In re Elinoff

487 B.R. 562, 2013 WL 837937, 2013 Bankr. LEXIS 854, 57 Bankr. Ct. Dec. (CRR) 185
CourtUnited States Bankruptcy Court, D. Colorado
DecidedMarch 7, 2013
DocketNo. 10-31659 MER
StatusPublished

This text of 487 B.R. 562 (In re Elinoff) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Elinoff, 487 B.R. 562, 2013 WL 837937, 2013 Bankr. LEXIS 854, 57 Bankr. Ct. Dec. (CRR) 185 (Colo. 2013).

Opinion

ORDER

MICHAEL E. ROMERO, Bankruptcy Judge.

THIS MATTER comes before the Court on the Objection to Confirmation of Plan (“Objection”) filed by Lulu City Condominium Association, Inc. (“Lulu City”), and the Response to Objections to Confirmation of Debtor’s Amended Plan of Reorganization (“Response”) filed by debtor-in-possession Neal David Elinoff (“Debtor”). The Court has considered the evidence and legal argument presented by the parties, and hereby makes the following findings of fact and conclusions of law.1

JURISDICTION

The Court has jurisdiction over this matter under 28 U.S.C. §§ 1334(a) and (b) and 157(a) and (b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (L) as it involves the administration of the [564]*564estate and confirmation of the Debtor’s Chapter 11 Plan.

BACKGROUND2

A. The Condominium and the Agreement

The Debtor owns certain real property-located at 280 South Mahoney Drive, # 6H, Telluride Colorado 81435 (the “Condominium”). Lulu City is the homeowner association for the Condominium pursuant to the Amended and Restated Declaration recorded October 16, 2006. The Debtor granted a first deed of trust against the Condominium in favor of Bank of America, securing a promissory note in the original principal amount of $374,500. The Debtor granted a second deed of trust against the Condominium in favor of JPMorgan Chase Bank, N.A. securing a promissory note in the original principal amount of $75,000. The parties stipulated the value of the Condominium does not exceed the amounts owed to the holders of the first and second deeds of trust.

On July 20, 2007, Lulu City levied a special assessment for a remodel of its common elements. All owners were given the option of either paying their respective share of special assessment in cash or having Lulu City pay the special assessment for them using an association bank loan. The Debtor chose the latter option, and the association bank loan paid the Debtor’s entire $69,397 share of the special assessment in full.

As a result, the parties entered into an Agreement for Association Financing of Special Assessment Lulu City Condominium Association, Inc. (“Agreement”), and the “Principal Amount Financed” totaled $69,397. The Agreement was drafted by Diane Wolfson (“Wolfson”), association counsel for Lulu City and owner/controller of the association management company for Lulu City. The Agreement was executed by the Debtor and recorded in the real property records of San Miguel County on November 8, 2007. More than two years later, Lulu City recorded a document entitled Release of Association Lien Created by Loan Agreement (“Release”) in the real property records. From 2007 through the date of filing for bankruptcy relief, the Debtor paid the monthly amounts due under the Agreement.

B. The Debtor’s Bankruptcy Filing

The Debtor filed his Voluntary Petition pursuant to Chapter 11 of the Bankruptcy Code on August 25, 2010 (“Petition Date”). Lulu City is a creditor of the Debtor, and filed Proof of Claim No. 28 asserting a secured claim for prepetition assessments owed by the Debtor in the total amount of $7,042.03.3

The Debtor filed an Amended Chapter 11 Plan (“Amended Plan”) and Amended Disclosure Statement.4 The Amended Plan provides for the treatment of Lulu City’s claim in Class 9, proposing any claim of Lulu City arising from the Agreement is an unsecured claim to be treated under Class 13 of the Plan. Class 13 provides allowed claims of unsecured creditors of the Debtor shall receive pro rata share of distributions from a general claims fund after payment in full of allowed administrative and unsecured tax claims.

[565]*565Objections to confirmation of the Amended Plan were filed by five creditors, but Lulu City’s objection is the only remaining unresolved objection to confirmation. Lulu City disputes the proposed treatment of its claim and asserts the special assessment is a statutory lien which continues against the Condominium. The Amended Plan recognizes the instant dispute, providing for alternative treatment of Lulu City’s claim. If the obligation arising under the Agreement is determined to be unsecured the Debtor will retain the Condominium, and any outstanding regular monthly assessments will be paid on the effective date. If the Condominium is determined to still be encumbered by the obligation under the Agreement, the Amended Plan proposes to surrender the Condominium to the holders of the Class 7, 8 and 9 claims.

Lulu City’s Objection to confirmation of the Amended Plan raised several other issues. However, Lulu City later stipulated the issues raised in the Objection are limited to only the nature and extent of the Class 9 Claim and the amount of its administrative claim, if any. Lulu City expressly waived all other objections to confirmation previously raised in the filed Objection.5

DISCUSSION

The parties agree the instant dispute does not concern the common expense assessment levied annually on the Condominium. It is also undisputed the Debt- or’s portion of the 2007 special assessment was paid in full through the use of funds under the Agreement. The issue before the Court is whether the Debtor’s remaining obligation to Lulu City under the Agreement is for repayment of an unsecured loan or a secured ongoing assessment. The parties agreed this matter could be resolved through submission of legal briefs together with admitted documents after resolving the Debtor’s objections to certain exhibits. Accordingly, the Court will first address the evidentiary issues raised by the Debtor, and then turn to the merits of Lulu City’s Objection to confirmation of the Amended Plan.

A. Parole Evidence is Admissible Because the Agreement is Ambiguous

The Debtor objected to the admissibility of Lulu City’s Exhibits D, E, F, G, H, I, J, K, M and N to determine the nature of the obligation arising under the Agreement, and argues these exhibits should be precluded under the parole evidence rule because the intent of the parties is unambiguous. The Debtor also objected to Lulu City’s Exhibits F, G, H, I, J, K, M and N as not relevant to determine the intent of the parties because those documents postdate the execution of the Agreement.

The parties agree the Agreement should be interpreted under Colorado law. Under Colorado law, a written contract “complete and free from ambiguity represents the objective intent of the parties and will be enforced according to its plain language. However, ‘[i]f the court determines a contract is ambiguous and its construction depends on extrinsic evidence, then the interpretation of the contract becomes a question of fact.’ ”6 “[A] contract is ambiguous where the text of the agreement reasonably allows for varying interpretations. Unless there is an ambiguity in its terms, a court should avoid strained interpretations, give effect to the terms [566]*566according to their ordinary meaning, and enforce the contract as written.”7

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Cite This Page — Counsel Stack

Bluebook (online)
487 B.R. 562, 2013 WL 837937, 2013 Bankr. LEXIS 854, 57 Bankr. Ct. Dec. (CRR) 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-elinoff-cob-2013.