The opinion of the court was delivered by: HIGGINBOTHAM
Re: Petitions to Further Amend Debtor's Proposed Plan of Reorganization of the Spectrum Arena, Inc.
HIGGINBOTHAM, District Judge.
On December 6, 1971, Philip P. Kalodner filed the "Debtor's Proposed Plan of Reorganization as amended" (Docket No. 264), which Mr. Kalodner stated at the hearing on confirmation of the Trustees' Plan represented no changes but "merely is an accumulation of the prior amendments of the Debtor's Plan." (Hearing before Judge Higginbotham, December 8, 1971, N.T. 10.) Also on December 6, 1971, Mr. Kalodner filed two, new, material amendments to the Debtor's Proposed Plan of Reorganization as amended. One of the amendments (fourth amendment to the Debtor's Plan, first amendment to Debtor's Proposed Plan of Reorganization as amended, Docket No. 265) provides for full repayment of the ARA "A" Fund loan
and raises the amount of the proposed bond issue from $9,500,000 to $10,000,000 or $10,500,000. The second amendment (fifth amendment to Debtor's Plan, second amendment to Debtor's Proposed Plan of Reorganization as amended, Docket No. 263) would, if the District Court is reversed as to the validity of the Foreman fourth mortgage,
provide for full payment of all existing claims against the Debtor at consummation by means of the already proposed $9,500,000 bond issue.
I find that as a matter of law and as a matter of sound judicial discretion that Mr. Kalodner's last efforts to further amend the Debtor's Proposed Plan of Reorganization as amended (Docket No. 264) should be denied.
Amendments denied as a matter of law
Under § 222 of the Bankruptcy Act (11 U.S.C. § 622), "a plan may be altered or modified, with the approval of the judge, after its submission for acceptance and before or after its confirmation . . ." However, the statute makes no provision for the court to consider a plan or any amendments to a plan which has not ever been found to be "worthy of consideration."
(11 U.S.C. § 572.) Further, in 6 Colliers On Bankruptcy, P7.31, at p. 1273, the authors state:
"Once the plan is approved, no other substitute plan may be submitted unless and until the approved plan has been disposed of through lack of acceptance or confirmation."
In interpreting the applicable statutory provisions, the Court of Appeals for the Second Circuit in Country Life Apartments v. Buckley, 145 F.2d 935, 937 (2nd Cir. 1944) stated:
". . . [Proposals] offered thereafter could be only in the nature of a modification of such approved plan. Bankruptcy Act, § 222."
Accordingly, I find as a matter of law that the Fourth and Fifth Amendments to Debtor's Plan of ...