A decision in July by Bankruptcy Judge Robert J. Kressel of Minneapolis took on added significance when a district judge agreed that non-bankrupt parishes and schools cannot be drawn involuntarily into the bankruptcy of a Catholic archdiocese.
The case stands for the proposition that a motion for substantive consolidation is equivalent to an involuntary bankruptcy petition that cannot be filed against non-bankrupt schools, churches and charitable organizations as a consequence of Section 303(a) of the Bankruptcy Code.
The creditors’ committee for the Archdiocese of St. Paul and Minneapolis attempted to increase the pool of assets for sexual abuse claimants by filing a motion for substantive consolidation with about 200 non-bankrupt parishes, schools and other non-bankrupt Catholic entities under control of the archbishop. Without even reaching the First Amendment or the Religious Freedom Restoration Act, Bankruptcy Judge Kressel dismissed the consolidation motion in July, noting that the Eighth Circuit has not decided whether Section 105(a) allows substantive consolidation of debtors with non-debtors. He was upheld on Dec. 6 by District Judge Ann D. Montgomery.
Judge Montgomery began from the proposition that equitable relief under Section 105, such as substantive consolidation, “is limited to actions which are consistent with the Bankruptcy Code.” Dismissing the substantive consolidation motion was proper, she said, because “substantive consolidation is effectively involuntary bankruptcy” that is impermissible under Section 303(a), which bars involuntary bankruptcy proceedings against eleemosynary institutions.
Judge Montgomery upheld Judge Kressel’s alternative ruling that the motion did not make a case for substantive consolidation, largely because the finances of the archdiocese and the other Catholic institutions were “distinct and not tangled or intertwined.”
To read ABI’s discussion of Judge Kressel’s opinion, click here.