ROK Builders, LLC et al v. 2010-1 SFG Venture, LLC

Filing 44

ORDER denying 35 Appellant's Brief. So Ordered by Judge Paul J. Barbadoro.(mm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

ROK Builders, LLC
v.

Case No. 13-cv-16-PB
Opinion No. 2013 DNH 095

2010-1 SFG Venture, LLC et al.

MEMORANDUM AND ORDER
ROK Builders, LLC (“ROK”), a creditor of Moultonborough
Hotel Group, LLC (“Moultonborough” or “Debtor”), appeals from
the Bankruptcy Court’s confirmation of a Chapter 11 plan of
reorganization.

ROK seeks reversal of the confirmation order,

which led to the dissolution of Moultonborough and the
distribution of its assets.

I reject the appeal as equitably

moot and therefore do not reach the merits of ROK’s objections
to the confirmation order.

I.

FACTS

In 2007, ROK contracted with Moultonborough to build a
Hampton Inn and Suites hotel in Tilton, New Hampshire, which
Moultonborough owned until Moutonborough’s dissolution in 2012.
In accordance with that contract, ROK prepared the building

site, constructed the hotel, installed permanent fixtures, and
provided architectural and engineering services.

ROK Builders,

LLC v. 2010-1 SFG Venture, LLC, No. 12-cv-57-PB, 2012 WL
3779669, at *1 (D.N.H. Aug. 30, 2012).
pay ROK for some of this work.

Id.

Moultonborough failed to

ROK’s claim against

Moultonborough for the unpaid work was secured by a mechanic’s
lien in the amount of almost $2.5 million.

Id.

Another

creditor, 2010-1 SFG Venture LLC (“SFG”), was an assignee of a
construction mortgage on the hotel in the amount of more than
$10.6 million.

Id.

On September 30, 2010, Moultonborough filed a petition for
reorganization under Chapter 11 of the Bankruptcy Code.
No. 20.

Doc.

At the time, its assets were fully encumbered by five

secured creditors, including ROK and SFG.

Following an

adversary proceeding, the Bankruptcy Court declared SFG’s
mortgage superior to ROK’s mechanic’s lien to the extent of
roughly $6.4 million.

On August 30, 2012, this court affirmed

the Bankruptcy Court’s decision.

ROK Builders, 2012 WL 3779669,

at *1.1

1

That decision is currently on appeal to the First Circuit. See
Doc. No. 23; ROK Builders, LLC v. 2010-1 SFG Venture, LLC, No.
12-2182 (1st Cir. argued Apr. 2, 2013).
2

While the adversary proceeding was ongoing, the parties
litigated Moultonborough’s Amended Plan of Liquidation dated
November 21, 2011 (“Amended Plan”), in Bankruptcy Court.
Doc. No. 3-2.

See

On January 24, 2012, ROK filed an objection to

the Amended Plan.

Doc. No. 10-2.

Its objection raised the

following issues:
- Moultonborough did not propose the Plan in good faith;
- SFG and the Debtor improperly solicited votes for
confirmation of the Plan before a disclosure statement was
approved;
- The Plan improperly classifies creditors;
- The cram down interest rate2 is not fair and equitable; and
- The Plan settled a contempt claim against the Debtor’s
principal in violation of Bankruptcy Rule 9019.
See Doc. No. 12-2.
On January 31, 2012, the Bankruptcy Court held a
confirmation hearing at which the parties presented oral
arguments.

Doc. No. 12-2.

The court did not hear any evidence

and evaluated ROK’s objections using the standard applicable for

2

The so-called “‘cram down’ provision” of the Bankruptcy Code
permits the district court in “appropriate circumstances and
after making certain required findings, [to] confirm a plan
despite the disapproval of more than one-third of each class
affected.” St. Joe Paper Co. v. Atl. Coast Line R. Co., 347
U.S. 298, 314 (1954). See generally, Jack Friedman, What Courts
Do to Secured Creditors in Chapter 11 Cram Down, 14 Cardozo L.
Rev. 1495 (1993).
3

a Rule 12(b)(6) motion to dismiss.

Accordingly, the Bankruptcy

Court presumed the truth of the factual allegations in ROK’s
objection to determine whether ROK had presented plausible
grounds for denying confirmation of the Amended Plan.

Id.

On February 21, 2012, the Bankruptcy Court rejected three
of ROK’s claims, specifically: that the Amended Plan was not
filed in good faith; that SFG and Moultonborough improperly
solicited votes before a disclosure statement was approved; and
that the Amended Plan improperly classified creditors.

Id.

The

Bankruptcy Court ordered an evidentiary hearing to resolve the
two remaining claims.

Id.

On November 8, 2012, after a

hearing, the Bankruptcy Court denied confirmation of the Amended
Plan, and required an amendment of the cram down interest rate.
Doc. No. 20-1.
In accordance with the Bankruptcy Court’s decision,
Moultonborough filed a Second Amended Plan of Liquidation dated
November 9, 2012 (“Second Amended Plan” or “the Plan”).
No. 20-3.
follows.

Doc.

The Plan’s more significant provisions are as
The Plan classified each of the creditors’ claims into

classes and indicated how each class would be treated.

Id.

stated that SFG held a Class 2 Secured Claim in the amount of
4

It

$10,622,887.83, which would be reduced to $6 million minus any
mechanics’ liens that the Bankruptcy Court deemed senior to the
SFG mortgage.

Id.

It further provided that the balance of the

SFG Claim (approximately $4.6 million) (“SFG Deficiency Claim”)
“shall be deemed compromised, waived and extinguished” on the
date the Plan goes into effect.

Id.

In consideration for SFG’s

settlement payments to administrative, priority, and unsecured
claimholders, and the compromise of the SFG Deficiency Claim,
Moultonborough agreed to dismiss with prejudice the adversary
proceeding and to release any and all legal claims it had
against SFG.

Id.

Additionally, the Plan categorized Classes 3, 4, 5, and 6
as “Mechanic’s Lien Claims.”

It identified ROK’s secured claim

of roughly $2 million as a Class 3 claim.

Id.

The Plan stated

that if a mechanic’s lien claim is senior to the mortgage, the
holder of the mechanic’s lien claim shall “retain the lien in an
amount equal to the senior secured portion of the Allowed
Mechanic’s Lien Claim” and “receive from SFG (or its designee)
deferred monthly cash payments for a period of seven (7) years
commencing 30 days after the Effective Date and of the value
equal to the Allowed Senior Secured Mechanic’s Lien Amount
5

calculated at a rate of 4.75% per annum.”

Id.

It provided that

any mechanic’s lien claims which are not senior to the Mortgage
shall be treated as unsecured Class 7 claims.

Id.

Under the

Plan, Class 7 unsecured claims would be paid from the settlement
payment and from any recovery of avoidance actions.

Id.

The

Plan also provided for Moultonborough to transfer and convey to
SFG or its designee all of its real and personal property.

Id.

The Plan stated that entry of the Order confirming the Plan
would constitute “authorization and direction for the Debtor to
take or cause to be taken all corporate or other actions
necessary or appropriate to consummate and implement the
provisions of the Plan.”

Id.

On the effective date:

(i) the Transferred Assets will be conveyed and
transferred to Lender (or its designee) free and clear
of all liens, claims, encumbrances and interests; (ii)
any and all mortgages, deeds of trust, liens, or other
security interests against the Transferred Property
shall be released and forever discharged, and all the
right, title, and interest of any holder of such
mortgages, deeds of trust, liens, or other security
interests shall revert to the Lender (or its designee)
and its successors and assigns.
Id.

Upon the effective date, the Plan specified that

Moultonborough shall cease to exist and be automatically
dissolved.

Id.

6

Concurrent with the Second Amended Plan, Moultonborough
filed a proposed confirmation order.

Doc. No. 20-4.

Section

23(I) of the proposed confirmation order contained a provision
waiving the automatic stay of the confirmation order that is
otherwise required pursuant to Bankruptcy Rule 3020(e).3

Id.

The proposed stay waiver provision stated that “the 14 day stay
imposed by Federal Bankruptcy Rule 3020(e) is hereby waived,”
and the confirmation order “shall be effective and enforceable
immediately upon entry.”

Id.

On November 30, 2012, ROK filed an objection to the Second
Amended Plan.

Doc. No. 22-1.

It did not, however, challenge

the stay waiver provision included in Moultonborough’s proposed
confirmation order.

See id.

On December 3, 2012, the Bankruptcy Court held an
evidentiary hearing on the Second Amended Plan.
(conventionally filed), Hr’g Tr. 12/3/12.

Doc. No. 30

At the hearing, the

court indicated that it had reviewed and was likely to enter

3

Rule 3020(e) states: “Stay of confirmation order[:] An order
confirming a plan is stayed until the expiration of 14 days
after the entry of the order, unless the court orders
otherwise.” Fed. R. Bankr. P. 3020(e).
7

Moultonborough’s proposed confirmation order.4

Id. at 65:10-14.

ROK orally raised numerous objections to the Second Amended
Plan, but did not object to the stay waiver provision.
The following day, ROK filed a written objection to
Moultonborough’s Second Amended Plan.

Doc. No. 22.

ROK also

filed an “Objection to Any Order Confirming [the Second Amended
Plan].”

Doc. No. 22-4.

Once again, ROK did not mention the

stay waiver provision in either filing.
On December 5, 2012, the Bankruptcy Court issued an order
overruling all of ROK’s objections, Doc. No. 23, and entered its
confirmation order.

Doc. No. 23-1.

The confirmation order

included the stay waiver provision Moultonborough had proposed.
Id. at § 23(I).
order.
2012.

ROK did not seek a stay of the confirmation

The Second Amended Plan became effective on December 6,
Doc. No. 23-3.

4

The Bankruptcy Judge stated, “There has been a proposed
confirmation order submitted. I’ve looked it over. I’ll take
another look at it. I probably will enter that order, but I’ll
probably also enter a separate order that incorporates what I’ve
said here on the record and said here today. . . . [T]he
confirmation order will be entered in one form or another and
then people are free to let that become a final order or not. .
. .” Doc. No. 30 (conventionally filed), Hr’g Tr. 12/3/12 at
65:10-14.
8

In accordance with the Second Amended Plan, Moultonborough
was dissolved and its assets distributed.

Specifically:

- The Debtor transferred the hotel to SFG’s designee;
- SFG discharged its mortgage;
- The hotel was leased by SFG’s designee to a separate
corporate entity;
- Pyramid was retained as the new hotel manager;
- Pyramid hired 27 hotel employees;
- SFG funded $160,000 to pay initial hotel operating
costs;
- SFG made the settlement payment of $150,000 to the
Debtor’s estate;
- The Debtor was paid $79,384.03 from the $150,000
settlement payment made by SFG;
- SFG funded the payment of other administrative
claims in the aggregate of $34,775.62, which amount
was distributed to 17 different parties, including
state tax authorities;
- The Debtor dismissed pending litigation and released
claims against SFG;
- SFG made a payment of $227,000 in connection with a
settlement agreement with certain of the Debtor’s
creditors, which payment was triggered by the
effective date of the Debtor’s Plan;
- The Debtor has no remaining assets; and
- The Debtor has been dissolved and no longer has any
officers, directors or other employees.
Doc. No. 41 at ¶ 21.

On December 18, 2012, ROK filed a notice

of appeal but did not seek a stay of the confirmation order
concurrent with its appeal.

See Doc. No. 1.

On January 23, 2013, ROK, SFG, and Moultonborough sought
permission to separately address SFG’s and Moultonborough’s
claim that the appeal is equitably moot.
9

Doc. No. 32.

On

January 24, 2013, I rejected this request and ordered the
parties to present the mootness issue in their merits briefs.
Endorsed Order dated Jan. 24, 2013.

On January 29, 2013,

consistent with the Endorsed Order, SFG and Moultonborough
jointly moved to add the mootness issue to the issues presented
on appeal and to supplement the record with two affidavits that
provide facts supporting appellees’ mootness argument.
34.

Doc. No.

The affidavits were executed by Daniel M. Kasell,

transaction counsel for an affiliate of SFG, and Steven M.
Notinger, counsel for Moultonborough.

ROK did not object to the

motion, and I granted it on February 19, 2013.

Endorsed Order

dated Feb. 19, 2013.
Also on February 19, 2013, ROK filed its appeal with this
court, raising numerous issues relating to the confirmation
order, including:
- Whether the Bankruptcy Court erred in confirming the Plan
without taking testimony at the confirmation hearing on
each and every subsection of § 1129(a);
- Whether the Bankruptcy Court correctly determined that the
Plan was filed in good faith;
- Whether the Bankruptcy Court correctly found that the Plan
satisfies 11 U.S.C. §§ 1122(a) and 1129(b);
- Whether the Bankruptcy Court erred in approving the Attar
Release; and
- Whether the Bankruptcy Court erred in denying ROK’s request
to include a provision in the confirmation order regarding
the effect of the debtor’s release of equitable
10

subordination claims against SFG.
Doc. No. 35.

ROK seeks the comprehensive reversal of the

actions taken in reliance on the Plan and “restoration of the
status quo prior to” those actions, including an order
reconstituting Moultonborough and reinstating its ownership of
the hotel.

Doc. No. 39.

ROK did not address the mootness issue in its initial
brief.

Id.

The Appellees filed a response brief on March 18,

2013, arguing that the Plan was moot and objecting to the merits
of ROK’s contentions.

Doc. No. 37.

On April 15, 2013, ROK

filed a reply in which it addressed the mootness question and
the merits of its objections to the confirmation order.

Doc.

No. 39.

II.

STANDARD OF REVIEW

This court has jurisdiction to hear appeals from final
judgments, orders, and decrees issued in bankruptcy court
pursuant to 28 U.S.C. § 158(a)(1).

Generally, when reviewing a

decision by a bankruptcy court, the district court upholds
findings of fact unless they are clearly erroneous, and reviews
legal conclusions de novo.

Fed. R. Bankr. P. 8013; Palmacci v.
11

Umpierrez, 121 F.3d 781, 785 (1st Cir. 1997); Askenaizer v.
Moate, 406 B.R. 444, 447 (D.N.H. 2009).
In this case, however, Moultonborough has responded to
ROK’s appeal by raising the threshold argument that the appeal
is equitably moot.

I must address this question before reaching

the merits of ROK’s arguments.

Where an appellee asks me to

dismiss a bankruptcy appeal on the basis of equitable mootness,
the standard of review normally applicable in a bankruptcy
appeal is not relevant, as I am “not reviewing the bankruptcy
court at all, but exercising [my] own discretion in the first
instance.”

In re Charter Commc’ns, Inc., 691 F.3d 476, 483 (2d

Cir. 2012); see also In re United Producers, Inc., 526 F.3d 942,
947 (6th Cir. 2008).
III. ANALYSIS
The doctrine of equitable mootness attempts to reconcile
two competing public policy considerations that are potentially
implicated when a reviewing court is asked to consider a
challenge to a Chapter 11 confirmation order.5

5

The first policy

Equitable mootness is grounded in prudence rather than a
constitutional limitation on the court’s power to act. See In
re Stephens, 704 F.3d 1279, 1282 (10th Cir. 2013). In rare
circumstances the implementation of a confirmation order can
12

consideration is the public interest in permitting appellate
review of final court orders.

This policy is reflected in the

bankruptcy statute, which generally allows a dissatisfied
creditor to appeal from an allegedly erroneous confirmation
order.

See 28 U.S.C. § 158.

The second policy consideration is

the public interest in preserving the finality of bankruptcy
court rulings.

See In re Pub. Serv. Co. of N.H., 963 F.2d 469,

471-72 (1st Cir. 1992) (quoting In re Revere Copper & Brass,
Inc., 78 B.R. 17, 23 (S.D.N.Y. 1987)) (noting the “important
public policy favoring orderly reorganization and settlement of
debtor estates by ‘affording finality to the judgments of

progress to the point where a claim can become moot in the
constitutional sense. If mootness is loosely conceived as
“standing set in a time frame,” Henry P. Monaghan,
Constitutional Adjudication: The Who and When, 82 Yale L.J.
1363, 1384 (1973), but see Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 168, 170 (2000).
(acknowledging concept but declaring that it is not a
comprehensive description of mootness doctrine); WildEarth
Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1186 (10th
Cir. 2012) (explaining differences between redressability
requirement of standing and mootness), the implementation of a
confirmation order can render a case moot if the assets that are
the subject of the claim have passed beyond the court’s
jurisdiction. In such cases, the constitutional power to decide
the case has been lost because the court can no longer redress
the claimed injury. See Hollingsworth v. Perry, ——— U.S. ———,
2013 WL 3196927, at *6 (June 26, 2013) (redressability is an
essential aspect of standing under Article III of the
Constitution).
13

bankruptcy courts’”).

Finality is especially important in this

context because in bankruptcy, “numerous contending claims and
interest are gathered, jostle, and are determined and released,”
Corbett v. MacDonald Moving Servs., Inc., 124 F.3d 82, 91 (2d
Cir. 1997), the ability to successfully reorganize can be
endangered by appellate uncertainty, In re UNR Indus., Inc., 20
F.3d 766, 769 (7th Cir. 1994), and third parties need to be able
to rely on agreements they have entered into with reorganized
entities, In re Thorpe Insulation Co., 677 F.3d 869, 880 (9th
Cir. 2012).
The First Circuit has chosen to address these public
policies by creating two categories of factors – equitable
considerations and pragmatic considerations - that a court
should address in determining whether a bankruptcy appeal is
equitably moot.

See In re Pub. Serv., 963 F.2d at 473.

An

equitable consideration that may affect the analysis but is not
sufficient by itself to support a finding of equitable mootness
is whether the appellant has taken feasible measures to protect
itself from a confirmation order being implemented.

In re Pub.

Serv., 963 F.2d at 473; In re Healthco Int’l, Inc., 136 F.3d 45,
48 (1st Cir. 1998).

Among the pragmatic considerations that may
14

affect the analysis are whether the relief requested would
adversely affect third parties who are not before the court, and
whether appellate reversal would result in a “nightmarish
situation for the bankruptcy court on remand.”
Serv., 963 F.2d at 473.

In re Pub.

In evaluating these pragmatic

considerations, a court must “scrutinize each individual claim,
testing the feasibility of granting relief against the potential
impact on the reorganization scheme as a whole.”

Id. (quoting

In re AOV Indus., Inc., 792 F.2d 1140, 1148 (D.C. Cir. 1986)).
Ultimately, the reviewing court must treat the equitable and
pragmatic tests for equitable mootness as “symbiotic.”

Institut

Pasteur v. Cambridge Biotech Corp., 104 F.3d 489, 492 n.5 (1st
Cir. 1997).6
In this case, given that ROK essentially sat on its right
to seek a stay of the implementation of the Plan, equitable
considerations weigh heavily in favor of a finding of equitable
mootness.

ROK had ample opportunity to object to the stay

6

Other circuit courts have recently developed tests that are
consistent with the approach taken in this circuit. See, e.g.,
In re Charter Commc’n, Inc., 691 F.3d 476, 482 (2d Cir. 2012);
In re Phila. Newspapers, LLC, 690 F.3d 161, 168 (3d Cir. 2012);
In re Thorpe, 677 F.3d at 881. I rely on these decisions in
resolving the issue before me to the extent that they are
helpful while remaining faithful to the First Circuit standard.
15

waiver provision in the confirmation order before the Bankruptcy
Court approved Plan, and also could have sought a stay pending
appeal even after approval.

The provision was included in the

appellees’ proposed confirmation order, which was filed with the
court on November 9, 2012.

On November 26, 2012, ROK objected

to the Second Amended Plan, filed concurrently with the proposed
confirmation order, but did not object to the stay waiver
provision.

At the evidentiary hearing before the court on

December 3, 2012, ROK raised numerous objections to the Plan,
but did not object to the stay waiver provision in the proposed
order.

Even after the Bankruptcy Judge expressed his intention

to enter the proposed order as the final confirmation order, ROK
did not object to the stay waiver.

Following the hearing, ROK

filed an objection to the Plan, even arguing for the inclusion
and exclusion of certain provisions in the court’s forthcoming
confirmation order, but, again, did not challenge the stay
waiver provision.

The court issued the final confirmation order

on December 5, 2012, almost one month after the proposed
confirmation order was filed with the court.
included the stay waiver provision.
implementing the Plan on December 6.
16

It predictably

Moultonborough began
Although ROK filed an

appeal on December 18, it never sought a stay pending appeal.
Failure to seek a stay weighs in favor of finding mootness,
but is insufficient on its own to render the appeal equitably
moot.

In re Pub. Serv., 963 F.2d at 473.

The court must also

consider pragmatic considerations, specifically, whether
granting appellate relief would adversely affect third parties
regardless of whether the appellant sought a stay, In re
Healthco, 136 F.3d at 48, or is impracticable because of the
extent to which the order has been implemented.

In re Pub.

Serv., 963 F.2d at 473 (considering whether appellate reversal
would result in a “nightmarish situation for the bankruptcy
court on remand”).

Here, pragmatic considerations also support

a finding of equitable mootness because this case has progressed
to a point where third parties will be affected and appellate
relief would create a “nightmarish situation.”

See id.

The relief ROK seeks would adversely impact third parties
not before the court.

See In re Pub. Serv., 963 F.2d at 476.

Numerous third parties have acted in reasonable reliance on the
confirmation order.

Doc. No. 41 at ¶ 21.

For example, Laconia

Boulevard Hotel Owner, LLC (“Laconia”) acquired the Hotel as
designee of SFG.

Doc. No. 37.

Laconia leased the hotel to
17

Laconia Boulevard Hotel Lessee, LLC (“Laconia Lessee”).

Id.

SFG hired Pyramid Hotel Group (“Pyramid”) to be the new hotel
manager.

Id.

Pyramid hired twenty-six employees.

Id.

Moultonborough transferred more than $1.2 million to SFG in
settlement payments.

Id.

SFG, in turn, disbursed funds to

various tax authorities and suppliers in satisfaction of
Moultonborough’s administrative expenses.

Id.

In addition, in this case, “reversal of the order
confirming the plan . . . would knock the props out from under
the authorization for every transaction that has taken place”
and “do nothing other than create an unmanageable,
uncontrollable situation for the Bankruptcy Court.”
Roberts, 652 F.2d at 797.

In re

The First Circuit considers whether a

Plan has been “substantially consummated” when determining
equitable mootness.

See 11 U.S.C. § 1101(2) (defining

“substantial consummation”); In re Healthco, 136 F.3d at 49; In
re Pub. Serv., 963 F.2d at 474.
Here, ROK seeks a total reversal of the Plan, which has
been substantially consummated.

Moultonborough’s property has

been transferred, and the company has been dissolved.

Laconia

has taken over Moultonborough’s only business (the hotel) and
18

substantially all of Moultonborough’s property.

ROK seems to

imply that Laconia is an entity that is associated with SFG.
Even if that were true, it is still impracticable to unwind the
plan.

Distributions have commenced, including: distribution

substantially all of Moultonborough’s cash and personal
property; distribution of $79,384 to Moultonborough’s attorney
in satisfaction of an administrative expense claim; and payment
of an aggregate of $34,775 to tax authorities and seventeen
suppliers in satisfaction of administrative expense claims.
Doc. No. 37.

See

ROK does not allege that the plan was not

substantially consummated.

Nor does ROK provide any evidentiary

support or legal authority for its conclusory assertions that
these transactions can be unwound, either individually or in the
aggregate.

See Doc. No. 39.

As the First Circuit has stated,

“the innumerable transfers legitimately effected . . . in
reliance on the order of confirmation . . . plainly represent so
substantial a consummation of the reorganization plan as to
render the requested appellate relief impracticable.”
Pub. Serv., 963 F.2d at 474.

19

In re

III. CONCLUSION
Viewing the relevant equitable and pragmatic considerations
symbiotically, I conclude that the appeal is equitably moot.
Accordingly, and for the foregoing reasons, I deny ROK’s appeal
of the confirmation order.

Doc. No. 35.

SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge

July 16, 2013
cc:

Deborah Notinger, Esq.
Steven Notinger, Esq.
William Gannon, Esq.
Edmond Ford, Esq.
Gary Ticoll, Esq.
Geraldine Karonis, Esq.

20