Chequers Investment Associates v. Hotel Sierra Vista Ltd. Partnership

112 F.3d 429
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 29, 1997
DocketNo. 95-17381
StatusPublished
Cited by3 cases

This text of 112 F.3d 429 (Chequers Investment Associates v. Hotel Sierra Vista Ltd. Partnership) is published on Counsel Stack Legal Research, covering Court of Appeals 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
Chequers Investment Associates v. Hotel Sierra Vista Ltd. Partnership, 112 F.3d 429 (9th Cir. 1997).

Opinion

BEEZER, Circuit Judge:

Chequers Investment Associates (“Chequers”) appeals the district court’s affirmance of a bankruptcy court order confirming Hotel Sierra Vista Limited Partnership’s (“HSVLP”) Chapter 11 plan for reorganization. Chequers asserts the district court erred in affirming: 1) the bankruptcy court’s conclusion that Chequers liens on hotel room revenues did not survive HSVLP’s Chapter 11 petition because Chequers failed to meet its burden for establishing its right to those revenues; and 2) the bankruptcy court’s or[431]*431der confirming HSVLP’s plan because the plan does not treat Chequers fairly and equitably. We have jurisdiction pursuant to 28 U.S.C. § 158(b), and we reverse.

I

HSVLP built a 151-room hotel in Sierra Vista, Arizona, that opened for business in 1986 as a Ramada Inn franchise. Additional hotel facilities include a lounge, a restaurant, a ballroom, banquet rooms and meeting rooms.

HSVLP financed the hotel’s construction by borrowing a total of $6,196,000 in two secured loans from City Federal Savings and Loan (“City Federal”). HSVLP defaulted on its loans in 1990.

The Resolution Trust Corporation (“RTC”) became City Federal’s successor when City Federal became insolvent in 1991. The RTC subsequently sold a $130,000,000 pool of loans, a portion of which were City Federal’s loans to HSVLP, to Chequers, a Texas-based investment group. Chequers demanded payment in full from HSVLP and commenced foreclosure proceedings. HSVLP sought Chapter 11 protection in June 1993.

In August 1993, Chequers moved to sequester the hotel’s post-petition room revenues. Chequers maintained that these revenues were “cash collateral” within the meaning of 11 U.S.C. § 363(a). The bankruptcy court heard Chequers’s motion in September 1993, but explicitly deferred deciding whether the room revenues were cash collateral.1 The court ordered HSVLP to sequester the room revenues and meet its operating expenses from those funds.

Objecting to some expenditures made by the hotel, Chequers moved for an order governing HSVLP’s use of post-petition hotel room revenues in December 1993. At the close of a January 1994 hearing, the bankruptcy court again deferred deciding whether the room revenues were cash collateral.2

[432]*432Chequers moved a third time for an order in February 1994. The bankruptcy court deferred ruling on the legal question at a March hearing.

HSVLP filed its initial plan of reorganization in October 1993. HSVLP amended its plan seven times between November 1993 and the June 1994 confirmation hearing. At the time of its initial filing, HSVLP’s principal assets were the hotel itself, whose value the parties estimated and stipulated to be $2,200,000, together with $625,844 evidencing accumulated pre-petition revenues. Between the time HSVLP filed its petition and the December 1994 plan confirmation, the hotel received an additional $812,425 in net revenues.

After HSVLP proposed its plan, Chequers elected to secure its entire claim pursuant to 11 U.S.C. § 1111(b). Chequers voted to reject HSVLP’s plan. The bankruptcy court confirmed the plan over Chequers’s objections by using the “cramdown” alternative of 11 U.S.C. § 1129(b).

In its order confirming the plan, the bankruptcy court concluded that the post-petition room revenues were cash collateral. The bankruptcy court nevertheless denied Chequers a secured interest in the post-petition hotel revenues. The bankruptcy court determined that Chequers had not met the burden of proving the “extent” of its interest as required by 11 U.S.C. § 363(o)(2).

Chequers appealed the bankruptcy court’s order confirming the plan to the district court. The district court affirmed.

II

We review de novo the district court’s decision on an appeal from the bankruptcy court. In re Sternberg, 85 F.3d 1400, 1404 (9th Cir.1996). Conclusions of law made by the bankruptcy court are reviewed de novo. In re Alsberg, 68 F.3d 312, 314 (9th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 1568, 134 L.Ed.2d 667 (1996). The bankruptcy court’s findings of fact are reviewed for clear error. Id.

III

Sometimes yesterday’s confusion resolves itself into today’s easily-applied rule of law. Between the June 1994 confirmation hearing and the bankruptcy court’s December 1994 order, Congress amended the statutory definition of cash collateral to clarify that the term “rents” included hotel room revenues.3 On this basis, the bankruptcy court concluded that the hotel’s post-petition room revenues were cash collateral. This development places us in an unusual position, however, one where we must assess the actions undertaken by the parties and the bankruptcy court in this case in light of yesterday’s confusion.

[433]*433After its Chapter 11 filing and through the time of the bankruptcy court’s order confirming its plan, HSVLP deposited all revenues received from the hotel, including those attributable to room occupancy, in a single money market account. Chequers contends that HSVLP’s trustee violated 11 U.S.C. § 363(c)(4) by so doing. That section provides that “... the trustee shall segregate and account for any cash collateral in the trustee’s possession, custody, or control.” 11 U.S.C. § 363(c)(4).

Because of the then uncertain status of room revenues, the bankruptcy court deferred deciding the legal question or ordering HSVLP to follow the restrictions imposed by § 363(c)(4). Instead, the bankruptcy court required HSVLP to sequester the hotel’s revenues and meet its operating expenses using those funds. The bankruptcy court determined ultimately that Chequers’s secured interest in post-petition room revenues did not survive post-petition because Chequers failed to meet its burden of proving the “extent” of its interest in those revenues. See 11 U.S.C. § 363(o)(2).

Past uncertainty aside, Chequers asserts that HSVLP’s commingling of room revenues with other revenues in and of itself constitutes reversible error. Because of HSVLP’s commingling, Chequers contends that, as a matter of equity, we should shift the burden of proof under § 363(o)(2) and require HSVLP to prove the amount of revenues that are free of Chequers’s claim. Chequers relies on our opinion in Freightliner Market Development Corp. v. Silver Wheel Freightlines, Inc., 823 F.2d 362 (9th Cir.1987) for this proposition. We reject application of Freightliner in this matter.

In Freightliner,

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In Re Hotel Sierra Vista Limited Partnership
112 F.3d 429 (Ninth Circuit, 1997)

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