Community Systems Corp. v. Iao Valley Resort, Ltd. (In re Iao Valley Resort, Ltd.)

35 B.R. 838, 1983 Bankr. LEXIS 4897
CourtUnited States Bankruptcy Court, D. Hawaii
DecidedDecember 5, 1983
DocketBankruptcy No. 82-00085; Adv. Pro. No. 83-0134
StatusPublished

This text of 35 B.R. 838 (Community Systems Corp. v. Iao Valley Resort, Ltd. (In re Iao Valley Resort, Ltd.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Community Systems Corp. v. Iao Valley Resort, Ltd. (In re Iao Valley Resort, Ltd.), 35 B.R. 838, 1983 Bankr. LEXIS 4897 (Haw. 1983).

Opinion

MEMORANDUM DECISION AND ORDER

JON J. CHINEN, Bankruptcy Judge.

This Memorandum Decision deals with the Complaint for Relief From Automatic Stay filed by Community Systems Corporation, hereafter “Community Systems”, on June 15, 1983, to which Complaint, Nordic Maui, Inc., hereafter “Nordic”, filed its Joinder In Complaint for Relief From Automatic Stay on October 7, 1983. The final hearing was held on October 18 and 19, 1983, at which were present Steven Chung, Esq., representing Iao Valley Resorts, Ltd., hereafter “Debtor”, James Wagner, Esq., representing Arthur Hannifin, James Duca, Esq., representing Community Systems, and Nicholas Dreher, Esq., representing Nordic. Based upon the evidence adduced, the mem-oranda and records in the file and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

This chapter 11 proceeding was commenced by Debtor on February 9,1982. At that time, Debtor’s only asset was a parcel of real property and improvements thereon known as the Iao Valley Restaurant and Lodge, hereinafter “the Lodge”, consisting of a restaurant, a cafeteria, gift shops, meeting rooms and nine lodging units. The Lodge was encumbered by a first mortgage securing a promissory note in the principal amount of $707,223.57, bearing interest at the rate of 15% per annum, in favor of Nordic and a second mortgage securing a promissory note in the principal amount of $350,000.00, bearing interest at the rate of 12% per annum, in favor of Community Systems. Both notes are personally guaranteed by Arthur M. Hannifin, Debtor’s only officer and director. On the date of filing, the total principal obligations owed to these two creditors amounted to $1,180,-150.40.

The Lodge was first sold to Arthur Han-nifin by Nordic by Agreement of Sale dated January 31, 1979. The Agreement of Sale had an interest rate of 12% per annum and it called for monthly payments of $4,072.00, with the final payment due on January 31, 1984.

In January 1981, Debtor executed a mortgage in favor of Community Systems to secure a loan of $350,000.00 at a rate of 12% interest. At the same time, Debtor and Community Systems executed a “management contract” wherein Debtor was required to pay Community Systems $3,790.00 a month during the life of the loan from Community Systems to Debtor. On this management contract, Community Systems’, bookkeeper merely checked Debtor’s financial statement about once a month.

On February 6, 1981, Nordic and Debtor replaced the Agreement of Sale with a Deed from Nordic to Debtor and a promissory note for $707,223.37 due on February 28, 1982 from Debtor to Nordic, secured by a mortgage on the Lodge. The promissory note had an interest of 15% per annum.

The Lodge had not been operated by Debtor since June of 1981, when it was closed because of financial difficulties. At the time of closing, only the restaurant was being operated. The cafeteria, meeting rooms and lodging units were not in operation because Debtor did not have the necessary occupancy permit. In order to get the permit, Debtor had to install a sewer treatment plant, which was estimated to cost $40,000.00, and needed to make arrangements with C. Brewer and Company, the [840]*840adjoining property owner, for access to the property. In addition, the Lodge did not have a liquor license.

Even before closing the Lodge, Debtor had attempted to find either someone to take over the operations as a partner or, alternately, to purchase the Lodge in its entirety. Among the entities and individuals whom Debtor approached were Burger King, Big Island Beef, Spencecliff Corporation, Robby Tebo, a restaurant chain operator, and the Hy’s Restaurant chain of Canada.

On September 25, 1981, Debtor entered into an agreement with TWA Real Estate Investment Corporation of Oahu, Inc., hereinafter “TWA”, which was owned by Hy and Geisala Hunter, whereby TWA agreed to purchase 51,000 shares of Debtor’s stock, representing a controlling interest in the corporation, from Mr. Hannifin. At that time, George Noguchi owned 40,000 shares of stock and Pino Monzo owned the remaining 9,000 shares. The shares owned by Mr. Manzo, incidentally, are pledged to Nordic.

In exchange for Mr. Hannifin’s stock, TWA agreed to assume all of Debtor’s obligations, including the notes in favor of Nordic and Community Systems. In January of 1981, the Lodge had been appraised at $1.8 million.

By late October or early November of 1981, however, Debtor became aware that TWA was not paying Debtor’s creditors. Mr. Hannifin, thus, attempted to cancel the sale. In the meantime, Community Systems and Nordic had filed Complaints in the Hawaii state court to foreclose their mortgages.

Convinced that a forced sale would not produce sufficient proceeds to pay all of Debtor’s creditors, both secured and unsecured, Debtor filed its Chapter 11 Petition. Debtor realized that a sale of the Lodge was the only viable plan. It was Debtor’s intention, thus, to find an interim operator for the Lodge, in order to produce income to defray administrative expenses, and to ultimately sell the Lodge to a qualified buyer. In order to do that, however, Debtor first had to clear title to the Lodge as an individual named Detleff Wolff was claiming that he had purchased the Lodge from TWA. Although Debtor contended that TWA had not performed its obligations under the September 1981 stock purchase agreement, Debtor, nevertheless, had great difficulty in clearing the title. Eventually, however, this was done, but not until after Mr. Wolff' had caused damage to the reputation of the Lodge.

With title to the Lodge cleared, Debtor negotiated an agreement with a restaurant operator who was willing to operate the Lodge on an interim basis. Debtor also found a Canadian company which was willing to pay Debtor $60,000.00 for a six-month option to purchase the Lodge for $1.5 million.

On May 6, 1982, three months after the original Chapter 11 Petition was filed, Debtor filed an application which sought approval to sell the Lodge to United Western, and on May 13, 1982, Debtor filed an application to lease the Lodge on an interim basis to Apple Annie’s, Inc. On May 14, 1982, at the hearing on these two applications, the lease to Apple Annie’s was approved. The sale of the option to United Western, however, was rejected and Mr. George Noguchi was granted for $60,000 a six-month option to purchase the property for $1.5 million.

Notwithstanding the option held by Mr. Noguchi, Debtor continued to use its best efforts to proceed with the reorganization, including efforts to make the Lodge more saleable. Debtor resolved the matter of the access to the property, installed a sewer treatment facility and restored the facilities to operating condition. Additionally, all of the income from Apple Annie’s, the interim lessee, and $35,000.00 in option payments made by Mr. Noguchi were turned over to Nordic, the first mortgagee.

In December of 1982, towards the end of the six-month option period, Mr. Noguchi paid Debtor $20,000.00 for a 60-day extension. His attempt to obtain a second 60-day extension, however, failed when his second check for $20,000.00 was returned unpaid [841]*841because of insufficient funds. Nevertheless, on May 26, 1983, Mr. Noguchi wrote Debtor a letter indicating that he was exercising the option. On June 9, 1983, Debtor advised Mr. Noguchi that he had no right to exercise the option, but that Debtor was willing to try to work out an agreement to salvage the transaction.

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35 B.R. 838, 1983 Bankr. LEXIS 4897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/community-systems-corp-v-iao-valley-resort-ltd-in-re-iao-valley-hib-1983.