TAGGED OPINION

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

www.flsb.uscourts.gov

In re: 

BAL HARBOUR QUARZO, LLC Case No. 18-11793-SMG

a/k/a Synergy Capital Group, LLC,

a/k/a Synergy Investments Group, LLC, Chapter 11

Debtor.

_________________________________________/

DREW M. DILLWORTH, as Trustee,

Plaintiff,

v. Adv. No. 20-1079-SMG

CARLOS ELIAS MAHECHA DIAZ,

MARIA ANASTASIA CASAS MATIZ,

FELIPE MAHECHA CASAS, and

CAMILO E. MAHECHA,

Defendants.

_________________________________________/

Scott M. Grossman, Judge

_____________________________________________________________________________ United States Bankruptcy Court

ORDERED in the Southern District of Florida on April 15, 2022.

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ORDER DENYING POST CONFIRMATION

CREDITORS’ COMMITTEE’S MOTION TO INTERVENE

Bankruptcy Code section 1109(b) allows any “party in interest” – including a 

creditors’ committee – to “raise and . . . appear and be heard on any issue in a case 

under” chapter 11. Relying on this statute and Federal Rule of Civil Procedure 

24(a)(1),1 a post-confirmation creditors’ committee created by a confirmed chapter 11 

plan and related liquidating trust agreement argues that it has “an unconditional 

right to intervene” in an adversary proceeding filed by the liquidating trustee over 

two years ago. Alternatively, the committee seeks to intervene of right under Rule 

24(a)(2), arguing that it “claims an interest relating to the property or transaction 

that is the subject of the action, and is so situated that disposing of the action may as 

a practical matter impair or impede the movant’s ability to protect its interest, unless 

existing parties adequately represent that interest.”2 As a further alternative, the 

committee argues it satisfies the requirements for permissive intervention under 

Rule 24(b)(1)(B), which allows the Court to “permit anyone to intervene who . . . has 

a claim or defense that shares with the main action a common question of law or 

fact.”3

Notably, although Rule 24(c) requires that a motion to intervene be 

accompanied by a pleading that sets out the claim or defense for which intervention 

is sought, the committee did not attach any pleading to its motion to intervene. In 

1 Under Federal Rule of Bankruptcy Procedure 7024, Federal Rule of Civil Procedure 24 applies in 

bankruptcy adversary proceedings. 2 Fed. R. Civ. P. 24(a)(2).

3 Fed. R. Civ. P. 24(b)(1)(B).

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fact, the committee admits that “it does not assert ownership of a claim or defense,” 

but instead seeks to intervene “in its capacity as a consulting/oversight party to the 

Trustee but reserves the right to take positions on specific issues that may arise 

during the course of the Adversary Proceeding, which may require the filing of 

pleadings.”4 After considering the committee’s motion to intervene5 and its 

memorandum of law,6 the defendants’ response in opposition,7 and the arguments of 

counsel at a hearing on April 6, 2022, for the reasons set forth below, the motion to 

intervene will be denied.

BACKGROUND

The confirmed chapter 11 plan8 for Debtor Bal Harbour Quarzo, LLC (“BHQ”) 

created a liquidating trust9 to which certain causes of action were transferred10 for 

the benefit of BHQ’s general unsecured creditors, who each received beneficial 

interests in the liquidating trust.11 The plan appointed Drew Dillworth as trustee of 

the liquidating trust,12 and vested him with the authority to prosecute these causes 

of action.13 The plan and liquidating trust also established a post-confirmation 

4 ECF No. 149, at 18.

5 ECF No. 143.

6 ECF No. 149.

7 ECF No. 150.

8 Joint Combined Plan of Liquidation (“Plan”), In re Bal Harbour Quarzo, LLC, Case No. 18-11793-

SMG (“Main Case”) (ECF No. 233). 9 Bal Harbour Quarzo Liquidating Trust Agreement, Main Case ECF No. 233-1. 10 Plan, §§ 9.8, 9.9.2. See 11 U.S.C. § 1123(b)(3)(B). 11 Plan, § 9.9.4. 12 Liquidating Trust Agreement, § 2.1(b).

13 Id., §§ 4.1, 4.2, 4.4.

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creditors’ committee to “represent the interests of the Trust Beneficiaries during the 

existence of the Trust.”14

Mr. Dillworth, as liquidating trustee, commenced this adversary proceeding on 

February 14, 2020.15 After initial delays due to efforts to serve the defendants abroad, 

and then some motion practice, the defendants filed their answer and affirmative 

defenses on January 31, 2022.16 Shortly after the pretrial scheduling conference17 –

but before entry of the scheduling order18 – the committee moved to intervene under 

Rule 24(a)(1).19 In its separate memorandum of law filed in advance of the hearing 

on its motion to intervene, the committee then expanded the relief sought to include 

intervention of right under Rule 24(a)(2), and permissive intervention under Rule 

24(b)(1)(B).20

Mr. Dillworth, as plaintiff, did not file any written opposition to the 

committee’s motion, but at the outset of the hearing he and the committee announced 

a proposed resolution (if the Court were to grant the motion), wherein they would 

agree that: (1) Mr. Dillworth is the party with the right and responsibility to 

prosecute this adversary proceeding; (2) Mr. Dillworth and his professionals will use 

their best efforts to consult with the committee on the prosecution of this adversary 

proceeding; (3) nothing in any order granting the motion to intervene would serve to 

14 Id., § 6.2. The Trust Beneficiaries are the pre-confirmation general unsecured creditors of BHQ. Id., 

app. A.

15 ECF No. 1.

16 ECF No. 127.

17 ECF No. 128.

18 ECF No. 146.

19 ECF No. 143.

20 ECF No. 149.

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expand or limit the rights of either Mr. Dillworth or the committee under BHQ’s plan 

or liquidating trust agreement; (4) the committee may identify for Mr. Dillworth 

potential witnesses and subjects for document production during discovery, and 

would be entitled to consult with Mr. Dillworth thereon and during depositions; 

(5) the committee would be entitled to attend all depositions and hearings in this 

adversary proceeding as a party in interest; and (6) the committee must consult with 

Mr. Dillworth before filing any substantive motion in this adversary proceeding, other 

than a joinder.

The defendants filed a written opposition to the committee’s motion.21 Upon 

learning – for the first time at the hearing – of the proposed resolution of the motion 

as between Mr. Dillworth and the committee, the defendants stood by their legal 

opposition to the motion, but indicated that they had no strong objection to the 

proposed resolution. One other Trust Beneficiary, however – Jonathan Feldman, Esq. 

(who acquired claims in the BHQ case both directly and through an entity) – appeared 

at the hearing and opposed the committee’s motion, even with the resolution proposed 

by the committee and Mr. Dillworth.22 Mr. Feldman was particularly concerned about 

the potential additional administrative expenses that could be incurred by the 

committee’s counsel if the Court were to grant the motion, even under the terms 

agreed to by Mr. Dillworth and the committee.

21 ECF No. 150. 22 Before hearing from Mr. Feldman – who is not a party to, and does not represent any party in, this 

adversary proceeding – the Court inquired of all parties in interest and none had any objection to the 

Court hearing from him.

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DISCUSSION

I. Intervention of Right.

A. Unconditional Statutory Right to Intervene.

Relying on 11 U.S.C. § 1109(b), the committee argues that it has the 

unconditional right to intervene in this adversary proceeding. Section 1109(b) states:

(b) A party in interest, including the debtor, the trustee, a creditors’ 

committee, an equity security holders’ committee, a creditor, an equity 

security holder, or any indenture trustee, may raise and may appear and 

be heard on any issue in a case under [chapter 11 of the Bankruptcy

Code].23

Citing to decisions constituting the majority view from the First Circuit,24 Second 

Circuit,25 and Third Circuit,26 as well as bankruptcy court decisions from the Middle 

District of Florida27 and the Southern District of Florida,28 the committee argues that 

in its capacity as a “creditors’ committee” it has “an unconditional right to intervene 

in this adversary proceeding.” The committee also acknowledges the minority view, 

set forth by the Fifth Circuit in Fuel Oil Supply & Terminaling v. Gulf Oil Corp.,29

which held that section 1109(b) does not give a creditors’ committee the absolute 

statutory right to intervene in an adversary proceeding under Rule 24(a)(1).

23 11 U.S.C. § 1109(b). 24 Assured Guar. Corp. v. Fin. Oversight and Mgmt. Bd. for Puerto Rico (In re Fin. Oversight and Mgmt.

Bd. for Puerto Rico), 872 F.3d 57 (1st Cir. 2017).

25 Term Loan Holder Comm. v. Ozer Grp., L.L.C. (In re Caldor Corp.), 303 F.3d 161 (2d Cir. 2002).

26 Official Unsecured Creditors’ Comm. v. Michaels (In re Marin Motor Oil, Inc.), 689 F.2d 445 (3d Cir. 

1982). 27 Asbestos Settlement Trust v. Port Authority of New York and New Jersey (In re Celotex Corp.), 377 

B.R. 345 (Bankr. M.D. Fla. 2006).

28 Gleason v. Commonwealth Cont’l Health Care (In re Golden Glades Reg’l Med. Ctr., Ltd.), 147 B.R. 

813 (S.D. Fla. 1992).

29 762 F.2d 1283 (5th Cir. 1985).

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The issue under section 1109(b) on which the circuits are split is whether the 

phrase “in a case under this chapter” means only a main chapter 11 bankruptcy case, 

or whether it is broad enough to include related adversary proceedings. The majority 

view concludes that it is broad enough to include related adversary proceedings. For 

example, in Caldor30 the Second Circuit examined the text of the statute and 

concluded that the word “case” “is a term of art in the bankruptcy context,”31 which 

“refers to litigation ‘commenced by the filing with the bankruptcy court of a petition’ 

under the appropriate chapter of Title 11.”32 The Second Circuit contrasted the term 

“case” with “proceeding,” which it defined as is a “particular dispute or matter arising 

within a pending case—as opposed to the case as a whole.”33 With that 

understanding, the Second Circuit went on to examine the text of section 1109(b), 

which grants to parties in interest the right to be heard on “on any issue in a case.” 

The Second Circuit began by acknowledging that the bankruptcy rules distinguish 

between different types of litigated matters that arise in a bankruptcy case, which 

are divided into adversary proceedings and contested matters.34 It then determined 

that the “issues” on which a party in interest may be heard necessarily arise in 

“proceedings,” “which themselves occur in and constitute part of the ‘case.’”35 Because 

the plain text of section 1109 “does not distinguish between issues that occur in these 

30 303 F.3d 161.

31 Id. at 168.

32 Id. (citing 11 U.S.C. §§ 301, 302, 303(b), 304(a) [repealed]).

33 Id. (citing BLACK’S LAW DICTIONARY 1221 (7th ed. 1999)). 34 Id. (citing 10 COLLIER ON BANKRUPTCY at 7000–01 (15th ed. rev.2001)).

35 Id. at 169.

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different types of proceedings within a Chapter 11 case,”36 the Second Circuit held 

“that the phrase ‘any issue in a case’ plainly grants a right to raise, appear and be 

heard on any issue regardless whether it arises in a contested matter or an adversary 

proceeding.”37

This Court respectfully disagrees with Caldor and the other majority view 

decisions, and instead submits that not only does Fuel Oil38 have the correct analysis, 

but further that the plain text of section 1109(b) actually supports the minority view 

espoused by Fuel Oil. The Court reaches its conclusion based on another provision of 

the Bankruptcy Code which clearly shows that Congress knows how to distinguish 

between a case and a proceeding. Bankruptcy Code section 307 – which is similar 

(but not identical) to section 1109(b) – provides that “[t]he United States trustee may 

raise and may appear and be heard on any issue in any case or proceeding under this 

title but may not file a plan pursuant to section 1121(c) of this title.”39 Compare this 

language with section 1109(b) which states that any party in interest (including a 

creditors’ committee) “may raise and appear and be heard on any issue in a case under 

this chapter.”40 Thus, where Congress wanted to give a party the right to raise and 

appear and be heard on any issue in a case or proceeding, it knew how to do so and in 

fact did so in section 307 with respect to the United States Trustee. In section 1109(b), 

however, the right to raise and appear and be heard on any issue is limited only to a 

36 Id.

37 Id.

38 762 F.2d 1283.

39 11 U.S.C. § 307 (emphasis added).

40 11 U.S.C. § 1109(b) (emphasis added).

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chapter 11 case, and does not include related adversary proceedings.41 Accordingly, 

this Court concludes that section 1109(b) does not create an unconditional right to 

intervene by a creditors’ committee.42 With no unconditional right to intervene 

created by a federal statute, the committee may not intervene of right under Rule 

24(a)(1).

B. Intervention of Right Relating to Property or Transaction.

Even where a federal statute does not create an unconditional right to 

intervene, a party may still intervene of right under Rule 24(a)(2) if it “claims an 

interest relating to the property or transaction that is the subject of the action, and 

is so situated that disposing of the action may as a practical matter impair or impede 

the movant’s ability to protect its interest, unless existing parties adequately 

represent that interest.”43 To intervene of right, the Eleventh Circuit requires that:

(1) the application to intervene is timely; (2) the applicant has an 

interest relating to the property or transaction which is the subject of 

the action; (3) the applicant is so situated that the disposition of the 

41 Practical considerations also support the minority view. Under the majority view, any creditor, 

equity security holder, or other party in interest would have the unconditional right to intervene in 

any adversary proceeding associated with a chapter 11 case. This could result in erosion of the 

procedural due process protections afforded to litigants in an adversary proceeding, wreak havoc on 

any efforts at efficient case management, and ultimately render an adversary proceeding virtually 

indistinguishable from a main bankruptcy case.

42 Committees, creditors, and other case constituents are not without recourse if they have concerns 

about the estate fiduciary’s ability or willingness to prosecute an adversary proceeding. They can, of 

course, seek derivative standing. See, e.g., Official Comm. of Unsecured Creditors of Cybergenics Corp. 

v. Chinery, 330 F.3d 548, 579-80 (3d Cir. 2003) (en banc); Hyundai Translead, Inc. v. Jackson Truck 

& Trailer Repair, Inc. (In re Trailer Source, Inc.), 555 F.3d 231, 245 (6th Cir. 2009); PW Enters., Inc. 

v. N.D. Racing Comm’n (In re Racing Servs., Inc.), 540 F.3d 892, 898–900 (8th Cir. 2008); Commodore 

Int’l Ltd. v. Gould (In re Commodore Int’l Ltd.), 262 F.3d 96, 100 (2d Cir. 2001); Fogel v. Zell, 221 F.3d 

955, 965 (7th Cir. 2000); Avalanche Mar., Ltd. v. Parekh (In re Parmetex, Inc.), 199 F.3d 1029, 1031 

(9th Cir. 1999); Canadian Pac. Forest Prods. Ltd. v. J.D. Irving, Ltd. (In re Gibson Grp., Inc.), 66 F.3d 

1436, 1446 (6th Cir. 1995); La. World Exposition v. Fed. Ins. Co., 858 F.2d 233, 247–48 (5th Cir. 1988).

They can also – as they did here – negotiate for and seek approval of a chapter 11 plan that transfers 

causes of action to a post-confirmation entity, see 11 U.S.C. § 1123, and have input on the selection of 

the fiduciary who will prosecute those actions for the benefit of those constituents.

43 Fed. R. Civ. P. 24(a)(2).

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action, as a practical matter, may impede or impair his ability to protect 

that interest; and (4) the applicant’s interest will not be represented 

adequately by the existing parties to the suit.44

The committee fails to satisfy any of these factors. First, the motion to intervene was 

filed over two years after this adversary proceeding was filed. The committee argues 

its motion was nevertheless timely because the pleadings have just been closed and 

a scheduling order was just recently entered. But waiting for two years to intervene 

– when the committee unquestionably knew about and was actively following this

adversary proceeding45 – is simply too long to have been considered timely.

By order entered on February 1, 2022,46 the Court set a status conference in 

this adversary proceeding for March 1, 2022, which required the parties to meet and 

confer in advance to discuss and then be prepared to propose a scheduling order at 

the status conference. Without suggesting that an intervention motion filed any time 

before the March 1 status conference necessarily would have been timely, one filed a 

week after the status conference – after the parties were to meet and confer and 

propose a scheduling order – is clearly untimely in this case. To determine the 

timeliness of an intervention motion, the Eleventh Circuit requires courts to consider 

four additional factors:

(1) the length of time during which the would-be intervenor knew or 

reasonably should have known of his interest in the case before he 

petitioned for leave to intervene; (2) the extent of prejudice to the 

existing parties as a result of the would-be intervenor’s failure to apply 

as soon as he knew or reasonably should have known of his interest; 

44 ManaSota-88, Inc. v. Tidwell, 896 F.2d 1318, 1321 (11th Cir. 1990) (citing Athens Lumber Co., Inc. 

v. Federal Election Commission, 690 F.2d 1364, 1366 (11th Cir. 1982)).

45 Counsel for the committee has attended numerous hearings in this adversary proceeding throughout 

its pendency. See, e.g., transcript of September 9, 2020 status conference (ECF No. 31).

46 ECF No. 128.

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(3) the extent of prejudice to the would-be intervenor if his petition is 

denied; and (4) the existence of unusual circumstances militating either 

for or against a determination that the application is timely.47

Here, the committee unquestionably knew about this adversary proceeding from its 

outset – over two years ago. Second, the existing parties – who have already met and 

conferred and agreed on a scheduling order which the Court has since entered48 –

would be prejudiced if the Court were to now permit the committee to intervene and 

upset their negotiated scheduling of this proceeding. Third, the committee would 

suffer no prejudice if intervention were denied, because the same interests it 

represents (the Trust Beneficiaries) are already represented by Mr. Dillworth, as 

liquidating trustee, who was appointed for the very purpose of pursuing this cause of 

action for the benefit of the Trust Beneficiaries. And fourth, there are no unusual 

circumstances here militating for a determination that the motion was timely. Thus, 

the motion to intervene was not timely.

As to the second intervention factor, an intervenor must show that it has “a 

legally cognizable interest that is significantly protectible, as opposed to a general 

and indefinite interest.”49 But a “mere economic interest in the outcome of the 

litigation”50 does not give a party the right to intervene. Here, the committee does not 

have any legally cognizable interest – let alone an economic interest – in the outcome 

of this adversary proceeding. The committee has admitted as much in its 

47 Howard v. McLucas, 782 F.2d 956, 959 (11th Cir. 1986) (quoting U.S. v. Jefferson Cty., 720 F.2d 

1511, 1516 (11th Cir. 1983)).

48 ECF No. 146.

49 Earth Pipeline Servs., Inc. v. Columbia Gas Transmission, LLC (In re Welded Constr., L.P.), 618 B.R. 

710, 718 (Bankr. D. Del. 2020) (cleaned up).

50 Id.

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memorandum of law, where it argues that it “will be operating in its capacity as a 

consulting/oversight party to the Trustee but reserves the right to take positions on 

specific issues that may arise during the course of the Adversary Proceeding, which 

may require the filing of pleadings.”51

Moreover, the terms of the liquidating trust agreement itself belie the 

committee’s arguments. Under the liquidating trust agreement, the committee’s 

powers and duties are to “represent the interests of the Trust Beneficiaries during 

the existence of the Trust,” and “to undertake in good faith each of the acts and 

responsibilities set forth for the” committee in the trust agreement and the plan, “for 

the benefit of the Trust Beneficiaries.”52 Thus, although the Trust Beneficiaries have 

an economic interest in the outcome of this litigation, that interest alone would not 

give any of them – let alone the committee – the right to intervene here. And the 

committee in its own right certainly does not have any economic interest or other 

legally cognizable and significantly protectible interest in the litigation; those rights 

51 The Court must note that the term “pleading” is routinely misused by many lawyers (and judges) in 

bankruptcy cases. The Federal Rules of Civil Procedure “provide a clear and precise meaning of 

‘pleadings.’” Burns v. Lawther, 53 F.3d 1237, 1241 (11th Cir. 1995). Under Federal Rule of Civil 

Procedure 7, made applicable here by Federal Rule of Bankruptcy Procedure 7007, “[o]nly these 

pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim 

designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer 

to a third-party complaint; and (7) if the court orders one, a reply to an answer.” Fed. R. Civ. P. 7(a). 

Importantly, “Rule 7 explicitly excludes everything else from its definition of pleadings.” Burns, 53 

F.3d at 1241; see also 2 MOORE’S FEDERAL PRACTICE - Civil § 7.02 (2022) (“No other paper will be 

considered a pleading except those specifically named in Rule 7(a)”). Motions, briefs, memoranda,

applications, objections, responses, joinders, and other ancillary papers are not “pleadings.” 

See 2 MOORE’S FEDERAL PRACTICE - Civil § 7.02 (2022). Thus, notwithstanding the committee’s 

argument, even if permitted to intervene, the committee could not willy-nilly file “pleadings” whenever 

it sees fit to do so. An amended complaint (ECF No. 117) has been filed. The defendants have filed 

their answer and affirmative defenses. (ECF No. 127). But for resolution of a pending motion to strike 

certain affirmative defenses (ECF No. 137) – and except to the extent permitted by Federal Rule of 

Civil Procedure 15 – the pleadings have been closed.

52 Liquidating Trust Agreement, § 6.2.

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and interests were specifically given to Mr. Dillworth, as liquidating trustee, under 

BHQ’s plan and the liquidating trust agreement.

As for the third and fourth factors, with the liquidating trustee as plaintiff in 

this action – as fiduciary for the Trust Beneficiaries pursuant to the authority vested 

in him by the plan and liquidating trust agreement – the committee has failed to 

show how disposition of this action may impede or impair its ability to protect its 

interest, or that its interest would not be represented adequately by Mr. Dillworth. 

Indeed, the only bankruptcy case constituents with beneficial economic interests in 

the outcome of this adversary proceeding are the Trust Beneficiaries: the former 

general unsecured creditors of BHQ on whose behalf the committee seeks to act and 

as for whom Mr. Dillworth does act in his fiduciary capacity.53 Accordingly, the 

committee has failed to show that it is entitled to intervention of right under Rule 

24(a)(2).

II. Permissive Intervention.

Even where there is no intervention of right, Rule 24(b)(1)(B) provides that 

“[o]n timely motion, the court may permit anyone to intervene who . . . has a claim or 

defense that shares with the main action a common question of law or fact.”54 As 

discussed above, the motion was not timely, and therefore fails on this factor alone. 

Likewise, as discussed above, the committee – which was created by the plan and 

53 Indeed, unlike a pre-petition action brought by a debtor-in-possession or other estate fiduciary for 

the benefit of the entire estate and all of its constituents, this action is brought post-confirmation by 

Mr. Dillworth in his capacity as liquidating trustee solely for the benefit of the Trust Beneficiaries, 

which were the former general unsecured creditors of BHQ. Any recovery (net of professional fees and 

expenses) will inure entirely to the Trust Beneficiaries and not to any other class of creditors or equity 

interests in BHQ.

54 Fed. R. Civ. P. 24(b)(1)(B).

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liquidating trust agreement – has no claim or defense in its own right that it shares 

with the adversary proceeding as a common question of law or fact.55 Thus, 

permissive intervention under Rule 24(b)(1)(B) will also be denied.

III. Intervention Motions Must be Accompanied by a Pleading.

Perhaps because it has no claim or defense in its own right, the committee also 

failed to comply with Rule 24(c), which requires a motion to intervene to be 

accompanied by a pleading56 that sets out the claim or defense for which intervention 

is sought. The Court acknowledges that some courts of appeal – including the 

Eleventh Circuit – have disregarded “nonprejudicial technical defects”57 like failure 

to attach a pleading to an intervention motion where “[e]veryone knew the nature of 

[the intervenor’s] substantive claims for relief.”58 But these decisions are contrary to 

the clear requirements of Rule 24(c). And the fact that courts of appeal after the fact 

(indeed, often after years of litigation) have determined to excuse noncompliance with 

Rule 24(c) does not mean that at the outset of a request to intervene this Court is free 

to disregard the clear requirements of Rule 24(c): a motion to intervene must be 

55 ECF No. 149 at 18 (admitting the committee “does not assert ownership of a claim or defense”).

56 See note 51, supra. 57 Piambino v. Bailey, 757 F.2d 1112, 1121 (11th Cir. 1985). 58 Id. See also Fin. Oversight & Mgmt. Bd. for Puerto Rico, 872 F.3d at 65 (citing with approval cases 

holding that a court has the discretion to permit intervention in some circumstances even when the 

motion to intervene is not accompanied by a pleading, and “in the unique circumstances of the present 

case,” finding that a creditors’ committee’s “interest in the litigation was sufficiently clear to excuse 

any technical non-compliance with Rule 24(c)”).

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accompanied by a pleading.59 Because the committee’s motion was not accompanied 

by a pleading, it must be denied on this basis as well.60

CONCLUSION

Section 1109(b) does not give a post-confirmation creditors’ committee the 

unconditional right to intervene in an adversary proceeding brought by a liquidating 

trustee. The committee here also does not have any interest in the property or the 

transaction that is the subject of this adversary proceeding, and does not have any 

claim or defense that shares with the adversary proceeding a common question of law 

or fact. And finally, the committee failed to attach to its intervention motion a 

pleading that sets out the claim or defense for which intervention is sought. 

Accordingly, for the reasons discussed above, it is ORDERED that the 

committee’s motion to intervene61 is DENIED.

# # #

Copies furnished to all interested parties by CM/ECF.

59 Fed. R. Civ. P. 24(c).

60 Moreover, the notion that a party can intervene in an adversary proceeding without filing a pleading 

is contrary to the adversarial nature of civil litigation (including adversary proceedings). While in a 

main bankruptcy case it may often be appropriate for a party to monitor the case and get more involved 

in some contested matters and not get involved in others, that is not the case in an adversary 

proceeding. In an adversary proceeding there is a plaintiff and a defendant. There is a complaint and 

an answer. An intervenor needs to choose a side and set forth its claims or defenses for which it seeks 

to intervene. Unlike in a main bankruptcy case, a party cannot just intervene in an adversary 

proceeding and then pick and choose the parts of it in which it wishes to participate.

61 ECF No. 143.

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