Ferguson v. West Central FS, Inc., No. 15-3093 (7th Cir. 2016)Annotate this Case
The Fergusons proposed to repay their farm debts under Bankruptcy Code Chapter 12, including a $300,000 loan from First Community Bank, secured by a mortgage plus a lien on farm equipment and crops, and a $176,000 loan from FS, secured by a junior lien on equipment and crops. The bankruptcy judge approved a sale of equipment and crops, which yielded $238,000. The Bank, as senior creditor, demanded those proceeds. FS argued that the Bank should be required to recoup through the mortgage, allowing FS to be repaid from the equipment sale; "marshaling" is not mentioned in the Code, but available under state law. The Fergusons wanted reorganization, to keep their farm. The judge awarded the Bank $238,000. The parties could not agree on a repayment plan. The judge converted the case to a Chapter 7 liquidation. The trustee sold the farm for $411,000, paying the Bank the balance of its claim. About $261,000 remains. FS wanted to be treated as a secured creditor and repeated its request for marshaling. The equipment sale generated federal and state tax bills, with priority among unsecured creditors, 11 U.S.C. 507(a)(8). FS’s status—as a secured creditor with marshaling, or a general unsecured creditor without it—determines whether the taxes will be paid during the bankruptcy. Tax debts are not dischargeable; the Fergusons opposed marshaling. The bankruptcy judge approved FS’s request, stating that he would have approved the original request had he known that the farm would be sold. The district court remanded, stating that marshaling is proper only if two funds exist simultaneously. One fund (equipment and crop proceeds) is gone, only the land sale fund still exists. The Seventh Circuit dismissed an appeal for lack of jurisdiction; the remand was not a final order.