Farmers Bank & Trust Co. v. Chickasaw Properties, LLC (In re Burrow)

505 B.R. 838, 2013 WL 7710278, 2013 Bankr. LEXIS 5549
CourtUnited States Bankruptcy Court, E.D. Arkansas
DecidedDecember 7, 2013
DocketBankruptcy No. 3:12-BK-14410; Adversary No. 3:13-AP-01080
StatusPublished
Cited by3 cases

This text of 505 B.R. 838 (Farmers Bank & Trust Co. v. Chickasaw Properties, LLC (In re Burrow)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmers Bank & Trust Co. v. Chickasaw Properties, LLC (In re Burrow), 505 B.R. 838, 2013 WL 7710278, 2013 Bankr. LEXIS 5549 (Ark. 2013).

Opinion

ORDER GRANTING MOTION TO REMAND AND MOTION TO ABSTAIN

AUDREY R. EVANS, Bankruptcy Judge.

Now before the Court is a Motion to Remand and for Abstention, filed by Gary D. Jiles, on behalf of Farmers Bank and Trust Company (“Farmers”). Farmers’s motion comes in response to a Petition of Removal filed by Marshall S. Ney, on behalf of Wal-Mart Stores, Inc. (“Wal-Mart”). Wal-Mart removed a state foreclosure action commenced by Farmers that was pending in the Circuit Court of Mississippi County, Arkansas, No. CV-2018-108 (the “Foreclosure Action”) to this Court pursuant to 28 U.S.C. §§ 1441 and 1452.1 In the Foreclosure Action, Farmers requested a determination that its lien is valid and superior to all other encumbrances and interests associated with the property to be foreclosed on. The property subject to foreclosure is titled to Chickasaw Properties, LLC (“Chickasaw”). Chickasaw is a limited liability company (“LLC”) whose sole member and manager is Terry Bruce Burrow (“Burrow”), the Debtor in the above-captioned bankruptcy case. In its Motion to Remand and for Abstention and its Brief in Support, Farmers argues, among other things, that the Court lacks jurisdiction over the Foreclosure Action. For the reasons stated below, the Court grants Farmers’s Motion to Remand and for Abstention.

OVERVIEW

The real property at issue in the Foreclosure Action is a shopping complex in Blytheville, Arkansas (the “Property”). Chickasaw, whose sole LLC member is the Debtor, currently owns the Property. Numerous entities, including Wal-Mart, claim interests in the Property pursuant to various lease and sublease agreements. Wal-Mart maintains that the Burrow Family Trust (the “Burrow Trust”) holds an interest in the Property by virtue of a master lease and a sublease governing the Property. The Burrow Trust is a self-settled revocable trust in which the Debtor is the trustee and a beneficiary.

The Property is subject to several encumbrances and has been the source of significant litigation. AXA Equitable Life Insurance Company f/k/a Equitable Life Assurance Society of the United States (“Equitable Life”) holds a mortgage on the Property (the “Equitable Life Mortgage”) and has an interest in the master lease governing the Property; a prepetition judgment obtained against Wal-Mart [842]*842in a Missouri State Court confirms the same. Farmers also holds a mortgage on the Property (the “Farmers Mortgage”). Postpetition, Farmers commenced the Foreclosure Action to foreclose on its mortgage and on a judgment lien obtained pursuant to a prepetition default judgment against Chickasaw and the Debtor in an Arkansas State Court. In its foreclosure complaint, Farmers seeks a determination that its mortgage has priority over all other encumbrances on and interests in the Property. Chickasaw and Equitable Life are named defendants in the Foreclosure Action, but neither the Debtor nor the Burrow Trust is named.

From these complex facts, Wal-Mart makes essentially two arguments which speak to whether there is “related to” bankruptcy jurisdiction over the Foreclosure Action. First, Wal-Mart contends that the Property itself is part of the Debt- or’s estate. Because the Debtor owns the only LLC membership interest in Chickasaw, Wal-Mart argues that any property acquired by Chickasaw is property of the Debtor. Second, Wal-Mart contends that the Burrow Trust has leasehold interests in the Property that may be affected by the foreclosure. Here, Wal-Mart argues that because the Burrow Trust is freely revocable by the Debtor who is both the trustee and a beneficiary, property acquired by the Burrow Trust is property of the Debtor. Although the Court finds that Wal-Mart’s second argument may provide a basis for bankruptcy jurisdiction, it nevertheless finds that abstention is warranted, and indeed mandated, in this case.

FACTS2

On December 4, 2002, Chickasaw purchased the Property from the Morris Family Corporation (“MFC”). As a condition of the sale, Chickasaw assumed the Equitable Life Mortgage on the Property and a promissory note payable to Equitable Life (the “Equitable Life Note”). Chickasaw purchased the Property subject to certain leasehold obligations. Years earlier, in September 1992, MFC leased the Property to Wal-Mart for a 25-year term (the “Master Lease”). The Master Lease was freely assignable by MFC, as lessor, and by Wal-Mart, as lessee. Through a series of assignments, Equitable Life became the lessor and the entity entitled to receive rents due under the Master Lease.3

As lessee, Wal-Mart assigned the Master Lease to an entity called Belz Porter Commons, L.P. iyk/a Belzr-Burrow Porter Commons, L.P. (“Belz”) in 1998. Wal-Mart continued to remain liable under the Master Lease in the event of default by Belz. In September 2000, Belz subleased a portion of the Property covered by the Master Lease (the “Sublease”) to J.C. Penney Corporation, Inc. (“JC Penney”). JC Penney took possession of the property covered by the Sublease and operated a retail store. In January 2005, Belz assigned all of its rights, title, and interest in the Master Lease and the Sublease to the Burrow Trust. Although it is unclear [843]*843from the record whether the Burrow Trust further assigned the Master Lease or the Sublease to another entity, JC Penney continues to assert a leasehold interest in the Property.4

The Equitable Life Litigation

In February 2010, Wal-Mart stopped making payments under the Master Lease and Chickasaw stopped making payments under the Equitable Life Note. Equitable Life accelerated its note and sued Wal-Mart in the Circuit Court of Green County, Missouri, Case No. 1031-CV 12749, for the back rent due under the Master Lease. On June 15, 2011, the Missouri Court entered a judgment in Equitable Life’s favor against Wal-Mart. The Court held that Equitable Life was entitled to keep all past and future rent due under the Master Lease until the Equitable Life Note was paid in full. Additionally, the Missouri Court held that Equitable Life had the right to demand and collect all past and future rent due under the Master Lease directly from Wal-Mart. Finally, the Court concluded that Wal-Mart was required to pay Equitable Life $505,535.20 in back rent due under the Master Lease. Wal-Mart was the only defendant named in the judgment.

The Farmers Litigation

While the Equitable Life litigation was pending in Missouri, Farmers sued Chickasaw and the Debtor in the Circuit Court of Mississippi County, Arkansas. Case No. CV-2010-326. The suit stemmed from a $525,290.00 promissory note executed by Chickasaw in 2009 and payable to Farmers (the “Farmers Note”). To secure the Farmers Note, Chickasaw granted Farmers a mortgage on the Property (ie., the Farmers Mortgage). The Debtor signed the Farmers Note and the Farmers Mortgage in his capacity as an LLC member of Chickasaw. The Debtor also personally guaranteed the Farmers Note. Consequently, when Chickasaw defaulted on the Farmers Note, Farmers sued both Chickasaw and the Debtor. On November 16, 2010, Farmers obtained a default judgment against Chickasaw and the Debtor for $520,519.75.5 Subsequently, Farmers obtained a judicial lien on the Property in support of its judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
505 B.R. 838, 2013 WL 7710278, 2013 Bankr. LEXIS 5549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-bank-trust-co-v-chickasaw-properties-llc-in-re-burrow-areb-2013.