"Only if all five Chateaugay factors are met, and if the appellant prevails on the merits of its legal claims, will relief be granted." In re Charter Commc'ns, 691 F.3d at 482. The Debtors' November 2011 Disclosure Statement reported that the company through its subsidiaries operated 642 stores and that, "[f]or the fiscal year ended January 29, 2011, the Debtors ... Chateaugay II involved an appeal from a bankruptcy court order approving a reorganization plan. Certain creditors argued that their claims should have received administrative priority.
Its finding rested on the observation that, as of the Plan's effective date, Borders transferred its relevant property to the Trust, and the Trust began administering timely filed claims and making distributions to holders of allowed administrative and priority claims, in an amount totaling at least million. As noted above, if an appellant satisfies the five factors outlined in Chateaugay II, 10 F.3d at 952-53, he may override the presumption of equitable mootness that is created by a plan's substantial consummation.
Answering "no," the court explained that "known" creditors of a Chapter 11 debtor — a group that includes both "claimant[s] whose identity is actually known to the debtor [and] claimant[s] whose identity is reasonably ascertainable" — must be afforded "actual written notice of the bankruptcy filing and the bar date." BGI I, 476 B. We review a district court's dismissal on grounds of equitable mootness for abuse of discretion, id. Indeed, to the contrary: several of our sister circuits have applied the doctrine in the liquidation setting and did so with no more than cursory discussion.
Bgi creditors liquidating trust
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Y.2007) (dismissing appeal as equitably moot in a Chapter 11 proceeding where the "Debtors have been liquidated and effectively cease to exist").12.
7 (2d Cir.2006); and ordering the sale of closely held real estate corporations in a Chapter 11 proceeding, see Kassover v. In any event, Appellants have forfeited any challenge to the Bankruptcy Court's finding of substantial consummation by failing to raise it in their opening brief.
Copies of the Plan, Confirmation Order, and Notice of Effective Date are available by clicking the appropriate links on the left.
For further information on the Chapter 11 case, please visit the Court’s website at https://uscourts.gov/, where the official docket can be accessed through the Court’s Case Management/Electronic Case Filing (“CM/ECF”) system.
Here, the Bankruptcy Court found that, as of August 2012, the Plan had been substantially consummated. Vebeliunas (In re Vebeliunas), 332 F.3d 85, 90 (2d Cir.2003) ("We review the bankruptcy court's findings of fact only for clear error...."). (In re Chateaugay Corp.), 988 F.2d 322 (2d Cir.1993) ("Chateaugay I").10.
not abuse its discretion in dismissing Appellants' appeals as equitably moot. 2009) ("Determining whether a plan has been substantially consummated is a question of fact...."); Babitt v. (In re Superior Offshore Int'l, Inc.), 591 F.3d 350, 353-54 (5th Cir.2009) (applying equitable mootness analysis to appeal of order confirming a Chapter 11 liquidation plan); Zegeer v.
Accordingly, we hold that the District Court acted within its discretion in dismissing these appeals as equitably moot. Gift card redemptions constituted nearly one hundred percent of Borders' net sales in the last month of the chain's operations. Two weeks after the hearing — on January 4, 2012 — Appellants Beeman and Freij moved the Bankruptcy Court for authorization to file untimely proofs of claim (the "Late Claims Motion"), arguing that they had not received adequate notice of the bankruptcy proceedings or the Bar Date. At oral argument, Appellants appeared to abandon the position — advanced in their briefs — that the doctrine of equitable mootness does not apply in this context. (In re Chateaugay Corp.), 10 F.3d 944 (2d Cir.1993) ("Chateaugay II"), are satisfied. such relief will not unravel intricate transactions so as to knock the props out from under the authorization for every transaction that has taken place and create an unmanageable, uncontrollable situation for the Bankruptcy Court; the appellant pursued with diligence all available remedies to obtain a stay of execution of the objectionable order[,] if the failure to do so creates a situation rendering it inequitable to reverse the orders appealed from. at 952-53 (internal quotation marks, citations, and alteration omitted). It was not until October 11, 2012 — over ten months after the confirmation hearing — that Appellants first sought any kind of stay related to the Plan.
At the threshold, we hold that the analysis outlined in Frito Lay, Inc. We then conclude that Appellants are subject to the presumption of mootness created by the liquidation Plan's substantial consummation, and have failed to satisfy the five Chateaugay factors, as would be necessary to rebut that presumption. One week later, it stopped accepting gift cards and conducting e-commerce on its website. The Bankruptcy Court also required Borders to provide notice of the confirmation hearing to all other interested parties via publication in The New York Times. On the day after the hearing, the Bankruptcy Court entered an order confirming the Plan and directing that the Plan be put into effect on January 12, 2012 (the "Confirmation Order"). As an initial matter, we conclude that the doctrine of equitable mootness applies to appeals arising from Chapter 11 liquidation proceedings, as well as appeals from Chapter 11 reorganization proceedings. Of these creditors, 786 — representing more than 97% of those creditors who cast votes — voted to accept the Plan.5.
A full recitation of the facts may be found in the Bankruptcy Court and District Court opinions. Appellees BGI Creditors' Liquidating Trust (the "Trust") and the Liquidating Trustee objected to both motions. The Bankruptcy Court similarly disallowed and expunged Traktman's untimely claim. The doctrine of "equitable mootness" provides an analytical basis for dismissing certain appeals from bankruptcy court orders. 4 (5th Cir.2001) (explaining that the need for the doctrine "normally arises where a Chapter 11 reorganization plan is at issue"). See MAC Panel, 283 F.3d at 625 ("[The doctrine's] application does not employ rigid rules."). We see no principled reason, in a Chapter 11 liquidation proceeding, for denying a court discretion to apply the doctrine of equitable mootness and the corresponding Chateaugay analysis. On November 2, 2012, the Bankruptcy Court denied the stay motion and authorized the First Interim Distribution to general unsecured creditors pursuant to the Plan.7.