Clarkson v. Cooke Sales & Serv. Co., 767 F.2d 417 (8th Cir. 1985). · Go Syfert
Clarkson v. Cooke Sales & Serv. Co., 767 F.2d 417 (8th Cir. 1985). Cases Citing This Book View Copy Cite
Quick Summary

The feasibility test for a reorganization plan is rooted in predictions based on objective fact rather than the sincerity of the debtors.

After debtors filed for Chapter 11 reorganization, a bankruptcy judge declined to confirm their plan due to concerns regarding feasibility, income projections, and the likelihood of subsequent liquidation. The debtors appealed, arguing the court erred in its findings. The court held that the feasibility test is rooted in predictions based on objective fact rather than the sincerity or willingness of the debtors. Because the debtors failed to provide sufficient financial data or income projections to demonstrate that the plan could be performed as a practical matter, the court affirmed the denial of confirmation.

158 citation events (37 in the last 25 years) across 53 distinct courts.
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Cited for
At page 420 Determining feasibility based on objective factual predictions50 citing cases“the feasibility test is firmly rooted in predictions based on objective fact.”9 citing courts quote it
  • Claar Cellars LLC, No. 20-00044 (Bankr. E.D. Wash. Jan. 14, 2021).
    (Although we sympathize with the [debtors], we find that the feasibility test is firmly rooted in predictions based on objective fact.)
  • In re Tofsrud, 230 B.R. 862 (Bankr. D.N.D. 1999).published 2 cites
    (the feasibility test is firmly rooted in predictions based on objective fact.)
  • In re Alvstad, 223 B.R. 733 (Bankr. D.N.D. 1998).published 2 cites
    (the feasibility test is firmly rooted in predictions based on objective fact.)
  • In re Sauer, 223 B.R. 715 (Bankr. D.N.D. 1998).published 2 cites
    (the feasibility test is firmly rooted in predictions based on objective fact.)
  • Kanyon Holdings, LLC v. Kevin Dandurand, No. 25-6010 (B.A.P. 8th Cir. Aug. 10, 2026).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir. 1985)).
  • In re Midwest Engineered Components, Inc., No. 25-31318 (Bankr. D. Minn. May 12, 2026).
    “Feasibility determinations must be ‘firmly rooted in predictions based on objective fact.’” Id. at 964 (quoting In re Clarkson, 767 F.2d 417, 420 (8th Cir. 1985)).
  • Clifford Wayne Burnett, No. 22-40714 (Bankr. D. Neb. Dec. 3, 2024).
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir. 1985)).9 In other words, there must be reasonable assurances from the debtor that the plan can be completed and that the plan will cash-flow.
  • In re VeroBlue Farms USA, Inc, Debtor, No. 3:19-cv-03026 (N.D. Iowa Apr. 12, 2022).
    Title 11, United States Code, Section 1129 (a)(11) requires that a “[c]onfirmation 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…
  • Land Ventures for 2, LLC v. Fritz, 551 B.R. 846 (M.D. Ala. 2015).published
    P’ship), 241 F.3d 959, 964 (8th Cir.2001) (quoting Clarkson v. Cooke Sales and Service Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985)). 3.
  • In re Keith's Tree Farms, 519 B.R. 628 (Bankr. W.D. Va. 2014).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985)).
Show 40 more citing cases
  • Search Mkt. Direct, Inc. v. Jubber (In re Paige), 685 F.3d 1160 (10th Cir. 2012).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985) (quotation omitted).
  • In re Pertuset, 492 B.R. 232 (Bankr. S.D. Ohio 2012).published
    (finding that visionary promises are not sufficient proof of ability to reorganize)
  • In re Young Broad. Inc., 430 B.R. 99 (Bankr. S.D.N.Y. 2010).published 2 cites
    Courts have found that “the feasibility test is firmly rooted in predictions based on objective fact.” In re Clarkson, 767 F.2d 417, 420 (8th Cir.1985).
  • In re Elk Creek Salers, Ltd., 286 B.R. 387 (Bankr. W.D. Mo. 2002).published
    “The test is wether the things which are to be done after confirmation can be done as a practical matter under the facts.” Clarkson v. Cooke Sales and Service Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985).
  • Danny Thomas Props. II Ltd. P'ship v. Beal Bank, S.S.B., 241 F.3d 959 (8th Cir. 2001).published
    Feasibility determinations must be “firmly rooted in predictions based on objective fact,” In re Clarkson, 767 F.2d 417, 420 (8th Cir.1985).
  • In re Lockard, 234 B.R. 484 (Bankr. W.D. Mo. 1999).published
    Clarkson v. Cooke Sales and Service Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985) (quoting In re Bergman, 585 F.2d 1171 , 1179 (2nd Cir.1978)).
  • In re Cajun Elec. Power Coop., Inc., 230 B.R. 715 (Bankr. M.D. La. 1999).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985) ("the feasibility test contemplates 'the probability of actual performance of the provisions of the plan....
  • In re Value Rec., Inc., 228 B.R. 692 (Bankr. D. Minn. 1999).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985) (quoting In re Bergman, 585 F.2d 1171 , 1179 (2d Cir.1978)).
  • In re Howard, 212 B.R. 864 (Bankr. E.D. Tenn. 1997).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985) (quoting Matter of Bergman, 585 F.2d 1171, 1179 (2d Cir.1978)).
  • Am. Network Leasing, Inc. v. APEX Pharm., Inc. (In re APEX Pharm., Inc.), 203 B.R. 432 (N.D. Ind. 1996).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985); In re Ziebarth, 113 B.R. 591, 598 (Bankr.N.D.1990).
  • Harstad v. First Am. Bank, 39 F.3d 898 (8th Cir. 1994).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985), and the Harstads themselves testified to feasibility at the confirmation hearing. 8 Further, neither the Plan nor the Disclosure Statement indicates in the sections describing how the…
  • Harstad v. First Am. Bank, 39 F.3d 898 (1st Cir. 1994).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985), and the Harstads themselves testified to feasibility at the confirmation hearing. 8 Further, neither the Plan nor the Disclosure Statement indicates in the sections describing how the…
  • In re Schriock Constr., Inc., 167 B.R. 569 (Bankr. D.N.D. 1994).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985).
  • In re Foertsch, 167 B.R. 555 (Bankr. D.N.D. 1994).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985); In re Konzack, 78 B.R. 990, 994 (Bankr.D.N.D.1987).
  • In re Harper, 157 B.R. 858 (Bankr. E.D. Ark. 1993).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985); In re Butler, 101 B.R. 566, 567 (Bankr.E.D.Ark.1989).
  • In re Kuether, 158 B.R. 151 (Bankr. D.N.D. 1993).published
    The test is whether the things which are to be done after confirmation can be done as a practical matter under the facts.” *154 767 F.2d at 420.
  • In re Mulberry Phosphates, Inc., 149 B.R. 702 (Bankr. M.D. Fla. 1993).published
    Clarkson v. Cooke Sales and Service Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985); In re Sovereign Oil Co., 128 B.R. at 586 .
  • In re Montgomery Court Apts. of Ingham Cnty., Ltd., 141 B.R. 324 (Bankr. S.D. Ohio 1992).published
    Clarkson v. Cooke Sales & Service Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985).
  • In re M & S Assocs., Ltd., 138 B.R. 845 (Bankr. W.D. Tex. 1992).published
    Guilford Telecasters, 128 B.R. at 627 ; In re U.S. Truck Co., 800 F.2d 581 (6th Cir.1986); and Clarkson, 767 F.2d at 420.
  • Matter of Holiday Assocs. Ltd. P'ship, 139 B.R. 711 (Bankr. S.D. Iowa 1992).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985)).
  • In re Drexel Burnham Lambert Grp., Inc., 138 B.R. 723 (Bankr. S.D.N.Y. 1992).published
    The Court in In re Clarkson, 767 F.2d 417 (8th Cir.1985), stated: The Second Circuit has declared that the feasibility test contemplates “the probability of actual performance of the provisions of the plan_ The test is whether the things w…
  • NCNB Texas Nat'l Bank v. Hulen Park Place Ltd. (In re Hulen Park Place Ltd.), 130 B.R. 39 (N.D. Tex. 1991).published
    Clarkson v. Cooke Sales and Service Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985).
  • In re Coones Ranch, Inc., 138 B.R. 251 (Bankr. D.S.D. 1991).published
    A showing of feasibility must be “rooted in predictions based on objective fact.” Clarkson v. Cooke Sales and Ser *260 vice Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985).
  • In re E.I. Parks No. 1 Ltd. P'ship, 122 B.R. 549 (Bankr. W.D. Ark. 1990).published
    Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985) (quoting In re Bergman, 585 F.2d 1171 , 1179 (2d Cir.1978)).
  • In re Ziebarth, 113 B.R. 591 (Bankr. D.N.D. 1990).published
    Id. at 420.
  • Farmers Home Admin. v. Rape (In re Rape), 104 B.R. 741 (W.D.N.C. 1989).published
    The test is whether the things which are to be done after confirmation can be done as a practical matter under the facts.” In re Clarkson, 767 F.2d at 420; In re Bartlett (Federal Land Bank of Columbia v. Bartlett), 92 B.R. at 144.
  • In re Butler, 101 B.R. 566 (Bankr. E.D. Ark. 1989).published
    To determine the feasibility of a plan, the Court must ascertain the “probability of actual performance of the provisions of the plan.” Clarkson v. Cooke Sales & Service Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985); In re Konzak,…
  • In re Lakeside Global II, Ltd., 116 B.R. 499 (Bankr. S.D. Tex. 1989).published 2 cites
    In re Clarkson, 767 F.2d at 420.
  • In re Fenske, 96 B.R. 244 (Bankr. D.N.D. 1988).published
    The test is whether the things which are to be done after confirmation can be done as a practical matter under the facts. 767 F.2d at 420.
  • Fed. Land Bank of Columbia v. Bartlett (In re Bartlett), 92 B.R. 142 (E.D.N.C. 1988).published 3 cites
    The test is whether the things which are to be done after confirmation can be done as a practical matter under the facts.” In re Bergman, 585 F.2d 1171 , 1179 (2nd Cir.1978) 767 F.2d at 420.
  • In re Snider Farms, Inc., 83 B.R. 1003 (Bankr. N.D. Ind. 1988).published 3 cites
    Clarkson v. Cooke Sales and Service Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985); 5 Collier on Bankruptcy, par. 1129.02 at 1129-34 (15th ed. 1985); see also, Chase Manhattan Mortgage and Realty Trust v. Bergman (Matter of Bergman…
  • In re Foss, 76 B.R. 719 (Bankr. D.N.D. 1987).published
    In re Clarkson, 767 F.2d at 420. 1987 is the first year in the past three years that the Debtor has actually farmed all of his land.
  • In re McDermott, 77 B.R. 384 (Bankr. N.D.N.Y. 1987).published
    Clarkson v. Cook Sales and Service Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985); Fossum v. Federal Land Bank (In re Fossum), 764 F.2d 520, 522 (8th Cir.1985); Stapleton v. Archer Daniels Midland Co. (In re Stapleton), 55 B.R. 716…
  • In re the Prudential Energy Co., 58 B.R. 857 (Bankr. S.D.N.Y. 1986).published
    Clarkson v. Cooke Sales and Service Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985); 5 Collier on Bankruptcy, ¶ 1129.02 at 1129-34 (15th ed. 1985); see also Chase Manhattan Mortgage and Realty Trust v. Bergman (Matter of Bergman) 58…
  • In re Greene, 57 B.R. 272 (Bankr. S.D.N.Y. 1986).published
    Clarkson v. Cooke Sales and Service Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985).
  • In re Citi-Toledo Partners, 170 B.R. 602 (Bankr. N.D. Ohio 1994).published 2 cites
    (bankruptcy court properly dismissed case under § 1112(b)(1) upon finding of an absence of sufficient financial data and “certain sources of income” coupled with an erosion in creditors’ positions)
  • In re Cont'l Holdings, Inc., 170 B.R. 919 (Bankr. N.D. Ohio 1994).published 2 cites
    Continuing Loss to or Diminution of the Estate and Absence of a Reasonable Likelihood of Rehabilitation The Court further finds that the continuing diminution of the estate and the absence of a reasonable likelihood of rehabilitation of th…
  • In re D & G Investments of West Florida, Inc., 342 B.R. 882 (Bankr. M.D. Fla. 2006).published
  • In re Cheatham, 78 B.R. 104 (Bankr. E.D.N.C. 1987).published
  • Matter of Bluridg Farms, Inc., 93 B.R. 648 (Bankr. S.D. Iowa 1988).published
At page 419 Reviewing plan feasibility and fair and equitable treatment2 citing cases“The Clarksons complain that the bankruptcy court made no factual findings; we reject this suggestion.”the opinion's own words at *419 · 1 listed here
  • In re Mount Carbon Metro. Dist., 242 B.R. 18 (Bankr. D. Colo. 1999).published
    Co. (In re Clarkson), 767 F.2d 417, 419-20 (8th Cir.1985); In re Grandfather Mountain Ltd.
Other citing cases2 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
In re Ivan Eugene CLARKSON and Gail Anita Mansfield Clarkson, his wife, Debtors. Ivan Eugene CLARKSON and Gail Anita Mansfield Clarkson, his wife
v.
COOKE SALES AND SERVICE CO. and Farmers Home Administration
No. 84-2284.
Court of Appeals for the Eighth Circuit.
Jun 28, 1985.
Published opinion
767 F.2d 417
1985 U.S. App. LEXIS 20106
Jack F. Allen, Clayton, Mo., for appellants., Joseph D. Welch, Hannibal, Mo., for appellees.
Heaney.
Cited by 3 opinions  |  Published
HEANEY, Circuit Judge.

Ivan Eugene Clarkson and Gail Anita Mansfield Clarkson appeal from a final order of the district court affirming decisions by the bankruptcy judge and the United States Magistrate dismissing the Clark-sons’ petition for reorganization under Chapter 11 of the bankruptcy code. For reversal, the Clarksons specify numerous allegations of error which we discuss in turn, affirming the judgment of the district court.

I. BACKGROUND.

The Clarksons, who farm in eastern Missouri, filed their Chapter 11 petition in October, 1982, and their statement of financial affairs and schedules of liabilities and property followed within three months, listing total debts of $616,353.71 and total assets of $765,439.68. The Clarksons’ disclosure statement was approved in September, 1983, and the reorganization plan’s confirmation hearing was conducted on October 20, 1983.

The Clarksons’ plan proposes to pay one hundred percent of all claims, which it divides into thirteen classes. Monies to pay the creditors would apparently be derived from the Clarksons’ farming, bulldozing, and other activities. The plan contemplates payment of all administrative costs on confirmation of the plan, followed by payments to other impaired classes, including Bragg Brown AgriQuipment and International Harvester. The Clarksons have labeled Class 10 — the claim of the Farmers Home Administration — as both impaired and unimpaired;[1] the plan represents that annual payments of $23,341 would be made at the beginning of each year, followed by payments on the arrearage to FmHA ($48,-000) calculated according to a formula based on an annual fund of $75,000, less amounts paid to higher priority creditors and amounts paid in income and social security taxes. After paying the FmHA arrearages, the Clarksons would make payments to the Small Business Administration, the Bank of Kirksville, Cooke Sales and Service Co. (Cooke), John Deere Co. (Deere), and other creditors, calculated according to the same formula.

Although four classes of creditors accepted the plan, six classes (all impaired creditors) rejected the plan. In addition, Cooke filed objections to the confirmation,[*419] arguing that the plan was infeasible and did not treat creditors fairly and equitably.

The bankruptcy judge declined to confirm the plan on the grounds that the plan did not adequately demonstrate the Clark-sons’ sources of revenue or the validity of their income projections, that the plan was not feasible, and that confirmation would likely be followed by a need for further reorganization or liquidation.

The denial of confirmation was appealed to the United States Magistrate[2] who prepared a report and recommendation for the district court, urging affirmance of the bankruptcy judge’s decision. The district court accepted the magistrate’s recommendations and the Clarksons appealed to this Court.

II. DISCUSSION.

Initially, we observe that we review the findings of the bankruptcy court on a clearly erroneous standard. See Bankruptcy Rule 8013. The Clarksons complain that the bankruptcy court made no factual findings; we reject this suggestion. Although he did not enunciate his factual findings as such, his opinion was based upon explicit determinations which we review only for clear error.

A. Fair and Equitable Treatment of the Creditors.

In considering a reorganization plan for confirmation, the district court reviews the plan to ascertain whether the plan is “fair and equitable”[3] to the petitioner’s creditors. In the Clarksons' reply brief, they elect the first option, which obliges them to assure that the claimholders retain the lien securing their claims to the extent of the allowed amount of such claims. Based on the record before us, we cannot say that the bankruptcy court erred in declining to confirm this plan on the ground that “the record provides no acceptable support for the proposition that the debtors’ future operations will fund the proposed plan.” Although the plan is a well-conceived effort to overcome the vagaries of the farm economy, we agree that its funding is uncertain and cannot assure that the plan conforms to the “fair and equitable” requirement of section 1129(b).

B. The Plan’s Infeasibility or the Likelihood of a Subsequent Reorganization or Liquidation.

The bankruptcy court also found that the plan was infeasible and that it would likely be followed by a subsequent reorganization or liquidation. We are obliged to agree with this conclusion.

Although the Clarksons have represented at each step in this proceeding that since January, 1984, they have been ready to tender their first $75,000 payment under the plan, the bankruptcy court found the plan infeasible (despite the Clarksons’ remarkable industriousness) because the income projections did not carry the plan past[*420] its inception.[4] The Clarksons’ failure to file operation reports or audit reports makes informed expectations about the plan’s success virtually impossible. The fact that the Clarksons have not prepared or filed their income tax returns for over five years suggests another important gap in the record on which the plan might be evaluated.

Although we sympathize with the Clarksons, we find that the feasibility test is firmly rooted in predictions based on objective fact. The Second Circuit has declared that the feasibility test contemplates “the probability of actual performance of the provisions of the plan. Sincerity, honesty, and willingness are not sufficient to make the plan feasible, and neither are any visionary promises. The test is whether the things which are to be done after confirmation can be done as a practical matter under the facts.” In Re: Bergman, 585 F.2d 1171, 1179 (2d Cir.1978) (quoting 9 Collier on Bankruptcy, at 1139). Pertinent factors to be considered include the business’s earning power, the sufficiency of the capital structure, economic conditions, managerial efficiency, and whether the same management will continue to operate the company. In Re: Great Northern Protective Services, Inc., 19 B.R. 802, 803 (Bankr.W.D.Wash.1982). With these standards in mind, we conclude that the bankruptcy court properly relied on the absence of certain managerial and income data from the Clarksons’ plan in declining to confirm the plan.

C. Continuing Loss to and Diminution of the Estate and Absence of a Reasonable Likelihood of Rehabilitation.

Under 11 U.S.C. § 1112(b), the court “may * * * dismiss a case under this chapter * * * for cause, including (1) continuing loss to or diminution of the estate and absence of a reasonable likelihood of rehabilitation.” As we have noted, the absence of financial data and certain sources of income for the Clarksons indicates the absence of a reasonable likelihood of rehabilitation. In addition, the positions of the creditors have continued to erode as the life of the debt has been lengthened without any appreciable increase in the likelihood of its satisfaction. Thus, we cannot say that the district court clearly erred in affirming the bankruptcy court’s findings on this subject.

We have carefully reviewed the other allegations of error raised by the Clarksons and find them either to be dealt with by our discussion of the issues or to be merit-less.

Accordingly, we affirm the judgment of the district court.

1

The bankruptcy judge rejected the argument that FmHA is not impaired; it made this finding because the arrearage would not have been cured under the plan until January 1, 1985, which posed an unreasonable delay in violation of 11 U.S.C. § 1124.

2

We note that the jurisdictional statute in effect at the time of these proceedings, 28 U.S.C. § 1334(c), forbade assignment to the magistrate: "A district court may not refer an appeal * * * to a magistrate or to a special master.” Although it does not alter the outcome of this case, we stress that this type of appeal was not a proper matter for the magistrate. In this case, reference to the magistrate not only violated the statute but delayed resolution of the case.

3

Under 11 U.S.C. § 1129(b)(2), the requirement for fairness and equitability is satisfied if,

(A) With respect to a class of secured claims, the plan provides—
(i)(I) that the holders of such claims retain the lien securing such claims, whether the property subject to such lien is retained by the debtor or transferred to another entity, to the extent of the allowed amount of such claims; and
(II) that each holder of a claim of such class receive on account of such claim deferred cash payments totaling at least the allowed amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder’s interest in the estate's interest in such property;
(ii) for the sale, subject to section 363(k) of this title, of any property that is subject to the lien securing such claims, free and clear of such lien, with such lien to attach to the proceeds of such sale, and the treatment of such lien on proceeds under clause (i) or (iii) of this subparagraph; or
(iii) for the realization by such holders of the indubitable equivalent of such claims.
4

We also note that, although the Clarksons have repeatedly represented that the $75,000 was available, nothing in the record suggests that they actually tendered the money to the bankruptcy court or to the creditors. See Appendix p. 132 ("We're going to lay on the Court's table in January * * * $75,000.’’).