Comm 2013 CCRE12 Crossings Mall Rd., LLC v. Tara Retail Grp., LLC

591 B.R. 640
CourtUnited States Bankruptcy Court, N.D. West Virginia
DecidedAugust 30, 2018
DocketCivil Action No. 1:18CV11; Civil Action No. 1:18CV47; Bankruptcy No. 1:17BK57
StatusPublished

This text of 591 B.R. 640 (Comm 2013 CCRE12 Crossings Mall Rd., LLC v. Tara Retail Grp., LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Comm 2013 CCRE12 Crossings Mall Rd., LLC v. Tara Retail Grp., LLC, 591 B.R. 640 (W. Va. 2018).

Opinion

IRENE M. KEELEY, UNITED STATES DISTRICT JUDGE

COMM 2013 CCRE12 Crossings Mall Road, LLC ("COMM 2013"), appeals two orders entered by the United States Bankruptcy Court for the Northern District of West Virginia ("Bankruptcy Court"), overruling COMM 2013's objections to the settlement of certain claims by the debtor, Tara Retail Group, LLC ("Tara Retail"). The primary question presented is whether the debtor may compromise a claim by allowing the claim in its entirety, but agreeing to satisfy the claim, in part, through payment of a smaller sum. For the following reasons, concluding that debtors may do so, the Court AFFIRMS the Bankruptcy Court.

I. BACKGROUND

The parties do not dispute the factual and procedural history relevant to the pending appeals. Tara Retail owns and operates Elkview Crossings Shopping Mall in Elkview, West Virginia ("Crossings Mall"). Among the Crossings Mall's tenants are Dollar Tree Stores ("Dollar Tree") and The Elswick Company d/b/a Anytime Fitness ("Elswick"). COMM 2013 is Tara Retail's principal creditor due to a $13,650,000 commercial loan, which is secured by a lien on the Crossings Mall, as well as an assignment of its rents.

In June 2016, catastrophic flooding destroyed the bridge and culvert that provided the only public access to the Crossings Mall, which remained inaccessible and inoperable for over a year. As a result, Tara Retail defaulted on its financial obligations. COMM 2013 scheduled a deed of trust sale of the Crossings Mall, but on January 24, 2017, Tara Retail filed a voluntary petition *643for bankruptcy pursuant to Chapter 11 of the Bankruptcy Code.

On May 22, 2017, Dollar Tree filed a proof of claim for $276,969.28, which consisted of $26,969.28 in overpaid rent from June 2016 through November 2016; $150,000 in lost profits; $95,000 to reopen for business; and $5,000 in legal fees (D.T. No. 20).1 Tara Retail objected, arguing that Dollar Tree's claim should be disallowed in its entirety because Tara Retail did not have a duty or obligation to repair the bridge or provide access to the Crossings Mall given that the culvert was owned and maintained by the State of West Virginia (D.T. No. 1). Thereafter, Tara Retail stipulated to three, month-long extensions of time for Dollar Tree to respond to the objection (D.T. Nos. 22; 23; 24).

Ultimately, on October 31, 2017, Tara Retail and Dollar Tree filed a stipulation to resolve the disputed proof of claim. In relevant part, the stipulation provided:

Debtor and Dollar Tree agree that: (a) for plan voting purposes only, Dollar Tree shall have an estimated allowed claim for $276,969.28 (the "Voting Claim"), which is comprised of $26,969.28 in post-June 2016 flood rental payments and $250,000 as the estimated expense to repair the condition of the Property to the condition immediately preceding the June 2016 flood; (b) for distribution purposes, the Claim is hereby allowed in the reduced amount of $26,969.28.

(D.T. No. 6 at 3). Dollar Tree agreed to accept $26,969.28 as a credit against rent payments, which would begin to accrue when Dollar Tree reopened for business. Id. at 4. Dollar Tree further "agree[d] to vote in support of the Debtor's plan of reorganization," so long as its terms required Tara Retail to assume the lease agreement entered in 2000. Id. at 1, 5.

COMM 2013 objected to the stipulation between Tara Retail and Dollar Tree (D.T. No. 8). It argued that the stipulation was "nothing more than [a] disguised settlement agreement which should only be approved as part of a proper Rule 9019 motion." Id. 2 As evidence that the stipulation should be reviewed as a settlement, COMM 2013 contended, in part, that the stipulation "appear[ed] to be designed to gerrymander a class of consenting impaired claims." In other words, rather than simply assume the lease in exchange for Dollar Tree's concessions, Tara Retail had structured the stipulation to require Dollar Tree to vote for its plan. Id.

During a hearing on November 14, 2017, the Bankruptcy Court acknowledged that *644Rule 9019 may have provided a better framework for addressing the stipulation. After reviewing the relevant factors, however, the Bankruptcy Court concluded that the parties had adequate notice and that the stipulation represented a sound business judgment by Tara Retail (D.T. No. 9 at 28-34). It thus found the stipulation acceptable with the exception of the voting rights issue raised by COMM 2013 in its objection. Therefore, the Bankruptcy Court ordered additional briefing on whether allowing Dollar Tree to vote the full amount of its claim would violate the Bankruptcy Code or voting process (D.T. No. 10).

In its supplemental brief, COMM 2013 argued that a creditor's voting rights must be identical to its payment rights, and that the stipulation improperly locked up votes in violation of 11 U.S.C. § 1125(b) (D.T. No. 11).3 During a further hearing had on December 19, 2017, in a thoroughly reasoned oral ruling, the Bankruptcy Court overruled COMM 2013's objection and approved the stipulation between Tara Retail and Dollar Tree (D.T. No. 13). When COMM 2013 noted its appeal from the ruling (D.T. No. 14), the Bankruptcy Court entered a "memorandum opinion restating its justification for approving the Debtor's resolution of its objection to Dollar Tree's proof of claim" (D.T. No. 19 at 1).

First, the Bankruptcy Court disagreed with COMM 2013's contention that voting rights must be identical to payment rights. The court "viewed the stipulation as allowing Dollar Tree's claim in the full amount despite Dollar Tree's agreement to accept ... merely a percentage payment on its allowed claim." Id. at 5. Indeed, "unsecured creditors often receive a fraction of their claims in bankruptcy." Id. In addition, the Bankruptcy Court thought it significant that Dollar Tree was "not receiving any benefit that it would not otherwise possess in the absence of an objection," and that the stipulation did not result in prejudice to similarly situated unsecured creditors. Id. at 4-5.

Second, the Bankruptcy Court disagreed that the stipulation constituted an impermissible solicitation under § 1125(b). Id. at 5.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Heritage Organization, L.L.C.
376 B.R. 783 (N.D. Texas, 2007)
White County Bank v. Leavell (In Re Leavell)
141 B.R. 393 (S.D. Illinois, 1992)
In Re NH Holdings, Inc.
288 B.R. 356 (D. Delaware, 2002)
In Re Kellogg Square Partnership
160 B.R. 336 (D. Minnesota, 1993)
In Re Clamp-All Corp.
233 B.R. 198 (D. Massachusetts, 1999)
Zenter GBV Fund IV, LLC v. Vesper
19 F. App'x 238 (Sixth Circuit, 2001)
In re Fairmont General Hospital, Inc.
510 B.R. 783 (N.D. West Virginia, 2014)
In re Alpha Natural Resources Inc.
544 B.R. 848 (E.D. Virginia, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
591 B.R. 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/comm-2013-ccre12-crossings-mall-rd-llc-v-tara-retail-grp-llc-wvnb-2018.