Humble Place Joint Venture v. Fory (In re Humble Place Joint Venture)

936 F.2d 814, 1991 U.S. App. LEXIS 16518
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 29, 1991
DocketNo. 91-2074
StatusPublished
Cited by16 cases

This text of 936 F.2d 814 (Humble Place Joint Venture v. Fory (In re Humble Place Joint Venture)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Humble Place Joint Venture v. Fory (In re Humble Place Joint Venture), 936 F.2d 814, 1991 U.S. App. LEXIS 16518 (5th Cir. 1991).

Opinion

EDITH H. JONES, Circuit Judge:

Two questions are posed in this bankruptcy case: whether the court properly dismissed from Chapter 11 protection a one-asset real estate “development” whose manager admitted his principal responsibility was “mowing the grass and waiting for the market to turn;” and whether the debt- or’s counsel must disgorge their $40,000 retainer because of an actual conflict between their representation of the debtor and its investors-guarantors of the partnership debt. We affirm the bankruptcy court’s orders of dismissal and disgorgement.

I.

BACKGROUND

Humble Place was one of the many would-be commercial developments that sprang from a gleam in a developer’s eye during Houston’s frenzied real estate market of 1980. Starting as a 30-acre tract of raw land, purchased by Humble Place Joint Venture from the Vestal and Fory families, the development never grew past the stage of subdividing the land into 80 parcels and adding streets, curbs and basic utilities. Until 1984, the sales of some lots generated cash from promissory notes. From and after 1985, through the filing of bankruptcy in 1988, Houston’s real estate crash took its toll: one lot was sold in each of 1987 and 1988, but none in 1985 or 1986. Worse yet, Humble Place was forced to foreclose on $2.7 million of the $7 million in tracts previously sold, devastating the project’s cash flow.

The general partnership1 sought relief under Chapter 11 of the Bankruptcy Code [816]*816in September, 1988 to avoid imminent foreclosure by Post Oak Bank, its principal secured creditor. At the date of bankruptcy, Post Oak Bank was owed approximately $2.2 million, secured by liens on various tracts and notes receivable from some of the sales. Post Oak Bank’s lien was at least fully secured as of the hearing on dismissal. Haplessly, Post Oak Bank lent money to the project in late 1985, and more haplessly, the original landowners, Vestal/Fory, had exchanged some of their liens on notes and tracts for other notes and personal guarantees by the individual investors of Humble Place so that Post Oak Bank could step in. Vestal/Fory were owed approximately $800,000 on the date of bankruptcy and were undersecured by their collateral apart from guarantees. There were two unsecured, non-insider creditors of Humble Place, whose total claims were less than $7,000, and unpaid 1987 real estate taxes.2 Humble Place had no employees of its own, for its books were kept by National Land Company, the managing general partner. The only “development” activities still conducted on behalf of Humble Place included the marketing of lots, accounting for note payments, approving construction plans, should construction occur, and property maintenance.

Unlike some one-asset debtors, Humble Place had $110,000 in the bank just before it paid counsel’s Chapter 11 retainer. This money included payments from notes collaterally assigned to Vestal/Fory and paid off before the Chapter 11 filing. Humble Place also had some unencumbered assets, including several lots worth an estimated $600,000 to $700,000, some unencumbered promissory notes, monthly maintenance fees and furniture, fixtures and equipment.

Hoping to emerge quickly and painlessly from Chapter 11, Humble Place filed a proposed reorganization plan shortly after it commenced the bankruptcy. The thrust of the plan was simple: each secured creditor’s claim would be satisfied in full by an orderly liquidation, whereby Humble Place would abandon property and notes to Post Oak Bank and Vestal/Fory, while the individuals’ guarantees would be released. Humble Place stated its intention to pay all creditors in full. The bankruptcy proceedings were not harmonious, however, because the secured creditors had already negotiated vainly with the debtor for several months, Vestal/Fory continued pursuing its state court lawsuits against the guarantors, and Vestal/Fory were upset by the diversion of its note payments just before bankruptcy.

When Post Oak Bank moved to dismiss the case under 11 U.S.C. § 1112, Vestal/Fory joined in. The court, after hearing exhaustive testimony, agreed with the creditors and dismissed. After a separate hearing, the court ruled that counsel for Humble Place had labored under an actual conflict of interest proscribed by 11 U.S.C. § 327(a), requiring that the attorneys’ retainers be disgorged. Humble Place has appealed both rulings, first, unsuccessfully, to the district court, and now to this court.3

II.

THE DISMISSAL

We review the bankruptcy court’s decision to dismiss for abuse of discretion, reversing its findings of fact only if they were clearly erroneous. The court’s finding that Humble Place’s Chapter 11 petition was not filed “in good faith” is one of fact. Little Creek Development Co. v. Commonwealth Mortgage Corp. (In re: Little Creek), 779 F.2d 1068 (5th Cir.1986). The Bankruptcy Code provision that a Chapter 11 case may be dismissed “for cause” has been interpreted to include the [817]*817lack of good faith in its filing. 11 U.S.C. § 1112(b).4 Little Creek, 779 F.2d at 1072.

Humble Place objects to the dismissal of its Chapter 11 case for three reasons: the bankruptcy court did not properly apply this court’s test from Little Creek in reaching its decision; the court’s findings of fact based on Little Creek were clearly erroneous; and there is no statutory or constitutional authority for dismissal of a Chapter 11 case for lack of good faith. Taken in reverse order, these arguments show fatal flaws.

First, it does Humble Place no good to challenge the status of Little Creek as governing law in this circuit. Each panel is bound by our prior precedent until and unless en banc review occurs, which Humble Place has not yet sought here. Umphlet v. Connick, 815 F.2d 1061, 1063 (5th Cir.1987). Because Little Creek explicitly treated the question of good faith dismissals under § 1112, the ease settles any statutory or constitutional question about that procedure. See also In re Natural Land Corp., 825 F.2d 296, 297 (11th Cir.1987); Matter of Winshall’s Settlor’s Trust, 758 F.2d 1136, 1137 (6th Cir.1985).

Second, the objections that Humble Place levies against specific findings of fact by the bankruptcy court, other than the ultimate finding on lack of good faith, are quibbles. The joint venture contends, for instance, that contrary to the bankruptcy court’s finding, it did have employees.

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In Re Humble Place Joint Venture
936 F.2d 814 (Fifth Circuit, 1991)

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Bluebook (online)
936 F.2d 814, 1991 U.S. App. LEXIS 16518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/humble-place-joint-venture-v-fory-in-re-humble-place-joint-venture-ca5-1991.