Carolin Corporation v. Robert J. Miller, Jr.

886 F.2d 693, 105 B.R. 693, 1989 U.S. App. LEXIS 14730, 19 Bankr. Ct. Dec. (CRR) 1425
CourtCourt of Appeals for the Fourth Circuit
DecidedSeptember 28, 1989
Docket19-1750
StatusPublished
Cited by220 cases

This text of 886 F.2d 693 (Carolin Corporation v. Robert J. Miller, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carolin Corporation v. Robert J. Miller, Jr., 886 F.2d 693, 105 B.R. 693, 1989 U.S. App. LEXIS 14730, 19 Bankr. Ct. Dec. (CRR) 1425 (4th Cir. 1989).

Opinions

PHILLIPS, Circuit Judge:

This appeal requires us first to decide whether and, if so, by what standard, a bankruptcy court may dismiss a voluntary Chapter 11 bankruptcy petition at the very outset because it was not filed “in good faith.” It then requires us to decide whether the petition here in issue was properly dismissed for that reason.

On the first issue we hold that a bankruptcy court may dismiss such a petition for want of good faith in its filing, but only with great caution and upon supportable findings both of the objective futility of any possible reorganization and the subjective bad faith of the petitioner in invoking this form of bankruptcy protection. On the second issue, on Carolin Corporation’s appeal from the district court’s affirmance of the bankruptcy court’s dismissal of the original Chapter 11 petition for lack of good faith, we find no error and affirm.

[695]*695I

This case sounds in bankruptcy, but it is fundamentally a dispute over the fate of valuable property. Carolin Corporation (Carolin) is a real estate holding company. Its principal assets are a 5.66-acre parcel of land located in Lexington, North Carolina, and the 80,000 square foot industrial building situated thereon. Robert J. Miller, Jr. is Carolin’s only secured creditor. He is the successor beneficiary of a purchase money deed of trust on the Lexington property and successor payee under the $650,000 purchase money promissory note which Carolin executed to finance its original purchase of the land and building.

Carolin defaulted on the note in the summer of 1986. On December 3, 1986 — fifty minutes before a scheduled foreclosure sale under the deed of trust — the company filed for Chapter 11 protection. The filing automatically stayed foreclosure, 11 U.S.C. § 362(a), triggering the present dispute between Carolin and Miller over the company’s ultimate eligibility for protection under the bankruptcy statutes. The history of this case is far more extensive and intricate than our simple recitation would imply, however, and we therefore begin with events predating Carolin’s Chapter 11 filing by nearly four years.

On March 7,1983, Steve and Linda Pitch-ersky purchased the Lexington property from the Miller Tool Company, a family business then managed by Mr. Miller’s mother, Nancy P. Miller. The Pitcherskys financed the transaction by executing a promissory note and purchase money deed of trust in favor of Miller Tool. They operated New Age Furniture Industries, Inc. on the property until late 1984, but ultimately defaulted on the note when the business failed. Miller Tool foreclosed on the deed of trust and repurchased the property at a foreclosure sale on December 19, 1984.

On January 14, 1985, Carolin purchased the Lexington property from Miller Tool, financing the transaction with the promissory note and deed of trust that are the subject of the present dispute. The note bears interest at ten percent per annum and provides for the payment of interest only for the first thirty-nine months, followed by monthly payments of principal and interest on a twenty-five year amortization schedule. All remaining principal and interest is due in May of 1993 in a balloon payment.

When it purchased the Lexington property, Carolin also acquired at public auction all of New Age’s tangible assets, including various machinery and equipment. At the time of these transactions, Edwin Gold-stein, then the President of Carolin, and Misoslav Arandjelovic, then the owner of the JMC Furniture Company, Inc., owned all of Carolin’s stock. Shortly after Carolin completed its purchases, it leased the property to JMC for a twenty-year term beginning in January of 1985. After JMC took possession under the lease, two fires of undetermined origin occurred at the site— the first sometime in June of 1985, and the second on April 7, 1986. The fires caused extensive damage to approximately 20,000 square feet of the building. JMC received approximately $150,000 in insurance proceeds after the first fire, which funds it apparently transferred to Carolin. Mrs. Miller, ultimately received other fire insurance proceeds, the application of which is disputed by the parties, The building underwent minor repairs after the first fire; no repairs were made following the second fire. Part of the building still does not have a roof.

In the summer of 1986, JMC encountered financial difficulties and defaulted on its lease of the Lexington property. On November 5, 1986, Carolin, JMC, Goldstein and Arandjelovic entered into an agreement for the termination of the lease. At the same time, Arandjelovic transferred his interests in Carolin to Goldstein, who thus became the owner of all Carolin stock. Having no substitute tenant and no remaining source of income, Carolin soon defaulted on its promissory note, which had been assigned (together with the deed of trust) by Miller Tool to Mrs. Miller in June of 1985.

In an attempt to foreclose on the deed of trust, Mrs. Miller arranged for a fore[696]*696closure sale of the Lexington property. On December 2, 1986, the day before the scheduled sale, Steve and Linda Pitcher-sky — the prior owners of the property— reentered the scene. Together with Dale Cline and David Zagerolli, they incorporated the Benz Holding Company and purchased all of its stock. On December 3, 1986, Benz acquired all of Carolin’s stock from Goldstein. Then, less than an hour before the foreclosure sale was scheduled to occur, Benz’ principals caused Carolin to file its Chapter 11 petition.

The following day, Mrs. Miller filed a motion in the bankruptcy court seeking, inter alia, relief from the automatic stay, adequate protection, conversion of the case to Chapter 7 or, in the alternative, dismissal of Carolin’s Chapter 11 petition. On February 10-11 and February 23, 1987, the bankruptcy court held extensive hearings and heard argument directed to only one of the questions raised by Mrs. Miller’s motion: whether Carolin’s petition should have been dismissed for failure to file in good faith.

While the bankruptcy court considered the motion, Arandjelovic reappeared.1 On April 15, 1987, he and Mrs. Miller executed a “Purchase Agreement,” under the terms of which Arandjelovic would acquire the Lexington property if Mrs. Miller ultimately repurchased the tract at a foreclosure sale or succeeded in obtaining a deed in lieu of foreclosure. The Purchase Agreement is apparently still operative.

On April 24, 1987, the bankruptcy court entered an order dismissing Carolin’s Chapter 11 case for “lack of good faith in filing the petition.” In re Carolin Corp., No. B-86-02443C-11, slip op. at 1 (Bankr.M.D. N.C. Apr. 24, 1987). The court noted the presence of “a number of factors suggest[ing] that [Carolin’s] bankruptcy filing was not in good faith.” Id. at 6. The court found, for example, that Carolin's case “fit squarely into the ‘new debtor syndrome,’ ” id. at 7, “in which a one-asset entity has been created or revitalized on the eve of foreclosure to isolate ... insolvent property and its creditors.” Id. at 6 (quoting In re Little Creek Development Co., 779 F.2d 1068, 1073 (5th Cir.1986)). The court also noted the presence in Caro-lin’s case of a number of the other “indi-cia” of bad faith filings recognized by the Little Creek court.

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Bluebook (online)
886 F.2d 693, 105 B.R. 693, 1989 U.S. App. LEXIS 14730, 19 Bankr. Ct. Dec. (CRR) 1425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carolin-corporation-v-robert-j-miller-jr-ca4-1989.