In Re Fred Lowenschuss, Debtor. Resorts International, Inc. v. Fred Lowenschuss

Opinion by Judge CHOY; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

Fred Lowenschuss appeals the district court’s reversal of the bankruptcy court’s decision. The district court held that the bankruptcy court erred when it (1) refused to allow Resorts International, Inc. (“Resorts”) to withdraw its proofs of claim from Lowen-schuss’s bankruptcy proceedings without prejudice; (2) discharged all claims against the Fred Lowenschuss Associates Pension Plan (the “Pension Plan”) when it confirmed Lowenschuss’s Chapter 11 reorganization plan (the “Reorganization Plan”); and (3) retained jurisdiction over litigation between Resorts and the Pension Plan regarding an allegedly unauthorized transfer of money in exchange for Resorts stock. We affirm the district court’s decision.

I.

In 1970, Lowenschuss established Fred Lowenschuss Associates, a professional corporation, with a Pension Plan for all employees of Fred Lowenschuss Associates. During the time period relevant to this appeal, Lowenschuss has been the trustee, administrator, sponsor, and sole beneficiary of the Pension Plan. 1 The Pension Plan held assets valued in the neighborhood of $8,000,000, which included…

concurring and dissenting:

I concur with all but part II.A of the majority opinion, but dissent as to that part.

First of all, it is important to say what this case is not. This is not a case where a party sought to obtain a dismissal without prejudice and was then either denied that outright or subjected to intolerable terms and conditions. Far from it. Resorts asked that the case be dismissed with prejudice but asked for special terms and conditions that would bind the bankruptcy court to allowing Resorts to come back into this very case at some future time. It also wanted a condition that would permit it to remain a party-in-interest even though its claim had been dismissed at its own behest. It wanted to retain all of the rights of a party to the case while avoiding the necessity of a trial. In other words, Resorts claims that it should be allowed to tell the bankruptcy court if and when that court is permitted to adjudicate the basic issue in the Lowensehuss reorganization: did Mr. Lowensehuss himself commit fraud upon Resorts either for his own benefit or for someone else’s? The bankruptcy court said that the time had come to try that issue, but Resorts disagreed. Resorts…

67 F.3d 1394 33 Fed.R.Serv.3d 249 , Bankr. L. Rep. P 76,673 , 95 Cal. Daily Op. Serv. 7974 , 95 Daily Journal D.A.R. 13 ,674 In re Fred LOWENSCHUSS, Debtor. RESORTS INTERNATIONAL, INC., Appellee, v. Fred LOWENSCHUSS, Appellant. No. 94-16287. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 12, 1995. Decided Oct. 10, 1995. Alan R. Smith, Smith & Cope, Reno, Nevada, for appellant. Mitchell A. Karlan, Gibson, Dunn & Crutcher, New York, New York, for appellee. Appeal from the United States District Court for the District of Nevada. Before CHOY, CANBY, and FERNANDEZ, Circuit Judges. Opinion by Judge CHOY; Partial Concurrence and Partial Dissent by Judge FERNANDEZ. CHOY, Circuit Judge: 1 Fred Lowenschuss appeals the district court's reversal of the bankruptcy court's decision. The district court held that the bankruptcy court erred when it (1) refused to allow Resorts International, Inc. ("Resorts") to withdraw its proofs of claim from Lowenschuss's bankruptcy proceedings without prejudice; (2) discharged all claims against the Fred Lowenschuss Associates Pension Plan (the "Pension Plan") when it confirmed Lowenschuss's Chapter 11 reorganization plan (the…