In re Belmont Realty Corp.

124 B.R. 422, 1991 Bankr. LEXIS 278, 1991 WL 29862
CourtDistrict Court, D. Rhode Island
DecidedFebruary 22, 1991
DocketBankruptcy No. 89-10863
StatusPublished

This text of 124 B.R. 422 (In re Belmont Realty Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Belmont Realty Corp., 124 B.R. 422, 1991 Bankr. LEXIS 278, 1991 WL 29862 (D.R.I. 1991).

Opinion

AMENDED DECISION AND ORDER, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

ARTHUR N. YOTOLATO, Jr., Bankruptcy Judge.

Heard on November 17, 1990 on the motion of the secured creditor, Rhode Island Hospital Trust National Bank (RIHT), for reconsideration of our Order dated May 4, 1990, denying RIHT’s motion for relief from the automatic stay, 11 U.S.C. § 362(d). We allowed the motion for reconsideration, and after hearing, in a bench decision, lifted the stay, for cause. 11 U.S.C. § 362.

On November 21, 1990, the Debtor (Belmont), and Elizabeth Bogosian, an equity security holder and a creditor of the Debt- or, jointly moved to amend the November 17th Order, and requested that we: 1) provide further findings of fact and conclusions of law; and 2) extend the time by which the Debtor and/or Bogosian may file a notice of appeal of the Order until ten days from the date of the amended Order. On December 27, 1990, the Debtor and Bogosian filed a joint motion requesting that we reconsider the November 17th Order.

We grant the Debtor’s and Bogosian’s first joint motion, which requests amendment of the November 17th Order, and provide our Findings of Fact and Conclusions of Law, below. We also rule that the time for filing a notice of appeal runs from the entry of judgment hereof. The Debt- or’s December 27 joint motion for reconsideration is DENIED.1

FINDINGS OF FACT

1. On June 2, 1987, RIHT extended a loan to Belmont in the amount of $1,200,-000. To evidence the loan, Belmont executed and delivered to RIHT a promissory note in the principal amount of $1,200,000, payable on demand.

2. Also on June 2, 1987, as security for the loan, Belmont executed a mortgage covering land and improvements located on Ledge Road in Newport, Rhode Island (Newport Property), and on land and improvements located on Aquidneck Avenue in Middletown, Rhode Island (Middletown Property) (collectively the “Properties”).

3. Belmont defaulted under the terms of the note.

4. On June 9, 1989, RIHT made demand for payment, which was not made, and thereafter, on August 9, 1989 RIHT notified Belmont that a foreclosure sale of the properties would take place on September 21, 1989.

5. On September 20,1989, Belmont filed its Petition For Reorganization under Chapter 11 of the Bankruptcy Code, and in compliance with 11 U.S.C. § 362, the scheduled September 21, 1990 foreclosure sale was cancelled.

6. On November 7, 1989, RIHT filed a Motion for Relief From the Automatic Stay, and for leave to proceed with foreclosure of the Properties. After hearings on April 9 and April 16, 1990, the Bankruptcy Court, on May 4, 1990, denied RIHT’s motion, without prejudice.

7. In that Decision we noted that “the Debtor’s attorney has represented (without evidence) that a variety of proposals are currently being considered by the Debtor, and although said representations are not a basis for our decision, we conclude, in the circumstances it is reasonable that the Debtor be allowed an additional ninety (90) days to try and implement all or any of [424]*424these proposals. In view of these seven (7) months which elapsed since the filing of the Bank’s motion, however, and in order to monitor the Debtor’s progress toward reorganization, an informal review of its accomplishments will be held in about forty-five (45) days.” Ninety days from the date of our Decision was August 3, 1990.

8. On April 12, 1990, Belmont filed a motion for authority to enter into a lease of the Middletown Property, with Clay Entertainment Corporation. That motion was objected to by RIHT, and a hearing was held on June 7, 1990. In support of the proposed agreement, Belmont represented that the lease payments were to be guaranteed by Francis B. Clay and Francis J. Clay, II, for the full term of the lease, and that the Clays had a net worth “in excess of $2,000,000.” It was also represented by Belmont’s attorney that based upon the rental income stated in the lease, over its entire term, the lease attributed income value to the Property in an amount equal to $600,000.

9. After hearing, the foregoing representations were not confirmed by the evidence. To the contrary, we found that the “proposed lessee, who appears to be energetic and enthusiastic about the venture, in our opinion, does not have sufficient financial substance to attract or interest a knowledgeable investor to rely on the stream of income projected under the lease, and we must question the figures relied upon by the lessee at arriving at his projections, as they are unsupported by any meaningful or reliable data.”2 On June 12, 1990, we entered an Order denying Belmont’s motion for authority to enter into the lease agreement.

10. After the aforementioned lease proposal was rejected by the Court, Belmont nevertheless entered into a management agreement with Francis J. Clay, II (Clay), regarding the same Middletown Property. Clay was engaged under said agreement to serve as the general manager for an “upscale nightclub.” In addition, Clay was to collect all receipts from operations and was to submit on the 10th day of each month, commencing June 10, 1990, complete financial reports of the operation of the club, which reports were to include profit and loss statements, expenses and liabilities, and tax schedules.

11. Clay operated the nightclub all through the lucrative summer season, and terminated the business immediately thereafter, on September 25, 1990. Clay defaulted completely under the agreement, in that he: (a) tendered only two checks to Belmont, both of which were returned for insufficient funds; and (b) failed to submit any reports of operations, as required by the agreement.

12. On April 13, 1990, after six unproductive months in Chapter 11, and with no prospect for a successful reorganization in sight, the U.S. Trustee moved for an order pursuant to 11 U.S.C. § 1112(b), converting the Chapter 11 proceeding to a case under Chapter 7, alleging that Belmont had failed to provide many required schedules and reports, and failed to appear at the April 2, 1990 Section 341 Meeting. The U.S. Trustee stressed Belmont’s demonstrated inability to effectuate a plan of reorganization, and that its conduct amounted to unreasonable delay which was prejudicial to creditors.

13. On September 10, 1990, RIHT filed a motion requesting this Court to reconsider its previous denial of RIHT’s Motion for Relief From Stay, based essentially on Belmont’s failure to file a plan.

14. On October 3, 1990, Belmont filed its opposition to the Motion for Reconsideration, and asked that it be allowed until October 31, 1990 to file a plan of reorganization. A hearing on the Motion for Reconsideration, etc. was held on October 25, 1990. We ruled favorably to Belmont, and allowed the Debtor until October 31, 1990 to file a plan.

15. On October 31, 1990, Bogosian, an owner of 34% of the stock of Belmont, did file a plan of reorganization, but without [425]*425the required disclosure statement.

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Related

Conversion or dismissal
11 U.S.C. § 1112(b)
Who may file a plan
11 U.S.C. § 1121
Automatic stay
11 U.S.C. § 362(d)

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Bluebook (online)
124 B.R. 422, 1991 Bankr. LEXIS 278, 1991 WL 29862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-belmont-realty-corp-rid-1991.