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holders in determining which plan to confirm." § 1129(c). Rule 3018(c) provides that creditors may vote for both plans and yet indicate a preference for one of them, and Official Form 14 shows how to provide for that option on a ballot. Neither the Code nor the Rules, however, define how those preferences are to be counted, whether by number or dollar amount. Indeed, the Code does not even require the court to abide by the preferences however they might be counted, but only to "consider" them. Since most cases of competing plans involve a creditor's liquidating plan, this leaves a very open question whether the large amount of a major secured creditor's "preference" for its own plan is necessarily determinative, and the case law has not yet resolved this question.26 One court has held that when two competing plans are confirmable, the court should consider "(1) the type of plan; (2) the treatment of creditors and equity security holders; (3) the feasibility of the plan; and (4) the preferences of creditors and equity security holders," and concluded that a reorganization plan is to be preferred over a liquidating plan, and the preference of creditors unrelated to the proponent is to be given greater weight than the preference of creditors related to the proponent.27 Another court has held that a small business debtor should have the first opportunity to confirm a plan even after expiration of its 100 day exclusivity period.28
II. SECTION 1129(A) COMPLIANCE
The plan must comply with the applicable provisions of the Bankruptcy Code. § 1129(a)(1). Although the language of this provision encompasses all of Title 11, the legislative history suggests that Congress intended it to refer primarily to provisions governing the form and content of the plan, the most important of which are probably
26
See, e.g., In re River Village Assocs., 181 B.R. 795 (E.D. Pa. 1995)(the court noted it was "only obligated to consider the preferences of the creditors and equity interests, not obey them," and found the preferences to be "overwhelmingly" in favor of the secured creditor's liquidating plan because most creditors were unimpaired under that plan, and therefore deemed to vote for it, and the secured creditor preferred its own plan).
27 In re Holly Garden Apartments, Ltd., 238 B.R. 488 (Bankr. M.D. Fla. 1999).
28
In re Aspen Limousine Services, Inc., 193 B.R. 325 (D. Colo. 1996). But after expiration of 160 days, § 1121(e)(3)(B) requires dismissal of the case. In re Western Steel & Metals, Inc., 200 B.R. 873 (Bankr. S.D. Cal. 1996).
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