United States Bankruptcy Appellate Panel

For the Eighth Circuit

___________________________

No. 14-6036

___________________________ 

In re: O&S Trucking, Inc.

lllllllllllllllllllllDebtor

------------------------------

O&S Trucking, Inc.

lllllllllllllllllllllDebtor - Appellant

v.

Mercedes Benz Financial Services USA, doing business as Daimler Truck Financial

lllllllllllllllllllllClaimant - Appellee

____________

Appeal from United States Bankruptcy Court 

for the Western District of Missouri - Springfield

____________

Submitted: February 15, 2015

Filed: April 7, 2015

____________

Before KRESSEL, SCHERMER and NAIL, Bankruptcy Judges. 

____________

KRESSEL, Bankruptcy Judge
The debtor, O&S Trucking, Inc., appeals from the bankruptcy court’s order

1

confirming the debtor’s third amended plan. For the reasons that follow, we

dismiss the appeal for lack of jurisdiction. 

BACKGROUND 

On May 30, 2012, O&S Trucking, Inc. filed a voluntary chapter 11 petition. 

The debtor owned and operated a fleet of trucks, trailers and related equipment for

hauling throughout the United States. It had a lease/purchase program pursuant to

which independent contractor drivers could lease and ultimately acquire ownership

of trucks. The debtor’s trucks were financed or leased from a number of creditors,

including Mercedes Benz Financial Services USA d/b/a Daimler Truck Financial. 

At the time of the bankruptcy filing, Daimler was the lessor with respect to 14

trucks and it held a security interest in 99 separate trucks that were operated by the

debtor or its lessee drivers. Daimler also held a security interest in any driver lease

payments and other proceeds generated by the debtor from the use of such trucks. 

On June 14, 2012, Daimler filed a motion for “Adequate Protection or, in the

Alternative, to Prohibit Use of Cash Collateral and Grant Relief from the

Automatic Stay.” On June 26, 2012, it filed a subsequent “Motion to Prohibit

Unauthorized Use and for Sequestration of Cash Collateral.” Daimler argued that

the debtor was using cash collateral made up of the driver lease payments and other

proceeds without its consent. Daimler requested that its cash collateral be

segregated and that the court prohibit its use.

 The Honorable Arthur B. Federman, Chief Judge, United States Bankruptcy Court for the 1

Western District of Missouri.

2
Daimler and the debtor immediately began negotiations on the motions. On

August 7, 2012, to resolve both motions, they submitted an agreed order for the

court’s approval. The order provided that the debtor would deliver possession of

21 trucks to Daimler. Daimler would sell the trucks and give the debtor credit for

the net proceeds received. The debtor was to retain 80 trucks subject to Daimler’s

security interest and would make adequate protection payments to “Daimler equal

to 2% of the NADA values [of the trucks], as set forth in Exhibit A.” Exhibit A

separately listed the make, model VIN and NADA value of the 80 trucks. It also

computed the 2% payment figures. The order was silent as to Daimler’s security

interest in the driver lease payments and other proceeds generated by the use of the

trucks. 

On December 11, 2013, the debtor filed a “Motion for Determination of

Secured Status and Request for Related Relief.” A hearing was set, but it was

continued several times at the request of the parties. Meanwhile, Daimler filed an

amended proof of claim in the amount of $2,743,171.94. The debtor objected to

the claim. The court set a joint evidentiary hearing for the claim objection and the

motion to determine the secured status of the claim.

At the time of the hearing, the debtor argued that the value assigned to each

truck in Exhibit A of the agreed order was a binding valuation to be used for the

remainder of the case. The debtor also argued that because the agreed order did

not specifically provide for proceeds attributable to Daimler’s trucks to be

segregated, then Daimler’s security interest in those proceeds was lost. 

 On May 13, 2014, the court entered an order sustaining the debtor’s

objection, in part, and determining the status of the secured claim. The court found

3
that as of May 5, 2014, all but 23 of the vehicles had been surrendered to Daimler. 

At that time, the debtor had made adequate protection payments in the amount of

$1,577,488.01. The court credited those adequate protection payments toward the

total amount of the debt owed, before any determination was made as to how much

of that debt was secured. Ultimately, the court found that Daimler had an allowed

secured claim in the amount of $1,425,309.40 and an unsecured claim in the

amount of $819,183.48, less any proceeds received by Daimler from the sale of

vehicles previously surrendered by the debtor. 

Additionally, the court correctly noted that § 552(b) of the Bankruptcy Code

provides that if the debtor and a creditor entered into a security agreement before

the filing of the petition, and if the security interest extends to proceeds, products,

offspring, or profits of the collateral, then such security interest continues in any

proceeds, products, offspring, or profits generated post-petition. In this case, the

court determined that 25% of the debtor’s operating fleet was comprised of

Daimler’s collateral. Therefore, Daimler was entitled to a security interest in 25%

of the total amount of funds in the debtor’s accounts, a sum of $51,909.40. 

On May 27, 2014, pursuant to Federal Rule of Bankruptcy Procedure 9023,

the debtor made a motion for reconsideration of the court’s May 13 order. The

debtor argued that the court’s valuation of the trucks, which was lower than the

parties’ agreed valuation, was in error. As a result of the lower valuation, the

debtor claimed it had paid an extra $25,980 in adequate protection payments

because the payments were calculated using a percentage of the values of the

trucks. If the values had been lower, as the court had determined they were, then

the monthly payments would have necessarily been smaller. According to the

debtor, the adequate protection payments were made to compensate the debtor for

4
the eroding value of the trucks, therefore, the payments made in excess of the

erosion value should be credited against the secured portion of Daimler’s claim. 

On June 6, 2014, the court entered an order denying the debtor’s motion for

reconsideration.

On June 19, 2014, the debtor filed a notice of appeal of the May 13 and June

6 orders. Both orders were interlocutory and the debtor did not request, nor did it

meet the requirements, for a grant of leave to appeal. We dismissed the appeal for

lack of jurisdiction on September 15, 2014. 

Meanwhile, on June 20, 2014, the debtor proposed a third amended plan of

reorganization. It provided treatment of Daimler’s claim as follows: 

Subject to any adjustments as described below, the Class

3 Claimant shall be paid the total sum of values listed

below on all equipment retained by Debtor as of the

Effective Date with interest at the rate of 4.25% per

annum over a term in accordance with the following

schedule of equipment: 

Type Year Value Term

Freightliner Cascadia 2010 $62,100 36 months

Freightliner Century 2007 $34,775 12

months

Freightliner Columbia 2007 $34,525 12

months 

together with an additional amount of $51,909.40. The

components of the Class 3 Secured Claim consisting of

the foregoing equipment values and additional cash

amounts are based on the rulings by the Bankruptcy

Court as set forth in the Order Sustaining, in Part,

Debtor’s Objection to Claim of Mercedes Benz Financial

Services USA, LLC d/b/a Daimler Truck Financial and

Determining Secured Status of Daimler’s Claim (the

5
“Daimler Decision”). The total amount of the Class 3

Secured Claim is subject to adjustment based on the

following: 

a) The final outcome of the pending appeal of the Daimler

Decision by Debtor and any subsequent appeal; and 

b) Reduction of the Class 3 Secured Claim based on

adequate protection payments to Daimler after issuance

of the Daimler Decision. 

The plan was confirmed on October 2, 2014. On October 15, 2014, the

debtor filed a notice of appeal. The notice indicates that the debtor was appealing

from three orders: 

1) Order Sustaining in part, Debtor’s objection to Claim

of Mercedes Benz Financial Services USA, LLC d/b/a

Daimler Truck Financial and Determining Secured Status

pf Daimler’s Claim, dated May 13, 2014;

 2) Order Denying Debtor’s Motion for Reconsideration

of the Order Sustaining in part, Debtor’s objection to

Claim of Mercedes Benz Financial Services USA, LLC

d/b/a Daimler Truck Financial and Determining Secured

Status pf Daimler’s Claim, dated June 6, 2014; and 

3) Order Confirming Final Approval of Third Amended

Disclosure Statement and Confirming Third Amended

Plan of Reorganization (As Modified), dated October 2,

2014. 

The debtor describes its appeal as a controversy that “arose as to the

application of the excess adequate protection payments inasmuch as [the debtor]

clearly overpaid for the erosion in the value of the trucks.” Additionally, the

debtor argues that the bankruptcy court erred when it supplemented the secured

6
portion of Daimler’s claim with an award of $51,909.40 as proceeds from the use

of Daimler’s trucks. 

ANALYSIS

Jurisdiction 

1. Final Orders 

Though it is not raised by either party, we have an independent duty to

examine our own jurisdiction. Nebraska v. Strong (In re Strong), 305 B.R. 292,

295 (B.A.P. 8th Cir. 2004) (citing Weihs v. Kenkel (In re Weihs), 229 B.R. 187,

189 (B.A.P. 8th Cir. 1999)). We have jurisdiction to hear appeals from final orders

and from interlocutory orders with leave of the court. Coleman Enterprises, Inc. v.

QAI, Inc. (In re Coleman Enterprises, Inc.), 275 B.R. 533, 537 (B.A.P. 8th Cir.

2002); 28 U.S.C. §§ 158(a)(1), (a)(3), (b). An order is considered final if “(1) [it]

leaves the bankruptcy court nothing to do but execute the order, (2) delay in

obtaining review would prevent the aggrieved party from obtaining effective relief,

and (3) a later reversal on that issue would require recommencement of the entire

proceeding.” Nebraska v. Strong (In re Strong), 293 B.R. 764, 767 (B.A.P. 8th

Cir. 2003) (citing First Nat’l Bank v. Allen, 118 F.3d 1289, 1293 (8th Cir. 1997)). 

The debtor purports to appeal from three orders – the May 13 order

sustaining, in part, the debtor’s objection to Daimler’s claim; the June 6 denial of

reconsideration; and the October 2 confirmation order. However, as discussed in

the debtor’s earlier appeal, the May 13 and June 6 orders are not final orders. The

confirmation order is the only final, appealable order. The fact that the

confirmation order is now a final order does not render the May 13 and June 6

orders final: They are still interlocutory. Those orders, standing alone, are not

7
appealable. Nevertheless, while not appealable, to the extent they played a part in 2

a reviewable final order their propriety may be reviewed. See Electrical Fittings

Corp. v. Thomas & Betts Co., 307 U.S. 241, 59 S.Ct. 860, (1939). 

2. Standing 

“In order to have standing to appeal the decision of the bankruptcy court, an

appellant must be a person aggrieved.” Zahn v. Fink (In re Zahn), 367 B.R. 654,

657 (B.A.P. 8th Cir. 2007) (citing O’Brien v. Vermont (In re O’Brien), 184 F.3d

140, 142 (2nd Cir. 1999)). “It is an abecedarian rule that a party cannot prosecute

an appeal from a judgment in its favor.” In re Zahn, 367 B.R. at 657 (citing Elkin

v. Metropolitan Prop. & Cas. Ins. (In re Shkolnikov), 470 F.3d 22, 24 (1st. Cir

2006)). Most importantly, “a party may not appeal from a judgment or decree in

his favor, for the purpose of obtaining a review of findings he deems erroneous

which are not necessary to support the decree.” Electrical Fittings Corp., 307 U.S.

at 242. 

Despite appealing from the confirmation order, the debtor does not allege

any error in that order. At oral argument, in response to being asked what the error

in the confirmation order was, the debtor’s attorney replied, “I would say that the

confirmation order is not erroneous.” Additionally, the debtor’s brief does not

once mention an error in the confirmation order. The debtor proposed a plan,

asked to have it confirmed, and it was indeed confirmed. The debtor received

exactly the relief it requested. The debtor does not really seek review of the

confirmation order. It really seeks review of the bankruptcy court’s valuation and

 Even if the May 13 and June 6 orders were final, the debtor’s appeal is untimely. See Federal

2

Rule of Bankruptcy Procedure 8002(a). 

8
application of adequate protection payments, two determinations that are not

necessary to support the confirmation order. 

The Eighth Circuit has adopted a procedure for this precise scenario for

chapter 13 debtors. A chapter 13 debtor who is unable to secure confirmation of

her preferred plan may propose a plan and object to that plan. “A debtor who

objects to her own plan may be an aggrieved party and have standing to appeal

confirmation of such plan.” Zahn v. Fink (In re Zahn), 526 F.3d 1140 (8th Cir.

2005). Assuming the Eighth Circuit would apply this procedure to chapter 11

cases, it would require a debtor to propose the plan it wants and then after its

confirmation is denied, propose a different plan, object to its confirmation and then

appeal. The debtor did none of that. It simply filed a plan, obtained confirmation

and appealed. Because the debtor is not an aggrieved party, it does not have

standing to appeal the order confirming its plan. 

3. Mootness 

“A federal court may only exercise jurisdiction over cases and controversies

and lacks authority over moot issues.” Internal Revenue Serv. v. Ealy (In re Ealy),

396 B.R. 20, 22 (B.A.P. 8th Cir. 2008) (citing U.S. CONST., art. III, § 2, cl 1). A

case becomes moot “when it no longer presents a controversy with respect to

which the court can give meaningful relief.” Crown Media, LLC v. Gwinnett

Cnty., GA, 380 F.3d 1317, 1324 (11th Cir. 2004). A case is no longer live if the

reviewing court is incapable of restoring the parties to their original position. In re

Strong, 312 B.R. at 380. 

9
On May 30, 2012, the debtor possessed 113 of Daimler’s trucks. By May 5,

2014, the debtor had surrendered all but 23 of the trucks. On October 2, 2014, the

date of confirmation, the debtor only possessed three trucks. Then, at the time of

oral argument on this appeal, the debtor revealed that it no longer possessed any of

Daimler’s trucks. 

Regardless of this significant change in circumstance, the parties argue at

length about the valuation of the trucks. The debtor’s argument hinges on the

allegation that the bankruptcy court’s erroneous valuation resulted in overpayment

of adequate protection payments. It argues that the values assigned to the trucks in

the agreed order are binding on the parties, and apparently on the court, for the

remainder of the case. The debtor is incorrect. The adequate protection order

never purported to value the trucks. The values assigned to the trucks in Exhibit A

were simply a mechanism for calculating adequate protection payments, numbers

to input into the formula for determining fair compensation for Daimler. The order

itself did not state that it was establishing a value for trucks. 

Even if the agreed order did constitute a valuation of the trucks, that valuation

can change throughout the course of the bankruptcy case. Section 506 of the

Bankruptcy Code governs the “Determination of the Secured Status.” It states that

“such value shall be determined in light of the purpose of the valuation and of the

proposed disposition or use of such property, and in conjunction with any hearing

on such disposition or use or on a plan affecting such creditor’s rights.” 11 U.S.C.

§ 506(a)(1). As referenced by the bankruptcy court, the Eighth Circuit has held

“[f]or purposes of the reorganization plan, the value of the collateral is to be

determined at the time for confirmation of that plan. An initial valuation for

adequate protection purposes is not res judicata for purposes of determining the

10
value of the collateral, and thus the allowed secured claims of the creditors under a

reorganization plan.” Norwest Bank Worthington, et. al. v. Ahlers (In re Ahlers),

794 F.2d 388, 398 (8th Cir. 1986), rev’d on other grounds, Norwest Bank

Worthington v. Ahlers, 485 U.S. 107 (1988). We agree with the bankruptcy court:

Valuation can, and often does, change throughout the course of a case. See In re

Cahill, 503 B.R. 535 (Bankr. D. N.H. 2013). A change in the value of collateral,

along with many other factors, can change an allowed secured claim. 

The parties may argue a number of interesting questions that they would like

the answers to. However, because the debtor now possesses no trucks, there is no

meaningful relief left to be granted. Courts decide disputes, not interesting

questions. Certainly the passage of time and the disposition of the trucks also

reduced the total amount of the debtor’s proceeds. Since the value of a secured

claim needs to be determined as of the date of confirmation, the alleged valuations

in the agreed order are moot, if not irrelevant. 

CONCLUSION

For all the reasons stated, the appeal is dismissed for lack of jurisdiction. 

11