Endrex Investments, Inc. v. Mauna Lani Resort, Inc. (In Re Endrex Investments, Inc.)

111 B.R. 939, 1990 U.S. Dist. LEXIS 3049, 1990 WL 32531
CourtDistrict Court, D. Colorado
DecidedMarch 19, 1990
DocketBankruptcy No. 87 B 12005 M, Civ. A. No. 88-K-1178
StatusPublished
Cited by14 cases

This text of 111 B.R. 939 (Endrex Investments, Inc. v. Mauna Lani Resort, Inc. (In Re Endrex Investments, Inc.)) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Endrex Investments, Inc. v. Mauna Lani Resort, Inc. (In Re Endrex Investments, Inc.), 111 B.R. 939, 1990 U.S. Dist. LEXIS 3049, 1990 WL 32531 (D. Colo. 1990).

Opinion

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

In this appeal, the debtor, Endrex Investments, Inc., and its attorneys, Sterling & Miller, P.C. and Nancy D. Miller (collectively, the appellants), appeal the imposition of sanctions against them. They raise five issues in this appeal: (1) whether the imposition of sanctions violated their right to due process, (2) whether sanctions under Bankr.R. 9011 were erroneous because no improper pleading was filed, (3) whether sanctions under 28 U.S.C. § 1927 were erroneous because the court made no finding of subjective bad faith, (4) whether the bankruptcy judge acted as a party in interest and violated his duty to rule impartially, and (5) whether the court’s finding that this bankruptcy case was filed in bad faith warranted the imposition of sanctions. I reverse the award of sanctions.

I. Facts.

The material facts of this case are undisputed. Endrex was a Hawaii corporation owned entirely by Mrs. Clyde Brannan. Mr. Brannan was the corporation’s president, and its secretary/treasurer was Mike VanderLann, who also served as Endrex’s accountant. Endrex’s primary assets were a luxury condominium unit in Hawaii and an 80 percent interest in a corporation known as LaMer, Inc. LaMer, Inc. was a privately held corporation engaged in the development of production facilities in Hawaii for the growth of high protein algae to be sold for commercial and agricultural use. The financing of LaMer, Inc. was to be through a private placement which was expected to generate approximately $3 million in new funds for the operation.

The condominium unit was subject to a mortgage securing a promissory note in the original principal amount of $700,000 to Mauna Lani Resorts, Inc. (Mauna Lani). Endrex leased the unit to Mr. Brannan, with the rental on the unit being equal to the mortgage payment. In addition, En-drex was responsible to the Mauna Lani Homeowner’s Association for certain condominium association fees and assessments. By June, 1987, Mr. Brannan had failed to make several rental payments, and Endrex fell behind in its payment of the mortgage and the condominium association fees, forcing the homeowner’s association and Mauna Lani to commence foreclosure proceedings. On October 7, 1987, before the scheduling of the foreclosure sale, Endrex filed for bankruptcy under Chapter 11.

On January 21, 1988, Mauna Lani moved under 11 U.S.C. § 362 for relief from the automatic stay to proceed with foreclosure. Mauna Lani argued that relief from the stay was justified because the condominium property was not necessary to the debtor’s reorganization, the debtor had no equity in the property, and the debtor’s bankruptcy was filed in bad faith. Endrex, through its attorneys, opposed this motion, claiming that there was equity in the property, that it was necessary to its reorganization, and that the bankruptcy was filed in good faith.

On February 16, 1988, the bankruptcy court held a hearing on the motion for relief from the stay. After hearing argument from counsel, the court granted the § 362 motion. First, the court found that there was an insufficient equity cushion to *942 merit continuance of the stay. R.Vol. II at 18. Next, it held that, while the property was the major asset of the bankruptcy estate, it was not necessary to an effective reorganization, if such a reorganization were possible. Id. at 18-19. Finally, as to debtor’s bad faith filing, the court stated:

The Court is not able to, at this moment, cite the case law that knows — that the Court knows exists, but the Court is, under the right circumstances, sometimes entitled sua sponte to observe the good faith nature of a filing, or the lack of good faith in the nature of a filing by a Chapter 11 debtor. This Court has not had sufficient facts presented or offers of proof, if you will, because that’s the nature of this hearing, and suffice it to say, however, that I think this Court is not reluctant to venture the observation that the totality of the circumstances involved in this case does raise a question as to whether or not this is, indeed, a legitimate Chapter 11 business reorganization or an attempt to do so.

Id. at 22. The court then requested counsel to prepare a draft order containing proposed findings of fact on the matter. On February 18, 1988 nunc pro tunc February 17, 1988, the court entered an order incorporating the above conclusions, but declining to make a final determination as to the bad faith issue until a later hearing on a motion to dismiss the debtor’s Chapter 11 petition, which Mauna Lani filed concurrently with its § 362 motion.

Although there is some dispute as to when Endrex’s counsel received a copy of the motion to dismiss, notice regarding the motion pursuant to Local Bankruptcy Rule 23 was issued on or about January 22, 1988. The notice provided that any opposition to the motion to dismiss and request for a hearing must have been filed on or before February 8, 1988 and that in the absence of any such request, the Court would grant the motion on or after February 15, 1988. Although Endrex filed no opposition to the motion to dismiss, by notice dated February 18, 1988, the court scheduled a hearing on the motion for March 10, 1988. On March 9, 1988, one day before the scheduled hearing, Endrex filed its consent to the motion to dismiss and its request that the court vacate the hearing.

Despite Endrex’s request to vacate the hearing, it went forward as scheduled. Both parties presented evidence regarding the debtor’s filing of the case, although counsel for Endrex reiterated that it .was not opposing the motion. See R.Vol. Ill at 31. At the conclusion of the hearing, the following colloquy between the court and counsel for Endrex took place:

THE COURT: The Court’s going to ask counsel to each submit proposed findings of fact and conclusions of law within seven days, and the Court will take the matter of dismissal and sanctions under advisement and will rule by the end of next week, it hopes.
MS. MILLER: Your Honor, is there a motion for sanctions before the Court?
THE COURT: No, but the Court can take, sua sponte, the issue of sanctions for bad faith filing under advisement, and this Court advised in its order of February 18th that it felt that this was a bad faith filing.
MS. MILLER: But, Your Honor, I see nothing in there regarding sanctions.
THE COURT: The Court can take the issue as to whether or not there’s been a bad faith filing of a Chapter 11 up on its own motion. The Court is allowed to consider issues under Rule 9011 on its own motion. The Court is allowed to invoke 28 U.S.C. § 1927. The Court is entitled, through an inherent power accorded to courts, to try to expeditiously and fairly and reasonably manage its docket and calendar and the conduct of cases in front of it.
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Bluebook (online)
111 B.R. 939, 1990 U.S. Dist. LEXIS 3049, 1990 WL 32531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/endrex-investments-inc-v-mauna-lani-resort-inc-in-re-endrex-cod-1990.