Opinion
CASE NO. 09-10675.
January 15, 2010
This Proposed findings of fact and Conclusions of law was prepared and is being submitted by: Robert W. Raley, La. Bar No. 11082, Bossier City, LA, Attorney for Debtor and Debtor-in-Possession.
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING CONFIRMATION OF DEBTOR'S PLAN OF REORGANIZATION
On January 15, 2010, this Court held a hearing to consider confirmation of the Debtor's Third Amended and Restated Plan of Reorganization (the "Plan") filed on December 4, 2009. Appearing on behalf of the Debtor at the hearing was Curtis R. Shelton and Robert W. Raley. All other appearances are reflected in the record.
The Court considered: the Plan; the Debtor's Confirmation Hearing Memorandum filed on January 14, 2010 (the Debtor's "Memorandum"); the Declarations of Chad Garland submitted in support of the Debtor's Memorandum; the Debtor's Third Amended and Restated Disclosure Statement; the testimony of witnesses and the representations of counsel made at the hearing; and the facts and circumstances of this case. Two objections to confirmation of the Plan were timely filed. These objections were filed by Altec Capital Services, LLC and Jalou Corporation d/b/a Cash Magic Truck Plaza and Casino. In accordance with the January 15, 2010 hearing, this Court being fully advised on the premises and good cause appearing therefor, this Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. Denise M. Bankston (the "Debtor") is the debtor and debtor-in-possession in the above-captioned chapter 11 case, having filed a voluntary chapter 11 petition on March 5, 2009.
2. The Debtor's Third Amended Third Amended and Restated Disclosure Statement (the "Disclosure Statement"), referring to the Plan, was approved by the Court pursuant to an order entered on December 4, 2009. In accordance with said order, the Disclosure Statement, together with the Plan, notice of the confirmation hearing regarding the Plan, and the Ballots, were mailed by the Debtor on December 7, 2009, to all creditors and other parties in interest in this case, in full compliance with the Court's order and the requirements of Rule 3017(d) of the Federal Rules of Bankruptcy Procedure.
3. The Court fixed January 7, 2010, as the last day for filing and serving written objections to confirmation of the Plan pursuant to Rule 3020(b)(1) of the Federal Rules of Bankruptcy Procedure. Two objections to confirmation of the Plan were timely filed. These objections were filed by Altec Capital Services, LLC and Jalou Corporation d/b/a Cash Magic Truck Plaza and Casino. The Debtor contends that these objections are unfounded and/or the claimants have no standing to file objections to the Plan.
4. The Court also fixed January 7, 2010, as the last day for the return of ballots to Robert W. Raley, pursuant to Rules 3017(c) and 3018(a) of the Federal Rules of Bankruptcy Procedure. All ballots received were in favor of the Plan. Specifically, of 13 valid votes timely received, 13 were in favor of the Plan. The classes under the Plan entitled to vote were Class 1 (Secured Claim), 3 (General Unsecured Claims not disputed), and 4 (General Unsecured Claims which the debtor is a guarantor or co-obligor). Of the members of Class 3 voting on the Plan, 12 creditors asserting claims in the approximate amount of $7,737,6229.65, voted in favor of the Plan. No Class 3 member voted to reject the Plan. Of the members of Class 4 voting on the Plan, 1 creditor asserting a claim in the approximate amount of $2,251,255.04, voted in favor of the Plan. No Class 4 member voted to reject the Plan.
One creditor, Altec Capital Services, voted to reject the plan. However, Altec Capital Services is a creditor in Class 5, and that class has no voting rights.
5. On the effective date, the Denise M. Bankston Distribution Trust shall receive the following assets: the sum of $21,080,341.00 which shall remain of the $30 million from the amounts paid to the Debtor from the Sisters Settlement after subtracting the amounts ($8,330,659.00) paid by the Debtor prior to the Effective Date as allowed by an the orders of the Bankruptcy Court entered on December 31, 2009 (See Order, Docket Number 932), and the amount ($589,000.00) to be paid by the Debtor to Jalou based upon the settlement made with that creditor; any and all amounts payable to the Debtor and all rights of the Debtor pursuant to the proof of claim filed by the Debtor in the Premier Aggregates, LLC bankruptcy case; all claims, rights or causes of action and Litigation Actions and Rights against Jack Singleton and Capital Aggregates, LLC, provided that such claims, rights, or causes of action and Litigation Actions and Rights shall first be applied as a setoff to reduce any Allowed Claim of Jack Singleton and/or Capital Aggregates, LLC; all claims, rights or causes of action and Litigation Actions and Rights against Hess Management Firm, L.L.C. and/or Hess Construction Company, L.L.C., provided that such claims, rights, or causes of action and Litigation Actions and Rights shall first be applied as a setoff to reduce any Allowed Claim of Hess Management Firm, L.L.C. and/or Hess Construction Company, L.L.C.; all claims, rights or causes of action and Litigation Actions and Rights against R. Patrick Vance, Trustee for the Estate of Premier Aggregates, LLC, provided that such claims, rights, or causes of action and Litigation Actions and Rights shall first be applied as a setoff to reduce any Allowed Claim of R. Patrick Vance, Trustee for the Estate of Premier Aggregates, LLC; and all claims, rights or causes of action which the Debtor or the Estate may have against Julio E. Rios and Shuey Smith, LLC.
6. The balance of the proceeds from the sale of the Debtor's interest in the "Three Sisters Properties" $21,669,341.00 shall be transferred to the Denise M. Bankston Distribution Trust to pay allowed claims pursuant to the provisions of the Plan. The sum represents more than sufficient funds to pay, pursuant to the plan, the balance on all allowed claims and to provide a reserve for payment of any Class 5 claims in their estimated amount or in any greater amount that might be finally allowed in that might be in excess of the § 502 estimation.
7. Each holder of an allowed claim will receive under the Plan on account of such claim property of a value, as of the effective date of the Plan, that is not less than the amount such holder would so receive or retain if the Debtor were liquidated under chapter 7 of title 11 on such date. Pursuant to the Acquisition, the assets of the Debtor have already been liquidated. The Plan is a feasible, efficient and economical means of distributing the proceeds of the Acquisition.
8. To the extent that any of the below conclusions of law may be considered findings of fact, the same are incorporated by reference as though fully set forth as findings of fact.
CONCLUSIONS OF LAW
1. To the extent that any of the above findings of fact may be considered to constitute conclusions of law, the same are incorporated by reference as though fully set forth as conclusions of law.
2. Pursuant to 28 U.S.C. § 1334 of the Bankruptcy Amendments and Federal Judgeship Act of 1984, jurisdiction of the above-captioned chapter 11 case is vested in the United States District Court for the Western District of Louisiana, Shreveport Division. The United States District Court has referred, pursuant to 28 U.S.C. § 157(a), all cases under title 11 and any and all proceedings arising under title 11 or arising in or related to a case under title 11 to the bankruptcy judges of the district. This case having been so appropriately referred to the bankruptcy court grants the above-entitled court jurisdiction to make and enter an appropriate and final order of confirmation of the Plan pursuant to 28 U.S.C. § 157(b)(1) and (b)(2)(L).
3. Notice of the hearing on confirmation of the Plan was proper and appropriate as was notice of the deadlines for filing objections to the Plan and for the submission of Ballots with respect to the Plan.
4. The Plan divides the claims of creditors and interest holders into five (5) classes. Only classes of creditors and interest holders with claims or interests impaired under a plan of reorganization are entitled to vote on a plan. The Class of creditors not impaired under the Plan is Class 5. Class 1, 2, 3 and 4 are impaired under the Plan and the members of Classes 1, 3, and 4 are impaired classes entitled to vote to accept or reject the Plan. Members of Class 2 were not entitled to vote because the claim is held by an insider. In accordance with an order of the Court entered on December 4, 2009, in order to be counted, Ballots with respect to the Plan completed by members of Classes 1, 3, and 4 had to be received by Robert W. Raley no later than January 7, 2010.
5. Under section 1126(c) of the Bankruptcy Code ( 11 U.S.C. § 1126(c)) an impaired class of claims is deemed to have accepted the Plan if class members holding at least two-thirds (2/3) in amount and more than one-half (1/2) in number of all allowed claims of class members actually voting have voted in favor of the Plan. Under section 1126(d) of the Bankruptcy Code ( 11 U.S.C. § 1126(d)), an impaired class of interests is deemed to have accepted the Plan if class members holding at least two-thirds (2/3) in amount of the allowed interests of class members actually voting have voted in favor of the Plan.
6. In this case, the requirements of section 1126 of the Bankruptcy Code have been satisfied. All creditors entitled to vote, timely voting on the Plan have voted in favor of the Plan. Creditors holding an asserted sum of $9,988,884.69 in claims against the estate have voted in favor of the Plan.
One creditor, Altec Capital Services, voted to reject the plan. However, Altec Capital Services is a creditor in Class 5, and Class 5 does not have voting rights.
7. Bankruptcy Code section 1129 contains the standards for confirmation of a plan under chapter 11. 11 U.S.C. § 1129; see In re Sound Radio, Inc., 93 B.R. 849, 852 (Bankr. D.N.J. 1988); In re Texaco Inc., 84 B.R. 893, 905 (Bankr. S.D.N.Y. 1988).
8. When a plan of reorganization satisfies each of the requirements contained in section 1129(a), the court shall confirm the plan without considering section 1129(b). See 11 U.S.C. §§ 1129(a) and (b); In re Texaco Inc., 84 B.R. at 910. Specifically, section 1129(b) only applies if a class whose claims or interests are impaired does not accept the plan as required by section 1129(a)(8). 7 Collier on Bankruptcy, ¶ 1129.03[8], p. 1129-54 (Matthew Bender 15th Ed. Revised). Moreover, a plan of reorganization need only satisfy the requirements of section 1129(b) with respect to classes that voted against the plan. In re Johns-Manville Corp., 843 F.2d at 650. In this case, Class 3 and Class 4 voted in favor of the Plan. Class 1 was entitled to vote, but did not vote. Therefore, the plan was not affirmatively accepted by Class 1.
9. Bankruptcy Code section 1129(a)(1) permits the court to confirm a plan only if the plan complies with the applicable provisions of title 11, United States Code (the Bankruptcy Code). 11 U.S.C. § 1129(a)(1); see Kane v. Johns-Manville Corp., 843 F.2d at 648-49; In re Texaco Inc., 84 B.R. 903, 905; In re Toy Sports Warehouse, Inc., 37 B.R. 141, 149 (Bankr. S.D.N.Y. 1984). Bankruptcy Code sections 1122 and 1123. See Kane v. Johns-Manville Corp., 843 F.2d at 648-49; In re Texaco Inc., 84 B.R. 903, 905; In re Toy Sports Warehouse, Inc., 37 B.R. 141, 149 (Bankr. S.D.N.Y. 1984); 5 Collier on Bankruptcy, ¶ 1129.02, p. 1129-19 (15th Ed. 1993). Section 1122 governs classification of claims and interests and section 1123 sets forth the provisions that are required to be included, and those that may be included, in a plan of reorganization. 11 U.S.C. §§ 1122 and 1123.
10. Bankruptcy Code section 1123(a)(1) requires that a plan designate, subject to Bankruptcy Code section 1122, classes of claims, other than claims of kind specified in sections 507(a)(2) (administrative expenses), 507(a)(3) (involuntary case gap claims), or 507(a)(8) (certain unsecured tax claims) and classes of interests. 11 U.S.C. § 1123(a)(1). In designating Classes 1 through 5 in Article III of the Plan, the Debtor has satisfied the requirement of 11 U.S.C. § 1123(a)(1).
11. It is not clear from the language of the statute nor from its legislative history whether Bankruptcy Code section 1123(a)(1) prohibits the classification of Bankruptcy Code section 507(a)(2), (a)(3) and (a)(8) claims or merely makes such classification permissive. The court in In re Sullivan, 26 B.R. 677, 678 (Bankr. W.D.N.Y. 1982), held that classification of such claims was prohibited. The reason that it is unnecessary to classify such claims is that a majority of a class composed of creditors holding such priority claims cannot bind the minority to a treatment at variance with Bankruptcy Code section 1129(a)(9). See discussion of section 1129(a)(9), infra. In the Plan, the Debtor has appropriately not sought to classify section 507(a)(2) and (8) priority claims. Article II of the Plan sets forth the treatment of "Administrative Expenses and Unclassified Claims". The designation of such claims under the Plan is in accordance with section 1123(a)(1).
12. Bankruptcy Code section 1122(a) does not require that similar claims necessarily be placed in the same class. 11 U.S.C. § 1122(a); see Hanson v. First Bank of South Dakota, N.A., 828 F.2d 1310, 1313 (8th Cir. 1987); Matter of Jersey City Medical Center, 817 F.2d 1055, 1061 (3rd Cir. 1987); Teamsters Nat'l Freight Industry Negotiating Committee v. U.S. Truck Co. (In re U.S. Truck Co.), 800 F.2d 581, 584-87 (6th Cir. 1986); In re Meadow Glen, Ltd., 87 B.R. 421, 424-26 (Bankr. W.D. Tex. 1988); In re Texaco Inc., 84 B.R. 893, 905; In re Ag Consultants Grain Div., Inc., 77 B.R. 665, 671-675 (Bankr. N.D. Ind. 1987). Congress intended to afford bankruptcy judges' broad discretion to decide the propriety of plans in light of the facts of each case. See In re U.S. Truck Co., Inc., 800 F.2d 581, 584-86 (6th Cir. 1986) (discussing the legislative history of section 1122). Moreover, Congress intended that the proponent of a plan have flexibility in classifying claims. See 7 Collier on Bankruptcy, ¶ 1122.04, p. 1122-27-30 (Matthew Bender 15th Ed. Revised).
13. Article III of the Plan, designating classes of claims and interests under the Plan, places only claims or interests in each particular class that are substantially similar to the other claims or interests in the class. The Plan therefore complies with section 1122(a). See In re Texaco Inc., 84 B.R. 893, 905.
14. Bankruptcy Code section 1123 describes mandatory and permissive plan provisions. 11 U.S.C. § 1123. Section 1123(a) sets forth required provisions of a plan. 11 U.S.C. § 1123(a). Section 1123(b) suggests certain discretionary plan provisions. 11 U.S.C. § 1123(b).
15. Bankruptcy Code section 1123(a)(1) states that a plan must designate, subject to Bankruptcy Code section 1122, classes of claims, other than claims for administrative expenses (section 507(a)(2)), gap claims in involuntary cases (section 507(a)(3)), and certain unsecured tax claims (section 507(a)(8)), and classes of interests. The Plan, in Article III, designates classes of claims and interests in accordance with section 1122. Thus, the Plan complies with section 1123(a)(1). See In re Texaco Inc., 84 B.R. 893, 905.
16. Bankruptcy Code section 1123(a)(2) requires that a plan specify any class of claims or interests that is not impaired under the plan. 11 U.S.C. § 1123(a)(2). In Article IV of the Plan, the Debtor meets this requirement by specifying the Classes that are not impaired under the Plan. See In re Texaco Inc., 84 B.R. 893, 905. Class 5 is not impaired under the Plan. The treatment of the holders of allowed claims in this unimpaired classes is set forth in Article IV of the Plan.
17. Section 1124 sets forth three ways by which a claim can be left unimpaired under a plan. 11 U.S.C. § 1124. In section 1124, Congress defined impairment in broad terms and then carved out three narrow exceptions to that expansive definition. In re Madison Hotel Associates, 749 F.2d 410, 418 (7th Cir. 1984), citing In re Taddeo, 685 F.2d 24, 28 (2nd Cir. 1982); In re American Solar King Corp., 90 B.R. 808, 819 (Bankr. W.D. Tex. 1988). The three exceptions are important because, under subsection 1126(f), a class that is not impaired under a plan is deemed to have accepted the plan. 11 U.S.C. § 1126(f). Class 5 is not impaired. One of the three exceptions to impairment is applied in the Plan.
18. Under one of these exceptions to impairment, as provided in Bankruptcy Code section 1124(1), if, on the effective date, the holder of a claim receives cash equal to the allowed amount of such claim, the creditor is unimpaired. 11 U.S.C. § 1124(1). Under the Plan, Allowed Claims in Class 5 will be paid in full in cash with interest on or before the Effective Date. Thus, claims in Class 5 are unimpaired by the Plan.
19. Bankruptcy Code section 1123(a)(3) requires that a plan specify the treatment of any class of claims or interests that is impaired under the Plan. 11 U.S.C. § 1123(a)(3). As discussed above, with the exception of claims falling within Bankruptcy Code sections 507(a)(2), (a)(3) and (a)(8), every claim in a chapter 11 case must be placed in a class and every class must be designated as impaired or unimpaired. See 11 U.S.C. §§ 1123(a)(1) and (a)(2). The Plan satisfies these requirements. Class 1, Class 2, Class 3, and Class 4 are impaired under the Plan. If a class is impaired, section 1123(a)(3) requires that the Plan specify how the class is to be treated. Article IV of the Plan specifies the treatment of classes of claims and interests that are impaired under the Plan. The discussion of the treatment of classes under the Plan contained in Article IV satisfies the requirement of 11 U.S.C. § 1123(a)(3). See In re Texaco Inc., 84 B.R. at 905.
20. Bankruptcy Code section 1123(a)(4) requires that a plan provide the same treatment for each claim or interest of a particular class, unless the holder of a particular claim or interest agrees to a less favorable treatment. 11 U.S.C. § 1123(a)(4). Thus, once a plan has classified creditors, it must provide the same treatment for each claim or interest of a particular class, unless the holder agrees to less favorable treatment. See Acequia, Inc. v. Clinton ( In re Acequia, Inc.), 787 F.2d 1352, 1362-63 (9th Cir. 1986). However, section 1123(a)(4) only requires equality of treatment of claims or interests placed in the same class. In re Acequia, Inc., 787 F.2d at 763; In re Jersey City Medical Center, 817 F.2d 1055, 1061. The Plan provides for the same treatment for each claim or interest of a particular class. Thus, the Plan complies with 11 U.S.C. § 1123(a)(4). See In re Texaco Inc., 84 B.R. 893, 905.
21. Bankruptcy Code section 1123(a)(5) requires that a plan provide adequate means for the plan's implementation and provides a number of examples of methods for doing so. 11. U.S.C. § 1123(a)(5); see In re Texaco Inc., 84 B.R. 893, 905. The alternatives set forth in section 1123(a)(5) may be proposed by a plan proponent notwithstanding non-bankruptcy law or agreements. 7 Collier on Bankruptcy, ¶ 1123.01[5], p. 1123-10 (Matthew Bender 15th Ed. Revised). The examples of adequate means for implementation of a plan provided in section 1123(a)(5) are illustrative and the section does not exclude or limit any other means. Id.
22. Article V of the Plan provides adequate means for the Plan's implementation, including the transfer of proceeds from a court approved sale of assets of the estate to the Denise M. Bankston Distribution Trust and provisions for distribution contained in the Plan and Trust Agreement as suggested by 11 U.S.C. § 1123(a)(5)(B).
23. Bankruptcy Code section 1123(a)(6) requires that a plan provide for the inclusion in the charter of the debtor, if the debtor is a corporation, of a provision prohibiting the issuance of nonvoting equity securities, and providing, as to the several classes of securities possessing voting power an appropriate distribution of such power among such classes, including, in the case of any class of equity securities having a preference over another class of equity securities with respect to dividends, adequate provisions for the election of directors representing such preferred class in the event of default and the payment of such dividends. 11 U.S.C. § 1123(a)(6). The debtor is an individual, therefore the provisions of 11 U.S.C. § 1123(a)(6) do not apply.
24. Bankruptcy Code section 1123(a)(7) states that a plan shall contain only provisions that are consistent with the interests of creditors and equity security holders and with public policy with respect, to the manner of selection of any officer, director, or trustee under the plan and any successor to such officer, director or trustee. 11 U.S.C. § 1123(a)(7). Bankruptcy Code sections 1123(a)(6) and 1123(a)(7) has limited application in this case where there is no corporate debtor. The Plan does not implicate any issues with regard to the selection of any officer or director. The Plan does, however, provide for the establishment of the Denise M. Bankston Distribution Trust and appointment of the Denise M. Bankston Trustee. Those provisions in the Plan regarding the establishment of the Denise M. Bankston Distribution Trust and the appointment of the Denise M. Bankston Trustee meet the requirements of 1123(a)(6) and 1123(a)(7).
25. Bankruptcy Code section 1123(a)(7) is not applicable in this case insofar as this case does not involve a corporate debtor and the Plan does not implicate any issues with regard to the selection of any officer, director, or trustee. Although the term "trustee" is used in this section in a different context, the provisions in the Plan regarding the establishment of the Denise M. Bankston Distribution Trust and the appointment of the Denise M. Bankston Trustee meet the requirements of 1123(a)(6) and 1123(a)(7). There are no other provisions in the Plan regarding such selection and thus there are no provisions inconsistent in that regard in the interests of creditors and equity security holders with public policy. The Plan complies with section 1123(a)(7). See In re Texaco Inc., 84 B.R. 893, 906.
26. Section 1123(b) suggests certain permissive plan provisions. 11 U.S.C. § 1123(b); see In re Texaco Inc., 84 B.R. at 906. Several of these discretionary provisions are contained in the Plan. For example, the Plan, includes a number of provisions set forth in 11 U.S.C. § 1123(b), such as impairment of claims, provisions for the settlement and/or adjustment of claims, distribution from the proceeds of an approved sale of property of the estate, and creation of the Denise M. Bankston Distribution Trust.
27. Section 1123(b)(5) also permits a plan to contain any other appropriate provision not inconsistent with the applicable provisions of this title. 11 U.S.C. § 1123(b)(5); see In re Texaco Inc., 84 B.R. 893, 906. The Plan does not contain any provision that is inconsistent with the applicable provisions of the Bankruptcy Code.
28. Section 1123(b)(5) also permits a plan to contain "any other appropriate provision not inconsistent with the applicable provisions of this title." 11 U.S.C. § 1123(b)(5); see In re Texaco Inc., 84 B.R. at 906. The Plan does not contain any provision that is inconsistent with the applicable provisions of the Bankruptcy Code.
29. Bankruptcy Code section 1129(a)(2) states that the court shall confirm a plan only if the proponent of the plan complies with the applicable provisions of the Bankruptcy Code. 11 U.S.C. § 1129(a)(2). The principal purpose of section 1129(a)(2) is to require, as a condition of confirmation, that the court ascertain whether the proponent of the plan under consideration has complied with the requirements of section 1125 in the solicitation of acceptances of the plan. See In re Texaco Inc., 84 B.R. 893, 906-907, citing In re Toy Sports Warehouse, Inc., 37 B.R. 141, 149 (Bankr. S.D.N.Y. 1984). Under section 1125, a postpetition solicitation of votes on a plan is improper unless the court has approved a written disclosure statement filed with the plan. See In re Media Scent., Inc., 89 B.R. 685, 688 (Bankr. E.D. Tenn. 1988). The primary purpose of a disclosure statement is to give creditors and interest holders the information they need to decide whether to accept the plan. In re Alonnier Brothers, 755 F.2d 1336, 1342 (8th Cir. 1985). A disclosure statement need not comply with the disclosure standards of the federal securities laws. Kirk v. Texaco, Inc., 82 B.R. 678, 681 (S.D.N.Y. 1988). Bankruptcy judges have broad discretion in reviewing disclosure statements and what constitutes adequate information and any particular instance will develop on a case-by-case basis. See Kirk, 82 B.R. 678, 682; In re Monnier Brothers, 755 F.2d 1336, 1342.
30. The court approved the Disclosure Statement, finding that it contained adequate information. Thereafter, the Debtor timely mailed the Disclosure Statement and the Plan in accordance with the court's order approving the Disclosure Statement. The Debtor has complied with all other applicable provisions of title 11 and, therefore, has satisfied the requirement of section 1129(a)(2).
31. Bankruptcy Code section 1129(a)(3) requires that a plan be proposed in good faith and not by any means forbidden by law. 11 U.S.C. § 1129(a)(3); See Kane v. Johns-Manville Corp., 843 F.2d at 649; Hanson v. First Bank of South Dakota, N.A., 828 F.2d 1310, 1315; In re Sound Radio, Inc., 93 B.R. 849, 853 (Bankr. D.N.J. 1988); In re Texaco Inc., 84 B.R. 893, 907; and In re Future Energy Corp., 83 B.R. 470, 486 (Bankr. S.D. Ohio 1988). This requirement is to be read restrictively. In re Victory Construction Co., 42 B.R. 145, 149 (Bankr. C.D. Cal. 1984). The term good faith is not specifically defined in the Code. See Hanson v. First Bank of South Dakota, N.A., 828 F.2d 1310, 1315; In re Madison Hotel Associates, 749 F.2d at 424; In re Texaco Inc., 84 B.R. at 907; and In re Future Energy Corp., 83 B.R. at 486. However, in the context of section 1129(a)(3), some courts have interpreted "good faith" to mean that there exists a reasonable likelihood that the plan will achieve a result consistent with the objectives and purposes of the Bankruptcy Code. In re Nite Lite Inns, 17 B.R. 367, 370 (S.D. Cal. 1982); see Hanson v. First Bank of South Dakota, N.A., 828 F.2d at 315; In re Madison Hotel Associates, 749 F.2d at 425; In re Costal Cable TV., Inc., 709 F.2d 762, 764 (1st Cir. 1983); In re Sound Radio, Inc., 84 B.R. at 853; In re Texaco Inc., 84 B.R. at 907; In re Future Energy Corp., 83 B.R. 470, 486 (Bankr. S.D. Ohio 1988). Other courts have held that the good-faith test of section 1129(a)(3) requires that "the plan was proposed with honesty and good intentions and with a basis for expecting a reorganization can be effected." Koebel v. Glessing, 751 F.2d 137, 139 (2nd Cir. 1984), quoting Manati Sugar Co. v. Mock, 75 F.2d 284, 285 (2nd Cir. 1935); see Kane v. Johns-Manville Corp., 843 F.2d at 649. The court's determination of the "good faith" proposal of a plan under section 1129(a)(3) must be made in light of "the totality of the circumstances surrounding confection" of the plan. In re Jasik, 727 F.2d 1379, 1383 (5th Cir. 1984), citing Public Finance Corp. v. Freeman, 712 F.2d 219, 221 (5th Cir. 1983); see In re Madison Hotel Associates, 749 F.2d at 425; In re Sound Radio, Inc., 93 B.R. 849, 853; In re Texaco Inc., 84 B.R. 893, 907; and In re Future Energy Corp., 83 B.R. 470, 486. Because no timely objection to the Plan raising section 1129(a)(3) has been filed, the Court may determine that the Plan has been proposed in good faith and not by any means forbidden by law without receiving evidence on such issues. See Rule 3020(b)(2) of the Federal Rules of Bankruptcy Procedure.
32. The proposal of the Plan is consistent with the objectives and purposes of the Bankruptcy Code and was made with honesty and good intentions and with a basis for expecting that, under the circumstances, it was the best means for maximizing any recovery by creditors of the Debtor. Therefore, the Plan has been proposed in good faith, not by any means forbidden by law, and complies with section 1129(a)(3).
33. Bankruptcy Code section 1129(a)(4) requires that any payment made or to be made by the proponent, the debtor, or by a person issuing securities, or acquiring property under the plan, for services or for costs and expenses in connection with the case, or in connection with the plan and incident to the case, has been approved by, or is subject to the approval of the court, as reasonable. 11 U.S.C. § 1129(a)(4); see In re Texaco Inc., 84 B.R. 893, 907-908; In re Future Energy Corp., 83 B.R. 470, 487-488; 7 Collier on Bankruptcy, ¶ 1129.03[4], p. 1129-38-39 (Matthew Bender 15th Ed. Revised). The Plan establishes procedures for application, approval, and payment of these claims. Said procedure for review and ultimate determination by the court of the professional fees and expenses to be paid by the Debtor satisfies the requirement of section 1129(a)(4). See In re Sound Radio, Inc., 93 B.R. at 854; In re Texaco Inc., 84 B.R. at 908; In re Future Energy Corp., 83 B.R. at 488." Court approval of payments for services and expenses is governed by various Code provisions — e.g., §§ 328, 329, 330, 331 and 503(b) — and need not be explicitly provided for in a Chapter 11 plan." In re Future Energy Corp., 83 B.R. at 488. Thus, the Plan complies with section 1129(a)(4).
34. Bankruptcy Code section 1129(a)(5)(A) requires the proponents of a plan to disclose the identity and affiliations of any individual proposed to serve after confirmation as a director, officer or voting trustee of the debtor, an affiliate of the debtor participating in a joint plan with the debtor, or a successor of the debtor under the plan, and requires. the appointment or continuance of such individual to be consistent with the interest of creditors and equity security holders and with public policy. 11 U.S.C. § 1129(a)(5); see In re Texaco Inc., 84 B.R. 893, 908. This section augments section 1123(a)(7). Section 1129(a)(5)(A) is not applicable. In this case there are not any individuals proposed to serve after confirmation as a director, officer or voting trustee of the Debtor, and there are no affiliates of the Debtor participating in the Plan. Therefore, the requirements of section 1129(a)(5)(A), to the extent applicable, have been satisfied. See In re Texaco Inc., 84 B.R. 893, 908. The Denise M. Bankston Distribution Trust will be formed on the effective date.
35. Section 1129(a)(5)(B) requires the proponent of the plan to disclose the identity of any insider that will be employed or retained by the reorganized debtor, and the nature of any compensation for such insider. See In re Texaco Inc., 84 B.R. at 910. The term insider is defined in section 101(31). See 11 U.S.C. § 101(31). The only party that is to be employed or retained by the Debtor will actually be the Denise M. Bankston Distribution Trustee, Chad Garland, who is NOT an insider. Therefore, section 1129(a)(5)(B) is either not applicable, or is satisfied.
36. Section 1129(a)(6) requires as a condition precedent to confirmation that any governmental regulatory entity with jurisdiction, after confirmation of the plan, over the rates of the debtor has approved any rate change provided for in the plan, or such rate change is expressly conditioned on such approval. 11 U.S.C. § 1129(a)(6). The Plan does not provide any rate change. Thus, section 1129(a)(6) does not apply. See In re Sound Radio, Inc., 93 B.R. 849, 854; In re Texaco Inc., 84 B.R. 893, 908.
37. Bankruptcy Code section 1129(a)(7) sets forth the "best interest of creditors" test. 11 U.S.C. § 1129(a)(7); see Kane v. Johns-Manville Corp., 843 F.2d 640, 649; In re Texaco Inc., 84 B.K. 893, 908-909; In re Victory Construction Co., Inc., 42 B.R. 145, 151; In re Toy Sports Warehouse, Inc., 37 B.R. 141, 150. Subsection 1129(a)(7) provides that with respect to each impaired class of claims or interests, each holder of a claim or interest of such class has accepted the Plan or will receive or retain under the Plan property of a value, as of the Effective Date, not less than the amount that such holder would receive or retain if the Debtor were liquidated under chapter 7 on such date. 11 U.S.C. § 1129(a)(7).
38. In this case, each holder of a claim or interest entitled to vote that actually vote accepted the plan. Moreover, proceeds of the approved sale of the Three Sisters Property for $30 million is now property of the estate available for transfer to the Denise M. Bankston Distribution Trust. Section 502(c) provides the process for the estimation of unliquidated claims. As a result of that process, the $30 million is sufficient for any potential payment of an "estimated claim" for plan confirmation purposes. There will be payment of all allowed claims. The Plan provides for the most efficient and economical means of distribution of the proceeds. Conversion of this chapter 11 case to a chapter 7 liquidation case would result in additional delay and expense and would reopen the bar date for filing claims. This would diminish the assets available for distribution to creditors. Accordingly, under the Plan, any recovery by creditors would not be exceeded by that which would occur in a chapter 7 liquidation. Therefore, the Plan satisfies the "best interest of creditors" test of 11 U.S.C. § 1129(a)(7).
39. Section 1129(a)(8) requires that each class of claims or interests either accepts the plan or is not impaired under the plan. 11 U.S.C. § 1129(a)(8); see In re Texaco Inc., 84 B.R. 893, 909.
40. Whether a class has accepted the plan is determined by reference to section 1126. 11 U.S.C. § 1126. Under section 1126(f) any class which is not impaired under the plan is conclusively presumed to have accepted the plan. 11 U.S.C. § 1126(f); See In re Victory Const. Co., Inc., 42 B.R. 145, 152 (Bankr. C.D. Cal. 1984).
41. Because the Plan does not impair Class 5, that class is deemed to have accepted the Plan. See 11 U.S.C. § 1126(f). Classes 1, 2, 3, and 4 are impaired under the Plan. Accordingly, the holders of allowed claims in Classes 1, 3, and 4 were entitled to vote on the Plan. As set forth above, the members of Class 1 failed to vote. Class 3 and Class 4 voted unanimously to accept the Plan. Therefore, it is necessary that the court consider the requirements of section 1129(b) with respect to the Plan.
Class 2 is not allowed to vote because the claim is held by an insider.
42. Bankruptcy Code section 1129(a)(9) states the rules applicable to payment of those unsecured claims entitled to priority in distribution in chapter 11 cases. 11 U.S.C. § 1129(a)(9). With respect to priority claims of the kind specified in Bankruptcy Code section 507(a)(2), (3), or (8), 11 U.S.C. § 1129(a)(9) constitutes the only essential confirmation requirement, since there is no reason to create a class or classes for section 507(a)(3) and (8) claims in light of the fact that a majority of such classes cannot bind a minority to less favorable payment terns than those provided under section 1129(a)(9). See 7 Collier on Bankruptcy, ¶ 1129.03[9], p. 1129-55-60 (Matthew Bender 15th Ed. Revised). Unless the holder of such a priority claim agrees to less favorable treatment of its claim, section 1129(a)(9) requires the payment of second (section 507(a)(2)) and third (section 507(a)(3)) priority claims in full in cash on the effective date of the plan. 11 U.S.C. § 1129(a)(9)(A). Article II of the Plan provides for appropriate treatment of section 507(a)(2) claims in compliance with section 1129(a)(9)(A). There are no section 507(a)(3) claims.
43. Section 1129(a)(9)(B) requires that holders of section 507(a)(1), (4), (5), (6) or (7) priority claims receive: (i) if such class has accepted the plan, deferred cash payments of a value, as of the effective date of the plan, equal to the allowed amount of such claim; or (ii) if such class has not accepted the plan, cash on the effective date of the plan equal to the allowed amount of such claim. 11 U.S.C. § 1129(a)(B). The Debtor does not believe that any allowed priority claims pursuant to section 507(a)(1), (4), (5), (6) or (7) exists in this case.
44. Section 1129(a)(9)(C) requires that holders of section 507(a)(8) priority claims receive on account of such claims deferred cash payments, over a period not exceeding six years after the date of assessment of such claims, of a value, as of the effective date of the plan, equal to the allowed amount of such claims. 11 U.S.C. § 1129(a)(9)(C). The Plan provides that the holders of allowed claims, pursuant to 507(a)(8). Therefore, the plan complies with § 1129(a)(9)(C).
45. Bankruptcy Code section 1129(a)(10) requires as a condition of confirmation that if a class of claims is impaired under the plan, at least one class of claims that is impaired under the plan has accepted the plan, determined without including any acceptance of the plan by any insider. 11 U.S.C. § 1129(a)(10); see In re Texaco Inc., 84 B.R. 893, 910. As discussed above, section 1126 provides the requirements for determining acceptance. Section 1129(a)(10) requires affirmative acceptance of a plan by at least one impaired class of claims, unless all classes of claims are left unimpaired. 5 Collier on Bankruptcy, ¶ 1129.02[10], (Matthew Bender 15th Ed. Revised), citing In re Russell, 12 B.R. Ct. Dec. (CCR) 571. As discussed above, Class 3 and Class 4 are impaired classes of "claims" under the Plan and the only votes cast were by members of Class 3 and Class 4. Those classes have voted in favor of the Plan. See the detail of the voting results set forth above. Therefore, the requirements of 11 U.S.C. § 1129(a)(10) are satisfied.
46. Bankruptcy Code section 1129(a)(11) requires as a condition of confirmation that the court find that confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan. 11 U.S.C. § 1129(a)(11); see Kane v. Johns-Manville Corp., 843 F.2d at 649; In re Sound Radio, Inc., 93 B.R. at 855-56; In re Texaco Inc., 84 B.R. at 910. The feasibility standard is whether the plan offers a reasonable assurance of success. Success need not be guaranteed. Kane v. Johns-Manville Corp., 843 F.2d at 649; Prudential Insurance Co. v. Monnier ( In re Monnier Brothers), 755 F.2d 1336, 1341 (8th Cir. 1985); In re American Solar King Corp., 90 B.R. at 892-893; In re Prudential Energy Company, 58 B.R. 857, 862 (Bankr. S.D.N.Y. 1986).
Guaranteed success in the stiff winds of commerce without the protection of the Code is not the standard under section 1129(a)(1). Most debtors emerge from reorganization with a significant handicap. But a plan based on impractical or visionary expectations cannot be confirmed.
In re Prudential Energy Company, supra, at 862, citing In re Clarkson, 767 F.2d 417, 420 (8th Cir. 1985); see In re American Solar King Corp., 90 B.R. at 833.
47. The Debtor's interest in the Three Sisters Properties was sold pursuant to Court approval. The allocation and distribution of the proceeds are provided for under the Plan through the Denise M. Bankston Trust. The Plan is the most efficient, economical and feasible means of allocating and distributing the proceeds. The proceeds of the sale, $30 million, render the plan feasible. The Plan has a reasonable likelihood of viability, is much more than a mere "visionary scheme" and, therefore, satisfies the feasibility requirement of section 1129(a)(11). See In re Acequia, Inc., 787 F.2d at 1365, citing In re Pizza of Hawaii, 761 F.2d at 1382 (9th Cir. 1985). 48. Bankruptcy Code section 1129(a)(12) mandates the payment of all fees required under 28 U.S.C. § 1930, including filing fees and United States Trustee Quarterly Fees. The Debtor believes that all such fees have been paid on a current basis and that no obligations in this regard will exist on the Effective Date of the Plan. In the event that any such fees are owing on the Effective Date they would be nominal in the context of the Plan and they will be paid. Thus, the requirement of section 1129(a)(12) is satisfied.
49. The Debtor is not obligated for any retiree benefits as that term is defined in section 1114, and therefore section 1129(a)(13) does not apply.
50. Section 1129(b)(1) of the Bankruptcy Code explains that confirmation of a "cram down" plan requires the plan proponent to demonstrate that the plan does not discriminate unfairly and is fair and equitable with respect to each class of claims or interests that is impaired under the plan that has not accepted the plan.
51. The criteria of unfair discrimination preserves the fair treatment of a dissenting class from that class' own perspective. Just as § 1122 requires that similar creditors be grouped within the same class, § 1129(b) protects the creditors within a certain class from discrimination in relation to other classes of creditors. For example, an unsecured deficiency claim may be classified separately from trade vendors, but that separate classification does not authorize different treatment. See H. Rep. No. 595, 95th Cong., 1st Sess. pp 413 to 418 (1977).
52. Courts have pointed out, however, that the Code stops short of prohibiting any discrimination and instead allows discrimination as long as it is fair. In re Aztec Co., 107 B.R. 585, 19 Bankr. Ct. Dec. (CRR) 1826, Bankr. L. Rep. (CCH) P 73135 (Bankr. M.D. Tenn. 1989); In re Creekside Landing, Ltd., 140 B.R. 713, 26 Collier Bankr. Cas. 2d (MB) 1589, Bankr. L. Rep. (CCH) P 74612 (Bankr. M.D. Tenn. 1992); In re American HomePatient, Inc., 298 B.R. 152 (Bankr. M.D. Tenn. 2003), subsequently aff'd, 420 F.3d 559, 45 Bankr. Ct. Dec. (CRR) 47, Bankr. L. Rep. (CCH) P 80341, 2005 FED App. 0345P (6th Cir. 2005), cert. denied, 127 S. Ct. 55, 166 L. Ed. 2d 251 (U.S. 2006).
53. In making a determination whether the discrimination is unfair, courts have applied four factors as follows: (1) whether the discrimination is supported by reasonable basis; (2) whether the debtor can confirm and consummate a plan without discrimination; (3) whether the discrimination is proposed in good faith; and (4) the treatment of the classes discriminated against. See In re Aztec Co., 107 B.R. 585, 19 Bankr. Ct. Dec. (CRR) 1826, Bankr. L. Rep. (CCH) P 73135 (Bankr. M.D. Tenn. 1989; In re American HomePatient, Inc., 298 B.R. 152 (Bankr. M.D. Tenn. 2003), subsequently aff'd, 420 F.3d 559, 45 Bankr. Ct. Dec. (CRR) 47, Bankr. L. Rep. (CCH) P 80341, 2005 FED App. 0345P (6th Cir. 2005), cert. denied, 127 S. Ct. 55, 166 L. Ed. 2d 251 (U.S. 2006) 54. Section 1129(b) specifies when a plan must be found fair and equitable, and what it takes to support that finding. The fair and equitable rule has an ancient lineage, running back through old Chapter X to its predecessor, Act § 77 B, and thence back to the nonstatutory equity receivership. As developed in judicial gloss, fair and equitable meant absolute priority, i.e., the idea that no junior class could take anything until all senior classes were paid in full. Under the Code, it retains that meaning, with one vital exception. Under the Code, absolute priority applies only as to dissenting classes.
55. Section 1129(b) provides an explicit although not exhaustive articulation of what constitutes fair and equitable treatment for a class of claims. The Fifth Circuit has held this requires a court to "consider the entire plan in the context of the rights of the creditors under state law and the particular facts and circumstances". Matter of D F Const. Inc., 865 F.2d 673, 675, 18 Bankr. Ct. Dec. (CRR) 1529, 20 Collier Bankr. Cas. 2d (MB) 716, Bankr. L. Rep. (CCH) ¶ 72719 (5th Cir. 1989) 56. Although many of the factors interpreting 'fair and equitable' are specified in paragraph (2), others, which were explicated in the description of section 1129(b) in the House report, were omitted from the House amendment to avoid statutory complexity and because they would undoubtedly be found by a court to be fundamental to 'fair and equitable' treatment of a dissenting class. 24 Cong. Rec. 32,407 (1978). Section 1129(b)(2) sets minimal standards plans must meet. However, it is not to be interpreted as requiring that every plan not prohibited be approved. A court must consider the entire plan in the context of the rights of the creditors under state law and the particular facts and circumstances when determining whether a plan is "fair and equitable." See In re Spanish Lake Associates, 92 B.R. 875, 878 (Bankr. E.D.Mo. 1988); In re Edgewater Motel, Inc., 85 B.R. 989, 998 (Bankr. E.D. Tenn. 1988).
57. The plan does not discriminate unfairly, and is fair and equitable with respect to each class of claims that is impaired under the plan. Therefore, the Plan satisfies the 'fair and equitable' test of 11 U.S.C. § 1129(b)(2).
58. The Debtor has demonstrated that the Plan satisfies each of the requirements contained in section 1129(a), except section 1129(a)(8). The plan is "fair and equitable", does not discriminate unfairly, and meets all other requirements of section 1129(b). Therefore, the Debtor is entitled to an order of the court confirming the Plan.
THE BANKRUPTCY COURT HAS REVIEWED These Findings of Fact and Legal Concluding and Horogy Adopts Jane as its own Findings as Fact and Legal Conclusions.
Notice Recipients
Recipients submitted to the BNC (Bankruptcy Noticing Center) without an address: Recipients of Notice of Electronic Filing: Recipients submitted to the BNC (Bankruptcy Noticing Center):
District/Off: 0536-5 User: mziegler Date Created: 1/15/2010 Case: 09-10675 Form ID: pdf1 Total: 164 cr Diversified Financial Services, LLC cr Business First Bank cr Caterpillar Financial Services Corp. cr Jack Singleton and Capitol Aggregates, LLC tr DIP crcm Unsecured Creditors Committee sp Brian M. Crawford cr Private Lake Properties, LLC cr Thompson Pump and Manufacturing Company, Inc. cr Hess Management Firm, L.L.C. cr Hess Construction Company, L.L.C. TOTAL: 11 ust Office of U. S. Trustee USTPRegion05.SH.ECF@usdoj.gov aty Allison A. Jones aajdnj@aol.com aty Andre G. Coudrain agc@clcsattorneys.com aty B. Slattery Johnson, Jr. sjohnson@bwor.com aty Benjamin W. Kadden bkadden@lawla.com aty Bernard S. Johnson Bernard.johnson@cookyancey.com aty Curtis R. Shelton curtisshelton@awsw-law.com aty David C. McMillin mcmillin@wmhllp.com aty David S. Rubin drubin@kswb.com aty E. Keith Carter ekcarter@rhclex.com aty Edward H. Arnold, III harnold@bakerdonelson.com aty Elizabeth J. Futrell efutrell@joneswalker.com aty Felix J. Bruyninckx, III Felixj2@bellsouth.net aty Frances H. Strange Frances.H.Strange@usdoj.gov aty Grant E. Summers gsummers@djslawfirm.com aty Hilary B. Bonial notice@bkcylaw.com aty J. Michael Percy mpercy@ssplaw.com aty James A. Lochridge, Jr. JAL@preisroy.com aty Jon Ann Giblin jgiblin@mcglinchey.com aty Joseph R. Ward, Jr. jward@wardandcondrey.com aty Julia E. Blewer jblewer@djslawfirm.com aty Karen P. Thomason kthomason@awsw-law.com aty Leland G. Horton lhorton@bradleyfirm.com aty M. Thomas Arceneaux tarceneaux@bwor.com aty Mary Catherine Cali mccali@scbllp.com aty Norman I. Lafargue norman@mmw-law.com aty R. Joseph Naus rjnaus@wwmlaw.com aty R. Patrick Vance pvance@joneswalker.com aty Randall S. Davidson rsdav@djslawfirm.com aty Robert W. Raley rraley52@bellsouth.net aty Seth A. Levine slevine@bakerdonelson.com aty Stephen D. Wheelis steve@wheelis-rozanski.com aty Stephen F. Chiccarelli sfc@bswllp.com aty Steven R. Baker sbk@bwblaw.net aty William E. Byram bbyram@bellsouth.net aty William H. Patrick, III wpatrick@hellerdraper.com TOTAL: 36 dbpos Denise M. Bankston 5029 Sweetwater Drive Benton, LA 71006 cr General Electric Capital Corporation c/o Mary Catherine Cali P.O. Drawer 4425 Baton Rouge, LA 70821 cr Jalou of St. Helena, LLC c/o James A. Lochridge, Jr 102 Versailles Blvd., Ste 400 Lafayette, LA 70501 cr CAPITAL ONE,NATIONAL ASSOCIATION P.O. Box 829009 Dallas, TX 75382-9009 cr John Deere Construction Forestry Company J. Michael Percy Stafford, Stewart Potter 720 Murray Street Post Office Box 1711 Alexandria, LA 71309 cr W.L. Doggett, LLC d/b.a Doggett Machinery Services McGlinchey Stafford, PLLC c/o Jon Ann Giblin One American Place 14th Floor Baton Rouge, LA 70825 cr Jack Singleton and Concrete Aggregates, LLC c/o Stephen F. Chiccarelli Breazeale, Sachse Wilson, L.L.P. P.O. Box 3197 Baton Rouge, LA 70816 cr IberiaBank c/o Kerry Shreffler 11301 Industriplex Blvd Suite 3 Baton Rouge, LA 70809 cr Lard Oil Company, Inc. c/o Andre G. Coudrain P.O. Box 1590 Hammond, LA 70404 cr Recovery Management Systems Corporation 25 S.E. 2nd Avenue, Suite 1120 Miami, FL 33131 cr Bancorpsouth c/o Norman I. Lafargue P.O. Box 72 Shreveport, LA 71161-0072 inv Kimberly Morris Rachel 793 Parks Road Benton, LA 71006 inv Brenda Morris Oswald 110 Dover Court Bossier City, LA 71111 cr Community Trust Bank 1511 North Trenton Street P.O. Box 1325 Ruston, LA 71273 cr Regions Bank c/o F.J. Bruyninckx III 809 Julia St., Ste. B Rayville, LA 71269 cr Red River Bank c/o Norman I. Lafargue P.O. Box 72 Shreveport, LA 71161-0072 sp William H. Patrick, III Heller, Draper, Hayden, Patrick Horn 650 Poydras St., Ste 2500 New Orleans, LA 70130 ex Ralph Stephens Attn: David S. Rubin Kantrow Spaht Weaver Blitzer (APLC) P.O. Box 2997 Baton Rouge, LA 70821-2997 aty Davidson, Jones Summers 509 Market Street Suite 800 Shreveport, LA 71101 intp Premier Aggregates R. Patrick Vance Jones Walker 201 St. Charles Avenue 49th Floor New Orleans, LA 70170-5100 cr Wells Fargo Bank, N.A. c/o McCalla Raymer, LLC Bankruptcy Department 1544 Old Alabama Road Roswell, GA 30076 cr First La Bank 1350 E. 70th Street Shreveport, LA 71106 sp Cherie D. Nobles Heller, Draper, Law Firm 650 Poydras, Suite 2500 New Orleans, LA 70130 cr Altec Capital Services Wheelis Rozanski P.O. Box 13199 Alexandria, LA 71315 cr Kevin D. Schmidt Rogers Carter 4415 Thornhill Avenue Second Floor Suite A Shreveport, LA 71106 aty Anthony J. Staines STAINES EPPLING 3500 North Causeway Blvd Suite 820 Metairie, LA 70002 aty Barrett Stephens Breazeale, Sachse Wilson, LLP LLETower 909 Poydras Street Suite 1500 New Orleans, LA 70112 aty Lee H. Ayres POB 1764 Shreveport, LA 71166-174 smg State of Louisiana, Dept. of Labor Delinquent Accounts Unit POB 44127 Baton Rouge, LA 70804 smg Louisiana Department of Revenue and Taxation Attn: Bankruptcy Division P.O. Box 66658 Baton Rouge, LA 70896 smg Louisiana Department of Labor Attn: Lorraine Roach P.O. Box 94094 Baton Rouge, LA 70804-9094 4570281 Alliance Bank Sold to California Bank and Trust POB 1507 Salt Lake City, UT 84110 4665448 Allison A. Jones Davidson, Jones Summers 509 Market Street, Suite 100 Shreveport, LA 71101 4570282 Altec Capital Services POB 100816 Atlanta, GA 30384 4829022 Altec Capital Services Wheelis Rozanski P.O. Box 13199 Alexandria, LA 71315 4778813 Altec Capital Services, LLC c/o William L. Phillips, III Marks Weinberg, P.C. POB 11386 Birmingham AL 35202 4570283 B.A.K.E. Energy, LLC 711 South Carson Street Ste 4 Carson City, NV 89701 4605770 BancorpSouth c/o Norman I. Lafargue P.O. Box 72 Shreveport, LA 71161-0072 4570284 Bancorpsouth POB 789 Tupelo, MS 38802 4571117 Bossier Parish Sheriff 204 Burt Blvd. Benton LA 71006 4607379 Brenda Morris Oswald c/o Bernard S. Johnson POB 22260 Shreveport, LA 71120-2260 4607381 Brenda Morris Oswald c/o Kristina B. Gustavson POB 22260 Shreveport, LA 71120-2260 4570285 Business First Bank 5110 Corporate Blvd. Baton Rouge, LA 70808 4588838 Business First Bank c/o R. Joseph Naus Wiener, Weiss Madison P.O. Box 21990 Shreveport, LA 71120-1990 4570286 Capital One Bank POB 4539 Houston, TX 77210 4582842 Capital One N.A. P.O. Box 829009 Dallas, TX 75382 4769499 Capitol Aggregates, LLC c/o Stephen Chiccarelli Breazeale, Sachse Wilson 23rd Floor, One American Place Baton Rouge, LA 70801 4570287 Caterpillar Financial POB 340001 Nashville, TN 37203 4616063 Caterpillar Financial Services Corporation c/o Edward H. Arnold, Esq. Baker Donelson Bearman Caldwell Berkow 201 St. Charles Ave., Suite 3600 New Orleans, LA 70170 4570288 Chase Bank POB 26061 Baton Rouge, LA 70826 4605660 Chase Bank USA C O Weinstein and Riley, PS 2001 Western Avenue, Ste 400 Seattle, WA 98121 4610423 Chase Bank USA NA PO BOX 15145 Wilmington, DE 19850-5145 4570289 Community Trust Bank 1101 Roc Lane Ruston, LA 71270 4610115 Community Trust Bank c/o M. Thomas Arceneaux POB 1126 Shreveport, LA 71163 4570290 Diversified Financial Services C/O Chip Naus at Wiener, Weiss Madison, Attorneys POB 21990 Shreveport, LA 71120 4571835 Diversified Financial Services, LLC c/o R. Joseph Naus Wiener, Weiss Madison P.O. Box 21990 Shreveport, LA 71120-1990 4693937 Elizabeth Futrell Jones Walker Law Firm 201 St. Charles Ave. New Orleans, LA 70170-5100 4570291 First Guaranty Bank POB 2009 Hammond, LA 70404 4582263 First Guaranty Bank c/o Joseph S. Woodley Pettiette, Armand, Dunkelman, Woodley, Byrd Cromwell, LLP P.O. Box 1786 Shreveport, LA 71166 4772279 First La Bank c/o William E. Byram 4415 Thornhill Avenue Second Floor, Suite B Shreveport, LA 71106-1509 4570292 First Louisiana Bank POB 52079 Shreveport, LA 71135 4570293 First Tennesse Bank National Ass Metropolitan Division 165 Madison Memphis, TN 38103 4803327 First Tennessee Bank National Association c/o Seth A. Levine, Esq. Baker Donelson Bearman Caldwell Berkow 201 St. Charles Ave., Suite 3600 New Orleans, LA 70170 4570294 Ford Motor Credit One American Road POB 1739 Dearborn, MI 48121 4570295 GE Transportation Finance C/O Mary Cali at Shows, Calli, Berthelot, Walsh, LLP PO Drawer 4425 Baton Rouge, LA 70821 4576228 General Electric Capital Corporation c/o Mary Catherine Cali P.O. Drawer 4425 Baton Rouge, LA 70821 4852332 Hess Construction Co., L.L.C. Hess Management Firm, L.L.C. c/o Joseph R. Ward, Jr. 206 N. Jefferson Ave. Covington, LA 70433 4857074 Hess Construction Company, L.L.C. c/o Joseph R. Ward, jr 206 N. Jefferson Avenue Covington, LA 70433 4570296 Hess Management C/O Joseph Ward at Ward and Conley, LLC 527 E. Boston Street Ste 200 Covington, LA 70433 4857075 Hess Management Firm, L.L.C. c/o Joseph R. Ward, Jr. 206 N. Jefferson Avenue Covington, LA 70433 4570297 Iberia Bank POB 12400 New Iberia, LA 70562 4592676 Iberiabank c/o Kerry Shreffler, VP 11301 Industriplex Blvd Suite 3 Baton Rouge, LA 70809 4592677 Iberiabank c/o Randall S. Davidson Davidson, Jones and Summers, APLC 509 Market Street, Suite 1000 Shreveport, LA 71101 4706922 Internal Revenue Service Centralized Insolvency Operations P.O. Box 21126 Philadelphia, PA 19114-0326 4704482 JPMorgan Chase Bank, NA c/o Barry H. Grodsky Middleberg, Riddle Gianna 201 St. Charles Avenue, 31st Floor New Orleans, LA 70170-3100 4769410 Jack Singleton c/o Stephen Chiccarelli Breazeale, Sachse Wilson, LLP PO Box 3197 23rd Floor, One American Place Baton Rouge, LA 70801 4592436 Jack Singleton and Concrete Aggregates, LLC c/o Stephen F. Chiccarelli P.O. Box 3197 Baton Rouge, LA 70821-3197 4570298 Jalou Corp. C/O James Lochridge at Preis and Roy, PLC PO Drawer 94-C Lafayette, LA 70509 4581844 Jalou of St. Helena, LLC c/o James A. Lochridge, Jr. Versailles Centre 102 Versailles Blvd., Ste 400 Lafayette, LA 70501 4794643 Jalou of St. Helena, LLC c/o Rocco I. Debetitto, Atty. 200 Public Square, Suite 2800 Cleveland OH 44114 4582238 John Deere Construction Forestry Company 6400 NW 86th Street PO BOX 6600 Johnston, Iowa 50131-6600 4587374 John Deere Construction Forestry Company J. Michael Percy Stafford, Stewart Potter P O Box 1711, Alexandria, Louisiana 71309-1711 4570299 John Deere Credit Corp. C/O J. Michael Percy at Stafford, Stewart, Potter 3112 Jackson Street Alexandria, LA 71301 4587771 Jon Ann Giblin McGlinchey Staffor, PLLC One American Place 14th Floor Baton Rouge, LA 70825 4607380 Kimberly Morris Rachel c/o Bernard S. Johnson POB 22260 Shreveport, LA 71120-2260 4607382 Kimberly Morris Rachel c/o Kristina B. Gustavson POB 22260 Shreveport, LA 71120-2260 4676651 LA Dept of Revenue PO Box 66658 Baton Rouge, LA 70896 4570300 LA Machinery Co., LLC C/O R. Douglas Wood at Wood Law Firm, LLC PO Drawer 2306 Monroe, LA 71207 4570301 Lard Oil Co. C/O Andre Coudrain at Cash, Lewis, Coudrain Sandage POB 1509 Hammond, LA 70404 4597521 Lard Oil Company, Inc. c/o Andre G. Coudrain P.O. Box 1509 Hammond, LA 70404 4597545 Lard Oil Company, Inc. c/o Andre G. Coudrain P.O. Box 1509 Hammond, LA 70404 4570302 Lehman Brothers 25520 Commercentre Dr. Lake Forest, CA 92630 4660646 Louisiana Machinery Company, LLC P.O. Box 536 Reserve, Louisiana 70084 4727547 Mr. Barrett Stephens Attorney at Law LLETower 909 Poydras Street Suite 1500 New Orleans LA 70112 4570303 Nelson Hammonds C/O Walter D. White, APLC 111 Freestate Boulevard, Ste 117 Shreveport, LA 71107 4629001 Nelson Hammons c/o Walter D. White, APLC 111 Freestate Blvd. Suite 117 Shreveport, LA 71107 4570304 Private Lake Properties, LLC POB 14310 Monroe, LA 71207 4747991 Private Lake Properties, LLC Staines Eppling 3500 North Causeway Boulevard, Suite 820 Metairie LA 70002 4824858 R. Patrick Vance Trustee for the Estate of Premier Aggreg 201 St. Charles Avenue 49th Floor New Orleans, LA 70170-5100 4600647 Recovery Management Systems Corporation 25 S.E. 2nd Avenue, Suite 1120 Miami, FL 33131-1605 4659849 Recovery Management Systems Corporation For GE Money Bank dba DILLARD'S 25 SE 2nd Ave Ste 1120 Miami FL 33131 4570305 Red River Bank 601 Market Street Shreveport, LA 71101 4686518 Red River Bank c/o Norman I. Lafargue POB 72 Shreveport, LA 71161-0072 4570306 Regions Bank POB 2224 Birmingham, AL 35246 4600641 Regions Bank c/o Felix J. Bruyninckx III 809 Julia St., Ste. B Rayville, LA 71269 4570307 Sovereign Bank 17 Union Street Manchester, MA 01944 4747751 Sovereign Bank Jeffrey L. Goodman Two Aldwyn Center, MC-20-536-ARO Villanova, PA 19085 4581845 Stanley R. Gorom, III 200 Public Square, Ste 2800 Cleveland, OHIO 44114 4627483 Steven R. Baker Attorney 1400 Youree Drive Shreveport, LA 71101 4850695 Thompson Pump and Manufacturing Company, Inc. c/o Benjamin W. Kadden Lugenbuhl, Wheaton, Peck, et al. 601 Poydras Street, Suite 2775 New Orleans, Louisiana 70130 4570308 Todd Tucker 2311 CR 125 Hesperus, CO 81326 4570309 W.L. Doggett, LLC 7370 Frontage Road Monroe, LA 71202 4627060 W.L. Doggett, LLC d/b/a Doggett Machinery Services 10110 Daradale Avenue Baton Rouge, LA 70816 4751865 Wells Fargo Bank, N.A. Bankruptcy Department 3476 Stateview Blvd X7801-014 Ft. Mill, SC 29715 4738900 Wells Fargo Bank, N.A. c/o McCalla Raymer, LLC Bankruptcy Department 1544 Old Alabama Road Roswell, GA 30076 4570310 Wells Fargo Home Mortgage POB 14547 Des Moines, IA 50306 4773506 William E. Byram, LTD 4415 Thornhill Avenue Second Floor, Suite B Shreveport, Louisiana 71106-1509 TOTAL: 117