Opinion
22-11094
07-10-2023
IN THE MATTER OF: TRINITY STONE, LTD Debtor
NOT INTENDED FOR PUBLICATION
ORDER DENYING MOTION FOR INSTRUCTIONS
Robert E. Grant Judge.
This is a chapter 11 case in which the debtor is in the process of making distributions to creditors under a confirmed plan. The debtor's representatives have recently received information about a potential, and heretofore unknown, claim for customs duties from the Department of Homeland Security. Fearful that this claim may disrupt the plan's contemplated distribution to creditors, the debtor has filed a Motion for Instructions and requested a hearing seeking guidance about what to do. While the court may understand the debtor's dilemma it cannot accommodate the debtor's request in its present form.
"A 'request for instructions' has no procedural value in modern bankruptcy practice now that the court does not participate in administration and is disfavored." In re Winnett, 97 B.R. 7, 8 n.1 (Bankr. E.D. Cal. 1989). See also, In re Freedlander, Inc., The Mortgage People, 95 B.R. 390, 391 (Bankr. E.D. Va. 1989); In re Castello, 98 B.R. 523, 525 n.2 (Bankr. D. Or. 1989). They constitute nothing more than improper advisory opinions. "[T]he requirement of a case or controversy, coupled with the ripeness doctrine, inform that the court must not render an advisory opinion or a premature one in an effort to insulate the trustee faced with a difficult question." In re NSCO, Inc., 427 B.R. 165, 178 (Bankr. D. Mass. 2010). Even if the present request qualifies as a case or controversy, at heart it is a request for some kind of declaratory judgment as to which group of competing claimants the debtor should prefer in distributing the remaining funds. Such a request may not be made by motion but, instead, requires an adversary proceeding. See, Fed. R. Bankr. P. Rule 7001(9). See also, Fed.R.Civ.P. Rule 22. Since an adversary proceeding is required to obtain the relief requested, the debtor's motion must be denied. See, Matter of Perkins, 902 F.2d 1254, 1258 (7th Cir. 1990).
Debtor's Motion for Instructions is DENIED, without prejudice.
SO ORDERED.