In re Beautiful View Realty, Inc.

546 B.R. 507, 2016 Bankr. LEXIS 619, 2016 WL 768495
CourtUnited States Bankruptcy Court, E.D. New York
DecidedFebruary 29, 2016
DocketCase No. 15-41682-cec
StatusPublished

This text of 546 B.R. 507 (In re Beautiful View Realty, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Beautiful View Realty, Inc., 546 B.R. 507, 2016 Bankr. LEXIS 619, 2016 WL 768495 (N.Y. 2016).

Opinion

DECISION AFTER HEARING

CARLA E. CRAIG, Chief United States Bankruptcy Judge

These matters come before the court on the motion of secured creditor Meilitz, Inc. [509]*509(“Meilitz”) for relief from the automatic stay (the “Meilitz Motion”), and the motion of the NYCTL 1998-2 Trust and the Bank of New York Mellon as Collateral Agent and Custodian for the NYCTL 1998-2 Trust (the “Bank” and together with Meil-itz, the “Creditors”), seeking relief from the automatic stay (the “Bank Motion” and together with the Meilitz Motion, the “Motions”). For the reasons stated below, the Motions are granted.

BACKGROUND

On April 15, 2015 (the “Petition Date”), Beautiful View Realty, Inc. (the “Debtor”) filed a voluntary petition for relief under chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”). Pursuant to § 1107,1 the Debtor continues to operate its business as a debtor in possession. The Debtor owns two parcels of real property located at 1145 Nostrand Avenue, Brooklyn, New York 11225 (“1145 Nost-rand”) and 1211 Nostrand Avenue, Brooklyn, New York 11225 (“1211 Nostrand” and together with 1145 Nostrand, the “Properties”).

A. Meilitz’s Claim

On November 18, 2015, Meilitz filed a proof of claim in the amount of $1,649,195.00. (Claim 8-1, Case No. 15-41682.) Meilitz filed an amended proof of claim the same day that included additional documentation. (Claim 8-2, Case No. 15-41682.) The basis for the claim is four separate notes and mortgages that encumber the Properties. (Claim 8-2, Case No. 15-41682.) 1145 Nostrand is encumbered by three notes and mortgages: one dated June 23, 2006 in the principal amount of $125,000.00 (“Note 1”), one dated October 23, 2006 in the principal amount of $250,000.00 (“Note 3”), and one dated October 6, 2007 in the principal amount of $295,000.00 (“Note 4”). (Claim 8-2, Case No. 15-41682.) 1211 Nostrand is encumbered by a note and mortgage dated October 23, 2006 in the principal amount of $200,000.00 (“Note 2”) and is also encumbered by Note 3. (Claim 8-2, Case No. 15-41682.) A non-debtor property owned by a related entity, Gator Enterprises, Inc. (“Gator”), and located at 1169 Nostrand Avenue, Brooklyn, New York 11225 (“1169 Nostrand”) was also encumbered by Note 3. (Claim 8-2, Case No. 15-41682.) The contract rate of interest on all the Notes is 14.875% and each note is subject to default interest at 24%. (Claim 8-2, Case No. 15-41682.) All the Notes were either made to or subsequently assigned to Meilitz. (Claim 8-2, Case No. 15-41682.) The Debtor defaulted on the Notes on or about June 1, 2009. (Claim 8-2, Case No. 15-41682.) Meilitz commenced a foreclosure action in July, 2010. (Claim 8-2, Case No. 15-41682.) On April 30, 2013, the Debtor2 and Meilitz entered into a forbearance agreement (the “Forbearance Agreement) that postponed foreclosure proceedings.3 (Claim 8-2, Case No. 15-41682.) The Debtor ultimately defaulted on the Forbearance Agreement. (Claim 8-2, Case No. 15-41682.)

B. The Bank’s Claim

The Bank is the holder of several tax liens from the City of New York for unpaid real estate taxes on 1211 Nostrand. (Am. Mot. for Relief from Stay ¶ 1, ECF [510]*510Doc. No. 50 (hereinafter “Bank Mot.”).)4 The Bank filed four proofs of claim for the tax liens. (Claim Nos. 4-7, Case No. 15-41682.) On October 29, 2009, the Bank’s predecessor-in-interest commenced a foreclosure proceeding in New York State Supreme Court against 1211 Nostrand on account of one of the tax liens dated June 26, 2008. (Bank Mot. ¶ 7.) The court entered a judgment in favor of the Bank on March 20, 2013. (Bank Mot. ¶ 8.) A foreclosure sale was scheduled for October 25, 2012. (Bank Mot. ¶ 8.) The Debtor filed a voluntary petition under chapter 11 of the Bankruptcy Code on the same day, staying the foreclosure sale. (Bank Mot. ¶ 10.) After that case was dismissed, a second foreclosure sale was scheduled for April 16, 2015. (Bank Mot. ¶ 13.) That sale was stayed by the. filing of the instant petition. (Bank Mot. ¶ 15.) The total of the Bank’s claims as of the Petition Date is $133,671.93. (Bank Mot. ¶ 22.)

C. The Motions

On December 23, 2015, Meilitz filed its motion for relief from the automatic stay with respect to both 1145 Nostrand and 1211 Nostrand. (Mot. for Relief from Stay, ECF Doc. No. 41 (hereinafter “Meil-itz Mot.”).) Meilitz seeks stay relief under §§ 362(d)(1) and (d)(2). (Meilitz Mot. ¶ 24.) Meilitz argues that the Debtor has not made any post-petition payments on account of its secured claim, and that the Debtor has used Meilitz’s cash collateral without authorization. . (Meilitz Mot. ¶¶ 27-28.) The Debtor does not dispute these contentions. Meilitz further argues that there is no equity in the Properties according to both the Debtor’s schedules and an appraisal done on Meilitz’s behalf. (Meilitz Mot. ¶ 33.) In its schedules, the Debtor valued 1145 Nostrand at $465,108.00 and 1211 Nostrand at $646,929.00 for a combined value of $1,112,037.00. (Am. Sched. A, ECF Doc. No. 19.) Meilitz’s appraisals valued 1145 Nostrand at $565,000.00 and 1211 Nost-rand at $620,000.00 for a combined value of $1,185,000.00. (Meilitz Mot. ¶ 16.)

On January 8, 2016, the Bank filed its motion for relief from the automatic stay with respect to 1211 Nostrand. (Mot. for Relief from Stay, ECF Doc. No. 46.)5 The Bank also seeks stay relief under §§ 362(d)(1) and (d)(2). (Bank Mot. ¶ 36.) The Bank argues that the timing of the bankruptcy filings, right before scheduled foreclosure sales, shows bad faith. (Bank Mot. ¶ 47.) It also argues that there is a lack of adequate protection as the property value is declining due to continued unpaid taxes and accumulating interest on the Bank’s claim. (Bank Mot. ¶ 41.) In addition, the Bank argues that there is a lack of equity due to the other secured claims on 1211 Nostrand. (Bank Mot. ¶ 55.)

D. The Debtor’s Opposition

On February 3, 2016, the day set for the hearing on the Motions (the “Hearing”), the Debtor filed two memoranda of law in opposition to the Motions, an amended memorandum of law in opposition to the Meilitz Motion, and an objection to Meil-itz’s claim. See ECF Doc. Nos. 59-61.6 [511]*511The memoranda and the objection all challenge the amount of Meilitz’s claim and argue that there is equity in the property. According to the Debtor, the actual amount of Meilitz’s claim is $572,754.30. (Debtor’s Opp’n ¶ 17.) While it is unclear from the papers exactly how the Debtor calculated this figure, the Debtor does raise some specific objections to the calculations of Meilitz’s claim:

(1) The Debtor claims that it actually made thirteen payments of $5,000.00 to Meilitz during the forbearance period rather than the eleven that Meilitz reflected in its proof of claim; (Debtor’s Opp’n ¶ 23;)
(2) the Debtor contends that Meilitz has been collecting rent from one of the tenants in 1145 Nostrand from February 2012 to the present, which would mean that Meilitz has collected $81,000.00 rather than the $39,200.00 reflected in its claim; (Debtor’s Opp’n ¶ 26;)
(3) the Debtor claims that while Meilitz did credit $431,500.00 from the sale of 1169 Nostrand,7

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Bluebook (online)
546 B.R. 507, 2016 Bankr. LEXIS 619, 2016 WL 768495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-beautiful-view-realty-inc-nyeb-2016.