PETER McNIFF, United States Bankruptcy Judge.
On December 23, 1997, the court held a hearing on the debtor's notice of conversion filed pursuant to 11 U.S.C. § 1112 (a). The only creditor in this case, Natural Gas Processing Company (NGP), objected to converting the case to chapter 7.
The court has considered the issues presented, the arguments of the parties and the evidence presented and concludes that under the circumstances of this case, the debtor's choice to convert must be denied.
The debtor argues that under § 1112(a) it has an absolute right to convert its case to chapter 7 if all three conditions therein are met. The section however, states that the debtor may convert if the conditions are met.
Under most circumstances the debtor's interpretation of the section is correct. However, the court agrees with the court in In re Pero Brothers Farms, Inc., 91 B.R. 1000, 1001 (Bankr.S.D.Fla. 1988) that when a creditor plan is pending, a voluntary conversion effectively creates an impermissible veto by a debtor in possession to the plan. Also, the court has the authority under 11 U.S.C. § 105(a) to prevent action which is in bad faith or is an abuse of the bankruptcy process to the detriment of the creditors. In re Calder, 93 B.R. 739, 740 (Bankr.D.Utah 1988), appeal decided by 907 F.2d 953 (10th Cir. 1990).
Finally, the court clearly has the authority to permit a conversion and then to reconvert the case back to chapter 11. However, nothing is gained by procedural maneuvering of that sort.
In this case, the debtor has been conspicuously absent from the case for some time. No monthly financial reports have been filed since April 1997. The debtor did not object to the plan of liquidation filed by NGP. The debtor has not proposed a plan of reorganization despite the court's orders setting deadlines to do so.
On the other hand, NGP is the only creditor in this case. Confirmation of NGP's plan was to be heard when the notice of conversion was filed. NGP has made efforts to preserve the assets during the chapter 11 administration. The notice was clearly intended to delay the proceedings and at the last minute, to prevent confirmation of the NGP plan without filing an objection thereto.
The evidence established that there is no equity to preserve in this estate. The debtor has, by failing to act during the chapter 11, permitted its oil and gas interests to expire or be jeopardized. A chapter 7 trustee would likely not have the cash flow necessary to preserve the remaining assets even if they were sufficient to satisfy the claims, which they are not. The interests of the creditors are clearly best served by retaining the case in chapter 11, subject to confirmation of NGP's chapter 11 plan.
A chapter 11 debtor in possession has a fiduciary duty to the creditors which was not considered when the notice of conversion was filed. There being no constructive reason or purpose to convert this case to chapter 7, the conversion is DENIED.