In re Brandywine Townhouses, Inc.

524 B.R. 889, 2014 Bankr. LEXIS 5260, 2014 WL 7779688
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedNovember 7, 2014
DocketCASE NO. 13-75582-BEM
StatusPublished
Cited by3 cases

This text of 524 B.R. 889 (In re Brandywine Townhouses, Inc.) 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
In re Brandywine Townhouses, Inc., 524 B.R. 889, 2014 Bankr. LEXIS 5260, 2014 WL 7779688 (Ga. 2014).

Opinion

ORDER

Barbara Ellis-Monro, U.S. Bankruptcy Court Judge

This Chapter 11 case came before the Court for a hearing (the “Hearing”) on September 17, 2014, on confirmation of Debtor’s Amended Plan of Reorganization (the “Plan”) [Doc. No. 124] and the “Objection of Federal National Mortgage Association, d/b/a Fannie Mae to Debtor’s Amended Plan of Reorganization (Docket No. 124)” (the “Objection”). [Doc. No. 128]. Rodney Eason appeared on behalf of Debtor, John Schlotter appeared on behalf of Creditor Federal National Mortgage Association, d/b/a Fannie Mae (“Fannie Mae”), and David Weidenbaum appeared on behalf of the United States Trustee. At the Hearing, testimony was presented, Debtor’s Exhibits 1-3, 5, 7-8 were admitted, and counsel presented opening and closing arguments. After carefully considering all of the evidence presented, applicable authorities, the arguments of counsel and the entire record of this case, the Court now enters its findings of fact and conclusions of law as provided by Fed. R. Bankr.P. 7052 as applied by Fed. R. Bankr.P. 9014.

I. FACTS

Debtor is a Georgia non-profit company which owns a low and moderate-income housing cooperative consisting of 238 apartments located at 85 Mt. Zion Rd., SW, in Atlanta, Georgia (the “Property”). Cooperative housing developments are owned by residents who each own a share in the cooperative. The co-op model provides certain tax benefits to residents. Debtor has been in operation for over for[891]*891ty years. Debtor provides “Section 8” housing pursuant to a contract with the U.S. Department of Housing and Urban Development. [D. Ex. 7]1.

In 2010 and 2011, Debtor’s management company failed to pay over $400,000 in obligations due to the City of Atlanta Department of Watershed Management (“Watershed”). In 2013, Debtor’s secured creditor, Fannie Mae, through its loan ser-vicer Arbor Commercial Funding, LLC, made a partial payment of Debtor’s past due obligations after Debtor received a final disconnection notice from Watershed. Following the partial payment, Fannie Mae successfully moved the Fulton County Superior Court for appointment of a receiver. A receiver was appointed on September 19, 2013, and the receiver paid the outstanding water bill. On November 25, 2013, Debtor filed this case.

Debtor filed its initial plan of reorganization on August 1, 2014 and the Plan on August 28, 2014. [Doc. Nos. 87,124]. The Plan provides for payment in full to all creditors over 5 years through cash flow generated by the continued operation of Debtor’s Property. The Plan contains 4 classes of claims and 1 interest class. Each of the classes of claims is impaired. Fannie Mae’s secured claim is treated in Class 1, the secured claims of Metro Area Service in the amount of $4,575, and the secured claim of Atlanta Reliable Roofing Co. in the amount of $1,987 are in classes 2A and 2B respectively. Class 3, is a convenience class that is a class of unsecured creditors with allowed claim amounts of less than $1,000, and Class 4 contains other general unsecured creditors. The Plan provides to pay Class 4 claimants in full with interest of 3.25% over three years beginning in year two of the Plan. Class 3 creditors will be paid in five equal monthly installments during the first year of the Plan. The Plan provides that classes 2A and 2B will receive a $1,000 payment within 30 days of the Effective Date2 plus 10 equal monthly payments during the first year of the Plan. Classes 2A, 2B, 3 and 4 voted to accept the Plan.

Fannie Mae is the largest creditor in the case with a claim totaling $5,012,392.86. The secured portion of Fannie Mae’s claim, in the amount of $4,956,395.11 is treated in Class 1. The Plan proposes to pay Fannie Mae’s .secured claim through issuance of a promissory note (the “New Note”). The New Note provides for payment in full of Fannie Mae’s secured claim with interest of 5.25% over 360 months, beginning 6 months after the Effective Date, at a rate of $27,369.40 per month. The Plan provides further that during the first 6 months of the Plan Debtor will use funds that would otherwise be paid to Fannie Mae for renovation of Debtor’s Property including repair of 29 vacant apartments. The six-month forbearance of payments to Fannie Mae would provide Debtor with $164,216.40 with which to pay for the repairs and maintenance. Debtor argues that the repairs aré necessary to reach its goal of 90% occupancy. In addition to the New Note, Debtor will maintain property insurance and pay all property taxes on the Property.

Debtor engaged George A. Smith (“Smith”), a general contractor with 36-37 years of experience to provide estimates for the cost of repair of 29 apartment units and certain exterior repairs necessary to ensure the safety of the residents. In preparing his cost estimates, Smith visited Debtor’s property and inspected 3 or 4 [892]*892units needing renovation. From his inspection of these units, Smith submitted a budget for the costs of repairs. [D. Ex. 3]. Smith estimated that the repair of 29 units would cost $162,635.00. [D. Ex. 3]. Smith estimated that the cost of the outside safety repairs would be $26,450. [D. Ex. 3]. On cross-examination, Smith acknowledged that renovation costs could exceed his estimate because he had not seen all 29 units. Further, Mr. Smith did not know the age of the heating and air conditioning systems which, if the unit(s) needed to be replaced, would cause significant increase in the costs of renovation.

Alton Management Corporation (“Alton”) and its principal Mr. Alfred Reynolds (“Reynolds”) have been managing cooperative resident developments since 1969. Alton managed Debtor’s property in the early 2000s and then again beginning in 2011. Reynolds testified that Debtor’s water bill tripled because of sewer repairs in Atlanta and that the Debtor paid these increased bills as it could and that the bankruptcy filing was the result of a “perfect storm” of increased water bills, increased water consumption, and residents’ loss of income, all of which resulted in an inability t'o rehabilitate the property. Reynolds testified further that Alton is working to reduce water usage and would like to install a new metering system that would allow Debtor to charge its residents for water usage. Reynolds further testified that achieving 90% occupancy is “doable” and Debtor proposes to accomplish its target occupancy level turning vacant units into rented units and that 29 units need to be renovated to reach the 90% occupancy goal. Reynolds further stated that Debtor’s property is desirable and that there are tenants waiting to move in. The Plan budgets and projections as well as Debt- or’s monthly operating reports were prepared at Reynolds’ direction and under his supervision.

II. CONCLUSIONS OF LAW A. Confirmation Requirements of § 1129(a)

Section 1129(a) of the Bankruptcy Code sets forth sixteen requirements for confirmation of a plan and states, in part, “[t]he court shall confirm a plan only if all of the following requirements are met....” 11 U.S.C. § 1129(a). “To confirm a plan of reorganization the debtor has burdens as to introduction of evidence and persuasion that each subsection of section 1129(a) has been satisfied.” In re Diplomat Constr., Inc., No.

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Bluebook (online)
524 B.R. 889, 2014 Bankr. LEXIS 5260, 2014 WL 7779688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-brandywine-townhouses-inc-ganb-2014.