In re Creekside Senior Apartments, L.P.

489 B.R. 51, 2013 Bankr. LEXIS 1126, 57 Bankr. Ct. Dec. (CRR) 201, 2013 WL 1188061
CourtBankruptcy Appellate Panel of the Sixth Circuit
DecidedMarch 25, 2013
DocketBAP No. 12-8023
StatusPublished
Cited by33 cases

This text of 489 B.R. 51 (In re Creekside Senior Apartments, L.P.) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Creekside Senior Apartments, L.P., 489 B.R. 51, 2013 Bankr. LEXIS 1126, 57 Bankr. Ct. Dec. (CRR) 201, 2013 WL 1188061 (bap6 2013).

Opinion

[54]*54OPINION

ARTHUR I. HARRIS, Bankruptcy Judge.

The debtors in five jointly administered Chapter 11 cases (“Debtors”) and their general partners (“General Partners”) (collectively, “Appellants”) appeal the bankruptcy court’s dismissal of the Debtors’ cases pursuant to 11 U.S.C. § 1112(b). For the reasons that follow, we affirm.

I.ISSUES ON APPEAL

The issue presented by this appeal is whether the bankruptcy court abused its discretion in dismissing the Debtors’ jointly administered Chapter 11 cases “for cause” pursuant to 11 U.S.C. § 1112(b).

II.JURISDICTION AND STANDARD OF REVIEW

The Bankruptcy Appellate Panel of the Sixth Circuit (“Panel”) has jurisdiction to decide this appeal. The United States District Court for the Eastern District of Kentucky has authorized appeals to the Panel, and no party has timely elected to have this appeal heard by the district court. 28 U.S.C. § 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). An order granting a motion to dismiss a Chapter 11 case “for cause” is final for purposes of appeal. AMC Mortg. Co. v. Tenn. Dep’t of Revenue (In re AMC Mortg. Co.), 213 F.3d 917, 920 (6th Cir.2000).

The dismissal of a bankruptcy case “for cause” is reviewed for an abuse of discretion. Mitan v. Duval (In re Mitan), 573 F.3d 237, 241 (6th Cir.2009). “An abuse of discretion occurs only when the [trial] court relies upon clearly erroneous findings of fact or when it improperly applies the law or uses an erroneous legal standard.” Kaye v. Agripool, SRL (In re Murray, Inc.), 392 B.R. 288, 296 (6th Cir. BAP 2008) (citation omitted). “The question is not how the reviewing court would have ruled, but rather whether a reasonable person could agree with the bankruptcy court’s decision; if reasonable persons could differ as to the issue, then there is no abuse of discretion.” Barlow v. M.J. Waterman & Assocs., Inc. (In re M.J. Waterman & Assocs., Inc.), 227 F.3d 604, 608 (6th Cir.2000).

III.FACTS

The Debtors in this appeal are five single asset real estate debtors. The Debtors filed for relief under Chapter 11 of the Bankruptcy Code in September and October 2010. Pursuant to an October 2010 order, the cases were jointly administered.

Each of the Debtors is a Kentucky limited partnership with a corresponding general partner, an administrative limited partner, and an investor limited partner. The Debtors are as follows: [55]*55Each Debtor owns a parcel of real property on which it operates a low-income housing apartment complex (“LIHTC Properties”). The LIHTC Properties were developed in conjunction with the federal Low-Income Housing Tax Credit Program. See 26 U.S.C. § 42. In exchange for agreeing to rent and occupancy restrictions, the program provides a 10-year stream of tax credits to the owner of the property. A property must remain in compliance with the LIHTC Program for fifteen taxable years. 26 U.S.C. § 42(i). During this compliance period, tax credits may be recaptured from the taxpayer. 26 U.S.C. § 42(j). In the cases currently on appeal, the LIHTC Properties were put into service in 2005 and 2006, and the tax credit recapture periods expire in 2019 and 2020.

[54]*5410-53019 In re Creekside Senior Apartments, Limited Partnership
10-53298 In re Nicholasville Greens, Limited Partnership
10-53300 In re Franklin Place Senior Apartments, Limited Partnership
10-53301 In re Pennyrile Senior Apartments, Limited Partnership
10-53346 In re Park Row Senior Apartments, Limited Partnership

[55]*55In order to acquire and/or construct the LIHTC Properties, the Debtors obtained financing from Bank of America, N.A. (“Bank”). As security for these loans, the Bank took a first mortgage lien on the Debtors’ LIHTC Properties. All five notes matured before the Debtors filed for bankruptcy relief.

In November 2010, the Debtors filed an application to employ an appraiser to value the LIHTC Properties. The Debtors asserted that ascertaining the values of the properties was vital to proposing a joint plan of reorganization. The bankruptcy court approved the Debtors’ application to employ on December 8, 2010.

Between December 2010 and February 2011, each Debtor made two small adequate protection payments to the Bank pursuant to 11 U.S.C. § 362(d)(3). These payments totaled $15,000 for all five LIHTC Properties. The Debtors have not made any adequate protection payments since February 2011.

On March 4, 2011, the Appellants filed a motion for a valuation hearing on the LIHTC Properties (“Valuation Motion”). The Appellants again asserted that determination of the values of the Bank’s secured claims was vital to formulation of a Chapter 11 plan.

The bankruptcy court granted the Appellants’ Valuation Motion and conducted a valuation hearing on August 18, 2011. The bankruptcy court issued an order setting the value of the Debtors’ LIHTC Properties (‘Valuation Order”) on September 12, 2011. The bankruptcy court concluded that, for purposes of determining the value of the secured portion of the Bank’s claims pursuant to 11 U.S.C. § 506(a), a determination of the fair market value of the Debtors’ LIHTC Properties included consideration of the remaining federal low-income housing tax credits. After considering all the evidence, the bankruptcy court set the following values for the Debtors’ real properties:

LIHTC Property Value of Real Estate Value of Tax Credits Total Value

Creekside Senior Apartments_$708,718.67_$350,000 $1,058,718.67

Nicholasville Greens Townhomes_$307,475.86_$160,000_$467,475.86

Franklin Place Senior Apartments_$371,244,42_$445,000_$816,244.42

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489 B.R. 51, 2013 Bankr. LEXIS 1126, 57 Bankr. Ct. Dec. (CRR) 201, 2013 WL 1188061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-creekside-senior-apartments-lp-bap6-2013.