In Re Cinole, Inc.

339 B.R. 40, 2006 Bankr. LEXIS 437, 2006 WL 658563
CourtUnited States Bankruptcy Court, W.D. New York
DecidedMarch 16, 2006
Docket1-19-10399
StatusPublished
Cited by2 cases

This text of 339 B.R. 40 (In Re Cinole, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.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 Cinole, Inc., 339 B.R. 40, 2006 Bankr. LEXIS 437, 2006 WL 658563 (N.Y. 2006).

Opinion

DECISION & ORDER

JOHN C. NINFO, II, Chief Judge.

BACKGROUND

On October 6, 2005, Ciñóle, Inc. (the “Debtor”) filed a petition initiating a Chapter 11 case. At the time of the filing of its petition, the Debtor alleged that it was the owner of forty-two (42) parcels of real property located in the City of Rochester, Monroe County, New York. The Debtor filed its Chapter 11 petition on October 6, 2005 in order to stop the City of Rochester (the “City”) from completing its In Rem real estate tax foreclosure sale (the “Tax Sale”) of forty-one (41) of these properties scheduled for October 7, 2005.

The sole shareholder of the Debtor is Daniel J. Wik (“Wik”). Wik filed a Chapter 13 case in this Court on December 12, 2001 that was dismissed on January 28, 2002 for failure to file Schedules and a Plan. Wik filed a second Chapter 13 case on April 15, 2002 (Daniel J. Wik fi'd/b/a the White Thumb Bakery Café, f/d/b/a Shan-nons Frozen Custard and Yogart, Case No. 02-21412), which case was pending on October 6, 2005. In the pending case, where there has been a series of Dismissal and Stay Termination Motions, Wik scheduled his ownership of the following parcels of real property: 15-23 Anderson Avenue, Rochester, New York, 25-31 Anderson Avenue, Rochester, New York (vacant land), 366 Alexander Street, Rochester, New York, 653 Averill Street, Rochester, New York, and 795 Niagara Street, Buffalo, New York (vacant lot).

On October 7, 2005, one of the attorneys for the City (the “City Attorney”) requested an emergency Section 362 telephonic conference with the Court and the attorney for the Debtor. The Court conducted the telephonic conference at approximately 1:15 p.m. when the attorney for the Debtor was finally available.

During that telephonic conference, the City Attorney advised the Court that: (1) the City was in the process of completing the Tax Sale for forty-one (41) of the forty-two (42) properties, which the Debtor alleged it owned, as listed on an October 6, 2005 letter the City received that day from the attorney for the Debtor; (2) on the morning of October 7, 2005, the attorney for the Debtor delivered copies of Quit Claim Deeds to the City, which indicated that the majority of the properties in question had been deeded to the Debtor on either October 5, 2005 or October 6, 2005; (3) except for a few of the properties in question, the City could not locate any Quit Claim or other deeds of the properties to the Debtor that had been recorded in the Monroe County Clerk’s Office; (4) the City believed that the Debtor’s Chapter 11 petition was a bad faith filing, filed for the sole purpose of stopping the City from completing the Tax Sale; (5) the City wanted the Court to know that it intended *43 to go forward with and complete the Tax Sale of a number of the properties that had been bid on that morning either by the City or by third-party buyers; (6) the City believed that the properties in question were still legally owned by Wik and others, because no deeds to the Debtor had been recorded in the Monroe County Clerk’s Office; (7) by completing the Tax Sale under these circumstances, the City was not willfully violating any automatic stay; and (8) the City would do some additional research and then bring an appropriate formal application before the Court to confirm the completed Tax Sales.

At the telephonic conference, the attorney for the Debtor indicated that: (1) the Debtor was the legal owner of these properties as a result of the execution and delivery of the Quit Claim Deeds to the Debtor on October 5, 2005 or October 6, 2005 by third-party grantors, Wik or trusts that Wik controlled, since the recording of a deed was not required to convey ownership of real property under New York State Law; (2) Wik had a business plan for the Debtor, which included financing he had lined up that would enable the Debtor to rehabilitate the properties; (3) although the Debtor did not have a written loan commitment, the proposed financing under discussion could be for as much as one million dollars, with an initial $150,000.00 draw to rehabilitate five of the properties, pay the real estate taxes due on those five properties, and, with the proceeds of the sale or cash flow from the operation of those properties and additional loan draws, the Debtor could rehabilitate additional properties and pay any unpaid real estate taxes due on them; and (4) once a written loan commitment was finalized and received, the Debtor would file the necessary motion for the Court to approve the financing.

As confirmed later by a January 19, 2006 submission (the “Submission”), 1 the City completed its October 7, 2005 Tax Sale of thirty-one (31) of the forty-two (42) properties (the “Foreclosed Properties”), transferring title to them either to the City or to third-party buyers who had bid at the Tax Sale. The total outstanding taxes due on the Foreclosed Properties at the time of the Tax Sale were $150,902.74.

On November 9, 2005, the City filed a motion (the “Dismissal/Stay Annulment Motion”), which requested that the Court enter an order: (1) dismissing the Debtor’s Chapter 11 case under Section 1112(b) for cause, based upon a finding that there had been a bad faith filing; and (2) under Section 362(d), annulling any automatic stay that may have gone into effect with the filing of the Debtor’s petition as to the Foreclosed Properties.

In its Dismissal/Stay Annulment Motion and subsequent pleadings and submissions, the City asserted that: (1) at the time of the filing of its petition, the Debtor was not a registered New York Corporation and was not otherwise authorized to do business in New York State; (2) although originally incorporated in Nevada, on May 1, 2005 it was dissolved by the State of Nevada and its authorization to do business was terminated for failure to comply with various requirements under Nevada law; (3) the Debtor did not file its Chapter 11 petition in furtherance of the winding up of its affairs, so, as a dissolved corporation, it did not have any authority to file a Chapter 11 petition and the Court obtained no jurisdiction upon the filing of the petition; (4) the redemption period for the Foreclosed Properties expired on August 17, 2005, so that under New York Law, none of the prior owners of those Properties had any authority to deed them to the *44 Debtor on October 5, 2005 or October 6, 2005; and (5) when it filed its petition, the Debtor was a dissolved Nevada corporation that was not winding up its business affairs through a Chapter 11 case, but instead was attempting to maintain control over various parcels of real estate that were included in the Tax Sale, thus using Chapter 11 as a sword rather than as a shield.

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Cite This Page — Counsel Stack

Bluebook (online)
339 B.R. 40, 2006 Bankr. LEXIS 437, 2006 WL 658563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cinole-inc-nywb-2006.