Andover Covered Bridge, LLC v. Harrington (Andover Covered Bridge, LLC)

553 B.R. 162
CourtBankruptcy Appellate Panel of the First Circuit
DecidedJuly 26, 2016
DocketBAP NO. EP 16-005; Bankruptcy Case No. 15-20489-PGC
StatusPublished
Cited by24 cases

This text of 553 B.R. 162 (Andover Covered Bridge, LLC v. Harrington (Andover Covered Bridge, LLC)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andover Covered Bridge, LLC v. Harrington (Andover Covered Bridge, LLC), 553 B.R. 162 (bap1 2016).

Opinion

Per Curiam.

Andover Covered Bridge, LLC (the “Debtor”) appeals from the following orders of the bankruptcy court: (1) the December 14, 2015 Order Granting Motion of the United States Trustee to Dismiss Chapter 11 Case of Andover Covered Bridge, LLC, Pursuant to 11 U.S.C. § 1112(b); and (2) the January 11, 2016 Order Denying Debtor’s Motion to Alter or Amend or for a New Trial on Order of Dismissal Pursuant to Bankruptcy Rule 9023 and FRCP 59; And Alternatively For Amended Findings and An Amended Order Pursuant to Bankruptcy Rule 7052 and FRCP 52(b).1 For the reasons set forth below, we AFFIRM.

BACKGROUND

I. Pre-Bankruptcy Events

In August 2009, the Debtor bought real property located in Mechanic Falls, Maine (the “Property”) for more than $4 million. To finance the purchase, the Debtor executed a promissory note payable to E-Layne Moulders Corp. and Amity Development Corp. in the original principal amount of $1,172,650.00. To secure the note, the Debtor executed a mortgage in favor of E-Layne Moulders Corp. and Amity Development Corp. In addition, Peter Bolduc, Jr. and Kathie L. Bolduc, who each hold a 50% interest in the Debtor, personally guaranteed the note. In 2010, Amity Development Corp. assigned its interest in the note and mortgage to Jaspan Schlesinger.

Various affiliates of the Debtor used the Property as a farm (“Harvest Hills”), farm store, and an amusement center known as “Pumpkin Land.” Pumpkin Land was a seasonal amusement park that' included rides, attractions, nature activities, a corn maze, and the “Haunted Hayride,” a nighttime wagon ride through the Property. The bulk of Pumpkin Land’s cash flow was produced during the fall season, when the Haunted Hayride was in operation. In October 2014, a tragic accident occurred in connection with the Haunted Hayride, and a number of people were injured, one fatally.2 The Debtor , claimed that, in the aftermath of the accident, Harvest Hills’ business suffered and there were' cash flow problems, resulting in an inability to make mortgage payments.

II. The Bankruptcy Case

The Debtor filed a chapter 11 petition on July 2, 2015, indicating that the nature of its business is single asset'real estate as defined in § 101(51B), and designating itself as a small business debtor as defined in § 101(51D).3

[167]*167The Debtor’s sole asset is the Property. On Schedule A, the Debtor valued the Property at $1,500,000.00, subject to a secured claim in the amount of $1,130,228.04. According to the Debtor’s Schedule D, Jas-pan Schlesinger and E[-]Layne Moulders Corp. (collectively, the “Secured Party”), hold a joint mortgage on the Property and are each owed $550,000.00. Schedule D also reflected that the Debtor owed $30,228.04 to the Town of Mechanic Falls for real estate taxes on the Property. In its October 27, 2015 proof of claim, the Secured Party claimed it was owed $1,155,921.05, and that the note was accruing interest at 12.5%. The Debtor did not object to the proof of claim.

On July 2, 2015, the Analyst for the U.S. Trustee emailed the Debtor through counsel and provided the Debtor with, among other things, Operating Guidelines and Reporting Requirements for Chapter 11 Cases (Region One) (the “Operating Guidelines”).

On July 21, 2015, Mr. Bolduc, on behalf of the Debtor, met with the Analyst for the U.S. Trustee at an initial debtor conference. During this meeting, Mr. Bolduc confirmed that he had received the Operating Guidelines. At the § 341 meeting of creditors held on August 6, 2015, Mr. Bol-duc testified in his capacity as manager of the Debtor regarding matters relating to the Debtor’s business operations (or lack thereof) and finances (or lack thereof). Specifically, Mr. Bolduc testified that the Debtor had no income and no employees, that Harvest Hills paid the Debtor’s mortgage obligations, and that, up to the date of the bankruptcy filing, the Debtor did not maintain a bank account. Thereafter, the U.S. Trustee requested the Debtor to produce Harvest Hills’ financial records including, but not limited to, balance sheets and profit and loss statements. The U.S. Trustee also requested the Debt- or to produce its last-filed tax return — for fiscal year 2012. According to the U.S. Trustee, a balance sheet for Harvest Hills as of the end of the first quarter of 2015 reflected an account payable owed to the Debtor totaling $838,948.82.

On August 14, 2015, the Debtor filed its first monthly operating report for July 2015 (“July MOR”). The July MOR reflected that the Debtor had no employees, no income, and was receiving no rent from Harvest Hills. The Debtor did not timely file monthly operating reports for August, September, or October 2015.

On October 21, 2015, the U.S. Trustee filed a motion to convert or dismiss the case (“Motion to Dismiss”). The U.S. Trustee asserted that cause existed to dismiss or convert the case due to: (1) the Debtor’s failure to file the required month[168]*168ly operating reports for August and September 2015, and failure to produce financial information as requested by the U.S. Trustee (§ 1112(b)(4)(F) and (H)); and (2) the Debtor’s continuing losses (the accrual of unpaid mortgage obligations) and the absence of a reasonable likelihood of rehabilitation as the Debtor had no income (§ 1112(b)(4)(A)). The U.S. Trustee asserted that conversion to chapter 7 would be in the best interests of the creditors and the estate because there appeared to be equity in the Property and there might be claims which could be asserted against the Debtor’s affiliates for failure to pay the Debtor for their use of the Property. Alternatively, the U.S. Trustee requested that the case be dismissed.

The next day, the Debtor filed (late) the monthly operating reports for August and September 2015, which reflected that the Debtor had no employees, no income, and had not received any rent from Harvest Hills. The only difference from the. July MOR was that the August report showed a deposit of $25.00 into the debtor-in-possession account, and the September report showed a deposit of $500.00 into the debt- or-in-possession account.

On November 3, 2015, the Secured Party filed a statement consenting to the Motion to Dismiss.

On November 30, 2015, the Debtor filed (late) its October monthly operating report. On the same date, the Debtor filed a response to the Motion to Dismiss (“Response”). In its Response, the Debtor explained it commenced the bankruptcy to stay the foreclosure of the Property and allow Harvest Hills to continue operations through its peak fall season to determine whether the Debtor would be able to formulate a rehabilitation plan based on rent or other income from Harvest Hills’ operations.

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Bluebook (online)
553 B.R. 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andover-covered-bridge-llc-v-harrington-andover-covered-bridge-llc-bap1-2016.