Beal Bank USA v. Windmill Durango Office, LLC (In re Windmill Durango Office, LLC)

481 B.R. 51, 2012 Bankr. LEXIS 2947
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedJune 27, 2012
DocketBAP Nos. NV-11-1728-DKiPa, NV-11-1737-DKiPa; Bankruptcy No. 10-25594-lbr
StatusPublished
Cited by16 cases

This text of 481 B.R. 51 (Beal Bank USA v. Windmill Durango Office, LLC (In re Windmill Durango Office, LLC)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beal Bank USA v. Windmill Durango Office, LLC (In re Windmill Durango Office, LLC), 481 B.R. 51, 2012 Bankr. LEXIS 2947 (bap9 2012).

Opinion

OPINION

DUNN, Bankruptcy Judge.

Beal Bank USA (“Beal Bank”) appeals two of the bankruptcy court’s orders concerning the chapter 11 plan of the debtor, Windmill Durango Office, LLC.1 Specifically, Beal Bank appeals the bankruptcy court’s order (“ballot order”) denying its motion to permit it to change a ballot accepting the debtor’s chapter 11 plan (“ballot motion”).2 Beal Bank also appeals the bankruptcy court’s order confirming the debtor’s chapter 11 plan (“plan confirmation order”) over Beal Bank’s objection. We AFFIRM the bankruptcy court’s rulings in both appeals.

FACTS

A. The debtor’s prepetition history

The debtor owns 4.49 acres of commercial real estate developed with a Class A office building (“real property”). The real property is valued at $19.4 million.

The debtor leases most of the office building space to Allegiant Air (“Allegi-ant”).3 Allegiant is a national airline company, running its corporate headquarters out of the leased office building space. It is the debtor’s primary tenant, occupying 87% of the office building and providing 95% of the real property’s revenue.

Under the lease, Allegiant pays a monthly rent of $182,006.12, including common area maintenance expense (“CAM”) and parking. Allegiant’s lease began in April 2008 and ends in April 2018. Allegiant may exercise an option to terminate the lease in April 2015. According to the debtor, if Allegiant exercises this option, it must pay the debtor an estimated $1.2 million cancellation fee.

[55]*55The debtor purchased the real property prepetition through a loan with Community Bank of Nevada and Colonial Bank (collectively, “original lenders”). To document the loan, the debtor executed a promissory note in the original principal amount of $16.5 million, secured against the real property.4

The original lenders later were closed down and placed into receivership with the FDIC. Until that time, the debtor was current on loan payments. The debtor tried to negotiate a purchase of the loan from the FDIC. During negotiations with the FDIC, the debtor defaulted on the loan.5 The FDIC ultimately sold the loan to Beal Bank.

On April 1, 2010, Beal Bank commenced a state court action against the debtor for breach of contract (“state court action”). It also sought and eventually obtained the appointment of a state court receiver. Beal Bank recorded a notice of default and election to sell on April 9, 2010.

B. The debtor’s chapter 11 bankruptcy case

1. The changing kaleidoscope of unsecured claims

The debtor filed its single asset real estate chapter 11 bankruptcy petition on August 17, 2010. Windmill Durango, LP is the sole owner of the debtor.

The debtor scheduled $1,121,261.11 in loans owed by Windmill Durango, LP, and $168,000 in loans owed by Windmill Duran-go Office II, LLC as accounts receivable. It also scheduled $99,844.79 in past due rent and CAMs owed by Allegiant as an account receivable.6

The debtor scheduled Beal Bank as its only secured creditor. The debtor initially reported a total of $268,000 in unsecured nonpriority claims in its original Schedule F; Windmill Durango Office II, LLC held the largest unsecured nonpriority claim in the amount of $265,000. The debtor specified the amount of only one other unsecured nonpriority claim: a $3,000 business expense owed to Green Thumb Maintenance. The debtor listed the remaining unsecured nonpriority claims in “unknown” amounts. The debtor named DP Air Corp. and Otis Elevator Company among the creditors holding unsecured nonpriority claims in unknown amounts. It also reported in its Schedule H executo-ry contracts with DP Air Corp. and Otis Elevator Company.

The debtor amended its Schedule F three times over the course of its bankruptcy case.7 In the first amended Schedule F, the debtor reduced Windmill Duran-go Office II, LLC’s unsecured nonpriority claim to $32,000. In the second amended Schedule F, the debtor listed Marquis & Aurbach with a $6,835.02 unsecured nonp-riority claim for prepetition attorney fees incurred in the state court action. In the third amended Schedule F, the debtor listed John Benedict, Esq. (“Benedict”) with a $1,520 unsecured nonpriority claim for pre-petition attorney fees incurred from repre[56]*56senting the receiver in the state court action.

The deadline for general creditors to file proofs of claim was January 5, 2011 (“claims bar date”). Otis Elevator Company, DP Air Corp., Marquis & Aurbach and Benedict filed proofs of claim, all of which were unsecured nonpriority claims based on services performed for the debtor. Otis Elevator Company and DP Air Corp. timely filed their proofs of claim. The two remaining creditors filed their proofs of claim some weeks after the claims bar date; Marquis & Aurbach filed its proof of claim on March 1, 2011, and Benedict filed his original proof of claim on March 21, 2011, and his amended proof of claim on April 1, 2011.

The total amount of the unsecured nonp-riority claims filed was $14,673.12. Otis Elevator Company filed two proofs of claim; the first was in the amount of $1,500 and the second was in the amount of $648.59. DP Air Corp.’s proof of claim was in the amount of $4,506.20. Marquis & Aurbach’s proof of claim was in the amount of $6,498.33. Benedict’s proof of claim was in the amount of $1,520.8

2. The debtor’s disclosure statement

The debtor filed its original disclosure statement and plan on January 26, 2011. It filed an amended disclosure statement and amended plan on March 16, 2011. Although Beal Bank objected to the original disclosure statement, it did not object to the amended disclosure statement.

Under the amended disclosure statement, the debtor placed Beal Bank into Class 1 and the unsecured nonpriority creditors into Class 3. It estimated Beal Bank’s total secured claim to be $16,188,110.62. It believed that the real property had $3 million in equity based on an appraised value of $19.4 million.9 The debtor pointed out that Beal Bank never disputed the appraised value of the real property. It further noted that Beal Bank was over-secured, given the appraised value of the real property and the amount of its secured claim.

The debtor proposed paying Beal Bank a total principal amount of $16,188,100.62, fully amortized over 30 years with 2.75% interest. It proposed paying $66,086.53 per month, with the balance of the unpaid principal of $12,189,347.85 due and payable in ten years. The debtor would make a final balloon payment on the unpaid principal balance.

The debtor intended to refinance or sell the real property in order to make the proposed balloon payment. It believed that the real property’s value would increase over ten years. Even if the real property’s value remained the same, the debtor estimated that there would be 40% in equity built up at the end of the plan’s ten-year term.

The debtor also proposed to pay 100% of the allowed claims of the unsecured nonp-riority creditors without interest ninety days after entry of the plan confirmation order.

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Bluebook (online)
481 B.R. 51, 2012 Bankr. LEXIS 2947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beal-bank-usa-v-windmill-durango-office-llc-in-re-windmill-durango-bap9-2012.