German American Capital Corp. v. Oxley Development Co. (In re Oxley Development Co.)

493 B.R. 275, 2013 WL 2250133, 2013 Bankr. LEXIS 2131
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedMay 16, 2013
DocketBankruptcy No. 12-69799-JRS; Adversary No. 12-05568-JRS
StatusPublished
Cited by5 cases

This text of 493 B.R. 275 (German American Capital Corp. v. Oxley Development Co. (In re Oxley Development Co.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
German American Capital Corp. v. Oxley Development Co. (In re Oxley Development Co.), 493 B.R. 275, 2013 WL 2250133, 2013 Bankr. LEXIS 2131 (Ga. 2013).

Opinion

ORDER DENYING MOTION TO DISMISS

JAMES R. SACCA, Bankruptcy Judge.

The issue before the Court is whether this adversary proceeding against the Debtor and related entities should be dismissed because the underlying bankruptcy case was dismissed after the proceeding was filed. This case involves a loan on a real estate development project. The failure of this project coincided with the recession in the construction industry and economy in 2008. In contrast to how rapidly the economy went downhill, litigation related to this loan transaction has taken several trips down different roads, meandering through various federal and state courts over the last few years, and now finds itself in this Court. The current roadblock: Defendants’ motion to dismiss for lack of subject matter jurisdiction. [Doc. 23].

The Loan, the Development, and the Rise of the Dispute

Carl M. “Chip” Drury manages Tidewater Plantations, Inc. (“Tidewater”), which owns 100% of the membership interests in Oxley Development, LLC (“Oxley”), which was the Debtor in the underlying bankruptcy case.1 In April 2007, Oxley agreed to borrow up to $37 million (the “Loan”) from German American Capital Corporation (“GA CC”) in order to develop certain property on Laurel Island in Camden County, Georgia (the “Property”). As security for the Loan, Oxley granted GACC a Deed to Secure Debt on the Property and other security. Drury and Tidewater both guaranteed the Loan. The Loan and these security agreements, along with other rights and duties of the parties, were memorialized in writing (the “Loan Agreement”).

According to the Defendants, the U.S. real estate market began to collapse shortly after Oxley took out the Loan; nevertheless Oxley embarked upon a campaign to sell waterfront lots on the Property to wealthy Germans and Swiss Germans in early 2008. The Defendants allege that Oxley spent about $1.3 million to implement this marketing plan, an amount which Defendants contend GACC was required to reimburse to Oxley within seven days under the Loan Agreement. The record is unclear regarding whether or when GACC actually reimbursed Oxley, and the parties dispute whether GACC breached the Loan Agreement. The Defendants insist that GACC’s failure to provide timely reimbursement led to the collapse of Oxley’s sales program and caused Oxley to default on its obligations to make payments on the Loan.

[279]*279Litigation and Foreclosure Efforts Leading to this Adversary Proceeding

GACC filed suit on the Loan in the Supreme Court of New York County, New York and won a summary judgment on May 16, 2011 against Oxley, Tidewater, and Drury for $37 million plus interest and other costs. On appeal, the Appellate Division of the Supreme Court of New York eventually affirmed the lower court decision. German Am. Capital Corp. v. Oxley Dev. Co., LLC, 102 A.D.3d 408, 958 N.Y.S.2d 49 (N.Y.App.Div., Jan. 3, 2013). In its opinion, the appellate court held that Oxley was unconditionally required to repay the Loan notwithstanding GACC’s alleged breach (its alleged failure to timely reimburse Oxley for its marketing expenses.) Id. The court commented that to the extent this alleged breach of contract may amount to a viable claim, that claim may be asserted in a separate action. Id.

GACC domesticated this judgment by Order of the Superior Court of Fulton County, Georgia, dated September 7, 2011 (Case No. 2011-CV-204648). Then GACC advertised the Property for a nonjudicial foreclosure sale, scheduled for November 1, 2011. On October 31, 2011 — the day before the scheduled foreclosure sale — Ox-ley filed for Chapter 11 bankruptcy protection in the U.S. Bankruptcy Court for the Southern District of Georgia, Brunswick Division (Case No. 11-21338) (the “Prior Case”). This filing triggered the automatic stay and prevented the foreclosure sale. A few months later, GACC moved for relief from the automatic stay. In May 2012, that court held an evidentiary hearing and granted GACC’s motion. The next month, the Prior Case was dismissed following a motion by the U.S. Trastee.

GACC again advertised the Property for a foreclosure sale. On August 6, 2012— the day before the second scheduled foreclosure sale — Oxley filed the underlying Chapter 11 bankruptcy case in this Court. The next day — the day of the scheduled foreclosure sale — GACC filed an emergency motion for relief from stay. That afternoon, this Court held a hearing at which counsel for GACC and Oxley both appeared. After considering the arguments of the parties and all other matters of record, the Court granted GACC’s motion and authorized the foreclosure sale to go forward that afternoon. The next day— August 8, 2012 — the Court entered an Order confirming its oral ruling and granting GACC stay relief retroactive to 2:00 p.m. on the day before (the day of the foreclosure sale). The parties dispute whether a proper foreclosure sale ever took place: GACC alleges that it purchased the Property for $3.9 million; the Defendants allege that the foreclosure sale was not properly cried and that no valid sale took place.

The Easement and the Title Affidavit

Also on the day before the scheduled foreclosure sale, Chip Drury — acting as manager of Oxley — granted and recorded an easement (the “Easement”) on the Property to himself and Tidewater (and their successors and assignees) and certain undefined “Affiliates.”2 Then two days after GACC alleges the foreclosure sale occurred, Drury recorded an affidavit — on his own behalf and acting as manager of both Oxley and Tidewater — that sought to inform any interested parties that GACC did not have clear title to the Property (the “Title Affidavit”).

[280]*280In the Title Affidavit, Drury appears to allege that GACC does not have clear title because (1) no valid foreclosure sale of the Property took place, (2) GACC defaulted on the Loan Agreement, (3) the foreclosure should have been governed by New York law — which requires a judicial foreclosure process — since that state’s law governed the Loan Agreement, (4) this Court’s oral ruling authorizing the foreclosure sale was ineffective, and (5) GACC’s judgment on the Loan awaited appellate review.3

Litigation of this Adversary Proceeding

On October 25, 2012, GACC filed the Complaint commencing this adversary proceeding.4 [Doc. 1]. In its Complaint, GACC seeks a declaratory judgment that (1) GACC conducted a legally valid foreclosure sale, (2) GACC did not default under the Loan Agreement and/or any such default did not preclude foreclosure, (3) the foreclosure was governed by the laws of Georgia — not New York, (4) this Court granted effective stay relief before the alleged foreclosure sale, (5) the appeal pending in the New York courts did not prevent GACC from foreclosing, (6) the Title Affidavit was not properly recorded and is thus invalid, (7) the alleged foreclosure sale extinguished the Easement, (8) the Easement is an avoidable fraudulent transfer pursuant to 11 U.S.C. § 548 and O.C.G.A. § 18-2-70, (9) the Easement and Title Affidavit are invalid and should be cancelled in the land records, and (10) GACC is now title owner of the Property free and clear of any liens or interests of any of the Defendants.

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Bluebook (online)
493 B.R. 275, 2013 WL 2250133, 2013 Bankr. LEXIS 2131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/german-american-capital-corp-v-oxley-development-co-in-re-oxley-ganb-2013.