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for creditors to indicate their preference between the plans, even if they vote for both of them. Id. Official Form 14 suggests that ballots can be returned to the place designated by the plan proponent, such as its attorney, rather than filed with the court.
Voting is not required by unimpaired classes, which are conclusively presumed to have accepted the plan. § 1126(f). Nor is voting required of classes that are not entitled to receive any property under the plan, which are deemed not to have accepted. § 1126(g).
Acceptance by a class of creditors requires two thirds in amount and more than onehalf in number of the allowed claims actually voting. § 1126(c). A failure to vote should not be deemed an acceptance. Disputed claims that have neither been allowed, or temporarily allowed for purposes of voting, do not count. Acceptance by a class of interests requires a vote of two thirds in amount of the allowed interest actually voting. § 1126(d).
The court may confirm a plan only after notice and hearing. § 1128(a). The Rules require not less than 25 days notice by mail to the debtor, the trustee and all creditors, setting the confirmation hearing and the time fixed for filing objections. Rules 2002(b), (d), (i) and 3017(d). Three days must be added under Bankruptcy Rule 9006(f).
Because the court can confirm a plan only upon satisfaction of specific requirements, the confirmation order must necessarily be based on a finding that these conditions have been met. The Rules require that the order of confirmation conform to the appropriate Official Form, currently Form 15. Rule 3020(c). The burden of proof is on the proponent to demonstrate that the plan complies with the Code, even if no objections have been raised. The Fifth Circuit, Ninth Circuit and some lower courts have held that the standard of proof is simply preponderance of the evidence, even if the cram down method employed is "indubitable equivalence," which some courts had held implied a higher standard.
There is case law holding that the court in a confirmation hearing can consider evidence that it had previously received in another context. Regardless of what evidence may be considered or its source, case law indicates that the court has "a mandatory
