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evidence that it had previously received in another context.19 Regardless of what evidence may be considered or its source, case law indicates that the court has "a mandatory independent duty to determine whether the plan has met all of the requirements necessary for confirmation," and that in doing so, it is not necessarily bound by earlier determinations made in other contexts.20 Case law also suggests that the court must hold an "evidentiary hearing in ruling on confirmation,"21 even if no objection is filed.22 For this reason, some appellate courts have permitted appellants to raise issues on appeal that were not raised in the bankruptcy court.23
The Code allows any party in interest24 to object to confirmation of a plan. § 1128(b). However, a party may lack standing to raise objections that affect only other parties, such as classification and voting procedures for classes in which the objector has no claim.25 The objection must be filed within the time fixed by the court. Rule 3020(b)(1). The filing of an objection creates a contested matter, the procedures for which are governed by Rule 9014. Rule 3020(b) (1).
The Court may confirm only one plan. § 1129(c). If more than one plan is
confirmable, the court "shall consider the preferences of creditors and equity security
19
In re Acequia, Inc., 787 F.2d 1352, 1358-59 (9th Cir. 1986).
20
In re Williams, 850 F.2d 250, 253 (5th Cir. 1988).
21
In re Acequia, Inc., 787 F.2d 1352, 1358 (9th Cir. 1986); In re Williams, 850 F.2d 250, 253 (5th Cir. 1988).
22
In re Produce Hawaii, Inc., 41 B.R. 301, 303 (Bankr. D. Ha. 1984)(plan cannot be confirmed in the absence of evidence of satisfaction of the best interests test of § 1129(a) (7) and the unlikelihood of subsequent liquidation required by 1129(a)(11)).
23
In re Perez, 30 F.3d 1209 (9th Cir. 1994); In re Arnold & Baker Farms, 177 B.R. 648 (9th Cir. BAP 1994), aff'd on other grounds, 85 F.3d 1415 (9th Cir. 1996).
24
"Party in interest" is defined by § 1109(b) as including the debtor, the trustee, a creditors' committee, an equity security holders' committee, a creditor, an equity security holder, and an indenture trustee. Such parties in interest, plus the Securities and Exchange Commission and the United States Trustee, may raise and appear and be heard on any issue in a chapter 11 case. §§ 1109 and 307.
25
Kane v. Johns-Manville Corp., 843 F.2d 636, 643-45 (2d Cir. 1988); In re Tascosa Petroleum Corp., 196 B.R. 856 (D. Kan. 1996). See also In re PWS Holding Corp., 228 F.3d 224 (3d Cir. 2000) (creditor may not object to failure of disclosure statement to provide information objector already had, absent showing creditors would have voted differently, resulting in better treatment of objector).
4
