Lowenschuss, In re
| Decision Date | 10 October 1995 |
| Docket Number | No. 94-16287,94-16287 |
| Citation | 67 F.3d 1394 |
| Parties | , Bankr. L. Rep. P 76,673, 95 Cal. Daily Op. Serv. 7974, 95 Daily Journal D.A.R. 13,674 In re Fred LOWENSCHUSS, Debtor. RESORTS INTERNATIONAL, INC., Appellee, v. Fred LOWENSCHUSS, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alan R. Smith, Smith & Cope, Reno, Nevada, for appellant.
Mitchell A. Karlan, Gibson, Dunn & Crutcher, New York, New York, for appellee.
Appeal from the United States District Court for the District of Nevada.
Before CHOY, CANBY, and FERNANDEZ, Circuit Judges.
Opinion by Judge CHOY; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.
Fred Lowenschuss appeals the district court's reversal of the bankruptcy court's decision. The district court held that the bankruptcy court erred when it (1) refused to allow Resorts International, Inc. ("Resorts") to withdraw its proofs of claim from Lowenschuss's bankruptcy proceedings without prejudice; (2) discharged all claims against the Fred Lowenschuss Associates Pension Plan (the "Pension Plan") when it confirmed Lowenschuss's Chapter 11 reorganization plan (the "Reorganization Plan"); and (3) retained jurisdiction over litigation between Resorts and the Pension Plan regarding an allegedly unauthorized transfer of money in exchange for Resorts stock. We affirm the district court's decision.
In 1970, Lowenschuss established Fred Lowenschuss Associates, a professional corporation, with a Pension Plan for all employees of Fred Lowenschuss Associates. During the time period relevant to this appeal, Lowenschuss has been the trustee, administrator, sponsor, and sole beneficiary of the Pension Plan. 1 The Pension Plan held assets valued in the neighborhood of $8,000,000, which included substantial holdings in Resorts stocks and bonds.
Resorts's complaint
On September 26, 1989, Resorts filed an action against Lowenschuss, individually and as trustee of the Fred Lowenschuss IRA and the Laurance Lowenschuss IRA, in the United States District Court for the Eastern District of Pennsylvania. 2 Resorts claimed that Lowenschuss willfully and intentionally defrauded Resorts of $3,805,200 by tendering shares of Resorts stock for $36 per share when he knew that an appraisal proceeding was pending. Resorts sought to rescind the transaction on the grounds of unilateral mistake, fraud, and illegality of contract. On November 1, 1990, Resorts amended its complaint, adding claims for fraudulent conveyance.
By the time the amended complaint was filed, Resorts had filed for Chapter 11 reorganization in the United States Bankruptcy Court for the District of New Jersey ("New Jersey Bankruptcy Court"). Accordingly, Resorts's action against Lowenschuss was removed to the New Jersey Bankruptcy Court.
On February 9, 1992, the New Jersey Bankruptcy Court denied Lowenschuss's motion for summary judgment and/or dismissal of Resorts's complaint and granted in part Resorts's cross-motion for summary judgment, finding that the transaction between Resorts and Lowenschuss was an illegal contract. The court left the remedies of recision and restitution open for trial.
On June 16, 1992, because the New Jersey Bankruptcy Court could not ascertain the location of the money received in exchange for the allegedly illegally tendered Resorts stock, in order to enjoin the dissipation or transfer of the money, it entered an order which broadly applied to Lowenschuss, both personally and as the representative or trustee of "any fund," including the Fred Lowenschuss IRA, the Laurance Lowenschuss IRA, and the Pension Plan.
On August 24, 1992, Lowenschuss commenced a voluntary Chapter 11 reorganization in the United States Bankruptcy Court for the District of Nevada ("Nevada Bankruptcy Court"). Resorts alleges that it was prepared to try its New Jersey fraud case against Lowenschuss weeks before Lowenschuss filed for Chapter 11. Upon the commencement of Lowenschuss's Chapter 11 bankruptcy in the Nevada Bankruptcy Court, Resorts's action against Lowenschuss in the New Jersey Bankruptcy Court was automatically stayed pursuant to 11 U.S.C. Sec. 362(a).
On March 8, 1993, Lowenschuss filed a Disclosure Statement and a Reorganization Plan. These documents revealed that Lowenschuss's ex-wife, Beverly Selnick, was the largest creditor in Lowenschuss's bankruptcy estate with a claim of $5.3 million. The Disclosure Statement indicated that Resorts's New Jersey action against the Pension Plan was a primary reason for Lowenschuss's Chapter 11 filing and classified the action as litigation affecting the bankruptcy estate.
The Reorganization Plan included a "Global Release" provision, which released numerous parties, including Lowenschuss and the Pension Plan, from all claims upon confirmation of the Reorganization Plan. Furthermore, the Reorganization Plan provided that it was being funded both by Lowenschuss's income from the Pension Plan and by the Pension Plan directly.
On May 25, 1993, Resorts, believing that the transferred money might constitute property of Lowenschuss's bankruptcy estate, asserted itself as the second largest creditor. Resorts filed two proofs of claim, one in an unliquidated amount, and the other in the amount of $3,805,200 plus interest. As the basis for the claims, Resorts annexed copies of its complaint and amended complaint against Lowenschuss. On June 24, 1993, Lowenschuss filed an objection to Resorts's claims on the grounds that (1) the claim has no legal basis because shareholders were permitted to withdraw their claim for appraisal and surrender shares for payment; (2) the claim has no legal basis because Resorts paid no money to Debtor; (3) in Resorts's bankruptcy proceeding, the judge entered a global release which released all shareholders who received $36 a share from all possible claims; (4) Resorts or its designee received full consideration for any payment made by receipt of stock in Resorts; and (5) Resorts received the same payment for stock from the Pension Plan as it did from all other shareholders who tendered stock.
On July 21, 1993, the Nevada Bankruptcy Court ruled that the Pension Plan was exempt from Lowenschuss's bankruptcy estate. In re Lowenschuss, No. BK-N-92-3174-JHT at 3 (Bankr.D.Nev. July 21, 1993) (the "Pension Plan Exemption Order"). 3
On September 17, 1993, Resorts filed an objection to the confirmation of the Reorganization Plan, arguing that the bankruptcy court does not have the power to grant the Global Release Provision because the provision purports to release claims against non-debtors, such as the Pension Plan. At the September 23, 1993 hearing on objections to the proposed plan, the Nevada Bankruptcy Court ruled that the Global Release Provision was improper and held that the Provision could not release non-debtors such as the Pension Plan.
The trial on Resorts's claim against Lowenschuss's bankruptcy estate had been postponed until October 14, 1993. Two weeks before the trial was to take place, Resorts moved to withdraw its proofs of claim from Lowenschuss's bankruptcy proceedings without prejudice and with certain conditions. 4 By this time, Resorts had ascertained that the Pension Plan, which had been exempted from Lowenschuss's bankruptcy estate, held the allegedly illegally transferred funds. And on September 23, 1993, the Nevada Bankruptcy Court had ruled that the Reorganization Plan could not grant general releases to non-debtors like the Pension Plan. In light of these rulings, and because Resorts's complaint was essentially against the Pension Plan, Resorts argued that it would be futile for it to litigate against Lowenschuss's bankruptcy estate and unnecessary for it to continue to assert itself as a creditor in his bankruptcy estate. Resorts sought to withdraw conditionally, such that (1) it could reinstate its proofs of claim if that the Pension Plan Exemption Order were reversed on appeal or the bankruptcy court later consolidated the Pension Plan with the Debtor's estate; and (2) it would remain a party in interest in the case.
A hearing was held on Resorts's motion to withdraw its proofs of claim on October 12, 1993. At the hearing, the Nevada Bankruptcy Court denied Resorts's motion to withdraw conditionally and gave Resorts a choice between withdrawing its claim with prejudice and without conditions or proceeding to litigate its claim against Lowenschuss's bankruptcy estate, as it was then constituted, on the merits. When Resorts hesitated, the court denied the motion to withdraw. Resorts appealed this ruling and moved to stay further proceedings pending the appeal. On October 13, 1993, the Nevada District Court denied Resorts's emergency motion for a stay of further proceedings.
On October 14, 1993, the day the hearing on Resorts's claim was scheduled to begin, Resorts moved to withdraw unconditionally its proofs of claim from Lowenschuss's bankruptcy estate with prejudice. Over Lowenschuss's objections, the Nevada Bankruptcy Court granted the motion.
On October 27, 1993, the confirmation hearing for Lowenschuss's Reorganization Plan was held. Lowenschuss's counsel presented the originally-proposed Reorganization Plan, which included the Global Release Provision that Resorts previously had disputed. Lowenschuss's counsel justified the reintroduction of the original plan by arguing that Resorts was no longer a creditor and its objections should be ignored. When Resorts attempted to protest the confirmation, the Nevada Bankruptcy Court denied Resorts an opportunity to speak, reasoning that Resorts was no longer a party to the bankruptcy.
On October 28, 1993, the Nevada Bankruptcy Court confirmed Lowenschuss's Reorganization Plan, including the Global Release Provision. Furthermore, in the Confirmation Order, the bankruptcy court retained jurisdiction over future litigation between Resorts...
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