In re Council, Bankruptcy No. 86-11299-K.
Decision Date | 02 January 1987 |
Docket Number | Bankruptcy No. 86-11299-K. |
Citation | 70 BR 20 |
Court | U.S. Bankruptcy Court — Western District of Tennessee |
Parties | In re James W. COUNCIL and Jonelle Council, Debtors. |
Lloyd A. Utley, Jackson, Tenn., for debtors.
The instant proceeding came on to be heard on December 18, 1986, upon the motion filed by the above-named debtors seeking an order authorizing them to convert their pending Chapter 11 case to newly created Chapter 12 of the Bankruptcy Code.
On October 31, 1986, the above-named debtors filed an original joint petition under Chapter 11 of the Bankruptcy Code. Debtor, James W. Council, is a self-employed family farmer; and the debtor, Jonnell Council, is employed at Doubleday Distribution Center. Debtors' "Summary Of Debts And Property" reflects liabilities in the approximate amount of $600,000.00 and assets valued in the approximate amount of $742,000.00. No disclosure statement or plan of reorganization has been filed.
On October 27, 1986, the President signed the "Bankruptcy Judges, United States Trustees, and Family Farmer Bankruptcy Act of 1986", Public Law No. 99-554, H.R. 5316 (hereinafter referred to as "1986 Act"). Subtitle B of Title II of the 1986 Act is styled "Debtors Who Are Family Farmers". § 255 of the 1986 Act adds a new operative Chapter, namely Chapter 12 which is styled "Chapter 12 Adjustment Of Debts Of A Family Farmer With Regular Annual Income". New Chapter 12 represents a Congressional response to the increasing economic problems and crises that have confronted family farmers.1 Chapter 12 provides special treatment for "family farmers".2
Provision is made in the 1986 Act for the conversion to Chapter 12 of cases under Chapter 11 or Chapter 13. § 256 of the 1986 Act amends § 1112(d) of the Bankruptcy Code to permit conversion from Chapter 11 to Chapter 12 where such conversion is equitable.3 § 257(v)(2) of the 1986 Act amends § 1307(d) of the Bankruptcy Code to permit conversion from Chapter 13 to Chapter 12. These two amendments, however, do not mention the applicability or effective date of Chapter 12.4
As to Chapter 11 and 13 cases pending upon the enactment of Chapter 12, the "Joint Explanatory Statement Of The Committee Of Conference" provides as follows Conference Report 99-958, pp. 48, 49; also appearing in 132 Cong.Rec. H8999 (daily ed. October 2, 1986):
The general effective date of the 1986 Act with limited exceptions not applicable here is November 26, 1986 — i.e. thirty (30) days after the date of enactment on October 27, 1986. See § 302(a) of the 1986 Act. § 302(c)(1) of the 1986 Act expressly provides, however, that the new Chapter 12 amendments relating to family farmers do not apply to cases commenced before the effective date of the 1986 Act. Specifically, § 302(c)(1) of the 1986 Act provides as follows:
"AMENDMENTS RELATING TO FAMILY FARMERS — (1) The amendments made by subtitle B of Title II shall not apply with respect to cases commenced under Title II of the United States Code before the effective date of this Act."
Thus, a basic question exists as to whether Chapter 11 and 13 cases pending upon the effective date of the family farmer provisions can be converted to Chapter 12. As noted above, the texts of the Joint Conference Report and the 1986 Act provide different results. See United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1280, 6 L.Ed.2d 575 (1961); Edwards v. Valdez, 789 F.2d 1477 (10th Cir.1986).
It is a fundamental rule of statutory construction, which this court cannot ignore, that where no ambiguity appears, the clear and explicit terms of a statute will be conclusively presumed to express the legislative intent and that a plain and unambiguous statute is to be applied, not interpreted. Bankruptcy Service, Current Awareness Alert, Issue No. 7, Nov. 1986, p. 93 citing 73 Am.Jur.2d, Statutes § 194; Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668 (1975); U.S. v. Public Utilities Comm'n, 345 U.S. 295, 315, 73 S.Ct. 706, 717, 97 L.Ed. 1020 (1953).
Collier On Bankruptcy, Special Supplement, regarding the 1986 Act, provides at C-8 as follows:
(emphasis added.)
§ 302 of the 1986 Act is plain, unambiguous, clear and explicit.
CONCLUSIONS
1 Chapter 12 has a sunset provision. It is repealed on October 1, 1993, by virtue of §...
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