Borokini Investment Corp. v. Punlabs Quality Products, Ltd. (In re Punlabs Quality Products, Ltd.)

210 B.R. 723, 1996 Bankr. LEXIS 1815
CourtUnited States Bankruptcy Court, S.D. Texas
DecidedAugust 14, 1996
DocketBankruptcy No. 96-45426-H3-11
StatusPublished

This text of 210 B.R. 723 (Borokini Investment Corp. v. Punlabs Quality Products, Ltd. (In re Punlabs Quality Products, Ltd.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borokini Investment Corp. v. Punlabs Quality Products, Ltd. (In re Punlabs Quality Products, Ltd.), 210 B.R. 723, 1996 Bankr. LEXIS 1815 (Tex. 1996).

Opinion

MEMORANDUM OPINION

LETITIA Z. CLARK, Chief Judge.

The court has heard the Motion for Emergency Relief from Stay of Borokini Investment Corporation and Oluwafemi Iroh Against Punlabs Quality Products, Ltd. (Docket No. 8) and the Original Petition In Intervention (Docket No. 20) filed by Ebony Pharmaceutical Manufacturing, Inc. and National Commerce Corporation. After considering the pleadings, evidence, and arguments of counsel, the court makes the following Findings of Fact and Conclusions of Law, and will enter a separate Judgment wherein the automatic stay will lift. The intervention was allowed. To the extent any of the Findings of Fact herein are construed to be Conclusions of Law, they are hereby adopted as such. To the extent any of the Conclusions of Law herein are construed to be Findings of Fact, they are hereby adopted as such.

Findings of Fact

1. Punlabs Quality Products, Ltd, Debtor, filed its voluntary Chapter 11 petition on June 19, 1996 and currently operates a pharmaceutical manufacturing business that makes generic and over the counter drugs for various wholesale customers. (Docket No. 1; Testimony of Nwangwu).

2. The property made the subject of this motion is real property improved with a nonresidential commercial building located at 10960 Staneliff Road, Houston, Texas. The property was originally purchased by Ebony, in 1992 or 1993, at what was represented to be a purchase price of $436,000.00 and subsequently transferred to National Commerce Corporation, (“NCC”). The record is not clear as to how much has actually been paid toward the purchase price, nor the source of those funds. The only evidence on this subject, the testimony of Nwangwu, is neither complete nor credible. (Brief of Debtor In Opposition to Motion for Relief; Testimony of Nwangwu).

3. Debtor and National Commerce Corporation entered into a lease agreement for the property in June, 1994 for a ten year period at $1,000.00 per month. (Movants Exhibit No. 16).

4. In August, 1994, Borokini Investment Corporation, (“Borokini”), made a loan in the amount of $300,000.00 to Ebony Pharmaceutical Corporation, (“Ebony”), which was secured by a deed of trust on the real property owned by National Commerce Corporation. Debtor and Dr. Peter U. Nwangwu were guarantors of Borokini’s loan to Ebony. (Testimony of Iroh; Movant’s Exhibits 12-14).

5. As part of the loan agreement, Debtor signed a Subordination and Attornment Agreement for the benefit of Borokini where[725]*725in the lease is subordinate to the liens of Borokini. (Movants’ Exhibit B; Debtor’s Exhibit 15).

6. Peter U. Nwangwu, a doctor of pharmacology, is the President of Debtor, NCC and Ebony. He appears to own 100% of the stock of each, but the record is not clear on this. Borokini Investment Corporation, Inc. is a corporation whose stock is solely owned by Oluwafemi Iroh who is also the President and Secretary of the corporation. (Testimony of Iroh).

7. Ebony defaulted on the loan made by Borokini and since August 1995, no monies have been paid to Movants. (Testimony of Iroh and Nwangwu). On March 5, 1996 Borokini foreclosed upon the property and as the highest bidder, at the sum of $200,000.00, was issued a Substitute Trustee’s Deed. (Movant’s Exhibit 1A). At the time of foreclosure, the amount owed on the original $300,000.00 loan was approximately $384,-143.97 in addition to other sums for unpaid property taxes owing by NCC. (Movants’ Exhibit 1A).

8. Debtor failed to vacate the premises and Movants filed a state court suit for forcible detainer, recovery of rents and recovery of premises. (Movants’ Exhibit 1). On April 25,1996, the Justice Court of Harris County, Precinct 5, Place 1 rendered an Order sustaining Movants’ request for forcible detainer and ordering Debtor to surrender the premises by May 1, 1996. This Order became a final judgment on May 25, 1996. (Movants’ Exhibit 2). Debtor’s bankruptcy was filed on June 19,1996. (Docket No. 1).

9. Ebony and NCC filed an Original Petition In Intervention (Docket No. 20) seeking to intervene in the Movants’ Motion for Relief from Stay. At the hearing on the Motion for Relief, the court orally allowed the intervention and participation of Ebony and NCC.

10. Movants filed the present motion on an emergency basis on grounds that Mr. Iroh is in severe financial distress and is in peril of losing his own family’s home to foreclosure as a result of his dependence on the quarterly interest income from the $300,000.00 loan and the anticipated repayment of the principal in August, 1996. (Movants’ Exhibits 4 through 8; Testimony of Iroh).

11. Debtor has yet to surrender the premises and has failed to pay property taxes since 1992 or to maintain insurance coverage as is required under the terms of the Deed of Trust. (Testimony of Iroh and Nwangwu; Movants’ Exhibits 8 through 10, and 14).

12. Iroh agreed to and made arrangements with taxing authorities to pay the taxes in installments. (Movants’ Exhibits 4 through 6, and 10). In May 1996, Iroh paid approximately $13,000.00 with approximately another $16,000.00 being owed. (Testimony of Iroh; Movants’ Exhibit 10).

13. Iroh was unable to make the second installment of approximately $16,000.00 for the taxes and as a result, a judgment for past due taxes was rendered against Movants. The property was ordered to be sold for unpaid taxes. (Movants’ Exhibits 8; Testimony of Iroh).

14. Nwangwu admitted that the taxes were not paid and that he had been served ■with the tax suit. He claims that he made specific arrangements with the taxing authorities to pay the taxes due; however, upon further examination, he admitted he had only given a proposed schedule of payments and planned to include them in a plan of reorganization. (Testimony of Nwangwu). The court did not find his testimony of intent to pay the taxes credible.

15. As to providing insurance coverage, Debtor has failed to maintain same and also refused to allow an inspection of the property by insurance representatives sent by Iroh. (Movants’ Exhibit 9; Testimony of Iroh). Although Nwangwu testified that the building is insured and that he gave the Certificate of Insurance to the United States Trustee, he failed to submit a copy of same into evidence. (Testimony of Nwangwu). Nwangwu was not a credible nor a forthcoming witness. The evidence before the court does not demonstrate insurance coverage on the property.

16. The court takes judicial notice of the Debtor’s bankruptcy petition and schedules and notes that assets are valued at $2.271 [726]*726million and liabilities total $925,145.00. The assets are comprised of the value of the pharmaceutical licenses and certifications, office equipment, manufacturing equipment and accessories, and inventory and raw material. Schedule A, “Real Property”, contains no listings of any real property owned by the Debtor. (Schedule A, Docket No. 1). Schedule F, “Creditors Holding Unsecured Nonpriority Claims”, includes a contingent claim of $108,000 to NCC for accumulated rent on the building lease from January, 1995 to June, 1996. (Schedule F, Docket No. 1).

17. The court finds Iroh to be a credible witness. Iroh testified, without objection, that Nwangwu told him that Nwangwu “would tie up the property for years” in court. The court finds this an indication of bad faith on the part of Debtor in addressing Debtor’s failure to pay rent, and Ebony’s failure to pay interest on the loan. (Testimony of Iroh).

18.

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210 B.R. 723, 1996 Bankr. LEXIS 1815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borokini-investment-corp-v-punlabs-quality-products-ltd-in-re-punlabs-txsb-1996.