                                                           FILED
                                                             JUN 27 2012
 1                         ORDERED PUBLISHED
                                                      SUSAN M SPRAUL, CLERK
 2                                                        U.S. BKCY. APP. PANEL
                                                          O F TH E N IN TH C IR C U IT

 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5
 6   In re:                        )      BAP No.    NV-11-1728-DKiPa
                                   )                 NV-11-1737-DKiPa
 7   WINDMILL DURANGO OFFICE, LLC, )                 (Related appeals)
                                   )
 8                  Debtor.        )      Bk. No.    10-25594-lbr
     ______________________________)
 9                                 )
     BEAL BANK USA,                )
10                                 )
                    Appellant,     )
11                                 )
     v.                            )      O P I N I O N
12                                 )
     WINDMILL DURANGO OFFICE, LLC;)
13   UNITED STATES TRUSTEE; DP AIR )
     CORPORATION,                  )
14                                 )
                    Appellees.     )
15   ______________________________)
16
                     Argued and Submitted on June 15, 2012
17                            at Las Vegas, Nevada
18                            Filed - June 27, 2012
                        Ordered Published - July 6, 2012
19
               Appeal from the United States Bankruptcy Court
20                       for the District of Nevada
21        Honorable Linda B. Riegle, Bankruptcy Judge, Presiding
22
23   Appearances:     Jeffrey R. Sylvester of Sylvester & Polednak, Ltd.
                      argued for Appellant Beal Bank USA. Shara Larson
24                    of Marquis Aurbach Coffing argued for Appellee
                      Windmill Durango Office, LLC.
25
26
27   Before:   DUNN, KIRSCHER and PAPPAS, Bankruptcy Judges.
28
 1   DUNN, Bankruptcy Judge:
 2
 3        Beal Bank USA (“Beal Bank”) appeals two of the bankruptcy
 4   court’s orders concerning the chapter 11 plan of the debtor,
 5   Windmill Durango Office, LLC.1    Specifically, Beal Bank appeals
 6   the bankruptcy court’s order (“ballot order”) denying its motion
 7   to permit it to change a ballot accepting the debtor’s chapter 11
 8   plan (“ballot motion”).2   Beal Bank also appeals the bankruptcy
 9   court’s order confirming the debtor’s chapter 11 plan (“plan
10   confirmation order”) over Beal Bank’s objection.    We AFFIRM the
11   bankruptcy court’s rulings in both appeals.
12                                    FACTS
13   A.   The debtor’s prepetition history
14        The debtor owns 4.49 acres of commercial real estate
15   developed with a Class A office building (“real property”).    The
16
17
          1
            Unless otherwise indicated, all chapter, section and rule
18   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
19   to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
          2
20          Beal Bank has two related appeals before us: NV-11-1737
     and NV-11-1728. The first appeal, NV-11-1737, involves the
21   ballot order. The second appeal, NV-11-1728, involves the plan
22   confirmation order.
          Beal Bank and the debtor submitted briefs and records in
23   each appeal. We refer to Beal Bank’s opening and reply briefs in
     the first appeal as “Appellant’s Ballot Motion Opening Brief” and
24
     “Appellant’s Ballot Motion Reply Brief,” respectively. We refer
25   to Beal Bank’s opening and reply briefs in the second appeal as
     “Appellant’s Plan Confirmation Opening Brief” and “Appellant’s
26   Plan Confirmation Reply Brief,” respectively.
27        We refer to the debtor’s brief in the first appeal as
     “Appellee’s Ballot Motion Brief.” We refer to the debtor’s brief
28   in the second appeal as “Appellee’s Plan Confirmation Brief.”

                                        2
 1   real property is valued at $18.99 million.
 2        The debtor leases most of the office building space to
 3   Allegiant Air (“Allegiant”).3    Allegiant is a national airline
 4   company, running its corporate headquarters out of the leased
 5   office building space.   It is the debtor’s primary tenant,
 6   occupying 87% of the office building and providing 95% of the
 7   real property’s revenue.
 8        Under the lease, Allegiant pays a monthly rent of
 9   $182,006.12, including common area maintenance expense (“CAM”)
10   and parking.   Allegiant’s lease began in April 2008 and ends in
11   April 2018.    Allegiant may exercise an option to terminate the
12   lease in April 2015.    According to the debtor, if Allegiant
13   exercises this option, it must pay the debtor an estimated $1.2
14   million cancellation fee.
15        The debtor purchased the real property prepetition through a
16   loan with Community Bank of Nevada and Colonial Bank
17   (collectively, “original lenders”).     To document the loan, the
18   debtor executed a promissory note in the original principal
19   amount of $16.5 million, secured against the real property.4
20        The original lenders later were closed down and placed into
21   receivership with the FDIC.     Until that time, the debtor was
22   current on loan payments.   The debtor tried to negotiate a
23   purchase of the loan from the FDIC.     During negotiations with the
24
          3
25          The debtor also leases a small office space to 1-800-
     Registry, which entered into a short-term lease with the debtor
26   in October 2010.
27        4
            The promissory note matured by its non-accelerated terms
28   on December 26, 2011.

                                        3
 1   FDIC, the debtor defaulted on the loan.5    The FDIC ultimately
 2   sold the loan to Beal Bank.
 3        On April 1, 2010, Beal Bank commenced a state court action
 4   against the debtor for breach of contract (“state court action”).
 5   It also sought and eventually obtained the appointment of a state
 6   court receiver.   Beal Bank recorded a notice of default and
 7   election to sell on April 9, 2010.
 8   B.   The debtor’s chapter 11 bankruptcy case
 9        1.   The changing kaleidoscope of unsecured claims
10        The debtor filed its single asset real estate chapter 11
11   bankruptcy petition on August 17, 2010.     Windmill Durango, LP is
12   the sole owner of the debtor.
13        The debtor scheduled $1,121,261.11 in loans owed by Windmill
14   Durango, LP, and $168,000 in loans owed by Windmill Durango
15   Office II, LLC as accounts receivable.     It also scheduled
16   $99,844.79 in past due rent and CAMs owed by Allegiant as an
17   account receivable.6
18        The debtor scheduled Beal Bank as its only secured creditor.
19   The debtor initially reported a total of $268,000 in unsecured
20   nonpriority claims in its original Schedule F; Windmill Durango
21   Office II, LLC held the largest unsecured nonpriority claim in
22   the amount of $265,000.   The debtor specified the amount of only
23   one other unsecured nonpriority claim: a $3,000 business expense
24
          5
25          According to Beal Bank, the debtor failed to make payments
     from September 2009 to March 2010.
26
          6
27          Allegiant’s debt arose from a state court order requiring
     Allegiant to pay this amount to the receiver for the debtor’s
28   benefit.

                                      4
 1   owed to Green Thumb Maintenance.       The debtor listed the remaining
 2   unsecured nonpriority claims in “unknown” amounts.      The debtor
 3   named DP Air Corp. and Otis Elevator Company among the creditors
 4   holding unsecured nonpriority claims in unknown amounts.        It also
 5   reported in its Schedule H executory contracts with DP Air Corp.
 6   and Otis Elevator Company.
 7        The debtor amended its Schedule F three times over the
 8   course of its bankruptcy case.7    In the first amended Schedule F,
 9   the debtor reduced Windmill Durango Office II, LLC’s unsecured
10   nonpriority claim to $32,000.     In the second amended Schedule F,
11   the debtor listed Marquis & Aurbach with a $6,835.02 unsecured
12   nonpriority claim for prepetition attorney fees incurred in the
13   state court action.   In the third amended Schedule F, the debtor
14   listed John Benedict, Esq. (“Benedict”) with a $1,520 unsecured
15   nonpriority claim for prepetition attorney fees incurred from
16   representing the receiver in the state court action.
17        The deadline for general creditors to file proofs of claim
18   was January 5, 2011 (“claims bar date”).      Otis Elevator Company,
19   DP Air Corp., Marquis & Aurbach and Benedict filed proofs of
20   claim, all of which were unsecured nonpriority claims based on
21   services performed for the debtor.      Otis Elevator Company and
22   DP Air Corp. timely filed their proofs of claim.      The two
23   remaining creditors filed their proofs of claim some weeks after
24   the claims bar date; Marquis & Aurbach filed its proof of claim
25
26        7
            The debtor filed the first amended Schedule F on
27   September 23, 2010 (docket no. 40), the second amended Schedule F
     on February 3, 2011 (docket no. 89) and the third amended
28   Schedule F on March 24, 2011 (docket no. 125).

                                        5
 1   on March 1, 2011, and Benedict filed his original proof of claim
 2   on March 21, 2011, and his amended proof of claim on April 1,
 3   2011.
 4        The total amount of the unsecured nonpriority claims filed
 5   was $14,673.12.       Otis Elevator Company filed two proofs of claim;
 6   the first was in the amount of $1,500 and the second was in the
 7   amount of $648.59.       DP Air Corp.’s proof of claim was in the
 8   amount of $4,506.20.       Marquis & Aurbach’s proof of claim was in
 9   the amount of $6,498.33.       Benedict’s proof of claim was in the
10   amount of $1,520.8
11           2.     The debtor’s disclosure statement
12           The debtor filed its original disclosure statement and plan
13   on January 26, 2011.       An amended disclosure statement and amended
14   plan were filed on March 16, 2011.       Although Beal Bank objected
15   to the original disclosure statement, it did not object to the
16   amended disclosure statement.
17           Under the amended disclosure statement, the debtor placed
18   Beal Bank into Class 1 and the unsecured nonpriority creditors
19   into Class 3.       It estimated Beal Bank’s total secured claim to be
20   $16,188,110.62.       It believed that the real property had
21   $3 million in equity based on an appraised value of
22   $19.4 million.9       The debtor pointed out that Beal Bank never
23
24           8
                 Benedict filed two proofs of claim, claim no. 6 and claim
25   no. 7.       Claim no. 7 amended claim no. 6.
26           9
            The debtor stated in the amended disclosure statement that
27   the real property was valued at $19.4 million. In the third
     amended plan filed on December 19, 2011, see infra n. 11, the
28                                                      (continued...)

                                          6
 1   disputed the appraised value of the real property.      It further
 2   noted that Beal Bank was over-secured, given the appraised value
 3   of the real property and the amount of its secured claim.
 4        The debtor proposed paying Beal Bank a total principal
 5   amount of $16,188,100.62, fully amortized over 30 years with
 6   2.75% interest.      It proposed paying $66,086.53 per month, with
 7   the balance of the unpaid principal of $12,189,347.85 due and
 8   payable in ten years.      The debtor would make a final balloon
 9   payment on the unpaid principal balance.
10        The debtor intended to refinance or sell the real property
11   in order to make the proposed balloon payment.      It believed that
12   the real property’s value would increase over ten years.      Even if
13   the real property’s value remained the same, the debtor estimated
14   that there would be 40% in equity built up at the end of the
15   plan’s ten-year term.
16        The debtor also proposed to pay 100% of the allowed claims
17   of the unsecured nonpriority creditors without interest ninety
18   days after entry of the plan confirmation order.
19        Following hearings on March 9, 2011, and March 30, 2011, the
20   bankruptcy court entered an order approving the amended
21   disclosure statement (“disclosure statement order”) on April 5,
22   2011.       The bankruptcy court set May 31, 2011, as the deadline by
23   which creditors were required to submit their ballots accepting
24
25
             9
           (...continued)
26   debtor iterated this value. At the December 13, 2011 hearing,
27   the bankruptcy court found that the real property was “worth as
     all concede at a minimum of $18.99 million.” Tr. of December 13,
28   2011 hr’g, 5:18-19.

                                          7
 1   or rejecting the plan (“ballot deadline”).
 2        3.   Beal Bank’s ballot motion
 3        Beal Bank, Marquis & Aurbach and Benedict timely submitted
 4   their ballots.   Beal Bank voted to reject the plan, but Marquis &
 5   Aurbach and Benedict voted to accept the plan.       Two and a half
 6   weeks before the ballot deadline, Otis Elevator Company and
 7   DP Air Corp. withdrew their respective proofs of claim.10
 8        One week before the ballot deadline, Beal Bank filed an
 9   “Unconditional Transfer and Assignment of Claim After Proof of
10   Claim Filed” (“claim transfer”).       Beal Bank disclosed in the
11   claim transfer that Benedict assigned his claim to Beal Bank in
12   exchange for $1,250.
13        Three days after filing the claim transfer, Beal Bank filed
14   the ballot motion.   In the ballot motion, it sought the
15   bankruptcy court’s permission to withdraw Benedict’s vote
16   accepting the plan and submit a substitute ballot rejecting the
17   plan under Rule 3018(a).
18        Beal Bank admitted that it purchased Benedict’s claim in
19   order to block plan confirmation, as the debtor was seeking
20   cramdown under § 1129(b)(2)(B).    It noted that if the bankruptcy
21   court allowed Beal Bank to withdraw Benedict’s ballot and change
22   the vote, the debtor could not use cramdown under the plan, as it
23   would have no consenting impaired class as required under
24   § 1129(a)(10).
25        Beal Bank averred that its purchase of Benedict’s claim as a
26
          10
27          Otis Elevator Company withdrew its proof of claim on
     May 10, 2011, and DP Air Corp. withdrew its proof of claim on
28   May 13, 2011.

                                        8
 1   means to block plan confirmation did not constitute bad faith.
 2   It asserted that it had no improper motivation in wanting to
 3   withdraw Benedict’s ballot voting to accept the plan.    Rather,
 4   Beal Bank simply wanted to protect its own claim.    It also
 5   pointed out that it sought to withdraw Benedict’s ballot and
 6   change the vote before the ballot deadline.
 7          The debtor opposed the ballot motion, arguing that Beal Bank
 8   failed to satisfy Rule 3018(a).    Rule 3018(a) requires that a
 9   creditor must show cause to change or withdraw an acceptance or
10   rejection of the plan.    The debtor contended that Beal Bank
11   failed to show cause for withdrawing acceptance of the second
12   amended plan.    Instead, Beal Bank merely stated that it was
13   trying to protect its interest and that it was making the change
14   before the ballot deadline.
15          The debtor cited In re Kellogg Square P’ship, 160 B.R. 332
16   (Bankr. D. Minn. 1993), for the proposition that a bankruptcy
17   court usually allows a creditor to change its vote as long as the
18   creditor’s reason for the change is not improperly motivated.      If
19   the creditor’s proposed change is challenged, it must demonstrate
20   the propriety of the change.    According to the debtor, in Kellogg
21   Square P’ship, the bankruptcy court determined that where an
22   entity acquires a creditor’s claim after the creditor voted to
23   accept or reject the plan, the assigning creditor’s “evidenced
24   commitment to that specific participation in the case is a
25   permanent, binding limitation on the transferred claim.”    Id. at
26   335.    Here, Beal Bank did not provide any evidence indicating
27   that Benedict’s vote accepting the second amended plan was
28   contrary to his true intention.

                                       9
 1        At the June 13, 2011 hearing on the ballot motion, Beal Bank
 2   again admitted that it sought to change Benedict’s vote “so it
 3   could block confirmation inasmuch as the debtor would not be able
 4   to meet the numerosity requirements to have a consenting impaired
 5   class.”    Tr. of June 13, 2011 hr’g, 5:11-14.    See also Tr. of
 6   June 13, 2011 hr’g, 6:8-10.    It also admitted that it knew that
 7   Benedict had voted to accept the second amended plan at the time
 8   it purchased his claim and that it had purchased Benedict’s claim
 9   after he voted.    Beal Bank claimed, however, that there was
10   nothing “untoward . . . in its efforts to obtain a blocking
11   vote.”    Tr. of June 13, 2011 hr’g, 6:11-12.    Beal Bank argued
12   that simply because its purpose in changing the vote was self-
13   motivated did not mean that it was improperly motivated.
14        Quoting Kellogg Square P’ship, Beal Bank further contended
15   that “creditors should be given the full benefit of the right of
16   franchise under Chapter 11 so long as it complied in the first
17   instance with the ministerial rules governing that exercise.”
18   Tr. of June 13, 2011 hr’g, 15:13-15.    Benedict complied with the
19   disclosure statement order by timely casting his vote, so he
20   should be given the full benefit of his right of franchise to
21   change his vote, especially if he did so before the ballot
22   deadline.    Beal Bank argued that the fact that Benedict assigned
23   his claim to Beal Bank was of no import.    As successor-in-
24   interest, Beal Bank also should be able to exercise the right of
25   franchise to change the vote accepting the second amended plan.
26        The bankruptcy court denied Beal Bank’s ballot motion,
27   determining that Beal Bank did not show cause for changing or
28   withdrawing Benedict’s vote.    It opined that cause “can’t merely

                                      10
 1   be I want to change my mind or else why [did Rule 3018(a)] use
 2   the word ‘cause’?”   Tr. of June 13, 2011 hr’g, 16:17-18.   See
 3   also Tr. of June 13, 2011 hr’g, 16:21-23 (“cause include[d]
 4   something other than I’ve changed my mind or else you don’t need
 5   the word ‘cause’ [in Rule 3018(a)].”).   The bankruptcy court
 6   determined that cause could not “be shown by the fact that [Beal
 7   Bank] want[ed] to block confirmation.”   Tr. of June 13, 2011
 8   hr’g, 20:7-8.   The bankruptcy court opined that it was not
 9   “appropriate [for creditors] to wait ‘til the plans [were]
10   balloted and then decide what claims [they were] going to buy.”
11   Tr. of June 13, 2011 hr’g, 20:9-10.
12        The bankruptcy court moreover reasoned that “it [did] the
13   process violence by the buying of a claim to specifically block
14   confirmation after [the balloting was done].”   Tr. of June 13,
15   2011 hr’g, 20:21-24, 21:3-4.
16        The bankruptcy court entered the ballot order, which
17   incorporated the fact findings and legal conclusions orally made
18   on the record at the June 13, 2011 hearing.   Beal Bank timely
19   appealed the ballot order.
20        4.    The debtor’s plan confirmation
21        The debtor filed its second amended plan on April 6, 2011.11
22   The second amended plan repeated the terms set forth in the
23
24
          11
25          The debtor titled the second amended plan as “Windmill
     Durango Office, LLC’s [Proposed] Chapter 11 Plan of
26   Reorganization.” It filed a third amended plan on December 19,
27   2011, following hearings on July 7, 2011, and December 13, 2011.
     The debtor titled the third amended plan as “Windmill Durango
28   Office, LLC’s Second Amended Chapter 11 Plan of Reorganization.”

                                     11
 1   amended disclosure statement.12
 2        Beal Bank objected to the second amended plan (“plan
 3   objection”), arguing that the debtor did not satisfy the
 4   requirements of § 1129(a) and (b).     It noted that the debtor
 5   proposed a nonconsensual cramdown plan, which required the debtor
 6   to satisfy all applicable elements of § 1129(a) and (b).     It
 7   contended that the debtor failed to satisfy §§ 1129(a)(10) and
 8   1126(c) which require at least one impaired class to accept the
 9   plan and for that impaired class to accept a plan by creditors
10   holding 2/3 in the allowed claim amount and more than 1/2 in the
11   number of allowed claims.   It pointed out that the debtor only
12   had two impaired classes: Beal Bank formed one impaired class and
13   Maquis & Aurbach and Benedict formed the other impaired class
14   (“unsecured nonpriority creditor class”).     Beal Bank voted to
15   reject the second amended plan.    It also acquired Benedict’s
16   claim “for the express purpose of controlling the unsecured class
17   vote.”    Thus, even if Marquis & Aurbach voted to accept the plan,
18   Beal Bank argued, the debtor did not have the requisite number of
19   consenting creditors under § 1126(c).     Without a consenting
20   impaired class, the debtor could not use the cramdown provisions
21   of § 1129(b) to confirm its second amended plan.
22        Beal Bank contended that the debtor also failed to satisfy
23   § 1129(a)(3) because it did not file the second amended plan in
24
25
          12
            Beal Bank filed a proof of claim in the amount of
26   $16,979,353. At the time of plan confirmation, it contended the
27   amount of its secured claim was $17,404,669.85. The debtor
     countered that the amount of Beal Bank’s secured claim was
28   $16,188,110.62.

                                       12
 1   good faith, as it artificially impaired the unsecured nonpriority
 2   creditor class.   Although the claims of the unsecured nonpriority
 3   creditor class only totaled $8,018.33 and sufficient operating
 4   cash was available to pay them, the debtor nonetheless proposed
 5   to pay the unsecured nonpriority creditor class without interest
 6   after ninety days.   Beal Bank contended that the debtor purposely
 7   impaired the unsecured nonpriority creditor class to force the
 8   second amended plan upon Beal Bank, the only truly impaired
 9   creditor.
10        Beal Bank also objected to the proposed interest rate to be
11   paid on its secured claim as it did not provide sufficient value.
12   Under Till v. SCS Creditor Corp., 541 U.S. 465 (2004), the
13   appropriate rate of interest is the prime rate plus a 1% to 3%
14   adjustment for risk factors.   Here, the debtor proposed paying
15   Beal Bank 2.75% interest on its secured claim, even though the
16   prime rate of interest was 3.25% at the time.   The interest rate
17   proposed by the debtor therefore fell below the minimum
18   established by Till.
19        Beal Bank further argued that the debtor’s second amended
20   plan was not feasible as required under § 1129(a)(11).    The
21   debtor primarily relied on the rental income from its lease with
22   Allegiant to fund the second amended plan.   If Allegiant
23   exercised its option to terminate the lease early, the debtor
24   would be unable to continue business operations and fund the
25   second amended plan.   Beal Bank moreover questioned the debtor’s
26   ability to make the proposed balloon payment in ten years, given
27   that the debtor did not provide any information regarding the
28   probability of refinancing.

                                     13
 1        The debtor filed its ballot summary on June 14, 2011.      It
 2   reported that the sole creditor in class 1, Beal Bank, voted to
 3   reject the second amended plan.    The debtor further reported that
 4   both Marquis & Aurbach and Benedict voted to accept the plan.
 5        The debtor also filed a reply to Beal Bank’s plan objection.
 6   It noted in its reply that it would amend the plan to provide an
 7   appropriate rate of interest consistent with its expert witness
 8   testimony, to the extent that the bankruptcy court found that the
 9   proposed interest rate on Beal Bank’s secured claim was
10   inappropriate for cramdown purposes.
11        The debtor argued that it did not file the second amended
12   plan in bad faith because it had economic and business
13   justifications for not paying the unsecured nonpriority creditors
14   preconfirmation.   It claimed that it needed to have significant
15   cash reserves to maintain Allegiant’s office space, as Allegiant
16   required the office space to be fully functional 24 hours a day,
17   7 days a week.   It also needed significant cash reserves to pay
18   for any maintenance and repair for the office building’s
19   equipment and utilities.
20        The debtor further explained it needed cash reserves
21   following tax season and any CAM reconciliation disputes with
22   Allegiant.   It also needed cash reserves to make any tenant
23   improvements, should it secure a new tenant.
24        The debtor pointed out that Beal Bank would receive
25   substantially more through the second amended plan than through
26   any other available alternative.       Under the second amended plan,
27   Beal Bank would receive deferred cash payments totaling the
28   allowed amount of its claim plus interest while retaining its

                                       14
 1   lien on the real property.
 2        As to Beal Bank’s argument regarding feasibility, the debtor
 3   purposely chose to pay $66,086 per month to Beal Bank so it could
 4   save the difference between its monthly operating budget and the
 5   monthly rents to continue funding the plan in the event Allegiant
 6   terminated its lease early.   As noted above, the debtor would be
 7   entitled to a $1.2 million cancellation fee if Allegiant
 8   terminated the lease early.
 9        The debtor also anticipated that in ten years, the real
10   property would be encumbered by less debt, the economy would have
11   improved, and the real property’s value would have increased.
12   Even if the real property’s value remained stagnant,
13   approximately 35 to 40% of the real property’s value would
14   provide an equity cushion for the debtor.
15        With respect to Beal Bank’s argument regarding the proposed
16   interest rate on its secured claim, the debtor offered to adjust
17   it to 4.25%.   It revealed that, in light of the ballots submitted
18   and objections filed, its expert witness, Kenneth Funsten
19   (“Funsten”) believed that the second amended plan should be
20   assessed under Till.   Even at the 2.75% interest rate, the second
21   amended plan proposed to pay Beal Bank over $20 million in
22   principal and interest over ten years, which exceeded the present
23   value of Beal Bank’s secured claim.
24        Two days before the July 7, 2011 evidentiary hearing on the
25   second amended plan (“evidentiary hearing”), the debtor and Beal
26   Bank filed a joint pretrial statement (docket no. 222).    In the
27   joint pretrial statement, the debtor and Beal Bank presented the
28   following issues to be determined by the bankruptcy court at the

                                     15
 1   evidentiary hearing: (1) whether an impaired class existed with a
 2   genuine interest to consent to the second amended plan;
 3   (2) whether the debtor filed the second amended plan in good
 4   faith; (3) whether the second amended plan sets forth the
 5   appropriate interest rate on Beal Bank’s secured claim for the
 6   purposes of cramdown; and (4) whether the second amended plan was
 7   feasible.
 8        At the start of the evidentiary hearing, the bankruptcy
 9   court found that at least one impaired class (i.e., class 3, the
10   unsecured nonpriority creditor class) had accepted the debtor’s
11   second amended plan.   Relying on Conn. Gen. Life Ins. Co. v.
12   Hotel Assocs. of Tucson (In re Hotel Assocs. of Tucson), 165 B.R.
13   470 (9th Cir. BAP 1994), it held that the debtor satisfied the
14   requirement of § 1129(a)(10), though it acknowledged that the
15   issue of class gerrymandering might be relevant to the issue of
16   good faith under § 1129(a)(3).
17        The bankruptcy court heard testimony from various witnesses,
18   including the debtor’s expert witnesses, on the appropriate
19   interest rate to be paid on Beal Bank’s secured claim and the
20   value of the real property.   During the evidentiary hearing, the
21   bankruptcy court emphasized that the second amended plan’s
22   feasibility depended on a determination of the appropriate
23   interest rate to be paid on Beal Bank’s secured claim.
24        At the end of the evidentiary hearing, the bankruptcy court
25   asked the parties to submit supplemental briefs as to the second
26   amended plan’s feasibility.   The parties were to include
27   calculations of the potential monthly payment amounts and the
28   balloon payment amount, based on the interest rates and the

                                      16
 1   amounts of Beal Bank’s secured claim as advanced by each of the
 2   parties.   The debtor and Beal Bank both filed their supplemental
 3   briefs on September 19, 2011 (docket nos. 254 and 255).13
 4        The debtor contended in its supplemental brief that the
 5   second amended plan was feasible if the bankruptcy court accepted
 6   any of the interest rates proposed by the debtor.    The debtor
 7   claimed that the appropriate interest rate was 4.25%, the Till
 8   build-up rate.   But even at the highest interest rate of 4.79%,
 9   the blended rate, or at 4.52%, the average of the Till build-up
10   rate and the blended rate, the debtor’s second amended plan still
11   was feasible.    Applying any of these interest rates to the higher
12   claim amount of $17,404,669.85 asserted by Beal Bank, the debtor
13   noted that the calculated monthly payments were close to the
14   $88,047 monthly adequate protection payment it had been making to
15   Beal Bank over the course of the bankruptcy case.    The debtor
16   calculated that the monthly payment to Beal Bank would be
17   $85,620.51 at the 4.25% interest rate, $88,393.86 at the 4.52%
18   interest rate or $91,211.10 at the 4.79% interest rate.14
19        The debtor also anticipated that it would be able to make
20   the balloon payment at the end of the plan term.    The debtor
21
          13
22          Beal Bank included in the record before us a copy of the
     debtor’s supplemental brief, but did not include a copy of its
23   own supplemental brief. We obtained a copy of Beal Bank’s
24   supplemental brief from the bankruptcy court’s electronic docket.
     See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.),
25   887 F.2d 955, 957-58 (9th Cir. 1988); Atwood v. Chase Manhattan
     Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP
26   2003).
27        14
            The debtor continued to maintain, however, that the
28   amount of Beal Bank’s secured claim was $16,188,110.62.

                                      17
 1   asserted that it would have $6 million in equity to work with at
 2   the end of the plan term, based on its proposed payoff schedule
 3   and the assumption that the real property’s market value remained
 4   static.   The debtor therefore believed that it would be able to
 5   refinance successfully or sell the real property to satisfy the
 6   balloon payment.
 7        Beal Bank argued that the appropriate interest rate was
 8   8.1%, the blended rate, as calculated by its own expert, Daniel
 9   Van Vleet (“Van Vleet”).   Applying this interest rate to the
10   $17,404,669.85 claim amount asserted by Beal Bank, the monthly
11   payment amortized over thirty years would be $128,925.     Even at
12   the $16,188,111 claim amount asserted by the debtor, Beal Bank
13   calculated that the monthly payments amortized over thirty years
14   would be $119,913.
15        Beal Bank pointed out that the debtor’s proposed loan term
16   was ten years, maturing in 2021.     If Allegiant early terminated
17   its lease in April 2015 or continued with the lease to the end of
18   its contracted term in April 2018, the debtor’s cash flow
19   potentially would be severely restricted well before the proposed
20   loan maturity date.   According to Beal Bank, the debtor did not
21   provide any evidence that it could continue to service the debt
22   obligation to Beal Bank following early termination or
23   termination of the lease with Allegiant.     Thus, Beal Bank
24   concluded, the debtor’s second amended plan was not feasible.
25        On December 13, 2011, the bankruptcy court held a hearing,
26   orally issuing its fact findings and legal conclusions on the
27   record.   The bankruptcy court made detailed fact findings as to
28   feasibility under § 1129(a)(11).     With respect to the issue of

                                     18
 1   good faith under § 1129(a)(3), the bankruptcy court stated that
 2   “the [second amended] plan meets all the other requirements of
 3   Chapter 11 . . . .”    Tr. of December 13, 2011 hr’g, 15:3-4.     See
 4   also Tr. of December 13, 2011 hr’g, 4:3-4.
 5        The bankruptcy court found that the 4.52% interest rate
 6   testified to by the debtor’s expert was the appropriate cramdown
 7   interest rate.    It adopted the 4.52% interest rate in light of
 8   the approach set forth by Till, which required the bankruptcy
 9   court to start with the prime rate and then build up or add to it
10   based on risk factors.    The bankruptcy court opined that Till
11   only set 1% to 3% as the general range for risk factors, not as
12   the limit.
13        The bankruptcy court adopted the findings set forth by
14   Funsten, the debtor’s expert, agreeing with his analysis of the
15   risk factors.    It adopted his conclusions “based upon the
16   character of the loan, the fact that . . . [there was] a building
17   that’s rented, a stable tenant, and the rent above market and
18   above the amount needed to pay the debt, the collateral which
19   again relate[d] to the building, and the circumstances peculiar
20   to this debtor.”    Tr. of December 13, 2011 hr’g, 13:15-20.    The
21   bankruptcy court explained that it adopted the 4.52% interest
22   rate “to account for the high risk if the debt [was] equal to
23   [Beal Bank’s] current claim.”    Tr. of December 13, 2011 hr’g,
24   13:24-25, 14:1.
25        It found Van Vleet’s calculation of the interest rate to be
26   flawed in several respects.    The bankruptcy court determined that
27   Van Vleet used a coerced-loan approach, not the blended-rate
28   approach he claimed to have used.     It moreover found that he

                                      19
 1   “double-calculated” the risk to Beal Bank under the plan,
 2   applying an equity investor rate.
 3        The bankruptcy court determined that the second amended plan
 4   was feasible based on the 4.52% interest rate proposed by the
 5   debtor and the $17,404,669.85 claim amount asserted by Beal Bank.
 6   The bankruptcy court was careful to note that it was assuming the
 7   higher claim amount without deciding, “[f]or the purposes of
 8   determining the appropriate rate of interest which, in turn,
 9   require[d] an analysis based upon the amount of the debt[.]”
10   Tr. of December 13, 2011 hr’g, 4:11-14.
11        The bankruptcy court also found it reasonably possible that
12   the second amended plan was feasible because the debtor had
13   sufficient income to fund it as the debtor received rental income
14   exceeding the monthly payment amount to Beal Bank and would
15   receive substantial damages from Allegiant in the event of early
16   lease termination.   The bankruptcy court believed it unlikely
17   that Allegiant would early terminate the lease, given relocation
18   costs and the special features offered by the office building.
19   The bankruptcy court further reasoned that even if Allegiant did
20   not renew the lease in April 2018, the debt to Beal Bank would be
21   reduced to $15,153,193.
22        It also recognized that the debtor had been making payments
23   to Beal Bank in an amount equal to or close to the amount
24   proposed under the second amended plan.   The bankruptcy court
25   further noted that the debtor’s most recent operating report
26   revealed that the debtor had a healthy cash balance.
27        The bankruptcy court found it reasonably possible that the
28   debtor would be able to sell or refinance the real property such

                                     20
 1   that it would be able to make the balloon payment at the end of
 2   the ten-year plan term.    The bankruptcy court determined that
 3   Funsten’s report provided evidence as to the feasibility of a
 4   sale or refinance of the real property.      It further determined
 5   that there was “nothing to suggest that the subject [real]
 6   property [would] decline in value,” though it acknowledged that
 7   “any attempts to opine on the market conditions may be pure
 8   speculation with respect to the state of the economy and the
 9   market [in the area] in ten years[.]”       Tr. of December 13, 2011
10   hr’g, 8:1-5.     The bankruptcy court thus concluded that Beal Bank
11   not only had an equity cushion at the time of the evidentiary
12   hearing, but would have an even greater one in ten years because
13   the debtor would have made payments under the second amended
14   plan.
15        The bankruptcy court entered the plan confirmation order on
16   December 21, 2011.    Beal Bank timely appealed the plan
17   confirmation order.
18        At oral argument, it was reported that the general unsecured
19   claims had been paid in full, and payments to Beal Bank under the
20   confirmed plan were current.
21                                JURISDICTION
22        The bankruptcy court had jurisdiction under 28 U.S.C.
23   §§ 1334 and 157(b)(2)(L) and (O).      We have jurisdiction under
24   28 U.S.C. § 158.
25                                   ISSUES
26        (1) Did the bankruptcy court err in denying Beal Bank’s
27   ballot motion?
28        (2) Did the bankruptcy court err in confirming the debtor’s

                                       21
 1   second amended plan by finding that the debtor demonstrated that
 2   it was feasible?
 3        (3) Did the bankruptcy court err in confirming the debtor’s
 4   second amended plan by finding that the debtor filed it in good
 5   faith?
 6                           STANDARDS OF REVIEW
 7        The debtor and Beal Bank initially disagreed as to the
 8   standard of review that we should apply in reviewing the
 9   bankruptcy court’s ruling under Rule 3018(a).   At oral argument,
10   counsel for the debtor agreed with Beal Bank that we should
11   conduct our review under the abuse of discretion standard.
12        We have been unable to locate authority within the Ninth
13   Circuit and elsewhere directly addressing this issue.    We further
14   note that the Bankruptcy Code does not define “cause.”   We
15   nonetheless agree with the parties that the abuse of discretion
16   standard of review applies here, as, within the context of
17   chapter 11 cases, this standard of review has been applied to
18   dismissals of chapter 11 cases for bad faith as “cause” under
19   § 1112(b).   See Marsch v. Marsch (In re Marsch), 36 F.3d 825, 828
20   (9th Cir. 1994) (per curiam) (reviewing for abuse of discretion
21   bankruptcy court’s decision to dismiss chapter 11 case as bad
22   faith filing under § 1112(b)).   We also note that Rule 3018(a)
23   provides that the bankruptcy court may, but not necessarily must,
24   permit a creditor to change its cast ballot, certainly implying
25   that the court is vested with discretion in making its decision.
26   We also review the bankruptcy court’s decision to confirm a
27   chapter 11 reorganization plan for an abuse of discretion.
28   Computer Task Group, Inc. v. Brotby (In re Brotby), 303 B.R. 177,

                                      22
 1   184 (9th Cir. BAP 2003).
 2        We apply a two-part test to determine objectively whether
 3   the bankruptcy court abused its discretion.       United States v.
 4   Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc).
 5   First, we “determine de novo whether the bankruptcy court
 6   identified the correct legal rule to apply to the relief
 7   requested.”    Id.   Second, we examine the bankruptcy court’s
 8   factual findings under the clearly erroneous standard.         Id. at
 9   1262 & n.20.    We must affirm the bankruptcy court’s factual
10   findings unless those findings are “(1) ‘illogical,’ (2)
11   ‘implausible,’ or (3) without ‘support in inferences that may be
12   drawn from the facts in the record.’”     Id.
13        “Of course, a determination that a plan meets the requisite
14   confirmation standards necessarily requires a bankruptcy court to
15   make certain factual findings and interpret the law.”         Brotby,
16   303 B.R. at 184.     We review the bankruptcy court’s factual
17   determinations regarding feasibility under § 1129(a)(11) and good
18   faith under § 1129(a)(3) for clear error.       Id.    We will not
19   disturb the bankruptcy court’s factual determinations unless,
20   after reviewing the entire evidence, we have a definite and firm
21   conviction that a mistake has been made.     Hinkson, 585 F.3d at
22   1260.   We reverse the bankruptcy court only if we conclude that
23   the bankruptcy court’s factual determinations were illogical,
24   implausible or without support in the record.         Id. at 1261.   If
25   the bankruptcy court’s “account of the evidence is plausible in
26   light of the record viewed in its entirety,” we may not reverse,
27   even if we are convinced that, had we been in the position of
28   factfinder, we would have weighed the evidence differently.

                                       23
 1   Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74
 2   (1985).   “Where there are two permissible views of the evidence,
 3   the factfinder’s choice between them cannot be clearly
 4   erroneous.”   Id. at 574.
 5        We review de novo the following issues as they involve
 6   questions of law: (1) whether plan treatment “impairs” a
 7   creditor’s claim and (2) the bankruptcy court’s determination of
 8   what factors to apply in a value determination.     Conn. Gen. Life
 9   Ins. Co. v. Hotel Assocs. of Tucson (In re Hotel Assocs. of
10   Tucson), 165 B.R. 470, 473 (9th Cir. BAP 1994).     We accord
11   substantial deference to the bankruptcy court’s cramdown interest
12   rate determinations.    Id.
13        We may affirm on any basis supported by the record.     Shanks
14   v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008).
15                                 DISCUSSION
16   A.   The bankruptcy court did not err in denying Beal Bank’s
          ballot motion
17
18        Rule 3018(a)15 allows a creditor to change its vote only on
19   a showing of cause.    As one bankruptcy court points out, the
20   Bankruptcy Code does not provide any guidance as to what
21   constitutes cause under Rule 3018(a).      In re CGE Shattuck, LLC,
22   2000 WL 33679416 (Bankr. D.N.H. 2000).
23        The test for determining whether cause has been shown
          should not be a difficult one to meet. As long as the
24        reason for the vote change is not tainted, the change of
          vote should usually be permitted. The court must only
25        ensure that the change is not improperly motivated.
26
          15
27          Rule 3018(a) provides, in relevant part, “For cause
     shown, the court after notice and hearing, may permit a creditor
28   . . . to change or withdraw an acceptance or rejection.”

                                       24
 1   Kellogg Square P’ship, 160 B.R. at 334 (citing 8 Collier on
 2   Bankruptcy ¶ 3018.01[4] (15th ed. 1990)).
 3        Here, Beal Bank emphasizes that the threshold to show cause
 4   under Rule 3018(a) is low.   A creditor only need demonstrate that
 5   it has no “tainted” or improperly motivated reason for
 6   withdrawing its vote.   Beal Bank freely admitted to the
 7   bankruptcy court and at oral argument that it bought Benedict’s
 8   claim for the express purpose of blocking confirmation of a plan
 9   it believed to be proposed in bad faith by the debtor.      According
10   to Beal Bank, the bankruptcy court did not find this reason for
11   its request to change Benedict’s vote to be either tainted or
12   improperly motivated.   Appellant’s Ballot Motion Opening Brief
13   at 15.   Because it did not find Beal Bank’s request to withdraw
14   Benedict’s vote to be improper, Beal Bank argues, the bankruptcy
15   court simply should have granted the ballot motion.
16        Beal Bank moreover contends that cause under Rule 3018(a)
17   should be presumed to exist when a creditor seeks to withdraw its
18   vote before the ballot deadline.      Appellant’s Ballot Motion
19   Opening Brief at 26.    Beal Bank argues that to deny a creditor’s
20   request to withdraw its vote when it was made before the ballot
21   deadline would deprive the creditor “the full benefit of their
22   right of franchise under Chapter 11.”      Appellant’s Ballot Motion
23   Opening Brief at 28.    As long as the debtor suffers no prejudice
24   from the creditor’s withdrawal of the vote, Beal Bank reasons,
25   the bankruptcy court should allow the creditor to do so.      Id.
26        Little authority exists addressing this issue.      In In re
27   Kellogg Square P’ship, 160 B.R. 332 (Bankr. D. Minn. 1993), the
28   bankruptcy court faced facts similar to the matter before us.       In

                                      25
 1   Kellogg Square P’ship, Prudential Insurance Company of America
 2   (“Prudential”), the debtor’s largest and only secured creditor,
 3   purchased claims from several of the debtor’s unsecured
 4   creditors.   Prudential obtained assignments of these claims after
 5   these creditors had cast their votes accepting the debtor’s plan.
 6   Prudential then moved to change the acceptances to rejections
 7   under Rule 3018(a).   Like Beal Bank, Prudential’s strategy in
 8   purchasing the claims and changing the votes was to defeat
 9   confirmation of the debtor’s plan so as to avoid cramdown
10   treatment of its secured claim.
11        The bankruptcy court found that Prudential did not show
12   cause under Rule 3018(a) to modify the votes, as the only cause
13   alleged by Prudential was that it would not have voted the claims
14   in favor of the debtor’s plan.    Kellogg Square P’ship, 160 B.R.
15   at 335.   The bankruptcy court reasoned that allowing an assignee-
16   creditor to change the vote previously cast by the assignor
17   undermines a basic principle of assignments.   Id.   Generally, “an
18   entity which acquires a claim [against a bankruptcy estate] steps
19   into the shoes of that claimant, enjoying both the benefits and
20   the limitations of the claim, as a successor in interest.”     Id.
21   (quoting In re Applegate Prop., Ltd., 133 B.R. 827, 833 (Bankr.
22   W.D. Tex. 1991) (internal quotation marks omitted)).   The
23   bankruptcy court concluded that “where an entity acquires a
24   creditor’s claim after the creditor has already cast a vote on a
25   plan of reorganization, the assignor-creditor’s evidenced
26   commitment to that specific participation in the case is a
27   permanent, binding limitation on the transferred claim.”     Id.
28        It further reasoned that allowing an assignee-creditor to

                                       26
 1   change the assignor’s previously cast vote would undercut the
 2   “certainty in the dynamics of reorganization under chapter 11.”
 3   Id.   “[W]ere pre-transfer votes not binding on the assignees of
 4   claims, creditors would be left to select not the best plan [of
 5   reorganization] but the best deal they might be able to
 6   individually negotiate, with the major constituencies vying for
 7   control of the case, behind the scene of the confirmation
 8   process.”   Id. (quoting Applegate Prop., Ltd., 133 B.R. at 836
 9   (internal quotation marks omitted)).
10         Beal Bank contends that the reasoning of Kellogg Square
11   P’ship goes against current Ninth Circuit authority concerning
12   the law of assignments as set forth in Boyajian v. New Falls
13   Corp. (In re Boyajian), 564 F.3d 1088 (2009).   Boyajian
14   established that an assignee-creditor may pursue a § 523(a)(2)(B)
15   action against a debtor as long as the assignee-creditor shows
16   that the original creditor relied on the debtor’s materially
17   false statement.   Because the reasoning of Kellogg Square P’ship
18   conflicts with Boyajian, Beal Bank argues, it does not apply
19   here.
20         We do not quibble with Beal Bank in its assertion that, as
21   the assignee-creditor, it had the right to seek withdrawal of
22   Benedict’s vote.   But Beal Bank misses the essential point of
23   Kellogg Square P’ship: like the bankruptcy court here, the
24   Kellogg Square P’ship bankruptcy court found that Prudential did
25   not establish cause under Rule 3018(a) to change the vote of the
26   assignor-creditors.
27         The bankruptcy court in In re MCorp Fin., Inc., 137 B.R. 237
28   (Bankr. S.D. Tex. 1992), also considered a motion to allow a

                                     27
 1   change in vote on a chapter 11 plan.    In MCorp Fin., Inc., an
 2   unsecured creditor moved to change his vote rejecting the chapter
 3   11 plan to one accepting it shortly after he reached an agreement
 4   with the debtor regarding treatment of his claim in the chapter
 5   11 plan.    After pointing out that a change in vote under Rule
 6   3018(a) is the exception rather than the rule, id. at 238, the
 7   bankruptcy court went on to indicate that the standard for such a
 8   change is fairly relaxed, echoing the Kellogg bankruptcy court in
 9   citing Collier.    The bankruptcy court then listed examples
10   justifying vote changes, including “a breakdown in communications
11   at the voting entity, misreading the terms of the plan, or
12   execution of the first ballot by one without authority.     In such
13   circumstances, the vote could be changed in order to allow the
14   voting entity to intelligently express its will.”    Id.
15          The bankruptcy court in MCorp Fin., Inc. ultimately denied
16   the unsecured creditor’s motion to change his vote, determining
17   that his requested vote change was “prompted by a subsequent
18   agreement, and was made in writing only after testimony in the
19   confirmation hearing which made the ballot important.”     Id. at
20   239.    It found that “the timing of the change [was] highly
21   suspect, and the evidence [did] not overcome the possibility of
22   improper motivation.”    Id.   The bankruptcy court concluded that
23   the unsecured creditor failed to meet his burden of proof to
24   establish that the requested change was not improperly motivated.
25   Id.
26          Beal Bank maintains that the bankruptcy court did not find
27   that it had an improper motivation in seeking to withdraw
28   Benedict’s claim.    But the bankruptcy court did make such a

                                       28
 1   finding: it found that Beal Bank’s reason to block confirmation
 2   “did the process violence.”   It further found that it was not
 3   “appropriate [for creditors] to wait ‘til the plans [were]
 4   balloted and then decide what claims [they were] going to buy.”
 5        The bankruptcy court moreover found that “cause” under
 6   Rule 3018(a) required something more than a mere change of heart.
 7   It determined that withdrawing a previously cast vote for the
 8   purpose of strategy (i.e., for the purpose of blocking plan
 9   confirmation) was not cause under Rule 3018(a).
10        The bankruptcy court found that Beal Bank did not establish
11   cause for withdrawing Benedict’s vote.   It further found that
12   Beal Bank’s reason for withdrawing Benedict’s vote was improperly
13   motivated.   While it is a close question, we conclude that the
14   bankruptcy court did not abuse its discretion in denying the
15   ballot motion.
16   B.   The bankruptcy court did not err in finding that the
          debtor’s second amended plan was feasible
17
18        “To confirm a plan, a bankruptcy court must find that the
19   plan is feasible, meaning that confirmation of the plan is not
20   likely to be followed by the liquidation, or the need for further
21   financial reorganization, of the debtor.”   Sherman v. Harbin
22   (In re Harbin), 486 F.3d 510, 517 (9th Cir. 2007).   Feasibility
23   requires only that the debtor demonstrate that the plan has a
24   “reasonable probability of success.”   Acequia, Inc. v. Clinton
25   (In re Acequia, Inc.), 787 F.2d 1352, 1364 (9th Cir. 1986).     “The
26   Code does not require the debtor to prove that success is
27   inevitable or assured, and a relatively low threshold of proof
28   will satisfy § 1129(a)(11) so long as adequate evidence supports

                                     29
 1   a finding of feasibility.”   Wells Fargo Bank v. Loop 76, LLC
 2   (In re Loop 76, LLC), 465 B.R. 525, 544 (9th Cir. BAP 2012).    The
 3   debtor cannot confirm a plan that is “a visionary scheme which
 4   promises more than the debtor can deliver.”   Id. (quoting Wiersma
 5   v. O.H. Kruse Grain & Milling (In re Wiersma), 324 B.R. 92,
 6   112-13 (9th Cir. BAP 2005), aff’d in part, rev’d in part on other
 7   grounds, 227 Fed. Appx. 603 (9th Cir. 2007) (internal quotation
 8   marks omitted)).   “Because feasibility is an issue of fact, we
 9   give due regard to the bankruptcy court’s evaluation of witness
10   testimony and any inferences drawn by the court.”   Loop 76, LLC,
11   465 B.R. at 544.
12        Beal Bank contends that the debtor failed to provide
13   evidence of sufficient cash flow to fund and maintain its
14   business operations and pay its plan obligations.   Beal Bank
15   moreover argues that the debtor did not provide any evidence that
16   it likely will be able to refinance or sell the real property at
17   the end of the plan term to make the balloon payment.   In
18   particular, Beal Bank argued that the debtor offered no expert
19   testimony on feasibility or on the likelihood of refinancing the
20   real property and no projections or other “concrete” evidence of
21   sufficient cash flow.   Beal Bank further argued that the debtor
22   also failed to offer evidence as to the value of the real
23   property beyond the confirmation date; it provided no evidence of
24   the real property’s value on early termination or termination of
25   the lease with Allegiant or the maturity date of the loan with
26   Beal Bank.
27        Beal Bank points out that the bankruptcy court relied on a
28   statement made by Funsten in his interest rate report in

                                     30
 1   determining that the plan was feasible.         Specifically, on page
 2   520 of his report, Funsten stated that “if commercial property
 3   values in 2021 are no different than today, the remaining
 4   principal to be refinanced will have a loan-to-value (“LTV”) of
 5   68%.”        Beal Bank stresses that Funsten was the debtor’s interest
 6   rate expert and was not qualified as an expert on financing or
 7   any other aspect of feasibility.          It also contends that the real
 8   property valuation report provided by the debtor’s other expert
 9   witness, Charles Jack, was faulty in its assumption that the real
10   property’s value will remain unchanged.
11        Beal Bank overstates the bankruptcy court’s reliance on
12   Funsten’s report in its feasibility determination.         The
13   bankruptcy court mentioned that Funsten’s report provided
14   evidence as to the potential for refinancing or sale of the real
15   property, but it looked to other evidence in determining the
16   second amended plan’s feasibility.         The bankruptcy court found
17   that the second amended plan was feasible because: (1) the debtor
18   had sufficient income to fund the second amended plan because the
19   rental income it received exceeded the monthly payments to Beal
20   Bank; (2) the debtor stood to receive substantial damages
21   (approximately $1.2 million) from Allegiant in the event of early
22   lease termination; (3) Beal Bank had a sizeable equity cushion,
23   based on the current real property valuation, which only would
24   grow over time as the debtor made payments under the second
25   amended plan; and (4) the debtor had a healthy cash balance.16
26
             16
27          We also point out that the debtor presented evidence that
     it intended to save the difference between the rental income from
28                                                      (continued...)

                                          31
 1        The bankruptcy court further determined that there was
 2   nothing in the evidence before it suggesting that the real
 3   property’s value would decline.    It also determined that it was
 4   unlikely that Allegiant would terminate the lease early, based on
 5   the real property’s unique characteristics and the costs to
 6   Allegiant in relocating.   Beal Bank moreover did not offer any
 7   evidence indicating that the real property’s value would decline.
 8   Beal Bank also did not dispute the debtor’s current valuation of
 9   the real property.
10        Although the debtor apparently did not provide income
11   projections, its monthly operating reports suffice to show that
12   it had sufficient cash flow to fund the second amended plan.
13   Beal Bank did not object to any of the monthly operating reports
14   submitted by the debtor or offer any evidence of its own
15   indicating that the debtor had insufficient cash flow to fund the
16   second amended plan.
17        Based on the record before us, we conclude that it supports
18   the bankruptcy court’s feasibility determination.
19   C.   The bankruptcy court made determinations as to good faith
          under § 1129(a)(3)
20
21        “Section 1129(a)(3) does not define good faith.   A plan is
22   proposed in good faith where it achieves a result consistent with
23   the objectives and purposes of the Code.   The requisite good
24   faith determination is based on the totality of the
25
26        16
           (...continued)
27   Allegiant and the payments to Beal Bank to build up its cash
     reserves to continue funding the plan if Allegiant terminated the
28   lease early.

                                       32
 1   circumstances.”   Platinum Capital, Inc. v. Sylmar Plaza, LP
 2   (In re Sylmar Plaza, LP), 314 F.3d 1070, 1074 (9th Cir. 2002)
 3   (citations omitted).   The creation of an impaired class in “an
 4   attempt to gerrymander a voting class of creditors is indicative
 5   of bad faith” for purposes of § 1129(a)(3).    Conn. Gen. Life Ins.
 6   Co. v. Hotel Assocs. of Tucson (In re Hotel Assocs. of Tucson),
 7   165 B.R. 470, 475 (9th Cir. BAP 1994).
 8        Beal Bank asserts that the debtor did not propose the second
 9   amended plan in good faith because it created an artificially
10   impaired class by providing deferred, no-interest payments to
11   Marquis & Aurbach and Benedict, though the debtor had ample funds
12   with which to pay them in full on the effective date.
13        The record in its totality amply supports a conclusion that
14   the debtor’s second amended plan achieves a result consistent
15   with the objectives and purposes of the Bankruptcy Code.    See
16   Shanks, 540 F.3d at 1086; In re Sylmar Plaza, LP, 314 F.3d at
17   1074.   The debtor presented a feasible plan that will pay all
18   allowed claims in full over time.    Beal Bank will retain its
19   security interest in the real property until its allowed claim,
20   with interest at an appropriate rate, is paid in full.    As noted
21   above, the evidence submitted by the debtor in support of
22   confirmation presented multiple business and economic reasons for
23   deferring payment of allowed unsecured claims.    In light of our
24   review of the entire record, we do not have a definite and firm
25   conviction that the bankruptcy court erred in determining that
26   the debtor proposed its second amended plan in good faith, or in
27   its ultimate determination that the debtor satisfied the
28   requirements for confirmation of its second amended plan.

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 1                               CONCLUSION
 2        Because the bankruptcy court did not find that Beal Bank had
 3   cause under Rule 3018(a) to withdraw Benedict’s vote accepting
 4   the second amended plan, it did not err in denying Beal Bank’s
 5   ballot motion.   The bankruptcy court also did not err in finding
 6   that the debtor satisfied the requirements for confirming its
 7   second amended plan.   We therefore AFFIRM the bankruptcy court’s
 8   rulings on the ballot motion and plan confirmation.
 9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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