Donnelly v. Official Committee of Unsecured Creditors (In Re G. Ware Travelstead) , 73 F. App'x 568 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: G. WARE TRAVELSTEAD, 
Debtor.
PATRICK J.B. DONNELLY; ROLAND E.
BENNER,
Parties in Interest-Appellants,
v.
OFFICIAL COMMITTEE OF UNSECURED
CREDITORS, of G. Ware Travelstead,
Party in Interest-Appellee,  No. 00-1115
G. WARE TRAVELSTEAD,
Debtor-Appellee,
v.
EDUARDO CANET,
Creditor & Party in Interest-
Appellee,
and
JOEL I. SHER,
Party in Interest.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-99-1951-CCB, BK-96-54979-SD)
Argued: January 24, 2001
Decided: August 12, 2003
Before WIDENER, WILKINSON, and WILLIAMS, Circuit Judges.
2 IN RE: TRAVELSTEAD
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Charles Kevin Kobbe, PIPER, MARBURY, RUDNICK
& WOLFE, L.L.P., Baltimore, Maryland, for Appellants. Kenneth
Oestreicher, WHITEFORD, TAYLOR & PRESTON, L.L.P., Balti-
more, Maryland, for Appellees. ON BRIEF: Richard M. Kremen,
PIPER, MARBURY, RUDNICK & WOLFE, L.L.P., Baltimore,
Maryland, for Appellants. Paul M. Nussbaum, WHITEFORD, TAY-
LOR & PRESTON, L.L.P., Baltimore, Maryland, for Appellee Tra-
velstead; Benjamin Rosenberg, Lawrence J. Yumkas, ROSENBERG,
PROUTT, FUNK & GREENBERG, L.L.P., Baltimore, Maryland, for
Appellee Committee; Daniel A. Pollack, Martin I. Kaminsky, Edward
T. McDermott, POLLOCK & KAMINSKY, New York, New York,
for Appellee Canet.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Patrick J.B. Donnelly and Roland E. Benner appeal from the dis-
trict court’s order affirming the bankruptcy court’s division of pro-
ceeds following the sale of stock from G. Ware Travelstead’s
personal estate in bankruptcy. This case requires us to interpret the
language of Travelstead’s confirmed Chapter 11 bankruptcy plan. The
bankruptcy plan included a provision for the sale of 32 shares of stock
owned by Travelstead, stock encumbered by his pledge of it as collat-
eral for a loan. Under the bankruptcy plan, the claim secured by the
stock was an allowed secured claim. Appellants Donnelly and Benner
also owned a 32.8125% interest in these 32 encumbered shares, an
interest recognized under the bankruptcy plan. The question before us
IN RE: TRAVELSTEAD 3
is whether, subsequent to the sale of these shares, Donnelly and Ben-
ner should recover 32.8125% of the total consideration paid for the
debtor’s stock or that same percentage of the funds remaining after
full payment of the claim secured by the stock. Because the unambig-
uous terms of the plan require that funds generated by the sale of the
debtor’s stock be applied to satisfy the secured claim before Donnelly
and Benner’s 32.8125% could be calculated, we affirm.
I.
Travelstead owned 32 shares of stock (Shares) in a Dutch com-
pany, Blockless Investments (Blockless), which owned mortgages
secured by real estate in Australia. The Shares constituted an 80%
voting interest in Blockless. Donnelly paid Travelstead $150,000 in
January of 1995 and was to receive a 15% interest in Blockless, or
six of Travelstead’s Shares. Benner paid Travelstead $933,000 in
February of 1995 and was to receive an 11.25% interest in Blockless,
or 4.5 of Travelstead’s Shares. Together, Donnelly and Benner were
to have acquired 10.5 shares of stock, which was 32.8125% of Travel-
stead’s interest. Travelstead, however, never delivered any shares to
Donnelly or Benner or had the transfer of the shares sold to them
recorded in the records of Blockless.
In December of 1995, after he had been paid by Donnelly and Ben-
ner, Travelstead borrowed approximately $5 million in Australian
Dollars from Blockless, and he secured the loan by pledging all of the
Shares, including the 10.5 shares Donnelly and Benner had paid for,
as collateral. Travelstead made this pledge without the knowledge of
Donnelly and Benner, and the deed of pledge by Travelstead asserted
that no one other than Travelstead possessed any interest in the Shares
or was entitled to demand such an interest. Donnelly and Benner con-
cede that Travelstead’s pledge encumbered all of the Shares.
II.
In May of 1996, Travelstead filed a voluntary petition for Chapter
11 bankruptcy. Both Donnelly and Benner filed proofs of claim on
October 8, 1996, claiming the value of the above-described shares of
stock for which they had paid Travelstead. In December of 1997, the
bankruptcy court entered an order confirming Travelstead’s plan of
4 IN RE: TRAVELSTEAD
reorganization (the Plan). The Plan treated Blockless as the Class 2
secured creditor, and provided that within two years of its effective
date, the Shares were to be sold by a liquidating agent and the pro-
ceeds used to pay Blockless the allowed amount of its secured claim.
Further, the Plan provided that Blockless’s secured claim had to be
paid in full before the proceeds of the sale of the Shares could be used
for any other purpose. Section 3.2 of the Plan, for example, reads in
pertinent part as follows:
In the event of a sale or refinancing of the collateral secur-
ing said Class 2 Claim, the proceeds shall be used to pay the
indebtedness to the holder of the Class 2 Claim before said
proceeds can be used for any other purpose.
(J.A. at 403.) Identical language is used in § 4.1 of the Plan, which
provides the "Manner of Distributions to Holders of Claims and Inter-
ests." (J.A. at 406.)
Another of the Plan’s provisions required Travelstead to confirm in
Blockless’s records the stock interests of Donnelly and Benner—as
soon as practicable and subject to pre-existing encumbrances.1 Travel-
stead, while operating the estate as a debtor in possession, never took
action to confirm Donnelly and Benner’s interests.
In June of 1998, Donnelly and Benner agreed to dismiss their
proofs of claim and stipulated that the Plan’s terms governed their
rights to the distribution of the proceeds of the Shares. The bank-
ruptcy court entered the two stipulated orders on June 30, 1998.
1
In pertinent part, Section 5.5(a) of the Plan provides that:
Subject to pre-existing encumbrances, if any, as soon as practica-
ble after the Effective Date, the Debtor shall commence to take,
or cause to be taken, such action as is necessary to confirm that
Patrick J.B. Donnelly ("Donnelly") and Roland E. Benner
("Benner") own 15% and 11.25% respectively of the stock inter-
est in Blockless and the Debtor will execute, or cause to be exe-
cuted, issued, and/or delivered such documentation as is
necessary to confirm the same.
(J.A. at 411 (emphasis added).)
IN RE: TRAVELSTEAD 5
In October of 1998, the liquidating agent appointed under the Plan
executed a letter of intent providing for the sale of the Shares to Gib-
son Investments (Gibson), a third party. In exchange for the Shares,
Gibson agreed to pay $6.5 million in cash and to assume Travels-
tead’s obligation to Blockless. Donnelly and Benner argue that the
total consideration paid for the Shares by Gibson was therefore
$12.14 million: $6.5 million in cash and $5.64 million in the assumed
obligation of Travelstead.2 On October 27, 1998, the liquidating agent
filed a motion to sell the Shares to Gibson free and clear of liens,
claims, and encumbrances. A dispute ensued, however, about how
much money should be distributed to Donnelly and Benner. Donnelly
and Benner argued, as they do on appeal, that they were entitled to
32.8125% of the $12.14 million total consideration Gibson paid for
the Shares, or $3.98 million. Travelstead and various unsecured credi-
tors objected, arguing that Donnelly and Benner were owed only
32.8125% of the $6.5 million in cash to be paid by Gibson, or $2.1
million.
The bankruptcy court held a hearing on the matter on December
14, 1998. At the time of the hearing, there was no objection to the
propriety of the sale, and the parties disagreed only over the correct
distribution of the proceeds. Thus, the parties withdrew any objection
to the sale itself and, instead, sought to resolve the distribution issue,
after the sale, at a May 10, 1999 hearing before the bankruptcy court.
All parties agreed that the dispute was governed by the terms of Tra-
velstead’s confirmed Plan.
In May of 1999, the bankruptcy court entered an order allowing
Donnelly and Benner the lesser amount, 32.8125% of the $6.5 million
cash portion of the consideration from sale of the Shares. In ordering
distribution of the lesser amount, the bankruptcy court found that,
pursuant to the unambiguous language of §§ 3.2 and 4.1 of the Plan,
2
We note that the loans from Blockless to Travelstead were made in
Australian dollars, a circumstance not discussed by Donnelly and Benner
in their explanation of what they believe to be owed them. Because
whether the sums involved in this case, including the cash Gibson paid
for the Shares and the obligations Gibson assumed, are to be calculated
in Australian or U.S. dollars does not affect our decision, we will assume
for ease of discussion that all are correctly calculated in U.S. dollars.
6 IN RE: TRAVELSTEAD
"Blockless is to be paid before the Donnelly-Benner percentage is
applied to determine their distribution." (J.A. at 819.) Furthermore,
the bankruptcy court ruled that, under the doctrine of unjust enrich-
ment, the distribution to Donnelly and Benner should be surcharged
with 17.5673% of the liquidating agent’s fees and expenses incurred
in the sale of the Shares.
On June 7, 1999, Donnelly and Benner filed their notice of appeal
with the District Court of Maryland, seeking review of the bankruptcy
court’s distribution order, and on December 22, 1999, the district
court affirmed the bankruptcy court’s order. On January 21, 2000,
Donnelly and Benner timely filed their notice of appeal seeking
review in this court of the district court’s decision affirming the bank-
ruptcy court’s distribution order. We have jurisdiction under 28
U.S.C.A. § 158. On appeal, Donnelly and Benner challenge the bank-
ruptcy court’s division of the proceeds from the sale of the Shares.
They argue that the bankruptcy court erred by determining their pro-
ceeds from the sale of the Shares without reference to the total
amount of consideration given for the Shares. They also challenge the
bankruptcy court’s assessment of a surcharge against their shares of
the proceeds. Because we agree that the bankruptcy court correctly
calculated the amount of distribution to which Donnelly and Benner
were entitled, we affirm.
III.
"Because in this case the district court sat as an appellate court in
bankruptcy, our review of the district court’s decision is plenary. We
review the bankruptcy court’s factual findings for clear error, while
we review questions of law de novo." Loudoun Leasing Dev. Co. v.
Ford Motor Credit Co. (In re K&L Lakeland, Inc.), 128 F.3d 203, 206
(4th Cir. 1997) (internal citations and emphasis omitted). It has been
long established that the terms of a written contract, if they are unam-
biguous, must be given effect, notwithstanding hardship. New
England Mut. Life Ins. Co. v. Hurst, 199 A. 822, 826 (Md. 1938). The
question of whether a plan of reorganization is ambiguous or unam-
biguous is a question of law. Donnelly and Benner’s central argument
on appeal essentially is that the bankruptcy court erred by selling their
shares to satisfy Travelstead’s debts.3 They argue that proceeds from
3
As noted above, the liquidating agent sold the Shares to Gibson for
$6.5 million in cash and assumption of Travelstead’s $5.64 million obli-
gation to Blockless.
IN RE: TRAVELSTEAD 7
the sale of the 10.5 shares they "owned" were not necessary to satisfy
Travelstead’s obligation to Blockless. Instead, they argue, the pro-
ceeds from the 21.5 shares Travelstead owned after he "sold" 10.5 of
his 32 Shares were more than sufficient to satisfy Blockless’s secured
claim.
The question before us, however, is not whether it would have been
possible and more equitable for the proceeds of the sale of the Shares
to satisfy Blockless’s secured claim without recourse to the $3.98 mil-
lion generated by the sale of the 10.5 shares in which Donnelly and
Benner had an interest. Instead, the question is whether the bank-
ruptcy court correctly interpreted the terms of the Plan when it
ordered the lesser amount be distributed to Donnelly and Benner. See
11 U.S.C.A. § 1141(a) (West 1993) ("[T]he provisions of a confirmed
plan bind the debtor . . . and any creditor . . . ."); see also First Union
Commercial Corp. v. Nelson, Mullins, Riley and Scarborough (In re
Varat Enterprises, Inc.), 81 F.3d 1310, 1317 (4th Cir. 1996) ("Under
the Bankruptcy Code, a confirmed plan of reorganization acts like a
contract that is binding on all of the parties, debtor and creditors
alike."). Indeed, a bankruptcy court’s order of confirmation is treated
as a final judgment with res judicata effect. Piedmont Trust Bank v.
Linkous (In re Linkous), 990 F.2d 160, 162 (4th Cir. 1993).
We conclude that the relevant terms of the Plan, found in §§ 3.2
and 4.1, are unambiguous and controlling:
In the event of a sale or refinancing of the collateral secur-
ing [the] Class 2 Claim, the proceeds shall be used to pay
the indebtedness to the holder of the Class 2 Claim before
said proceeds can be used for any other purpose.
(J.A. at 403 (emphasis added).) It is undisputed that all of the 32
Shares were encumbered by Travelstead’s pledge and that all of the
Shares constituted the collateral securing Blockless’s claim. Further-
more, Donnelly and Benner do not argue that they were denied notice
or the opportunity to be heard before the plan was confirmed and a
liquidating agent was appointed to negotiate the sale of the Shares.
Donnelly and Benner point to § IV.B.2 of the Disclosure Statement
to argue that the loan was intended to be repaid without inclusion of
8 IN RE: TRAVELSTEAD
their interests in the Shares.4 To the extent that the Disclosure State-
ment diverges from the terms of the Plan, the terms of the Plan con-
trol, insofar as we have found those terms unambiguous. See In re
AOV Indus., Inc., 792 F.2d 1140, 1153 (D.C. Cir. 1986) (noting that
"case law indicates that where a conflict exists with the disclosure
statement, the language of the plan should control"). Moreover, the
Disclosure Statement, like the Plan, does not differentiate between
Travelstead’s portion of the Shares and those of Donnelly and Ben-
ner. As the bankruptcy court noted, the phrase "secured by a pledge
of Mr. Travelstead’s stock in Blockless" referred to the 80% interest,
"not to a lesser percentage of the 80 percent" claimed by Donnelly
and Benner. (J.A. at 823.)
Additionally, we should be clear about what it was that Donnelly
and Benner owned. They did not own any shares of Blockless. Don-
nelly and Benner allowed themselves to pay Travelstead for the 10.5
shares without ensuring that the shares were delivered to them or that
the transfer was recorded on the books of Blockless. Donnelly and
Benner then suffered the misfortune of having Travelstead not only
fail to complete the sale of the stock, but pledge all of the Shares as
security for two loans from Blockless. As the bankruptcy court
observed, what Donnelly and Benner owned, then, was 32.8125% of
Travelstead’s stock interest in Blockless, which was encumbered.
4
Section IV.B.2 states in part,
Class 2 Claim shall consist of the Allowed Amount of the
Secured Claim of Blockless, which claim is secured by a pledge
of Mr. Travelstead’s stock in Blockless. In full and complete sat-
isfaction, discharge and release of the Class 2 Claim, unless oth-
erwise agreed to by the holder of the Class 2 Claim and the
Debtor, within two (2) years after the Effective Date, the holder
of the Class 2 Claim shall be paid the Allowed Amount of its
Class 2 Secured Claim in cash from the Debtor’s share of the
proceeds of the sale and/or refinancing of the collateral securing
the Class 2 Claim, from distributions resulting from the sale of
assets in which Blockless has an interest or from any other
source of funds available to the Debtor.
(J.A. at 112.)
IN RE: TRAVELSTEAD 9
Therefore, under the plain terms of the Plan, because all of the
Shares were subject to Travelstead’s pledge, they were all sold to pay
off the encumbrance. Only after the Blockless indebtedness was paid
could the "proceeds . . . be used for any other purpose." (J.A. at 403
(quoting §§ 3.2 and 4.1 of the Plan).) Calculating the amount yielded
by Donnelly and Benner’s 32.8125% interest was clearly an "other
purpose," and thus, under §§ 3.2 and 4.1 of the Plan, the Blockless
indebtedness was properly paid before this calculation. The bank-
ruptcy court thus did not err by applying Donnelly and Benner’s
32.8125% interest to the $6.5 million that constituted the net proceeds
after satisfaction of the pledge.
Donnelly and Benner also argue that it is unfair for a portion of the
proceeds generated by the sale of the shares they attempted to pur-
chase to be used to help pay off Travelstead’s obligation to Blockless.
If this outcome is inequitable, it stems not from any error of the bank-
ruptcy court but from Travelstead’s failure to complete the transac-
tions with Donnelly and Benner and from his pledge of the Shares
while falsely representing that no other individual possessed an inter-
est in the Shares.
Donnelly and Benner are receiving everything to which they are
entitled under the Plan. We note that Donnelly and Benner had ini-
tially filed claims against Travelstead for the value of the stock,
claims that would have left them unsecured creditors. Both Donnelly
and Benner later stipulated that the claims should be deemed with-
drawn because they were provided for in the Plan, and their claims
were withdrawn. Therefore, we agree with the bankruptcy court’s
conclusion that the pair traded a claim against Travelstead for the
value of the stock for an express recognition of their stock ownership
interest in the plan, albeit an interest subject to a prior pledge.
IV.
Donnelly and Benner also appeal the bankruptcy court’s order that
they pay a portion of the expenses and fees incurred by the liquidating
agent in selling the Shares. The only ground on which Donnelly and
Benner object to this order is their argument that they received no
benefit from the sale. Travelstead points out that the pair indeed
received benefit because Blockless, under the terms of the Plan, was
10 IN RE: TRAVELSTEAD
entitled to foreclose on the Shares were they not sold within two years
of the Plan’s effective date, in which case Donnelly and Benner
would not have received nearly the amount from their derivative
interest as they did from the sale of the Shares to a third party. We
conclude that ordering Donnelly and Benner be assessed a share of
the liquidating agent’s expenses and fees was within the power of the
bankruptcy court under 11 U.S.C.A. § 105(a) (West 1993).
V.
Under the unambiguous terms of the Plan, Donnelly and Benner’s
interests in the Shares were subject to an encumbrance. Thus, as the
district court held, the bankruptcy court correctly awarded them a dis-
tribution of the proceeds of the stock minus the value of the encum-
brance. Additionally, because they benefitted from the sale of the
Shares, it was within the power of the bankruptcy court to surcharge
their shares of the proceeds with expenses arising from the sale of the
Shares.
AFFIRMED