In re: O & S Trucking, Inc., Debtor; O & S Trucking, Inc., Appellant
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.
GRUENDER, Circuit Judge.
After the bankruptcy court confirmed a reorganization plan proposed by O& S
Trucking, Inc. (" O& S" ), O& S appealed to the Bankruptcy Appellate Panel (" BAP" ). The BAP dismissed the appeal for lack of jurisdiction. We affirm.
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 ...