Debtor bad faith constitutes cause for a bankruptcy court to lift the automatic stay or dismiss a Chapter 11 petition.
A debtor filed a Chapter 11 petition after restructuring its entity to insulate general partners from liability and attempting to enjoin a foreclosure sale through a suit filed in the name of a non-existent entity. The bankruptcy court lifted the automatic stay and dismissed the petition, finding the filing was made in bad faith. The debtor argued that bad faith does not constitute cause for dismissal under the Bankruptcy Code. The court held that debtor bad faith can constitute cause under 11 U.S.C. § 362(d)(1) and § 1112(b). Applying a multi-factor test, the court determined the debtor exhibited 'new debtor syndrome' through improper pre-petition conduct and a lack of possibility for reorganization.
At page 130 Determining filing deadlines for corporate documents26 citing casesexplaining that petition may be dismissed for lack of good faith under 11 U.S.C. § 1112 (b) based on the totality of the circumstances
- In re Martin, 542 B.R. 199 (B.A.P. 6th Cir. 2015).publishedP’ship), 52 F.3d 127, 130 (6th Cir. 1995).
- Bone v. Taco Bell of Am., LLC, 956 F. Supp. 2d 872 (W.D. Tenn. 2013).publishedLtd., 52 F.3d at 130.
- In re Miller, 496 B.R. 469 (Bankr. E.D. Tenn. 2013).publishedP’ship), 52 F.3d 127, 130 (6th Cir.1995), with the party “challenging a debtor’s good faith bearing] the burden of proof with any ambiguities resolved in favor of the debtor.” Yarborough, 2012 WL 4434053 , at *2, 2012 Bankr.LEXIS 4403, at…
- In re Marble Cliff Crossing Apts., LLC, 485 B.R. 849 (Bankr. S.D. Ohio 2013).publishedLtd., P’ship), 52 F.3d 127, 130 (6th Cir.1995).
- In re Carl Pertuset v., No. 12-8014, 2012 WL 6598444 (B.A.P. 6th Cir. Dec. 18, 2012).unpublished P’ship, 52 F.3d at 130; In re Burger, 254 B.R. 692, 696 (Bankr.
- In re 1701 Com., LLC, 477 B.R. 652 (Bankr. N.D. Tex. 2012).published P’ship), 52 F.3d 127, 130-31 (6th Cir. 1995). 17 Courts have identified a number of factors indicative of a bad faith filing, including: (1) the debtor has one asset, such as either undeveloped or developed real property, encumbered by sec…
- In re Lee, 467 B.R. 906 (B.A.P. 6th Cir. 2012).published P’ship, 52 F.3d at 131.
- 15375 Mem'l Corp. v. BEPCO, L.P., 589 F.3d 605 (3d Cir. 2009).published(explaining that petition may be dismissed for lack of good faith under 11 U.S.C. § 1112 (b) based on the totality of the circumstances)
- In re the Bridge to Life, Inc., 330 B.R. 351 (Bankr. E.D.N.Y. 2005).publishedPartnership), 52 F.3d 127, 130-31 (6th Cir.1995); Marsch v. Marsch (In re Marsch), 36 F.3d 825, 828 (9th Cir.1994); Humble Place Joint Venture v. Fory (In re Humble Place Joint Venture), 936 F.2d 814, 816-17 (5th Cir.1991); First Nat’l Ban…
- In re Schur Mgmt. Co., Ltd., 323 B.R. 123 (Bankr. S.D.N.Y. 2005).publishedP’ship), 52 F.3d 127, 130 (6th Cir.1995); In re Marsch, 36 F.3d at 828 ; Humble Place Joint Venture v. Fory (In re Humble Place Joint Venture), 936 F.2d 814, 816 (5th Cir.1991); First Nat’l Bank of Sioux City v. Kerr (In re Kerr), 908 F.2d…
Show 16 more citing cases
- In re Original IFPC Shareholders, Inc., 317 B.R. 738 (Bankr. N.D. Ill. 2004).published(distinguishing explicit language of § 109 from the much broader statutory language of § 362(d)(1) and § 1112(b))
- TVA Employees Credit Union v. Wallace, 46 F. App'x 819 (6th Cir. 2002).unpublishedP’ship), 52 F.3d 127, 130 (6th Cir.1995).
- Gribbins v. Farm Credit Servs. of Mid-Am., ACA, 43 F. App'x 861 (6th Cir. 2002).unpublishedCo., 52 F.3d 127, 130 (6th Cir.1995).
- Garzoni v. K-Mart Corp., 35 F. App'x 182 (6th Cir. 2002).unpublishedPartnership), 52 F.3d 127, 130 (6th Cir.1995).
- Garzoni v. K-Mart Corp., 35 F. App'x 179 (6th Cir. 2002).unpublishedP’ship), 52 F.3d 127, 130 (6th Cir.1995).
- In re Tenn-Fla Partners, a Tennessee Gen. P'ship, Debtor. Tenn-Fla Partners, a Tennessee Gen. P'ship, Appellant/cross-Appellee v. First Union Nat'l Bank of Florida, as Tr., Appellee/cross-Appellant, 226 F.3d 746 (1st Cir. 2000).publishedCo., 52 F.3d 127, 130 (6th Cir. 1995).
- Tenn-Fla Partners v. First Union Nat'l Bank (In re Tenn-Fla Partners), 226 F.3d 746 (6th Cir. 2000).publishedCo., 52 F.3d 127, 130 (6th Cir.1995).
- AMC Mtg Co Inc v. TN Dept of Revenue, No. 99-5498 (6th Cir. May 26, 2000).published Filed within ninety (90) days from the date of mailing of the Co., 52 F.3d 127, 130 (6th Cir. 1995).
- In re Amc Mortg. Co., Inc., Debtor. Amc Mortg. Co., Inc. v. Tennessee Dep't of Revenue, 213 F.3d 917 (6th Cir. 2000).published Co., 52 F.3d 127, 130 (6th Cir.1995).
- In re SGL Carbon Corp, [ Off. Comm. of Unsec. Cred. v. Nucor Corp], 200 F.3d 154 (3d Cir. 1999). Partner *161 ship), 52 F.3d 127, 130 (6th Cir.1995); Marsch v. Marsch (In re Marsch), 36 F.3d 825, 828 (9th Cir.1994); Humble Place Joint Venture v. Fory (In re Humble Place Joint Venture), 936 F.2d 814, 816 (5th Cir.1991); First Nat’l Ban…
- In re Steeley, 243 B.R. 421 (Bankr. N.D. Ala. 1999).publishedL.P.), 52 F.3d 127, 130-31 (6th Cir.), cert. denied, 516 U.S. 869 , 116 S.Ct. 188 , 133 L.Ed.2d 125 (1995); In re Midway Investments, Ltd., 187 B.R. 382, 388-89 (Bankr.S.D.Fla.1995).
- PNC Bank v. Park Forest Dev. Corp. (In re Park Forest Dev. Corp.), 197 B.R. 388 (Bankr. N.D. Ga. 1996).publishedL.P.), 52 F.3d 127, 130-31 (6th Cir.), cert. denied, - U.S, -, 116 S.Ct. 188 , 133 L.Ed.2d 125 (1995); In re Midway Investments, Ltd., 187 B.R. 382, 388-89 (Bankr.S.D.Fla.1995). 2 .
- New York Therapeutic Tech., Inc. v. Shalala (In re Orthotic Ctr., Inc.), 193 B.R. 832 (N.D. Ohio 1996).publishedCo., 52 F.3d 127, 130 (6th Cir.1995); Michigan Assn. of Indept.
- City of Covington v. Covington Landing Ltd. P'ship, 71 F.3d 1221 (6th Cir. 1995).publishedPartnership), 52 F.3d 127, 130 (6th Cir.), cert. denied, — U.S. -, 116 S.Ct. 188 , 133 L.Ed.2d 125 (1995).
- In re SB Props., Inc., 185 B.R. 198 (E.D. Pa. 1995).publishedCo. (In re Trident Associates Limited Partnership), 52 F.3d 127, 130 (6th Cir.1995); Marsch v. Marsch (In re Marsch), 36 F.3d 825, 828 (9th Cir.1994); Carolin Corp., 886 F.2d at 699-700 ; Phoenix Piccadilly v. Life Insurance Co. of Virgini…
- Shefa, LLC, No. 23-40908 (Bankr. E.D. Mich. Apr. 3, 2023).“The bankruptcy court may dismiss a Chapter 11 petition ‘for cause.’ 11 U.S.C. § 1112 (b). We have consistently held that a debtor’s Chapter 11 petition may be dismissed if it was filed in bad faith.”
At page 131 Determining cause for lifting stay or dismissing petition21 citing casesGood faith is an amorphous notion, largely defined by factual inquiry.
- In re Ferrouillat, 558 B.R. 938 (Bankr. S.D. Ala. 2016).publishedCo. (In re Trident Assoc.), 52 F.3d 127, 131 (6th Cir.1995).
- In re Ferrouillat, 550 B.R. 570 (Bankr. S.D. Ala. 2016).publishedCo. (In re Trident Assoc.), 52 F.3d 127, 131 (6th Cir.1995).
- In re Trust, 526 B.R. 668 (Bankr. N.D. Tex. 2015).publishedIn re Trident Assoc, Ltd., 52 F.3d 127, 131 (6th Cir.1995), cert. denied, 516 U.S. 869 , 116 S.Ct. 188 , 133 L.Ed.2d 125 (1995); In re Dixie Broad., Inc., 871 F.2d 1023 , 1026-27 (11th Cir.1989), Cert denied, 493 U.S. 853 , 110 S.Ct. 154 ,…
- In re City of Detroit, 501 B.R. 702 (Bankr. E.D. Mich. 2013).publishedP’ship), 52 F.3d 127, 131 (6th Cir. 1995) (quotation marks omitted) (quoting In re Laguna Assoc.
- In re Carl Pertuset v., No. 12-8014, 2012 WL 6598444 (B.A.P. 6th Cir. Dec. 18, 2012).unpublished P’ship, 52 F.3d at 130; In re Burger, 254 B.R. 692, 696 (Bankr.
- In re Lee, 467 B.R. 906 (B.A.P. 6th Cir. 2012).published P’ship, 52 F.3d at 131.
- In re Griswold Bldg., LLC, 420 B.R. 666 (Bankr. E.D. Mich. 2009).publishedPartnership), 52 F.3d 127, 131 (6th Cir.1995). “[G]ood faith is an amorphous notion, largely defined by a factual inquiry,” with “no single fact [being] dispositive!.]” Id. (quotation marks and citation omitted).
- In re Shultz, 325 B.R. 197 (Bankr. N.D. Ohio 2005).publishedBecause of this, the Sixth Circuit has held that the “courts must determine whether discretionary relief is appropriate on a case-by-case basis.” In re Trident, 52 F.3d 127, 131 (6th Cir.1995).
- Saults v. First Tennessee Bank (In re Saults), 293 B.R. 739 (Bankr. E.D. Tenn. 2002).published(Good faith is an amorphous notion, largely defined by factual inquiry.)
- In re Cent. Jersey Airport Servs., LLC, 282 B.R. 176 (Bankr. D.N.J. 2002).published(considering eight factors for good faith consideration)
Show 10 more citing cases
- White v. Weatherford (In re Abrass), 268 B.R. 665 (Bankr. M.D. Fla. 2001).publishedCo. (In re Trident Assoc.), 52 F.3d 127, 131 (6th Cir. 1995)).
- In re Aloisi, 261 B.R. 504 (Bankr. M.D. Fla. 2001).publishedCo. (In re Trident Assoc.), 52 F.3d 127, 131 (6th Cir.1995).
- Egwineke v. Robertson (In re Robertson), 244 B.R. 880 (Bankr. N.D. Ga. 2000).publishedCo. (In re Trident Assoc.), 52 F.3d 127, 131 (6th Cir.1995).
- In re SGL Carbon Corp., 233 B.R. 285 (D. Del. 1999).publishedPartnership), 52 F.3d 127, 131 (6th Cir.1995); Phoenix Piccadilly, Ltd. v. Life Ins.
- In re Shar, 253 B.R. 621 (Bankr. D.N.J. 1999).publishedPartnership, 52 F.3d at 131; In re Phoenix Piccadilly, Ltd., 849 F.2d 1393 , 1394 (11th Cir.1988); In re Albany Partners, Ltd., 749 F.2d at 674 .
- Hatcher v. U.S. Tr. (In re Hatcher), 218 B.R. 441 (B.A.P. 8th Cir. 1998).published Partnership, 52 F.3d at 131; Y.J.
- In re New Batt Rental Corp., 205 B.R. 104 (Bankr. N.D. Ohio 1997).published Partnership), 52 F.3d 127, 131 (6th Cir.1995) (citing Laguna Assoc.
- St. Paul Self Storage Ltd. P'ship v. Port Auth. of St. Paul (In re St. Paul Self Storage Ltd. P'ship), 185 B.R. 580 (B.A.P. 9th Cir. 1995).publishedLtd.), 52 F.3d 127, 131 (6th Cir.1995); Phoenix Piccadilly, Ltd. v. Life Ins.
- In re Sgl Carbon Corp., Debtor Off. Comm. of Unsecured Creditors, at No. 99-5319 v. Nucor Corp. Nucor-Yamato Steel Co., at No. 99-5382, 200 F.3d 154 (3d Cir. 1999).published See In re Trident, 52 F.3d at 131; In re Marsch, 36 F.3d at 829 ; In re Laguna, 30 F.3d at 738. 50 i. 51 As discussed in part I, the District Court found SGL Carbon's Chapter 11 petition was filed in good faith for two reasons: first, beca…
- Y.J. Sons & Co. v. Anemone, Inc. (In re Y.J. Sons & Co.), 212 B.R. 793 (D.N.J. 1997).published See Trident, 52 F.3d at 131.
At page 128 Analyzing debtor restructuring to protect asset owners2 citing casessingle asset real estate debtor with no employees and no ongoing business created on the eve of foreclosure through restructuring designed to protect owners
- Unique Tool & Mfg. Co., Inc., No. 19-32356 (Bankr. N.D. Ohio Oct. 25, 2019).(single asset real estate debtor with no employees and no ongoing business created on the eve of foreclosure through restructuring designed to protect owners)
- In re FRE Real Est., Inc., 450 B.R. 619 (Bankr. N.D. Tex. 2011).published Co. (In re Trident Assocs.), 52 F.3d 127, 128, 131-32 (6th Cir.1995); Laguna Assocs. v. Aetna Cas. & Sur.
At page 132 Finding debtor bad faith through pre-petition conduct2 citing casesstating that the “new debtor syndrome” consists of a one-asset debtor created on the eve of foreclosure to isolate the property and the mortgagee from the rest of the operations of the transferor
- In re Squires Motel, LLC, 416 B.R. 45 (Bankr. N.D.N.Y. 2009).published(stating that the “new debtor syndrome” consists of a one-asset debtor created on the eve of foreclosure to isolate the property and the mortgagee from the rest of the operations of the transferor)
- Argus Grp. 1700, Inc. v. Steinman, 206 B.R. 757 (E.D. Pa. 1997).published(affirming dismissal of Chapter 11 case as filed in bad faith where bankruptcy court *766 found, inter alia, that the debtor filed bankruptcy cases in an attempt to avoid foreclosure sale in state court)
Other citing cases
- In re 68 West 127 Street, LLC, 285 B.R. 838 (Bankr. S.D.N.Y. 2002).published
v.
Metropolitan Life Insurance Company
Trident Associates Limited Partnership, a Michigan limited partnership, appeals from the district court’s judgment affirming the bankruptcy court’s dismissal of Trident Associates’ petition under Chapter 11. Trident Associates assigns one error: The bankruptcy court abused its discretion when it lifted the automatic stay and dismissed Trident Associates’ petition on the ground that it filed its petition in bad faith.
Trident Associates makes two arguments, one legal and the other factual: 1) the Supreme Court has sub silentio overruled this court’s precedent establishing that a Chapter 11 filing may be dismissed for bad faith; and 2) the bankruptcy court clearly erred when it found that Trident Associates filed its petition in bad faith. Because we reject both of these arguments, we conclude that Trident Associates’ assignment of error is without merit and we therefore affirm the decision of the bankruptcy court.
I.
This ease involves Metropolitan Life Insurance Company’s attempts to foreclose its mortgage in the Tri Atria Office Center building and the 13 acres on which it sits in Farmington Hills, Michigan. On October 13, 1987, MetLife loaned $23 million to Tri Atria Company, a Michigan co-partnership. Tri Atria Company was the first identity that this debtor had. The debtor has had several identities all the while representing the interests of the Beznos and the Luptak families.
On December 27, 1990, the principals of Tri Atria Company co-partnership formed a new entity, Beztak of Tri Atria Limited Partnership. On the same day, Beztak of Tri Atria was reorganized. The next day, all assets from Tri Atria Company were transferred by quit claim deed to Beztak of Tri Atria Limited Partnership. The mortgage Tri Atria had given to MetLife required that such transactions be approved by MetLife, and. MetLife gave its approval through its agent’s signature on a letter agreement the agent signed on July 31, 1991. The letter agreement contained numerous requirements, including that the general partners of Beztak of Tri Atria always maintain at least a 28.43% interest in the partnership.
Beztak of Tri Atria failed to make two tax payments on the property, the winter 1990 and the 1992 property taxes. The outstanding taxes totaled $972,693.11. This failure constituted a default under the mortgage. Based on this default and consistent with the terms of the mortgage, MetLife accelerated the debt and provided the appropriate notice and recording. This acceleration was effective May 1, 1993. On May 10, 1993, the Oakland County Treasurer conducted a forced sale of its tax hen interest for the 1990 winter taxes. MetLife purchased this hen for $314,066.
On May 14, 1993, MetLife advertised notice of its proposed foreclosure sale of the property. The foreclosure sale was scheduled for June 15, 1993. On May 21, 1993, MetLife filed suit against Beztak of Tri Atria in the United States District Court for the Eastern District of Michigan seeking the appointment of a receiver, declaratory and in-junctive rehef, and recovery of converted funds, amongst other rehef. The foreclosure sale was then postponed from June 15th to the 22nd so that a hearing could be held in the district court. In this proceeding, Bez-[*129]tak of Tri Atria was represented by the law firm of Evans & Luptak of which Mr. Luptak and Mr. Beznos, who were general partners of Beztak of Tri Atria, were principals.
On or before June 14,1993, one day before the scheduled hearing in the district court, Mr. Toll, an attorney from a firm other than Evans & Luptak, prepared a Chapter 11 petition for a debtor called Trident Associates Limited Partnership. This petition was signed on June 14th by a person who represented himself to be the vice-president of Trident General Inc., Trident Associates’ general partner. However, at the time this petition was signed, neither Trident Associates nor Trident General existed.
On June 15, 1993, four significant events took place. First, MetLife heard a rumor that Beztak of Tri Atria was preparing to file a Chapter 11 petition. MetLife took advantage of the prior assignment from Beztak of Tri Atria and notified all of the tenants of the Tri Atria Office Center to pay their rent to MetLife rather than Beztak.
The second event of the day was that the district court conducted a hearing on Met-Life’s request for the appointment of a receiver and for injunctive relief. At this hearing, Beztak of Tri Atria was represented by attorneys from Evans and Luptak, including Kenneth Clarkston, whose presence is important because of what followed. At this hearing, the district court denied MetLife’s requests and instructed the parties to continue their negotiations. MetLife advised the court of the rumors it had heard concerning Beztak of Tri Atria filing a bankruptcy petition. The court was critical of any attempt to delay or seek a different forum. Mr. Moran of the Evans and Luptak firm assured the court that he was unaware of any intention to file a bankruptcy petition, but told the court that he would have to confirm that with the client.
The third event of June 15th was the incorporation of Trident General, the entity listed on the bankruptcy petition that was later filed as general partner of the debtor, Trident Associates. The incorporator of Trident General was Kenneth Clarkston, the lawyer of the Evans and Luptak firm who was present at the hearing when Mr. Moran stated that he was unaware of any possible bankruptcy filing.
The last event of the day was perhaps the most significant: the total restructuring of Beztak of Tri Atria. Through a Certificate of Amendment of Limited Partnership, Bez-tak of Tri Atria changed its name to Trident Associates Limited Partnership. In addition, the structure was changed so that Trident General became the only general partner of the partnership and held only a 1% interest in the partnership. All the other general partners became limited partners. These transactions violated the letter agreement, and so constituted default under the mortgage, in two ways: first, the agreement requested that the general partners of Beztak of Tri Atria maintain at least 28.43% interest in the partnership, and second, any restructuring of this nature required the consent of MetLife.
On June 21,1993, one day before the foreclosure sale, Mr. Moran of Evans and Luptak filed a suit in the Circuit Court for the County of Oakland, Michigan. This suit was filed in the name of Beztak of Tri Atria Limited Partnership against MetLife. Bez-tak of Tri Atria had been renamed and restructured six days earlier, so when this suit was filed, Beztak of Tri Atria was no longer a legal entity. This suit asked for a temporary restraining order to enjoin the foreclosure sale. In support of this motion was an affidavit from attorney Jerry Luptak dated June 21, 1993. In that affidavit, Luptak asserted that he was a principal of “Beztak of Tri Atria Limited Partnership,” which he claimed was the owner of the property subject to foreclosure. This sworn statement was false in that Beztak of Tri Atria was then Trident Associates Limited Partnership and Luptak was no longer a principal, but only a limited partner. The request for the TRO was denied.
The next day, June 22, 1993, was the day scheduled for the foreclosure sale. It was to take place at 10:00 a.m. Prior to 10:00 a.m., a lawyer from Mr. Toll’s firm called the persons conducting the foreclosure sale and told them that a bankruptcy petition had been filed and so the sale should not be
[*130] conducted. The foreclosure sale took place nevertheless, and MetLife was the high bidder, buying the property for $19.5 million. At 10:09 a.m., the Chapter 11 bankruptcy petition in the name of Trident Associates Limited Partnership was filed with the bankruptcy court clerk. There is a factual dispute concerning the exact time that the foreclosure sale took place, whether it was at 10:00 a.m. or 11:00 a.m. Because the bankruptcy court lifted the automatic stay and dismissed the petition for bad faith, this disputed fact has become moot.
On July 2, 1993, Trident Associates filed a plan for reorganization. MetLife filed a motion to lift or annul the automatic stay so that it could proceed with its foreclosure of the Tri Atria Office Center in the state court. On July 15,1993, the bankruptcy court held a hearing on the issue of lifting the automatic stay. At that time, counsel stipulated to the admissibility and authenticity of the documents that make up the record and counsel offered arguments for and against the motion. The bankruptcy court found that Trident Associates had filed its bankruptcy petition in bad faith and so granted MetLife’s motion to lift the automatic stay. The court also dismissed Trident Associates’ Chapter 11 petition. Trident Associates appealed to the district court, which affirmed. This appeal followed.
II.
This court has recently identified the standards that are applied when it reviews decisions of the bankruptcy court. First, this court directly reviews the bankruptcy decision, not the district court’s review of the bankruptcy court’s decision. A bankruptcy court’s decision to lift the automatic stay is reviewed for an abuse of discretion and the bankruptcy court’s findings of fact will be reversed only if they are clearly erroneous. Lastly, we review de novo the bankruptcy court’s conclusions of law. In re Laguna Associates Ltd. Partnership (Laguna Associates Ltd. Partnership v. Aetna Casualty & Sur. Co.), 30 F.3d 734 (6th Cir.1994).
A.
Trident Associates argues that recent Supreme Court decisions have sub silentio overruled the eight circuits, including this one, that have held that a Chapter 11 bankruptcy petition may be dismissed if it is filed in bad faith. We conclude that this argument is wholly unpersuasive.
The bankruptcy court may dismiss a Chapter 11 petition “for cause.” 11 U.S.C. § 1112(b). We have consistently held that a debtor’s Chapter 11 petition may be dismissed if it was filed in bad faith. See, e.g., In re Laguna Associates, 30 F.3d 734; In re Charfoos, 979 F.2d 390 (6th Cir.1992); In re Caldwell (Hardin v. Caldwell), 851 F.2d 852 (6th Cir.1988).
Recent Supreme Court decisions have overturned circuit court decisions that had read into the bankruptcy code requirements that were not specified in the text. In Toibb v. Radloff, 501 U.S. 157, 111 S.Ct. 2197, 115 L.Ed.2d 145 (1991), the Court overturned the “ongoing business requirement” that most circuits, including this one, had applied to petitions filed under Chapter 11. Id. at 166, 111 S.Ct. at 2202. The Court held that the plain language of 11 U.S.C. § 109 allowed individuals relief under Chapter 11. In Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), the Court held that courts may not impose a good faith requirement on debtors who list property in the bankruptcy schedule as exempt pursuant to 11 U.S.C. § 522(£). Id. at 641-44, 112 S.Ct. at 1647-48.
In both Taylor and Toibb, the Court was dealing with very specific statutory language. In both cases, the Court rejected arguments that an extra requirement could be “engraft-ed” onto language that plainly did not create the requirement. Trident Associates characterizes the cases from this and other circuits as “reading a good faith requirement into § 109,” which is the section that describes who may file a petition. It is true that § 109 has no good faith requirement, but that argument misses the point that 11 U.S.C.[*131] § 362(d)(1)[1] allows the automatic stay to be lifted “for cause,” and 11 U.S.C. § 1112(b)[2] allows a petition to be dismissed “for cause.” Neither section defines “cause,” but this court and others have concluded that debtor bad faith can constitute cause under both provisions. It is a very different argument to say that “bad faith” cannot, as a matter of law, constitute “cause” than to say that § 109 does not require good faith. Neither the holding of Taylor nor Toibb is broad enough to achieve the result for which Trident Associates argues.
B.
Trident Associates makes several attacks on the bankruptcy court’s finding of bad faith. Essentially, it attacks the bankruptcy court’s factual conclusions and its discretionary decisions to lift the automatic stay and dismiss the petition. Trident Associates bears a heavy burden because, as stated above, while we review the bankruptcy court’s legal conclusions de novo, we examine its factual determinations only for clear error.
The bankruptcy court may lift the automatic stay “for cause.” § 362(d)(1). Under § 1112(b), a court may dismiss a Chapter 11 petition “for cause.” Neither § 362(d) nor § 1112(b) define “cause,” so “courts must determine whether discretionary relief is appropriate on a ease-by-case basis.” In re Laguna Associates, 30 F.3d at 737. Under both of these sections, bad faith can constitute cause. Id. at 737-38. Because the “totality of the circumstances” must be considered, no single test for good faith can be recited, but this court has laid out some guidelines:
[G]ood faith is an amorphous notion, largely defined by factual inquiry. While no single fact is dispositive, courts have found the following factors meaningful in evaluating an organizational debtor’s good faith:
(1) the debtor has one asset;
(2) the pre-petition conduct of the debt- or has been improper;
(3) there are only a few unsecured creditors;
(4) the debtor’s property has been posted for foreclosure, and the debtor has been unsuccessful in defending against the foreclosure in state court;
(5) the debtor and one creditor have proceeded to a standstill in state court litigation, and the debtor has lost or has been required to post a bond which it cannot afford;
(6) the filing of the petition effectively allows the debtor to evade court orders;
(7) the debtor has no ongoing business or employees; and
(8) the lack of possibility of reorganization.
Id. at 738 (citations and internal quotations omitted). Also, the court acknowledged what the Fifth Circuit called the “new debtor syndrome,” in which “a one-asset entity has been created or revitalized on the eve of foreclosure to isolate the insolvent property and its creditors.” Id.
The factual similarity between In re Lagu-na Associates, in which this court affirmed a finding of bad faith, and the present case is striking but not surprising. In re Laguna [*132] Associates also involved a Beztak property and a scheme to avoid foreclosure involving Mr. Toll, the lawyer for Trident Associates. While Trident Associates has attempted to distinguish the present case from In re Laguna Associates, we find those distinctions to be meaningless. In the present case the following factors from Laguna weigh heavily in support of the bankruptcy court’s finding:
First, Trident Associates exhibits the “new debtor syndrome”: it is a one-asset debtor created on the eve of foreclosure to isolate the property and MetLife from the rest of the Beztak real estate operations.
The second Laguna factor is met because the pre-petition conduct of this debtor was improper. We find three separate acts to support this conclusion. First, at the hearing on MetLife’s request for a receiver, counsel for Beztak of Tri Atria arguably misled the district court when he stated that he knew nothing of the possibility of bankruptcy. The parties on appeal hotly contest whether any deception took place. After reviewing the transcript of the hearing before the district court and the transcript of counsels’ arguments to the bankruptcy court, we are satisfied that counsel for MetLife was correct when she characterized counsel for the debtor as being less than frank with the district judge. In fact, when the bankruptcy court directly asked the debtor’s counsel whether there had been some deception, counsel replied, “There may have been, but I don’t think it should be seen in the light that MetLife would have you see it.”
A second act of improper pre-petition conduct by the debtor was the unauthorized restructuring of Beztak of Tri Atria so that all the general partners were removed from general liability and given limited liability. This restructuring violated the letter agreement and constituted another default under the mortgage. This restructuring only served the purpose of using the bankruptcy court to protect the general partners from liability, and weakened MetLife’s position of security regarding the outstanding amount of approximately $22 million.
A third act of improper conduct was the filing of the state suit seeking a TRO to stop the foreclosure. The suit was filed in the name of Beztak of Tri Atria, an entity that no longer existed, and Mr. Luptak’s affidavit made assertions that he must have known were not true.
The fourth Laguna factor is also present here. The debtor was unsuccessful in attempting to avoid the foreclosure sale in state court. After that attempt was unsuccessful, the debtor filed a Chapter 11 bankruptcy petition.
The seventh Laguna factor is met because Trident Associates has no employees and has no ongoing business. The employees that manage the Tri Atria Office Center are employed by Beztak Realty. The general partner of Trident Associates, Trident General, is a shell corporation formed to allow the former general partners to avoid personal liability.
The eighth Laguna factor is present here because there seems to be no possibility of reorganizing the debtor. The plan that Trident Associates submitted merely calls for a delay in MetLife receiving its payments and does not suggest what possible means Trident Associates will have to make any payments. MetLife currently has the rights to all rent payments from the tenants in the Tri Atria Office Center.
This court in In re Laguna Associates stated that the finding of bad faith is a fact based determination that is reviewed for clear error. After reviewing the record, we are convinced that the facts of this ease cannot be meaningfully distinguished from Laguna. Consequently, we hold that the bankruptcy court did not clearly err when it found Trident Associates had filed in bad faith. We further hold that the bankruptcy court did not abuse its discretion by lifting the automatic stay and dismissing the petition.
III.
For these reasons, the bankruptcy court’s lifting of the automatic stay and dismissal of Trident Associates’ petition are AFFIRMED.
§ 362(d) provides:
On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under [§ 362(a) ], such as by terminating, annulling, modifying, or conditioning such stay—
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or
(2) with respect to a stay of an act against property under [§ 362(a)], if—
(A) the debtor does not have an equity in such property; and
(B) such property is not necessary to an effective reorganization.
§ 1112(b) provides in pertinent part:
Except [in a situation not applicable here], on request of a party in interest ... and after notice and a hearing, 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;
(2) inability to effectuate a plan;
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