Expert South Tulsa, LLC v. Cornerstone Creek Partners, LLC (In re Expert South Tulsa, LLC)

534 B.R. 400
CourtBankruptcy Appellate Panel of the Tenth Circuit
DecidedJuly 20, 2015
DocketBAP No. KS-14-027; Bankr. No. 10-20982; Adv. No. 11-06208
StatusPublished
Cited by10 cases

This text of 534 B.R. 400 (Expert South Tulsa, LLC v. Cornerstone Creek Partners, LLC (In re Expert South Tulsa, LLC)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Expert South Tulsa, LLC v. Cornerstone Creek Partners, LLC (In re Expert South Tulsa, LLC), 534 B.R. 400 (bap10 2015).

Opinion

OPINION

THURMAN, Chief Judge.

In this appeal, both the debtor, Expert South Tulsa, LLC (“EST”), and the E.H. Hawes Revocable Trust (the “Trust”)1 challenge the bankruptcy court’s order granting Cornerstone Creek Partners, LLC (“Cornerstone”)’s motion for summary judgment in the appellants’ fraudulent transfer claim against it. We affirm.

I. BACKGROUND

The basic facts are simple. EST sold real property (the “Commons”) to Cornerstone in January 2010 for $3 million. Approximately ten days later, Cornerstone sold the Commons to South Memorial Development Group, LLC (“South Memorial”) for approximately $4.42 million. An involuntary Chapter 7 petition was filed against EST on March 30, 2010, which EST later had converted to a Chapter 11. On September 1, 2011, EST2 filed an adversary action against Cornerstone, pursuant to 11 U.S.C. § 548(a)(1)(B) (the “§ 548 Claim”) and § 544(b), asserting a claim under Oklahoma’s Uniform Fraudulent Transfer Act (the “UFTA Claim”).3 The complaint sought to avoid EST’s sale of the Commons to Cornerstone on the grounds that EST was insolvent at the time of the sale and Cornerstone had not provided “reasonably equivalent value” for the property.

The first prong of the adversary claim, insolvency, is uncontested on appeal. However, the parties disagree on the second prong, ie., regarding the value that was given and received for the Commons. Nonetheless, the bankruptcy court found that the uncontroverted facts established that EST could not prevail on its § 548 Claim because it had received reasonably equivalent value for the sale. The bankruptcy court also ruled, as a matter of law, that EST could not prevail on its UFTA [403]*403Claim because the Commons was not an “asset” subject to that Act, as it was fully-encumbered at the time of the sale.4

The details of the challenged sale transaction are quite complex, and EST relies heavily on that complexity in an effort to establish contested issues of fact.5 The principals of EST are Lawrence McLellan (“McLellan”) and Trey Hawes (“Hawes”). The Trust is an inter-vivos revocable inheritance device settled by Hawes’ father, and is a creditor of EST. The Trust periodically advanced money to EST and other entities owned by McLellan and Hawes, but the total amount of those advancements is a contested issue. McLellan and Hawes were also the principals of three other limited liability companies, Expert Owasso, LLC (“Owasso”), which owned approximately 2.57 acres of property in Ow-asso, Oklahoma, Expert SWC Rockwell Memorial, LLC (“Rockwell”), which owned approximately 41 acres of property in Oklahoma City, Oklahoma, and Expert Development, LLC (“Development”), which was the manager of EST, Owasso, and Rockwell.6

EST was formed to purchase and develop real property located in South Tulsa, Oklahoma (the “Tulsa Property”), and it obtained a loan to purchase and develop the Tulsa Property from M & I Marshall & Ilsley Bank (“M & I”) in early 2007. That loan (the “Tulsa Loan”) was secured by the Tulsa Property, a $12,329,500 promissory note (the “Note”), and the personal guaranties of McLellan and Hawes. The Note was renewed, modified, and/or transferred many times. EST purchased the Tulsa Property for $10.3 million, and then divided it into three separate parcels: 1) an 11-acre parcel that was sold, pre-petition, to Life Time Fitness; 2) a 2.5-acre parcel, also sold pre-petition to an individual buyer for construction of a hotel; and 3) the Commons, a 21.5-acre parcel that is the subject of the present dispute.

In 2008, EST sold the first two of the three Tulsa Property parcels, using the proceeds of those sales to pay M & I approximately $2.5 million on the Tulsa Loan. EST and M & I were in the process of negotiating a restructure of the Tulsa Loan, which was in default. Ultimately, the parties were unable to reach an agreement, and M & I elected to sell the Tulsa •Loan at auction. The Tulsa Loan (along with some loans M & I had made to the other Expert LLCs) was purchased at auction by OKL 18, LLC (“OKL”) in March 2009. At all times relevant to this appeal, the principals of OKL were Steve Perry (“Perry”) and Scott Asner (“Asner”).

Shortly after OKL purchased the Expert LLC loans, including the Tulsa Loan, the Expert LLCs (including EST) entered into a forbearance agreement (the “Forbearance Agreement”) with OKL. In the Forbearance Agreement, OKL agreed to cease collection efforts on the purchased loans until July 22, 2009, upon its receipt of a $500,000 forbearance fee. In addition, [404]*404the Forbearance Agreement provided that a payment of $5.5 million (plus accrued interest) to OKL by July 22, 2009 would fully satisfy the obligations of the debtors and the guarantors on the Expert LLC loans. Payment to OKL of $1 • million would extend the forbearance period to September 20, 2009.

The $500,000 forbearance fee was paid by the Expert LLCs with funding provided by the Trust. On July 23, 2009, as no additional payments had been made by the Expert LLCs, OKL declared the Forbearance Agreement to be terminated, and requested full payment of all Expert loans. On the same day, Owasso and Rockwell executed a new forbearance agreement with OKL, which related only to loans of those LLCs, for which they paid $100,000. The new forbearance agreement allowed Owasso and Rockwell to eliminate their loans by paying $4.25 million to OKL by August 5, 2009. Although this forbearance agreement was extended twice, it also terminated pursuant to its terms due to Ow-asso and Rockwell’s failure to pay the agreed satisfaction amount.

In August 2009, OKL filed a state court action against EST, seeking both to recover on the Note and to foreclose its lien on the Commons. At that time, a state court mechanic’s lien action was already pending against EST, and the new foreclosure action was consolidated with that case. While the Tulsa Loan was in default, McLellan and Hawes discussed with OKL (via Perry) the potential for the Trust to purchase the Tulsa Loan.7 As a result, OKL and the Trust reached an agreement, executed on November 9, 2009, that gave the Trust an option to purchase the Tulsa Loan (the “Trust Option”).8 Under the Trust Option, the Tulsa Loan could be purchased by the Trust for approximately $1.65 million, plus interest and costs, but only if that amount was paid to OKL on or before December 31, 2009. The Trust Option included the following provisions:

1. Grant of Option. Lender [OKL] does hereby grant to Purchaser [the Trust] the option (the “Option”) to purchase the Tulsa Loan at a purchase price of $1,645,108 as of the date of this Agreement plus: (a) if the Option is exercised after the date hereof but on or before November 30, 2009, an additional amount equal to $1,519.45 per diem, and (b) if the Option is exercised on or after December 1, 2009 but on or before December 31, 2009, an additional amount equal to $2,019.45 per diem in addition to the amount payable pursuant to the preceding subparagraph (a), and (c) an additional amount equal to all legal fees, costs and expenses incurred by Lender with respect to the Tulsa Loan through the date of the exercise of the Option (collectively, the “Option Price”).
2. Exercise of Option.

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Bluebook (online)
534 B.R. 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/expert-south-tulsa-llc-v-cornerstone-creek-partners-llc-in-re-expert-bap10-2015.