In re 441 Miami Gardens Drive Partnership

154 B.R. 354, 6 Fla. L. Weekly Fed. B 167, 1992 Bankr. LEXIS 906, 1992 WL 474756
CourtUnited States Bankruptcy Court, S.D. Florida.
DecidedJune 22, 1992
DocketBankruptcy No. 92-11571-BKC-SMW
StatusPublished

This text of 154 B.R. 354 (In re 441 Miami Gardens Drive Partnership) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Florida. primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re 441 Miami Gardens Drive Partnership, 154 B.R. 354, 6 Fla. L. Weekly Fed. B 167, 1992 Bankr. LEXIS 906, 1992 WL 474756 (Fla. 1992).

Opinion

ORDER GRANTING RTC’S MOTION TO DISMISS BAD FAITH BANKRUPTCY FILING

SIDNEY M. WEAVER, Chief Judge.

THIS CAUSE came before the Court for hearing on June 12, 1992 upon a Motion to Dismiss the petition of 441 Miami Gardens Drive Partnership (“Debtor”), filed by the Resolution Trust Corporation (RTC”) as Receiver for the Professional Federal Savings Bank, and after notice and hearing, the Court having examined the exhibits placed into evidence, reviewed the memo-randa of law filed by each party, having heard the arguments of counsel and being otherwise fully advised in the premises, the Court finds as follows:

The debtor, a general partnership duly organized and existing under the laws of the State of Florida is the fee simple title holder of B.J.’s Shopping Center, located in Dade County, Florida. This property is the primary asset of the debtor and is encumbered by a first mortgage held by the RTC. The RTC’s security interest covers the real and personal property including all rents, income, leases, issue and profits generated by the property.

On March 27, 1991, the RTC instituted mortgage foreclosure proceedings against [355]*355the debtor in the United District Court for the Southern District of Florida in a case styled RTC v. 441 Miami Gardens Drive, et. al., Case No. 91-0602-CIV-Graham, based on the debtor’s failure to meet its obligation under the note. The Debtor owes the RTC $10,900,000.00 as principal under the note and mortgage together with the accrued interest, taxes, title search expenses and costs expended in protecting the mortgaged property, all of which are fully secured by the mortgage lien.

Thereafter, upon the RTC’s verified motion for the appointment of a receiver, or alternatively, for sequestration of rents and profits, an agreed order was entered which provided, among other things, that the debtor deposit into the registry of the Court all of the rents, profits, proceeds or other monies generated by the mortgaged property. The order also postponed the hearing on the appointment of a receiver for a later time. Shortly thereafter, the RTC renewed its motion for the appointment of a receiver because the debtor failed to comply with the agreed order. The debtor responded to the renewed motion with a request for continuance; however, the motion for a continuance was denied by an order dated March 5, 1992. The debtor filed its petition under Chapter 11 of Title 11 on March 16,1992, the day of the scheduled hearing on the RTC’s motion for the appointment of a receiver.

The question presented is whether the case at bar should be dismissed as a bad faith filing. In In re Panache Development Co., 123 B.R. 929 (Bankr.S.D.Fla. 1991), this Court adopted the doctrine expounded in In re Phoenix Piccadilly, Ltd., 849 F.2d 1393 (11th Cir.1988), to analyze allegations of bad faith filings. In accordance with Phoenix, this Court recognized in Panache that good faith was essential to maintaining a petition under Chapter 11.

Chapter 11 does not specifically require good faith for the initiation of a petition; but, it is a prerequisite to the confirmation of a plan. Albany Partners, 749 F.2d at 674. Section 1112(b) of the Bankruptcy Code authorizes the Court to dismiss a case filed under Chapter 11 for “cause”. This provision “lists nine examples of cause, but the list is not exhaustive. The pertinent legislative history states, ‘The Court will be able to consider other factors as they arise, and use its equitable powers to reach an appropriate result in individual cases.’ ” In re Albany Partners, Ltd., 749 F.2d 670 (11th Cir.1984) citing H.R.Rep. No. 595, 95 Cong., 1st Sess. 406 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6392. Hence, Albany Partners and its progeny established that § 1112 authorizes the bankruptcy court to dismiss a Chapter 11 case for “cause” if the petition was filed in bad faith. Notably, no particular inquiry for determining whether a petition was filed in bad faith was recognized in the above cited cases. Instead, as noted by Phoenix:

... the courts may consider any factors which evidence ‘an intent to abuse the judicial process and the purposes of the reorganization provisions’ or, in particular, factors which evidence that the petition was filed ‘to delay or frustrate the legitimate efforts of secured creditors to enforce their rights.’

In re Phoenix Piccadilly, Ltd., 849 F.2d 1393, 1394 (11th Cir.1988) citing In re Albany Partner, Ltd., 749 F.2d 670, 674 (11th Cir.1984). Each court listed several factors which were identified as badges of bad faith.

The first factor listed by Phoenix Piccadilly as evidencing a bad faith filing is whether the debtor has only one asset. In the instant case, the debtor’s only asset is the property which was the subject of the foreclosure proceeding in the district court. The debtor’s schedule B provides a listing of other personal assets; however, close scrutiny of these assets reveals that the bulk of these are assets generated from the property such as rents deposited into the registry of the district court and account receivables listed as past due rents. Furthermore, the only income the debtor listed in item 1 of its Statement of Financial Affairs is the rents derived from the property. Thus, the only asset of the debtor is the shopping center property and the income it generates.

[356]*356The second factor enumerated by Phoenix Piccadilly is whether the debtor’s unsecured creditor’s claims are small in relation to the secured creditor's claims. The debtor listed approximately $288,-478.00 of unsecured priority claims and $113,000.00 as unsecured non-priority claims in contrast to $10,900,000.00 in secured claims. Thus, the contrast between the secured and unsecured portions of the debt are significant and satisfy this factor.

Moreover, a closer analysis of the debt- or’s unsecured claims further evidences the disparity between the debtor’s secured and unsecured debt. Specifically, the debtor listed 3 creditors as holding unsecured priority claims, all of which are held by governmental entities. The largest holder of an alleged unsecured claim is the Dade County Tax Assessor holding a claim for $274,478.00. Pursuant to F.S. 197.122(1), “all taxes imposed pursuant to the State Constitution and laws of this state shall be a first lien, superior to all other liens, or any property against which the taxes have been assessed....” Therefore, the alleged largest holder of an unsecured debt is actually a secured creditor. pursuant to F.S. § 197.122(1).

The following factor identified is whether “the property is subject to a foreclosure action as a result of arrearage on the debt.” Id. at 1394. In the instant case, the sole asset of the debtor is the subject of a pending foreclosure proceeding wherein the RTC’s motion for the appointment of a receiver is pending. These proceedings have been stayed as a result of the debtor’s filing of the bankruptcy petition in this Court. Hence, this factor posited in Phoenix is also satisfied here.

Another factor proposed by Phoenix is whether the debtor’s financial problems stem from a dispute between the debtor and a secured creditor which can be resolved in a state court.

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Related

In Re Maricamp Square Associates, Ltd.
139 B.R. 554 (M.D. Florida, 1992)
In Re Panache Development Co., Inc.
123 B.R. 929 (S.D. Florida, 1991)
In Re Carco Partnership
113 B.R. 735 (M.D. Florida, 1990)

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Bluebook (online)
154 B.R. 354, 6 Fla. L. Weekly Fed. B 167, 1992 Bankr. LEXIS 906, 1992 WL 474756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-441-miami-gardens-drive-partnership-flsb-1992.