In re Fairfield Tic, LLC

594 B.R. 852
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedDecember 4, 2018
DocketCASE NO. 18-73744-VJ
StatusPublished
Cited by1 cases

This text of 594 B.R. 852 (In re Fairfield Tic, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Fairfield Tic, LLC, 594 B.R. 852 (Va. 2018).

Opinion

Paul M. Black, UNITED STATES BANKRUPTCY JUDGE

This matter comes before the Court on the motion of U.S. Bank National Association, as Trustee for the registered holders of LB-UBS Commercial Mortgage Trust 2007-C7, Commercial Mortgage Pass-Through Certificates, Series 2007-C7, (the "Noteholder") a secured creditor of Fairfield TIC, LLC (the "Debtor"), in which Susan E. Collins (the "Receiver"), a court-appointed Receiver for the property in question, has joined. Specifically, the Movants seek an Order from this Court dismissing the Debtor's case pursuant to Section 1112(b) of the Bankruptcy Code for "cause." (Noteholder's Mot. to Dismiss, ECF No. 15; Receiver's Joinder, ECF No. 39.) Alternatively, the Noteholder seeks relief from the automatic stay pursuant toll U.S.C. § 362(d). The Court held a trial on these matters on November 20, 2018, and has reviewed all submitted briefs.1

*854FINDINGS OF FACT

The Debtor is a Delaware limited liability company ("LLC") formed for the purpose of investing in real estate. At this time, its sole asset is a 66.2296% tenant-in-common interest in the Fairfield Shopping Center located in Virginia Beach, Virginia (the "Shopping Center" or the "Property"). The remaining interest is held by three other similar entities who, as of yet, have not filed bankruptcy.2 The four tenants in common ("TICs") and their TIC Agreement were created to take advantage of the "like-kind exchange" provisions of the Tax Code. See 26 U.S.C. § 1031. In accordance with those provisions, the TIC Agreement places certain limitations on the TICs' ownership rights, including the requirement that any action to sell, manage, or lease the property shall be by unanimous consent of all the TICs. (Movant's Ex. 1, ECF No. 51 at 3-4.)

The four TICs purchased the Property in 2004 for approximately $22.5 million, funded by investments from the TICs themselves and an approximately $19 million loan from G.E. Capital Corporation. In 2007, appraisals placed the value of the Property at nearly $38 million and, based on that valuation, the TICs refinanced the G.E. loan through another loan of $30 million from Lehman Brothers. Through a series of assignments, the Noteholder acquired the Lehman Brothers Note. The parties have stipulated the Shopping Center has, at present, a value of no more than $27 million. (Joint Stipulation, ECF No. 75, at ¶ 5.) Although the Lehman Brothers refinance provided ten years for the TICs to develop an exit strategy or pay off the balance of the loan, the Note matured in October 2017 and the obligation remains payable and due in full with approximately $30 million outstanding in principal, interest, and fees.

Based on the briefs and testimony at the November 20, 2018 trial, it appears the TICs' exit strategy prior to maturity was to have Wheeler Real Estate Investment Trust, Inc. (the "REIT") acquire the Property. At that time, Jon Wheeler, who controls both the Debtor and BCP TIC, LLC ("BCP"), served as Chairman and Chief Executive Officer of the REIT. Two of Mr. Wheeler's other real estate companies provided property and asset management for the Property and, in similar situations, the REIT had previously acquired commercial properties managed by Mr. Wheeler's management companies. In 2017, however, Mr. Wheeler lost control of the REIT and was ousted from his positions within the organization. The REIT then decided not to acquire the Property, leaving the TICs without an exit strategy for their soon-to-mature $30 million loan. Mr. Wheeler and his fellow investors through the four TICs attempted to negotiate an extension on the loan and worked with different investment companies and potential buyers to attempt to sell or refinance the Property; however, on the date of the trial approximately thirteen months after the loan matured, the Debtor had yet to develop any concrete exit strategy.

Meanwhile, on February 15, 2018, the Noteholder filed a complaint in the Circuit Court of Virginia Beach, Virginia, requesting the appointment of a receiver to manage the Property. On March 15, 2018, the state court appointed Susan E. Collins as *855receiver, who remains in control of the Property.

Shortly after appointment of the Receiver, Nikki Providence Road, LLC ("Nikki Providence Road") filed a lawsuit against the TICs stemming from a 2015 agreement to sell an outparcel portion of the Property. That litigation is stayed as a result of the Debtor's bankruptcy case.

The Noteholder set a foreclosure sale of the Property for July 2018. Upon notice of the sale, the evidence reflects the four TICs discussed the merits of filing Chapter 11 to stop the sale and protect their interests in the Property, but the Noteholder cancelled the sale before any of the TICs filed a bankruptcy petition. The Noteholder negotiated and executed a Deed in Lieu of Foreclosure Agreement with one of the TICs, GCK TIC, LLC ("GCK"). (Debtor's Ex. J, ECF No. 76-10, at 4.) The Noteholder then scheduled another foreclosure sale for October 29, 2018. The Debtor filed its Chapter 11 petition on October 23, 2018, without companion cases filed by the other three TICs, and the Noteholder and Receiver have moved to dismiss the case under 11 U.S.C. § 1112(b) for cause, alleging that the Debtor did not file its petition in good faith. Alternatively, the Noteholder seeks relief from the automatic stay pursuant to 11 U.S.C. § 362(d).

CONCLUSIONS OF LAW

This Court has jurisdiction of this matter by virtue of the provisions of 28 U.S.C. §§ 1334(a) and 157(a), the General Order of Reference from the United States District Court for the Eastern District of Virginia dated August 15, 1984, and the Order of Designation from the Fourth Circuit dated October 29, 2018. This Court further concludes that this matter is a "core" bankruptcy proceeding within the meaning of 28 U.S.C. § 157(b)(2)(A), (G), and (O).

I. Dismissal Under 11 U.S.C. § 1112(b)

The Noteholder and Receiver first seek dismissal under 11 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
594 B.R. 852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fairfield-tic-llc-vaeb-2018.