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#2080

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re:

SUNWEST HOTEL CORPORATION,

DEBTOR(S)

CHAPTER 11

NO. 92-40079-11

MEMORANDUM OF DECISION ON LANDMARK HOTEL CORPORATION'S

APPLICATION FOR ALLOWANCE OF ADMINISTRATIVE EXPENSE

This contested matter is before the Court on the application of Landmark Hotel Corporation (Landmark) for allowance of an administrative expense reimbursement in the amount of $112,965.56. Notice of the application was sent to the debtor's counsel, Chequers Investment Associates II (Chequers), and the United States Trustee. Chequers filed an objection. Landmark appears by counsel Lawrence C. Gates. Chequers appears by counsel Samuel M. Stricklin and Jan Hamilton.

FACTS

Having considered the application and the memoranda in support and opposition, the Court finds:

1. The debtor is a corporate shell with no assets.

2. Chequers was a creditor of the debtor and proposed a plan of reorganization which was confirmed on October 27, 1993.

3. That plan required claims for administrative expenses to be filed within 30 days of its effective date.

4. "Effective date" was defined in the plan to mean the second business day after entry of the confirmation order.

5. Landmark's administrative claim was timely filed.

6. Landmark received proper notice of Chequers' plan, the time for objecting to it, and the date of the confirmation hearing.

7. Landmark filed no objection to the plan.

8. Paragraph 4.3 of the plan limited Chequers' liability for administrative claims to $50,000, excluding certain taxes.

9. Paragraphs 4.1 and 4.2 provided that Chequers would pay all administrative expense claims allowed by final order that had not otherwise already been paid, subject to paragraph 4.3.

10. A substantial portion of the $50,000 which Chequers was obliged to pay for administrative claims has been paid on such claims.

11. The debtor's attorney had an allowed administrative expense claim for his fees and expenses for representing the debtor in this bankruptcy case.

12. Landmark paid these fees and expenses and now seeks to be reimbursed for them as an administrative expense.

13. Paragraph 8.10 of the plan provided that the debtor would not be liable on any obligation or debt except as provided in the plan.

DISCUSSION AND CONCLUSIONS

The confirmed plan of reorganization limits Chequers' obligation to pay administrative expense claims in two ways: (A) it will not have to pay more than $50,000 toward satisfaction of allowed administrative claims, and (B) it will be liable for allowed administrative expense claims only if they have not already been otherwise paid. Chequers has already paid substantially all of the $50,000, and those funds have been distributed to allowed administrative claimants on their claims.

The attorney for the debtor had an allowed administrative claim against the estate, but was paid by Landmark. Landmark now asserts a claim against the estate based on its payment of this allowed administrative claim. The Court concludes the provisions of the confirmed plan clearly bar Landmark's assertion of this claim against either Chequers or the debtor. 11 U.S.C.A. §1141.

The foregoing constitutes Findings of Fact and Conclusions of Law under Rule 7052 of the Federal Rules of Bankruptcy Procedure and Rule 52(a) of the Federal Rules of Civil Procedure. A judgment based on this ruling will be entered on a separate document as required by FRBP 9021 and FRCP 58.

Dated at Topeka, Kansas, this ____ day of October, 1994.













_________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS







In Re: )

)

SUNWEST HOTEL CORPORATION, ) NO. 92-40079-11

) CHAPTER 11

DEBTOR(S). )

JUDGMENT ON DECISION

This contested matter was before the Court on the application of Landmark Hotel Corporation (Landmark) for allowance of an administrative expense reimbursement in the amount of $112,965.56. Notice of the application was sent to the debtor's counsel, Chequers Investment Associates II (Chequers), and the United States Trustee. Chequers filed an objection. Landmark appeared by counsel Lawrence C. Gates. Chequers appeared by counsel Samuel M. Stricklin and Jan Hamilton.

The Court has issued its Memorandum of Decision resolving this dispute. For the reasons stated therein, judgment is hereby entered denying Landmark's application for an administrative expense.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this _____ day of October, 1994.













__________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

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