settle
Having determined that the Grouped Settling Defendants Joint Motion to Settle should be granted, the Court will now address the Conquest Joint Motion to Settle. Similar to the Grouped Settling Defendants Joint Motion to Settle, a copy of the proposed settlement between'the Trustee and Conquest (the “Conquest Proposed Settlement”) (Bankr.Dkt.152-1) was attached to the Conquest Joint Motion to Settle. In the Conquest Proposed Settlement, the Trustee agrees to a full and complete release of all possible claims against Conquest relating to the Subject Property and the Related Proceedings, but Conquest does not provide any form of consideration (such as offering its own separate indemnification of the Trustee or offering to pay any unforeseen amount over and above the $2,700.00 provided by the Grouped Settling Defendants in the Grouped Settling Defendants Proposed Settlement) in exchange for the Trustee’s full and complete release of said claims. After the Court’s inquiry at the Hearing, Crowell and Duncan conceded that the Trustee would not receive any consideration under the terms of the Conquest Proposed Settlement for releasing all possible claims against Conquest.
Although the Court has the power to approve settlements and the power to enforce settlements, “the construction and enforcement of settlement agreements is governed by principles of state law applicable to contracts generally.” Lee v. Hunt, 631 F.2d 1171, 1173-74 (5th Cir. 1980). Mississippi courts apply state contract law to negotiated settlement agreements. See Estate of Davis v. O’Neill, 42 So.3d 520, 527 (Miss.2010). Under Mississippi contract law, consideration is one of the necessary elements in order to create
The Court finds that the absence of consideration in exchange for the Trustee’s release of all possible claims against Conquest related to the Subject Property makes the Conquest Proposed Settlement unenforceable under Mississippi law. As a result, the Court finds that it would not be fair and equitable and in the best interest of the estate to approve the Conquest Proposed Settlement under Rule 9019(a). See De La Fuente v. Wells Fargo Bank, N.A. (In re De La Fuente), 409 B.R. 842, 846 (Bankr.S.D.Tex.2009) (refusing to approve settlement agreement under Rule 9019 because the agreement did not comply with the statute of frauds and, thus, was unenforceable under state law); In re Frye, 216 B.R. 166, 170-71 (Bankr.E.D.Va.1997) (holding that it is necessary to determine whether the agreement constitutes a binding contact under state law before analyzing the settlement under Rule 9019(a)); In re Cincinnati Microwave, Inc., 210 B.R. 130 (Bankr.S.D.Ohio 1997) (“The reason for denying approval [of the proposed settlement agreement between the debtor and plaintiffs was that the] debtor would receive no consideration for its proposed contribution to the Settlement Agreement.”); Ehre v. People of N.Y. (In re Adirondack Ry. Corp.), 95 B.R. 867 (N.D.N.Y.1988) (denying proposed settlement under Rule 9019 and noting that “approval of the proposed “settlement,” in its current legally unenforceable state, will, in all probability spawn even more litigation with respect to its implementation”); see also In re Jackson Brewing Co., 624 F.2d at 603 (“It is undeniable that a compromise must be based on valuable consideration.”). The Court accordingly finds that the Conquest Joint Motion to Settle should be denied.
Conclusion
For the above and foregoing reasons, the Court finds that the Objection to Abandonment should be overruled, the Grouped Settling Defendants Joint Motion to Settle should be granted, and the Conquest Joint Motion to Settle should be denied.
IT IS, THEREFORE, ORDERED that the Objection to Abandonment is hereby overruled.
IT' IS FURTHER ORDERED that the Grouped Settling Defendants Joint Motion to Settle is hereby granted.
IT IS FURTHER ORDERED that the Conquest Joint Motion to Settle is hereby denied.
SO ORDERED.
. The above-styled bankruptcy case (the “Bankruptcy Case”) and Adversary Proceeding No. 14-05009-NPO (the “Adversary”) were transferred from the Honorable Katharine M. Samson, United States Bankruptcy Judge, Southern District of Mississippi to the Honorable Neil P. Olack, United States Bankruptcy Judge, Southern District of Mississippi on June 11, 2014.
. Citations to the record are as follows: (1) citations to docket entries in the Bankruptcy Case are cited as “(Bankr.Dkt._)”; and (2) citations to docket entries in the Adversary are cited as “(Adv.Dkt._.)”.
. The Bankruptcy Case was commenced on May 5, 2000 by joint debtors, Stephanie Howard and Stacy Howard (collectively, the "Debtors”), but the Court refers only to Stephanie Howard as the "Debtor” because Stacy Howard is now deceased. '
. Hereinafter, the Court will refer to the Reynolds Parties Joint Motion to Settle and the joinders filed by Chevron/Shell and Moon-Hines-Tigrett collectively as the "Grouped Settling Defendants Joint Motion to Settle.” The Court will refer to the Reynolds Parties, Chevron/Shell, and Moon-Hines-Ti-grett collectively as the "Grouped Settling Defendants.”
. The first lawsuit, now titled Stephanie Howard, Executrix of the Estate of Gerald Donald v. Fina Oil and Chemical Company, et al., No. 5-97-55 (the "Circuit Court Lawsuit”), was filed on May 17, 1996 in the Circuit Court of Hinds County, Mississippi and subsequently was transferred to the Circuit Court of Wayne County, Mississippi (the “Circuit Court”). The second lawsuit, now titled Stephanie Howard, Executrix of the Estate of Gerald Donald v. Marvin Lewis Davis et al., No. 2:98-CV-15-KS-MTP (the "District Court Lawsuit”), was filed on January 20, 1998 in the United States District Court for the Southern District of Mississippi.
. According to the Order substituting the Debtor as plaintiff in the District Court Lawsuit, the Debtor filed the motion to substitute in May 2004. (Adv. Dkt. 1, Ex. 11 at 1-2).
. The Debtor subsequently added the Defendants as defendants in the MCEQ Litigation on March 24, 2011 by filing an Amended Petition and Request for Hearing (the "MDEQ Petition”) (Adv.Dkt.l, Ex. 6) with the Mississippi Department of Environmental Quality ("MDEQ”), which serves as the MCEQ's technical, administrative, and legal staff.
. For purposes of clarity and consistency, the Court will define all motions and pleadings filed in the Adversary by the Defendants as the "Defendants_” despite that these parties were actually the plaintiffs in the Adversary:
. Hereinafter, all code sections refer to the Bankruptcy Code found at title 11 of the United States Code unless otherwise noted.
. Although Conquest did not file a joinder in the Reynolds Parties Response to Objection to Abandonment, Crowell stated at the Hearing that Conquest joined in the Reynolds Parties’ arguments in opposition to the Objection to Abandonment.
. Exhibits introduced into evidence at the Hearing on the issue of whether the Trustee should be allowed to abandon the Subject Property are cited as “([Party] Ex. on Abandonment)”; and exhibits introduced into evidence at the Hearing on the issue of whether the Joint Motions to Settle should be approved are cited as "([Party] Ex. on Settlement)”. All exhibits on both issues were introduced into evidence without objection.
. The Debtor did not discuss the value of the Subject Property or its burden on her bankruptcy estate at the Hearing. The only instance in which the Debtor has substantively mentioned these factors is in the Objection to Abandonment where she states that "[t]he pursuit of ... clean up is not burdensome to the estate or to the Trustee as Counsel for the Debtor has agreed to pursue same at absolutely no cost whatsoever to the estate.” The Court, however, has already held that Smith Stag, by virtue of its representation of the Debtor in appealing the Court's Memorandum Opinion and Order Denying: (1) Debt- or’s Motion to Alter or Amend Judgment or for New Trial; (2) Motion to Stay Judgment Pending Motion to Alter or Amend Judgment or for New Trial or, in the Alternative, Motion
. Specifically, the Environmental Assessments consist of a July 23, 1996 letter titled "Donald Property” signed by Kimbrell that includes multiple photographs of the Subject Property (the "Kimbrell Letter") (Debtor Ex. 1 on Abandonment at 1-6); a “Site Identification Survey” prepared by Jarrett on September 7, 1996 (the "Jarrett Survey”) {Id. at 11-15); an affidavit prepared by Kimbrell on September 20, 2000 (the “Kimbrell Affidavit”)
. The Court notes that the Debtor has not provided any evidence supporting this contention.
. Miss.Code Ann. § 49-17-27 provides, in relevant part:
In the event an emergency is found to exist by the commission, it may issue an emergency order as circumstances may require. Said emergency order shall become operative at the time and date designated therein and shall remain in force until modified or cancelled by the commission or superseded by a regular order of the commission or for a period of forty-five (45) days from its effective date, whichever shall occur first, and may be enforced by an injunction if necessary.
When, in the opinion of the commission or its executive director, an emergency situation exists which creates an imminent and substantial endangerment threatening the-public health and safety or the lives and property of the people of this state, notice shall be given immediately to local governing authorities, both county and municipal, the state emergency management organization, and the governor for appropriate action in accordance with applicable laws for protections against disaster situations.
Miss.Code Ann. § 49-17-27.
. Specifically, the MDEQ and Circuit Court Documents consist of (1) a May 24, 2007 letter, with attachments, sent by Roy Furrh ("Furrh”), general counsel for the MDEQ, to Michael G. Stag, Esq. ("Stag”), another attorney at Smith Stag (the "May 2007 MDEQ Letter”) (Reynolds Parties Ex. 1 on Abandonment at 1-48); (2) a July 25, 2007 letter sent from Furrh to Stag (the "July 2007 MDEQ Letter”) {Id. at 49-61); (3) a March 3, 2011 Order (the "March 2011 Circuit Court Order”) issued by the Circuit Court with an attached letter dated October 11, 2010 (the "October 2010 MDEQ Letter”) sent from Furrh to the Hon. Lester F. Williamson, Jr. ("Circuit Court Judge Williamson”), Circuit Judge for the Tenth Circuit Court District {Id. at 62-73); and (4) an October 24, 2013 Order issued by the MCEQ (the "October 2013 MCEQ Order”) {Id. at 74-82).
. The Reynolds Parties have provided notice: (1) to the MCEQ in February 2014 that the Debtor had reopened her Bankruptcy Case and that they were pursuing a defense of judicial estoppel (Adv. Dkt. 97, Ex. 3); (2) to Furrh in October 2014 that the Court issued the Court’s Summary Judgment Opinion {Id. at Ex. 4); and (3) to Furrh in May 2015 of the Notice of Abandonment, the Reynolds Parties Brief in Support of Abandonment, the Objection to Abandonment, and the Reynolds Parties Response to Objection to Abandonment (Bankr. Dkt. 139).
. The Court notes that it considered the Smith Stag-Duncan Email when reaching this decision. The Smith Stagg-Duncan Email reflects that the Environmental Assessments were transmitted to the Trustee on January 5, 2015.
. The Court notes that the Circuit Court Complaint was filed in 1996 by Donald as he was not yet deceased, and the Debtor had not yet been substituted for Donald as the plaintiff in the Circuit Court Lawsuit. See supra ¶ 7.
. The Court notes that similar to the Circuit Court Complaint, the District Court Complaint was filed in 1998 by Donald as he was not yet deceased, and the Debtor had not yet been substituted for Donald as the plaintiff in the District Court Lawsuit. See supra ¶ 8.
. Arg. of Reynolds at 11:09:42 — 11:12:15. The Hearing was not transcribed. References to the record of the Hearing are cited by the timestamp of the audio recording.
. The Court reiterates that despite Smith . Stag's willingness to represent the Trustee in ■ pursuing the Debtor's claims in the Related Proceedings, the Court already has held that Smith Stag, by virtue of its representation of the Debtor in appealing the Court's Opinion Denying Motion to Alter or Amend, holds an interest adverse to the Debtor’s bankruptcy estate and, thus, is not able to represent the Trustee in pursuing the Debtor's claims in the Related Proceedings. (Bankr.Dkt.121).
. At the Hearing, the Trustee stated that according to the Final Report, roughly $2,200.00 is all that remains to be paid to the Debtor's unsecured creditors who filed proofs of claim.