In re Fairpoint Communications, Inc.

462 B.R. 75, 2012 WL 13690, 2012 Bankr. LEXIS 11, 55 Bankr. Ct. Dec. (CRR) 257
CourtUnited States Bankruptcy Court, S.D. New York
DecidedJanuary 4, 2012
DocketNo. 09-16335 (BRL)
StatusPublished
Cited by9 cases

This text of 462 B.R. 75 (In re Fairpoint Communications, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.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 Fairpoint Communications, Inc., 462 B.R. 75, 2012 WL 13690, 2012 Bankr. LEXIS 11, 55 Bankr. Ct. Dec. (CRR) 257 (N.Y. 2012).

Opinion

MEMORANDUM DECISION (I) GRANTING THE CITY OF CLARE-MONT’S MOTION TO RECONSIDER AND VACATE PURSUANT TO 11 U.S.C. §§ 105, 502(j) AND BANKRUPTCY RULE 9024 AND (II) DENYING FAIRPOINT’S FIRST OMNIBUS MOTION TO ESTIMATE THE MAXIMUM ALLOWED AMOUNT OF PROOFS OF CLAIM PURSUANT TO BANKRUPTCY CODE SECTIONS 105(a) AND 502(c) WITH REGARD TO THE CITIES OF CLAREMONT AND CONCORD

BURTON R. LIFLAND, Bankruptcy Judge.

Before the Court is (i) the City of Clare-mont’s Motion to Reconsider and Vacate the Court’s First Estimation Order as to Claremont Pursuant to 11 U.S.C. §§ 105, 502(j) and Bankruptcy Rule 9024 (the “Motion for Reconsideration”) and (ii) Fair-Point’s First Omnibus Motion to Estimate the Maximum Allowed Amount of Proofs of Claim Pursuant to Bankruptcy Code Sections 105(a) and 502(c) (the “First Estimation Motion”) with regard to the City of Concord (“Concord”) and the City of Claremont (“Claremont,” and together with Concord, the “Cities”). Upon consideration of the parties’ submissions and oral arguments, the Motion for Reconsideration is GRANTED and the First Estimation Motion is DENIED with regard to the Cities.

I. CLAREMONT’S MOTION FOR RECONSIDERATION

a. Factual History

Claremont acknowledges that on November 6, 2009, it received timely notice of FairPoint Communications, Inc.’s (“Fair-Point”) chapter 11 filing, as well as instructions for filing a proof of claim. See Declaration of Jane F. Taylor in Support of Creditor City of Claremont’s Motion for Reconsideration and Vacate (“Taylor Declaration”) (Dkt. No. 1701), Ex. 1, ¶ 4. On December 7, 2009, Claremont timely filed a proof of claim against FairPoint in the amount of $423,066.18.1 Claremont asserts that $422,003.88 of this total amount represented a priority claim for taxes or penalties owed to a governmental unit, of which $381,156.24 is secured by a property tax lien. The remaining $1,062.30 represented an unsecured claim against Fair-Point for property damage to city-owned property. See id., ¶¶ 5-6.

[78]*78On June 15, 2010, FairPoint filed its First Estimation Motion seeking to, among other things, estimate the claims filed by-certain New Hampshire municipalities for property taxes allegedly owed on account of FairPoint’s use and occupation of public right-of-ways. With regard to Claremont, FairPoint objected to its proof of claim in the full amount of $423,066.18, arguing that it should be estimated only at $1,062.30, the unsecured amount based on property damage. Specifically, FairPoint argues that Claremont’s secured tax claim in the amount of $422,003.88 should be estimated at zero on the basis of, inter alia, equal protection issues pursuant to the New Hampshire State Constitution.

FairPoint’s claims agent, BMC Group, Inc. (“BMC”), filed an affidavit of service dated June 16, 2010 (“BMC Affidavit of Service”) (Dkt. No. 1486), indicating that the First Estimation Motion was served on all of the relevant New Hampshire municipalities, including Claremont. While the towns of Hinsdale, Newmarket, Raymond, Salem, Seabrook (collectively, the “Five Towns”), Conway and Concord all filed timely objections to FairPoint’s First Estimation Motion, Claremont failed to file a response before the July 8, 2010 deadline. On July 15, 2010, the Court held a hearing on the First Estimation Motion2 and on July 21, 2010, the Court entered an order that, inter alia, estimated Claremont’s claim in the unsecured amount of $1,062.30. See Order Granting FairPoint’s First Omnibus Motion to Estimate the Maximum Allowed Amount of Proofs of Claim Pursuant to Bankruptcy Code Sections 105(a) and 502(c) [hereinafter the “First Estimation Order”] (Dkt. No. 1679).

Claremont submits that it never received notice of the First Estimation Motion. See Taylor Deck, ¶ 10. The City Attorney for Claremont, Jane F. Taylor (“Taylor”) allegedly became aware of the First Estimation Motion only after counsel for another New Hampshire municipality forwarded a copy of the First Estimation Order to her by email on July 22, 2010, the day after the First Estimation Order was entered. See id., ¶ 11. Taylor declared that:

Upon receiving a copy of the [First Estimation Order], [she] undertook a diligent search of the files within Claremont’s possession related to the FairPoint bankruptcy.... and made inquiry of Ms. Pam Dyer, the city employee who sorts and distributes all mail received by Claremont.... and discovered no evidence of FairPoint’s First [Estimation] Motion having been received by Claremont.

Id., ¶ 12. In addition, Donald J. Kravet, Esq. of Kravet & Vogel, LLP, counsel for Claremont, declared that he promptly contacted counsel for FairPoint in order to reach an agreement to permit Claremont to submit its objection to FairPoint’s First Estimation Motion, though apparently such an agreement could not be reached. See Declaration of Donald J. Kravet, Esq. in Support of Creditor City of Claremont’s Motion for Reconsideration and Vacate (“Kravet Declaration”) (Dkt. No. 1701), Ex. 4, ¶ 2.

Therefore, on August 2, 2010, just 11 days after receiving notice of FairPoint’s First Estimation Motion and Order, Clare-mont filed its Motion for Reconsideration in the form of three declarations: (i) the Taylor Declaration; (ii) a declaration from Pamela Dyer,3 a clerk for the city of Clare-[79]*79mont responsible for handling incoming mail; and the Kravet Declaration. Clare-mont attached its objection4 to the First Estimation Motion as Exhibit 1 to the Taylor Declaration. At the time that Claremont filed its objection, FairPoint had not yet filed its Omnibus Reply5 to timely-filed objections from other similarly situated New Hampshire municipalities, and a hearing on these objections had not been scheduled. In fact, FairPoint only filed its Omnibus Reply addressing the various objections of the New Hampshire municipalities on October 13, 2010, almost two and a half months after receiving the Claremont Objection.

On October 20, 2010, the Court held a hearing to consider the New Hampshire municipalities’ objections to FairPoint’s First Estimation Motion, as well as Clare-mont’s Motion for Reconsideration. Since the hearing, the dispute between Conway and FairPoint was resolved by stipulation dated January 3, 2011, as was the dispute between the Five Towns and FairPoint in a stipulation dated August 30, 2011. See Stipulation and Agreed Order Between FairPoint and Town of Conway, New Hampshire Regarding Certain Tax Claims (Dkt. No.2048); Agreed Order Resolving FairPoint’s First Omnibus Motion to Estimate the Maximum Allowed Amount of Proofs of Claim Pursuant to Bankruptcy Code Sections 105(a) and 502(c), Solely as it Relates to Proofs of Claim 4798, 5897, 5889, 5891 and 6603 (Dkt. No. 2422).

In light of the aforementioned stipulations, only FairPoint’s disputes with Clare-mont and Concord remain outstanding. The Court will address Claremont’s Motion for Reconsideration first, as it deals with the threshold question of whether Claremont’s objection may be entertained,

b. Discussion

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Bluebook (online)
462 B.R. 75, 2012 WL 13690, 2012 Bankr. LEXIS 11, 55 Bankr. Ct. Dec. (CRR) 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fairpoint-communications-inc-nysb-2012.