In re Faison

556 B.R. 728, 2016 Bankr. LEXIS 3227, 2016 WL 4597298
CourtUnited States Bankruptcy Court, E.D. North Carolina
DecidedSeptember 2, 2016
DocketCASE NO. 14-00073-5-SWH
StatusPublished
Cited by1 cases

This text of 556 B.R. 728 (In re Faison) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Faison, 556 B.R. 728, 2016 Bankr. LEXIS 3227, 2016 WL 4597298 (N.C. 2016).

Opinion

[730]*730ORDER DENYING CONFIRMATION AND REGARDING MOTION FOR RELIEF FROM STAY

Stephani W. Humrickh'ouse, United States Bankruptcy Judge

The matter before the court is confirmation of the debtor’s Third Amended Plan of Reorganization (“Third Plan”), to which secured creditor SummitBridge National Investments III, LLC (“SummitBridge”) has objected. Also pending is Summit-Bridge’s motion for relief from the automatic stay. A hearing on confirmation, during which arguments on the objection and the motion for relief from stay were heard, took place in Raleigh, North Carolina on May 26, 2016. For the reasons set forth below, the court determines that the debtor has not satisfied either § 1129(a)(3) or § 1129(a)(ll) of the Bankruptcy Code and thus confirmation of the Third Plan must be denied.1 The court believes, however, that a reorganization of the debtor is possible. The court will sustain Summit-Bridge’s objection to plan, permit the debtor to file an amended plan, and deny SummitBridge’s motion for relief from stay without prejudice.

BACKGROUND

The debtor, 0, William Faison, filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code on January 3, 2014. The debtor is a trial attorney and remains in possession of the estate assets, which include sizeable real property hold-mgs in Orange, Wake, and Vance counties. SummitBridge’s claim is secured by the Orange County land, and disposition of that claim is now the main dispute before the court; the initial stages of this bankruptcy case centered on the dispute between the debtor and his ex-spouse, who had filed her own chapter 7 bankruptcy case, with respect to the real property as well as other assets. SummitBridge has three claims, which are secured by real property in Orange County and constitute a combined prepetition amount of approximately $1,627,239.82. The debtor values SummitBridge’s collateral at $1,715,000. With the inclusion of interest accruing since the petition date, SummitBridge is an undersecured creditor.

On June 4, 2015, the debtor filed his first chapter 11 plan, which combined SummitBridge’s three claims into a single Class 4. SummitBridge’s claims 5, 6 and 7 had petition date balances of $593,091.42; $792,749.04; and $241,399.36, respectively. The claims originally were held by BB&T, then transferred to SummitBridge. Claim 6 is secured by the Patterson Lots216 and 17, and by Walker Lots31 and 2. The two Patterson Lot parcels make up what is sometimes referred to as the “upper tract,” and are bisected by an area that the debtor proposes, in the plan currently before the court (the debtor’s Third Amended Plan), to designate as a wildlife common area or “Open Tract” amenity.

Claim 5 is secured by' first liens on Bellechene Lots4 9 and 15, and on Tract [731]*731A-l, which the parties sometimes refer to as the “Barn Tract.” Tract A-l consists of 142.42 acres and was appraised at $712,000 on July 81, 2013.5 Within Tract A-l is a roughly 10-acre parcel (per the debtor’s preliminary plat) that includes a barn and riding facilities; this parcel also is sometimes referred to by the parties as the “Barn Tract,” or alternatively (and more precisely) as the “Barn Lot.”6 Claim 7 is SummitBridge’s second lien on the same • real property that secures Claim 5.

In his first plan, the debtor proposed to develop the upper tract portion of Summit-Bridge’s collateral (specifically, the two Patterson Lots, P-16 and. P-17) into a planned subdivision consisting of approximately 61 one-acre homesites, with the remainder of SummitBridge’s collateral potentially being sold in larger lots, with respect to which the debtor proposed a $10,000 per acre release fee. (Dkt. No. 340) The plan provided for a fixed interest rate of 5.5% per year. On October 6, 2015, the debtor filed a motion seeking approval for a private sale wherein he proposed to sell three parcels (Patterson Lot 16, Patterson Lot 17, and Walker Lot 2) to a third-party buyer at an aggregate sale price of $3,053,875. On October 15, 2015, the debtor filed a First Amended Plan (Dkt. No. 395) setting out alternative treatments of Sum-mitBridge’s claims: Alternative 1 called for an initial buyout of claims pursuant to the proposed sale, which SummitBridge found acceptable, though the sale ultimately did not close and is now the subject of an adversary proceeding filed by the debtor. SummitBridge objected to Alternative 2 (generally, development of the P-1 and P-2 lots), contending that for myriad reasons, the plan was not feasible, fair, or equitable. The debtor filed a First Amendment to Plan on December 4, 2015. (Dkt. No. 423) A subsequent document captioned “First Amended Chapter 11 Plan” was filed on December 10,1015, but that plan was withdrawn due to “lack of creditor response.” (Dkt. Nos. 428, 441)

SummitBridge filed a motion for relief from stay on February 1, 2016. (Dkt. No. 447) In a response filed on February 19, 2016, the debtor argued that although there was no equity in the collateral “as is,” prior to recombination and development of the real property, SummitBridge still was not entitled to stay relief absent the court’s determination that the property was not necessary for the debtor’s effective reorganization. (Dkt. No. 453) On this point, the debtor argued that “the Summit-Bridge Collateral is clearly property which the debtor intends to develop and sell as part of his plan of reorganization, without which the Debtor will be unable to pay the SummitBridge Allowed Secured Claims and the Allowed Unsecured Claims in full, with interest.”

Also on February 19, 2016, the debtor filed his Second Amended Chapter 11 Plan (“Second Plan”) and Disclosure Statement. In the Second Plan, the debtor proposed to recombine and subdivide the entirety of SummitBridge’s collateral into 32 residential lots of at least 10 acres each. The debtor represented that SummitBridge’s collateral, though presently appraised at $1,715,000, would upon the filing of the subdivision plat have a gross retail value of [732]*732approximately $3,108,000, based on projections that lots could be sold at a, rate of approximately 7 lots per year for four years, then 4 lots in the fifth year, at average sale prices ranging from $92,000/ lot in the first year to $105,000/lot in the fifth year. The debtor proposed a release fee of $80,000Aot, upon receipt of which SummitBridge would release its lien with respect to that lot. On March 3, 2016, the debtor filed a preliminary plat showing the reconfigured collateral. Objecting ballots were filed by secured creditors Wells Fargo Bank, N.A. (Wells Fargo), regarding its Class 5 Unsecured Claim, and also by SummitBridge.

SummitBridge’s objections to the Second Plan, which are reasserted with respect to the Third Plan, include the following:

The Disclosure Statement is devoid of relevant information concerning the proposed development of the SummitBridge real property collateral. For example, the Disclosure Statement anticipates that the development costs of the proposed development will be approximately $281,000 or $8,781 per lot. However, [it] provides no breakdown of that expected expense amount or explanation as to how that number is derived. The Disclosure Statement states that the Debtor will be able to sell at least 7 ten-acre lots per year, but ...

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Cite This Page — Counsel Stack

Bluebook (online)
556 B.R. 728, 2016 Bankr. LEXIS 3227, 2016 WL 4597298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-faison-nceb-2016.