In re: Westhampton Coachworks, Ltd., Debtor. In re: Westhampton Classic Cars, Debtor. Case No. 09-73008-ast, Chapter 11, Case No. 09-73009-ast UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NEW YORK 2010 Bankr. LEXIS 4967

December 21, 2010, Decided
COUNSEL: For Westhampton Coachworks, Ltd., Debtor (8-09-73008-ast): KennethReynolds, McBreen & Kopko, Jericho, NY.
Trustee (8-09-73008-ast): Kenneth Kirschenbaum, Kirschenbaum & Kirschenbaum,Garden City, NY.
For Westhampton Classic Cars, dba Manhattan Motorcars of the Hamptons, Debtor(8-09-73009-ast): Kenneth Reynolds, McBreen & Kopko, Jericho, NY.
JUDGES: Alan S. Trust, United States Bankruptcy Judge.
OPINION BY: Alan S. Trust
OPINION

DECISION AND ORDER ON MOTIONS TO DISMISS OR CONVERT
   Pending before the Court in the above referenced related chapter 11 cases ofDebtor Westhampton Classic Cars d/b/a Manhattan Motorcars of the Hamptons("Classic Cars") and Debtor Westhampton Coachworks, Ltd. ("Coachworks" andtogether, "Debtors") are the motions (the "Motions") filed by the United StatesTrustee (the "UST") seeking dismissal or, in the alternative, conversion tochapter 7, of these chapter 11 cases. [09-73008 dkt item 110; 09-73009 dkt item86 ] 1 Debtors filed objections to the Motion. This Court conducted a hearing onthe Motions on November 3, 2010 (the "Hearing").
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1References to the docket [dkt item --] are to the associated ECF entries foreach main case.- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
   By its Motions, the UST seeks dismissal or conversion of these cases due toboth Debtors' post-petition losses and inability to reorganize and based oncertain of Debtors' pre- and post-petition transactions. In addition, as toCoachworks, the UST seeks dismissal or conversion due to its failure to paypost-petition taxes. For the reasons herein, this Court grants the Motions andwill convert these cases to chapter 7.
Procedural History
   On April 29, 2009 (the "Petition Date"), Classic Cars and Coachworks eachfiled voluntary petitions under chapter 11 of the Bankruptcy Code. Thereafter,on July 13, 2009, Richard Rubio, the 100% shareholder of Coachworks and 98%shareholder of Classic Cars("Rubio") and his wife, Eileen Rubio, filed a jointvoluntary chapter 11 petition, case number 09-75163-ast. On May 6, 2010, TuscanSun Ristorante, Inc. d/b/a Annona ("Tuscan"), a former tenant of Rubio and whosePresident is Rubio, filed a voluntary chapter 11 petition, case number10-73391-ast.
   The UST has not appointed a Committee of Unsecured Creditors pursuant to 11U.S.C. §1102(a) for either Classic Cars and Coachworks. Throughout the secondhalf of 2009 and throughout 2010, this Court conducted general case statusconferences in the Classic Cars and Coachworks cases, in accordance with Section105(d) of the Bankruptcy Code. See 11 U.S.C. §105(d). On March 9, 2010, thisCourt entered bar date orders in Coachworks [09-73008, dkt item 80] and ClassicCars [09-73009, dkt item 72], establishing May 14, 2010, as the deadline forcreditors to file proofs of claim.
   The UST has also filed motions to convert or dismiss in the Rubio and Tuscancases. On November 29, 2010, this Court issued its decision and Order convertingthe Tuscan case to chapter 7. [10-73391-ast, dkt items 31, 32] The Court willaddress the motion to dismiss or convert filed in the Rubio case by separatedecision and order.
Factual Background
Facts Specific As to Coachworks:
   Coachworks was founded in 1978. Prior to the Petition Date, Coachworksoperated as a body shop and restoration facility, and was one of only four bodyshops in the United States approved to undertake structural damage repairs onRolls Royce automobiles. Coachworks had built a state-of-the art repair shopthat operated in Westhampton Beach, and grew its revenues to $7-8 millionannually. As of the Petition Date, Coachworks operated from premises at 114 OldRiverhead Road, Westhampton, under a sublease from Rubio. The landlord at thepremises is 114 RR, LLC. This lease had been in default for several months priorto the Petition Date.
   Coachworks's Schedules reflect aggregate assets valued at $535,242.38,aggregate secured liabilities of $350,962.27, priority obligations aggregating$23,481.06, and total unsecured debts of $2,270,338.30. [09-73008, dkt item 1]Coachworks's monthly operating reports ("MORs") through August 2010 reflectgross revenues of $4,888,581.08 and losses from the operations of the businessesin the amount of $84,664.41, a negative $4,274.68 in its debtor-in-possessionaccounts, and $429,140.72 owed for trade accounts payable. Coachworks's MORthrough August 2010 also reflects that it, along with Rubio, Classic Cars,Tuscan, and other related entities, have engaged in significant intercompanyloan transactions, both pre-filing and post-filing, without standing loanbalances exceeding $1.5 million. [09-73008, dkt item 109] Coachworks has neithersought nor obtained Court approval for any of the post-filing loan transactions.
   Coachworks's MOR through October 2010 reflects post-petition operatingrevenue of $5,338,869.44, and a net post-petition operating loss of $128,259.59,a negative cash balance of $14,677.25, total assets of $2,403,161.97, and totalliabilities of $3,293,196.30. Coachworks has also incurred professional fees andexpenses post-petition, which are not included in its stated loss. [09-73008,dkt item 115-1]
   By Order entered August 12, 2010, Rubio's landlord, 114 RR obtained stayrelief to exercise its state law rights regarding Coachworks's operatingpremises. [09-73008, dkt item 105]
   Finally, in a Statement of Administrative Taxes filed September 2, 2010[09-73008, dkt item 108], Coachworks acknowledged having accumulated unpaidpost-petition payroll taxes of $211,549.03, and unpaid post-petition sales taxesof $126,212.90.
   Coachworks opposed the UST Motion. In its opposition filed on October 29,2010, Coachworks stated as follows:

        Feasibility of a plan can be established by: (1) DIP loans     convertible to equity sought to be obtained in the aggregate amount of     up to $400,000.00 from individual investors within the next thirty     (30) days; (2) a recovery projected to be between $100,000.00 and     $200,000.00 on Debtor's loss of business insurance policy, and (3)     operating revenues from the Debtor's business which has been severely     hampered since March, 2010 by severe damage caused to the Debtor's     operating premises from the documented nor'easter storm which hit the     east end of Long Island in or about March, 2010.
        The foregoing sources of plan funding will yield more than enough     money to cure all administrative tax obligations incurred by the     Debtor during the pendency of its chapter 11 case and form the     foundation for a confirmable plan of reorganization.

[09-73008, dkt item 113]
   At the Hearing of November 3, 2010, Coachworks repeated its belief that this"white knight" was in the offing, and that an application for DIP financingwould be filed within the same thirty days referenced in its Opposition.However, as of the date of this Order, no such application has been filed.
   As for the projected recovery from a business loss insurance policy,Coachworks has been expressing at status hearings for several months that suchrecovery was in the offing, but to date, no such recovery has materialized, norhas court approval for a settlement related thereto been sought. As for thedamage to the operating premises, that matter has been known to Debtor and beenutilized as a basis for Coachworks's inability to operate profitably throughoutmuch of the case. However, Coachworks has demonstrated that although it hasoperated and generated substantial revenues, it has lost money and hasconsistently failed to comply with its obligations to pay post-petition salesand payroll taxes.
   Thus, Coachworks has demonstrated both an inability to operate profitablypost-petition, and an inability to confirm a plan of reorganization.
Facts Specific As to Classic Cars:
   Classic Cars is in the business of selling new and pre-owned luxuryautomobiles. Classic Cars also operated under the d/b/a of Manhattan Motorcarsof the Hamptons. However, Classic Cars has conducted virtually no businesspost-petition but suffered post-petition losses, thereby demonstrating both aninability to operate profitably post petition and an inability to confirm a planof reorganization.
   Classic Cars's Schedules reflect aggregate assets valued at $364,300.00,aggregate secured liabilities of $255,000.00, priority obligations aggregating$416,265.00, and total unsecured debts of $2,709,173.44. [09-73009, dkt item 1]Since the filing, based on its MOR through August 2010 [dkt item 85], ClassicCars has generated no or de minimus income and sustained losses of $63,268.60,had only $29.00 on deposit in its debtor-in-possession account, and generated$105,925.95 in post-petition accounts payable.
   Classic Cars's MOR through October 2010 reflects $11.00 in its DIP account, apost-petition operating loss of $63,286.60, total assets of $1,606,339.98 andtotal liabilities of $2,570,431.60. Of the stated total assets, the vast bulkstated to be accounts payable or loans receivable or amounts "due to" ClassicCars, of which $480,056.89 is stated as due from "Annona," which is therestaurant name under which Tuscan operated. Classic Cars has also incurredprofessional fees and expenses post-petition, which are not included in itsstated loss. [09-73009, dkt item 90]
   Classic Cars opposed the UST Motion. In its opposition filed on October 29,2010 (the "Opposition"), Classic Cars stated as follows:

        Feasibility of a plan can be established by: (1) the settlement     reached with Lamborghini, a copy of which is being annexed hereto as     Exhibit "A", which will result in a payment to the estate of     $100,000.00; (2) an agreement being negotiated by and between the     Debtor and Nissan of Smithown whereby the Debtor's showroom would be     stocked with more than twenty (20) new Nissan vehicles and/or trade-in     vehicles such that the Debtor would be in a position to begin selling     automobiles within the next thirty (30) days, and (3) approval of a     pending application for floor plan financing in the aggregate amount     of $500,000.00 to enable the Debtor to begin selling new and/or used     luxury automobiles within the next thirty (30) days.
        The foregoing sources of plan funding and the operating revenues     generated thereby will enable the Debtor to confirm a plan of     reorganization within a reasonable amount of time.
        The Debtor's showroom was severely damaged by the winter storm     which occurred in March, 2010 which hampered the Debtor's ability to     sell automobiles and is in the process of being fully repaired within     the immediate future.

[09-73009, dkt item 89]
   At the Hearing of November 3, 2010, Classic Cars repeated its belief that its"white knight" was in the offing, and that an application for floor planfinancing would be filed within the same 30 days referenced in the Opposition.However, Classic Cars has expressed this hope for several months, and, as of thedate of this Order, no such application for floor plan financing has been filed.
   As for the Lamborghini settlement, that agreement was executed in May 2010,and required Court approval by July 16, 2010, absent which the agreement wasvoidable. [09-73009, dkt item 89-1 ¶ 2] To date, Classic Cars has not soughtapproval of the Lamborghini settlement. As for the damage to the Classic Carsshowroom, that matter has been known to Debtor and been utilized as a basis forClassic Cars inability to operate throughout much of the case.
   Thus, Classic Cars has demonstrated both an inability to operate profitablypost-petition, and an inability to confirm a plan of reorganization.
Legal Analysis
Dismissal or Conversion Under Section 1112
   The parties dispute whether cause exists to either dismiss or convert theCoachworks and Classic Cars cases. Therefore, the Court must determine whethercause exists to dismiss or convert and, then if so, whether dismissal orconversion to chapter 7 is in the best interests of the creditors and theestates. 2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2   NeitherDebtor nor the UST asserts that unusual circumstances exist which may bespecifically identified by the Court showing that dismissal or conversion is notin the best interests of creditors and the estate under 11 U.S.C. § 1112(b)(2).- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
   This Court very recently addressed these issues in In re Tuscan SunRistorante, Inc., No.10-73391 (Bankr. E.D.N.Y. Nov. 29, 2010) and In re JudeThaddeus Partners 1, Inc., No. 10-73014, 2010 WL 4496836 (Bankr. E.D.N.Y. 2010).As noted there, Section 1112(b)(1) of the Bankruptcy Code provides as follows:

        Except as provided in paragraph (2) of this subsection, subsection     (c) of this section, and section 1104(a)(3), on request of a party in     interest, and after notice and a hearing, absent unusual circumstances     specifically identified by the court that establish that the requested     conversion or dismissal is not in the best interests of creditors and     the estate, the court shall convert a case under this chapter to a     case under chapter 7 or dismiss a case under this chapter, whichever     is in the best interests of creditors and the estate, if the movant     establishes cause.

11 U.S.C. § 1112 (b)(1); Jude Thaddeus, No. 10-73014, 2010 WL 4496836 at *7. Asalso noted therein, Section 1112(b) provides a nonexhaustive list ofcircumstances constituting cause. See 11U.S.C. § 1112(b)(4); see also Pal FamilyCredit Co., Inc. v. County of Albany et al., 425 B.R. 1, 5 (N.D.N.Y. 2010); Inre Ameribuild Constr. Mgmt., Inc. 399 B.R. 129, 132 (Bankr. S.D.N.Y. 2009)."Because the list of grounds for converting or dismissing a Chapter 11 caseunder §1112(b) is illustrative, not exhaustive, the court may consider othergrounds and use its equitable powers to reach an appropriate result." AdBrite,290 B.R. 209, 217 (Bankr. S.D.N.Y. 2003) (citing C-TC 9th Ave. P'ship, 113 F.3dat 1311).
   Here, as to Classic Cars and Coachworks, the UST asserts cause is establishedunder 11U.S.C. § 1112(b)(4)(A), based upon "(A) substantial or continuing lossto or diminution of the estate and the absence of a reasonable likelihood ofrehabilitation[.]" In addition, as to Coachworks, the UST seeks dismissal orconversion under Section 1112(b)(4)(I), based upon Coachworks's "failure totimely pay taxes owed after the date of the order for relief[.]"
   Section 1112 (b)(1) provides that once cause is established, the case shallbe dismissed or converted unless the Court specifically finds unusualcircumstances specifically identified by the court that establish that therequested conversion or dismissal is not in the best interests of creditors andthe estate. Section 1112(b)(2) places the burden of proof of demonstrating suchspecial circumstances on the debtor. However, the unusual circumstancesexception to dismissal or conversion under Section 1112(b)(2) is inapplicablewhere the movant seeks dismissal or conversion based on the loss and diminutionof estate assets and absence of a reasonable likelihood of rehabilitation underSection 1112(b)(4)(A). See Tuscan Sun, No. 10-73391 (Bankr. E.D.N.Y. Nov. 29,2010); see also In re The 1031 Tax Group, LLC, 374 B.R. 78, 93 (Bankr. S.D.N.Y.2007).
   As to both Coachworks and Classic Cars, this Court finds that cause existsunder Section 1112(b)(4)(A). Both Debtors have had more than adequate time ofover eighteen months to propose a meaningful plan for rehabilitation. Althoughboth Debtors hoped for a 'white knight,' one has not materialized within thetime frames these Debtors expressed.
Coachworks's Failure to Pay Post-petition Taxes
   As noted, Coachworks filings reflect accrued, and unpaid, post-petition taxobligations in the amount $367,502.18 through August 2010. Coachworks MOR forAugust 2010, reflects an aggregate debtor in possession bank balance of anegative $4,274.68. Coachworks's October 2010 MOR reflects post-petition payrolltax liabilities of $285,331.80, and post-petition sales tax liabilities of$183,639.25. [09-73008, dkt item 115-1]. In its Opposition to the UST Motion,Coachworks did not provide a reasonable justification for its failure to paypost-petition taxes or demonstrate that its failure to do so will be curedwithin a reasonable time, as required under Section 1112b(2)(B). Thus, causeexists to dismiss or convert Coachworks under Section 1112(b)(4)(I).
Conversion to Chapter 7
   The UST asserts that these cases should be converted to chapter 7. To obtainconversion, the UST must establish that conversion is in the best interests ofcreditors and the estate. See In re AdBrite Corp., 290 B.R. 209, 215 (Bankr.S.D.N.Y. 2003); see also In re Camden Ordnance Mfg. Co. of Ark., Inc., 245 B.R.794 (Bankr. E.D. Pa. 2000); In re OptInRealBig.com, LLC, 345 B.R. 277, 282(Bankr. D. Colo. 2006); see also In re Warner, 83 B.R. 807 (Bankr. M.D. Fla.1988). 3 In seeking conversion, the UST asserts that a trustee can investigatethe Debtors' business dealings, particularly the inter-company and relatedentities transactions both pre- and post-petition, and liquidate the estate'sassets.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3   Courtshave not hesitated to convert a chapter 11 case to a chapter 7 case when causeexists. See, e.g., In re Milford Conn. Assoc., L.P., 404 B.R. 699 (2d Cir. 2009)(holding that District Court did not err in granting United States Trustee'smotion for conversion to Chapter 7 when the debtor's failure to expeditiouslyadminister the estate established sufficient cause for the conversion); In reHalpern, 229 B.R. 67, 73 (E.D.N.Y. 1999) (finding cause established under 11U.S.C. §1112(b) by debtor's series of motions and bankruptcy filings delayingthe sale of properties by which debtor hoped to benefit from speculativeincrease in equity); In re Photo Promotion Assoc., Inc., 47 B.R. 454 (S.D.N.Y.1985) (finding cause to convert case to Chapter 7 existed when debtor continuedto sustain substantial losses during post-petition period).- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The Test to Dismiss or Convert
   As this Court noted in Jude Thaddeus and Tuscan Sun, courts that haveaddressed Section 1112(b) have not developed a bright-line test to determinewhen conversion or dismissal is in the best interests of creditors and theestate. This Court has employed an analysis based upon a ten-factor test todetermine whether dismissal or conversion is in the best interests of creditorsand the estate:

        1. Whether some creditors received preferential payments, and     whether equality of distribution would be better served by conversion     rather than dismissal;        2. Whether there would be a loss of rights granted in the case if     it were dismissed rather than converted;        3. Whether the debtor would simply file a further case upon     dismissal;        4. The ability of the trustee in a chapter 7 case to reach assets     for the benefit of creditors;        5. Whether conversion or dismissal of the estate would maximize the     estate's value as an economic enterprise;        6. Whether any remaining issues would be better resolved outside     the bankruptcy forum;        7. Whether the estate consists of a "single asset";        8. Whether the debtor had engaged in misconduct and whether     creditors are in need of a chapter 7 case to protect their interests;        9. Whether a plan has been confirmed and whether any property     remains in the estate to be administered; and        10. Whether the appointment of a trustee is desirable to supervise     the estate and address possible environmental and safety concerns.

Collier on Bankruptcy ¶ 1112.04[7]; at 1112-39-1112-40; see also Tuscan Sun, No.10-73391(Bankr. E.D.N.Y. Nov. 29, 2010); Jude Thaddeus, No. 10-73014, 2010 WL4496836 at *9-10.
   In the present cases, a plan has not been confirmed and will not beconfirmed, and no sale of assets has been approved. This Court will consider thefollowing factors in determining whether to convert or dismiss: the known assetsto administer; the impact of dismissal or conversion on creditors; any knownavailable avoidance actions; the position of the United States Trustee; and theCourt's interest in protecting the bankruptcy process.
A. Assets to Administer
   Creditors of these estates would benefit from the appointment of a chapter 7trustee to oversee the liquidation and distribution of the assets, and toinvestigate the related party transactions. 4 Classic Cars should have thebenefit of the Lamborghini settlement, and Coachworks should have the benefit ofthe business loss insurance policy and/or settlement. Further, Coachworks haspersonal property and accounts receivable to liquidate. Classic Cars haspersonal property and possible accounts receivable to liquidate.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4   ThisCourt is not prepared to conclude on this record that Debtors engaged inmisconduct as described under Collier's factor 8.- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
B. Impact of Dismissal or Conversion on Creditors
   In Coachworks, the bar date passed on May 14, 2010. Coachworks scheduled overtwenty-five unsecured creditors with claims exceeding $2.2 million in itsSchedule F. [09-73008, dkt item 1] Thirty-three claims were filed againstCoachworks, some of which may be duplicative, which exceed $2 million in theaggregate. This includes unsecured claims as filed in the aggregate amount of$1,018,846.35.
   In Classic Cars, the bar date also passed on May 14, 2010. Classic Carsscheduled twenty-three unsecured creditors with claims exceeding $2.7 million inits Schedule F. [09-73009, dkt item 1] Fifteen claims were filed against ClassicCars, some of which may be duplicative, which approximate $4 million in theaggregate. This includes unsecured claims as filed in the aggregate amount of$3,365,677.75.
   The creditors in both cases are better served by the centralized collectionand disbursement provided by the bankruptcy process.
C. Avoidance Actions
   As noted, a trustee can investigate the inter-company and related entitiestransactions bothpre- and post-petition, and determine if any avoidance actionsshould be pursued.
D. Position of the United States Trustee
   As noted in Jude Thaddeus and Tuscan Sun, the UST is appointed pursuant toTitle 28, Section 581. 5 28 U.S.C. § 581. Among the statutory functions of theUST is to maintain and supervise a panel of trustees eligible to serve inchapter 7 and 11 cases, and to supervise the administration of cases andtrustees in cases under chapters 7, 11, 12, 13, and 15 of title 11. 28U.S.C. §586(a). Many of the assigned UST functions involve monitoring cases and filingpleadings, or providing comments on a number of facets of bankruptcy matters. Assuch, a certain degree of deference should be given to the position of the UST.This Court certainly gives due weight to the UST's position seeking conversionof these cases.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -5   Thestatute applies to United States Trustees appointed in all federal judicialdistricts except Alabama and North Carolina, which instead have BankruptcyAdministrators. See 28 U.S.C. § 581 Note (3); see alsohttp://www.uscourts.gov/bankruptcycourts/administrators.html.- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
E. The Court's Interest in Protecting the Bankruptcy Process
   The Court must balance the competing benefits the bankruptcy process offersto both debtors and creditors. Debtors sought protection from their creditorsand accepted the benefits of bankruptcy protection for over eighteen months. Nowtheir creditors, the majority of whom are unsecured, are entitled to theprotections afforded by a chapter 7 trustee. Again, utilization of thecentralized forum bankruptcy provides to collect and disburse available assetsis in the best interest of creditors.
The Court Finds that Conversion Is in the Best Interests of Creditors of theEstate
   This Court finds and concludes that each of these estates and theirrespective creditors would benefit from the conversion of these cases to chapter7 and the appointment of a chapter 7 trustee(s). Cf. In re Ameribuild Constr.Mgmt., Inc. 399 B.R. 129, 133-34 (Bankr. S.D.N.Y. 2009)(finding that theappointment of an independent fiduciary to examine transactions between thedebtor and other entities would benefit the creditors of the estate).
Conclusion
   Based on the foregoing, this Court concludes that the best interests ofcreditors and the estates favor conversion of the Coachworks and Classic Carscases to chapter 7. Separate orders hereon shall issue.
   Dated: December 21, 2010
   Central Islip, New York
   /s/ Alan S. Trust
   Alan S. Trust
   United States Bankruptcy Judge