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In re O&S Trucking, Inc.

United States Court of Appeals, Eighth Circuit

January 22, 2016

In re: O & S Trucking, Inc., Debtor; O & S Trucking, Inc., Appellant
v.
Mercedes Benz Financial Services USA, doing business as Daimler Truck Financial, Appellee

Submitted November 17, 2015

Appeal from the United States Bankruptcy Appellate Panel for the Eighth Circuit.

For O& S Trucking, Inc., Appellant: Jonathan A. Margolies, MCDOWELL & RICE, Kansas City, MO.

For Mercedes Benz Financial Services USA, Appellee: Randall P. Mroczynski, COOSKEY & TOOLEN, Costa Mesa, CA; Jay N. Selanders, KUTAK & ROCK, Kansas City, MO.

Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.

OPINION

Page 1021

GRUENDER, Circuit Judge.

After the bankruptcy court confirmed a reorganization plan proposed by O& S

Page 1022

Trucking, Inc. (" O& S" ), O& S appealed to the Bankruptcy Appellate Panel (" BAP" ). The BAP dismissed the appeal for lack of jurisdiction. We affirm.

I.

O& S owned and operated a fleet of commercial trucks. Many of these trucks were financed or leased from various entities, including Mercedes Benz Financial Services USA (doing business as " Daimler" ). In May 2012, O& S filed a voluntary Chapter 11 bankruptcy petition. After Daimler filed a motion seeking adequate protection of its secured interest, Daimler and O& S negotiated an agreed order in which O& S promised to make protection payments to Daimler to cover, among other things, the erosion in value of the Daimler trucks that O& S retained. The parties calculated these protection payments based on their assessment of each truck's value, including $64,500 for each 2010 freightliner. O& S agreed to pay Daimler two percent of each truck's value each month.

After O& S filed a motion for determination of secured status, the bankruptcy court concluded that Daimler had a secured claim and an unsecured claim. The court calculated the secured-claim amount based on: (1) the value of the vehicle collateral retained by O& S and (2) O& S's net post-petition income from the Daimler trucks. The court assessed the present value of the vehicle collateral using the National Automobile Dealers Association retail value of $62,100 for each 2010 freightliner. The court calculated the net income from the Daimler trucks as $51,909.40, a sum that approximated O& S's revenue less its expenses and the protection payments.

O& S moved for reconsideration of the court's secured-status order, alleging several errors. First, O& S contended that the bankruptcy court erred when it relied on the present value of the trucks to calculate the vehicle-collateral sum. O& S argued that Daimler had been afforded a double recovery because the court did not reduce the present value based on the protection payments that O& S already had made. O& S also argued that the court erred by calculating the additional $51,909.40 net-income figure because Daimler had waived the right to any proceeds in the agreed ...


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