Arnold & Baker Farms, In re
| Decision Date | 07 June 1996 |
| Docket Number | Nos. 95-15305,95-15309,95-15701,s. 95-15305 |
| Citation | 85 F.3d 1415 |
| Parties | , 35 Collier Bankr.Cas.2d 1681, 29 Bankr.Ct.Dec. 223, Bankr. L. Rep. P 76,975, 96 Cal. Daily Op. Serv. 4070, 96 Daily Journal D.A.R. 6608 In re ARNOLD & BAKER FARMS, Debtor. ARNOLD & BAKER FARMS, Appellant, v. UNITED STATES of America, on Behalf of the UNITED STATES FARMERS HOME ADMINISTRATION, Appellee. ARNOLD & BAKER FARMS, and Western Cotton Services Corp., Appellants, v. UNITED STATES of America, on Behalf of the UNITED STATES FARMERS HOME ADMINISTRATION, Appellee. ARNOLD & BAKER FARMS, Appellant, v. UNITED STATES of America, on Behalf of the UNITED STATES FARMERS HOME ADMINISTRATION, Western Cotton Services Corp., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Don A. Beskrone, Davis & Lowe, Phoenix, Arizona, for appellant Arnold & Baker Farms.
Jon S. Musial, Snell & Wilmer, Phoenix, Arizona, for appellant Western Cotton Services Corporation.
Richard G. Patrick, Assistant United States Attorney, Phoenix, Arizona, for appellee.
Appeal from the Ninth Circuit Bankruptcy Appellate Panel, Ashland, Russell, and Meyers, Judges, Presiding. BAP No. AZ-93-01577-AsRMe.
Before: NORRIS and WIGGINS, Circuit Judges, and McKIBBEN, * District Judge.
Debtor Arnold and Baker Farms petitioned for relief under Chapter 11 and filed a plan of reorganization which proposed to satisfy the claims of the creditors by transferring real property to them--colloquially known as a "dirt for debt" plan. When Arnold and Baker's largest creditor, the Farmers Home Administration (FmHA), objected to the plan, Arnold and Baker invoked the "cram down" provision of the Bankruptcy Code, 11 U.S.C. § 1129(b). The question presented is whether the plan's proposal to transfer to FmHA a portion of the collateral securing FmHA's claim will provide FmHA with the "indubitable equivalent" of its secured claim, as required by the "cram down" provision. See 11 U.S.C. § 1129(b)(2)(A)(iii).
We adopt and quote verbatim the statement of facts set forth by the Bankruptcy Appellate Panel at United States v. Arnold and Baker Farms (In re Arnold and Baker Farms), 177 B.R. 648, 652-53 (9th Cir. BAP 1994):
The debtor Arnold and Baker Farms is an Arizona general partnership. The partnership was formed ... for the purpose of farming and the sale and lease of farmland. Arnold and Baker purchased 1120 acres from Philip and Dorothy Ladra in 1975 and an additional 320 acres in 1979.
The Ladras were given a first deed of trust on the property. In 1977, the farm began to experience financial difficulties.
[FmHA] and Western Cotton Services Corporation, a wholly owned subsidiary of Anderson Clayton Company, financed certain crops for the years 1978 through 1981. Additionally, FmHA lent Arnold and Baker sufficient funds to make the annual payments on the installments due to the Ladras in the years 1979, 1980, and 1983. In return, FmHA held a second deed of trust on Arnold and Baker's real property.... Western Cotton held a third deed of trust on Arnold and Baker's real property.
The Ladras ultimately instituted a judicial foreclosure proceeding against Arnold and Baker's real property. Subsequently, in April 1984, the Bakers individually filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. The Ladras obtained relief from the automatic stay and continued their judicial foreclosure proceedings. Arnold and Baker, the partnership, filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in April 1986.
In May 1986, the bankruptcy court approved the sale of two pieces of real property free and clear of liens: 360 acres of real property to Cardon Oil Company and 480 acres to the entity known as the Corks. From the net proceeds of the sale and the payment of annual installments, Arnold and Baker satisfied the secured claim of the Ladras in the amount of $1,650,000. FmHA thereafter held a first priority and Western Cotton held a second priority lien in the property.
Arnold and Baker subsequently formulated two plans based on the income generated from the Cardon and Cork sales which proposed to pay in full the allowed claims of all creditors. The first plan was withdrawn when the Corks defaulted on their note and the other, a revised plan, was withdrawn when Cardon Oil defaulted on its note. With respect to the Corks' default, Arnold and Baker negotiated a settlement pursuant to which the Corks tendered 360 acres to Arnold and Baker in lieu of foreclosure [footnote omitted]. With respect to the Cardon default, Arnold and Baker ultimately purchased the 320 acre parcel at a nonjudicial foreclosure [footnote omitted].
In January 1991, Arnold and Baker filed a second amended plan and disclosure statement. The second amended plan proposed to pay FmHA's $3,837,618 note and Western Cotton's $565,044 note in full. The plan proposed to transfer a proportionate fee simple interest in the 635 acre parcel of real property to FmHA and Western Cotton. FmHA was earmarked to receive 515 acres of real property and Western Cotton was earmarked to receive 77 acres. Arnold and Baker was earmarked to retain ownership of 48 of the 640 acres scheduled for distribution. Arnold and Baker proposed to sell the adjoining 360 acre parcel of real property in order to pay the administrative claims, United States Trustee's fees, attorney fees, accountant fees, postpetition taxes, the real estate commission due and owing to Walter Arnold, and use the remainder to pay the unsecured creditors. Arnold and Baker retained an interest in the property remaining after distribution and sale.
Both FmHA and Western Cotton initially objected to confirmation of Arnold and Baker's second amended plan. However, during the course of the confirmation hearing, Western Cotton reached a settlement with Arnold and Baker pursuant to which Western Cotton agreed to accept 130 acres of real property in full satisfaction of its debt. Western subsequently withdrew its objection to confirmation and voted to accept the plan.
For purposes of the confirmation hearing, the parties stipulated that the second amended plan met all the requirements of [11 U.S.C.] § 1129(a)(1-13) with the exception of subsections (a)(3), (7), and (8). Additionally, FmHA objected to being crammed down pursuant to § 1129(b)(2). The principal factual issue concentrated on the fair market value of Arnold and Baker's 1320 acres of land. Arnold and Baker estimated the per acre value to be $7,322 for the 640 acre lot, $8,300 for the 360 acre lot, and $8,631 for the 320 acre lot. FmHA On May 5, 1993, the bankruptcy court confirmed the plan finding that the property had an estimated value of $7,300 per acre. However, the bankruptcy court modified the transfer to FmHA in the plan by ordering an additional 10% transfer to FmHA in order to compensate it for the costs associated with a sale [resulting in a total of 566.5 acres].
estimated the per acre value for the entire 1320 acres at $1,381.
(End of quote from 177 B.R. at 652-53).
FmHA appealed to the Bankruptcy Appellate Panel ("BAP"), which reversed the bankruptcy court's order confirming the plan. In consolidated appeals, Arnold and Baker and Western Cotton appeal the BAP's reversal.
We first consider the issue of mootness. Appellant Western Cotton 1 argues that the BAP lacked jurisdiction to consider the appeal from the bankruptcy court insofar as the appeal related to the transfer of the 130 acres to Western Cotton, because the transfer was carried out before FmHA obtained a stay of the order confirming the plan. The Bankruptcy Court confirmed the plan on May 5, 1993, and FmHA filed its timely notice of appeal on May 14, one day before the expiration of the automatic stay provided in Bankruptcy Rule 7062. Three days later, on May 17, FmHA filed an emergency motion for a stay of plan confirmation pending appeal. The bankruptcy court held a preliminary hearing on the stay motion on May 20 and issued a temporary stay. However, 36 minutes before that hearing, Arnold and Baker quitclaimed the property to Western Cotton. In a motion for rehearing filed with the BAP, Western Cotton argued that the BAP lacked jurisdiction over the appeal because the appeal was moot as to Western Cotton. 2 The BAP denied the motion. 3
Mootness is a jurisdictional issue which we review de novo. Baker & Drake, Inc. v. Public Serv. Comm'n (In re Baker & Drake, Inc.), 35 F.3d 1348, 1351 (9th Cir.1994). Western Cotton argues that FmHA's failure to obtain a stay until after the property was quitclaimed to Western Cotton rendered the appeal moot because the transfer extinguished or modified rights to the extent that a court would be unable to fashion effective judicial relief if FmHA prevailed on appeal.
However, this case presents neither of the two situations in which a dismissal for mootness is warranted. First, a court can dismiss an appeal as moot "if a party opposing a reorganization plan has failed to obtain a stay pending appeal, and the plan has been carried out to 'substantial [culmination].' " Baker & Drake, 35 F.3d at 1351 (quoting In re Public Serv. Co. (Rochman v. Northeast Utils. Serv. Group), 963 F.2d 469, 473 n. 13 (1st Cir.1992)) (alteration in original). For example, in Trone v. Roberts Farms Inc., (In re Roberts Farms, Inc.), 652 F.2d 793 (9th Cir.1981), the court affirmed a dismissal for mootness of an appeal from an order confirming a plan of reorganization, because "the many intricate and involved transactions" called for by the plan had been "so far implemented that it [was] impossible to fashion effective relief for all concerned." Id. at 797. Here, in contrast, only a single transaction has been carried out. Fashioning effective judicial relief would hardly require "putting Humpty Dumpty together again." Baker & Drake, 35 F.3d at 1352.
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