In re Chickosky

498 B.R. 4, 2013 WL 5434131
CourtUnited States Bankruptcy Court, D. Connecticut
DecidedOctober 1, 2013
DocketNos. 12-20562 (ASD), 12-21324 (ASD)
StatusPublished
Cited by4 cases

This text of 498 B.R. 4 (In re Chickosky) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Chickosky, 498 B.R. 4, 2013 WL 5434131 (Conn. 2013).

Opinion

MEMORANDUM OF DECISION ON OBJECTION TO CONFIRMATION OF DEBTORS’ SECOND AMENDED CHAPTER 12 PLANS AND AN ORDER DENYING CONFIRMATION

ALBERT S. DABROWSKI, Chief Judge.

I. INTRODUCTION

On March 14, 2012, Alexander K. and Maurine D. Chickosky (hereinafter, the “Chickoskys”, or together with Enfield Shade Tobacco, LLC, the “Debtors”) filed a voluntary petition under Chapter 12 of the United States Bankruptcy Code. On May 30, 2012, Enfield Shade Tobacco, LLC (hereinafter “Enfield Shade”) filed its own voluntary petition under Chapter 12 of the Bankruptcy Code. On July 30, 2012, this Court granted the Chickoskys’ Amended Motion for Joint Administration, ECF No. 57, and Enfield Shade’s Motion for Joint Administration, ECF No. 28. Thomas C. Boscarino was appointed as the Chapter 12 Trustee (hereinafter, the “Trustee”) as to both estates, ECF No. 6 (the Chickoskys) and ECF No. 8 (Enfield Shade).

Before the Court for its consideration and determination is whether the Debtors’ Joint Second Amended Chapter 12 Plan (hereinafter, the “Plan”), ECF No. 84 (Chickosky) and ECF No. 40 (Enfield Shade) should be confirmed, to which Farm Credit East ACA, f/k/a First Pioneer Farm Credit, ACA (hereinafter, “Farm Credit”) objects. A contested hearing to consider confirmation of the Plan (hereinafter, the “Confirmation Hearing”) was held on April 2, 2013.

[6]*6The Court has jurisdiction over this matter under 28 U.S.C. § 1334, and this is a core proceeding under 28 U.S.C. § 157(b)(2)(L). The following shall constitute findings of fact and conclusions of law under Federal Rules of Bankruptcy Procedure 7052 and 9014.

II. BACKGROUND AND FACTS

The Chickoskys are family farmers who own two adjacent real estate parcels at 132 and 128 Moody Road, Enfield, Connecticut. The parcel at 132 Moody Road consists of 2.35 acres improved by a four-bedroom residence, which is their principal residence (hereinafter, the “Residential Property”). Approximately one acre is utilized for growing crops. The parcel at 128 Moody Road (hereinafter, the “Farm Property”) consists of 37.2 acres improved by four tobacco sheds, a greenhouse range shop and equipment shed, a small office building and a 5,000 sq. ft. 50-man labor camp. Of the 37.2 acres, 22 acres are utilized for growing crops. The Farm Property has historically been cultivated with Connecticut Valley shade tobacco and/or broadleaf tobacco. Enfield Shade, in which the Chickoskys have sole and equal ownership interests, owns the equipment, the 2008 tobacco crop, and machinery used by both Debtors in the farming operations. The Debtors and/or their predecessors have been engaged in the farming business for approximately fifty years,1 although until the last several years, the Debtor, Alexander Chickosky, was also employed full-time as an airline pilot for Delta Airlines, from which he is now retired.

Over the past several decades, the Chickoskys have faced difficulties in operating their Farm Property profitably. In 1985, a Chapter 11 bankruptcy was filed for Chickosky Farms, Inc., a now inactive entity in which the Chickoskys have a 100% interest. Thereafter, between the years 1992 to 1998, the Chickoskys and Chickosky Farms, Inc., filed two Chapter 11 bankruptcy petitions each, only one of which resulted in a confirmed Chapter 11 Plan, In re Alexander K. Chickosky and Maurine D. Chickosky, Case No. 93-50660. Between the years 2005 and 2009, the Debtors faced other difficulties, including limited access to markets (apparently related to litigation concerning a failed joint venture), weather problems, and tobacco crop diseases. The Debtors lost money on their farming operations during the years 2008 through 2011, making a profit only in 2007, while breaking even in 2006. As a consequence, the Debtors were unable to stay current on both their long term and short term debt obligations. The last large tobacco crop was cultivated in 2008, most of which crop, more than 18 tons, was processed and remains on the Farm Property.

To increase farm revenues, the Debtors now grow, raise, process and manufacture tobacco on the Farm Property. In 2011, the Debtors commenced the business of manufacturing small cigars (cigarillos) using a leased cigar rolling machine on the Farm Property under the name of “Regal Palm,” to which they own the trademark, utilizing the 2008 tobacco crop. As of the date of the Confirmation Hearing held on April 2, 2013, Enfield Shade also had agreements with H. & M. Laziza, LLC (hereinafter, “H & M”) a Florida company, to supply it with cigarillos that the Florida company would then resell under its own name (as well as a lesser amount of tobacco strips); agreements with two other companies for the sale of Regal Palm; and an agreement with Leaf Only for the bulk [7]*7sale of smaller amounts of raw, unprocessed tobacco. The Debtors also plant and raise tobacco for sale on the open market and plant and raise grain crops, including corn. They derive some income from the rental of a small portion of their property.

Since 2009, the Debtors have made no regular payments on their debt to their principal secured creditor, Farm Credit, the first mortgage holder on both the Residential and Farm Properties, evidenced by four promissory notes, the first made in 2004, plus a first lien position on Enfield Shade’s equipment, machinery and 2008 tobacco crop. As a consequence of the Debtors’ failure to make the required payments, Farm Credit commenced a foreclosure proceeding on the Farm Property and sought to replevin all of the personalty owned by Enfield Shade, including tractors, plows, seeders, spreaders and other farm equipment and machinery.

According to the proofs of claim filed in the Chickosky and Enfield Shade bankruptcies, the outstanding balance due Farm Credit at the time of the filing of the Chiekoskys’ petition was $2,507,739.70 and at the time of the filing of Enfield Shade’s petition was $2,514,517.80. The Debtors calculate the balance on the notes on the Chickosky petition date to be $2,276,422.49. The notes and mortgages are cross-collateralized against both the Residential Property and Farm Property and against Enfield Shade’s farm equipment and machinery and by the 2008 tobacco crop.

Subsequent to the filing of the petitions, on June 19, 2012, the Court entered an Order of Adequate Protection, ECF No. 44, requiring the Chiekoskys to make monthly payments of $1,250 to Farm Credit which they have made since that date. On October 2, 2012, the Court conducted an evidentiary hearing under Bankruptcy Code § 506 and Fed. R. Bankr.P. 3012 concerning the value of the Residential and Farm Properties. By Order Determining Status of Liens Pursuant to Section 506 (hereinafter, the “§ 506 Order”), ECF No. 68 (Chickosky), dated November 16, 2012, the value of the Residential Property was established as $256,500 and the value of the Farm Property at $800,000, and the Court further determined that the claim of Farm Credit should be treated as secured by both properties in the amount of $1,031,431.07 and unsecured in the amount of all remaining balances.

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Bluebook (online)
498 B.R. 4, 2013 WL 5434131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-chickosky-ctb-2013.