In re Faison

574 B.R. 63, 77 Collier Bankr. Cas. 2d 1977, 2017 Bankr. LEXIS 1936
CourtUnited States Bankruptcy Court, E.D. North Carolina
DecidedJuly 13, 2017
DocketCASE NO. 14-00073-5-SWH
StatusPublished

This text of 574 B.R. 63 (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, 574 B.R. 63, 77 Collier Bankr. Cas. 2d 1977, 2017 Bankr. LEXIS 1936 (N.C. 2017).

Opinion

ORDER ALLOWING OBJECTION TO CLAIM

Stephani W. Humrickhouse, United States Bankruptcy Judge

The matter before the court is the objection to claim filed by debtor O. William Faison with respect to SummitBridge National Investments III, LLC’s proof of claim in the amount of $302,596.19. A hearing took place in Raleigh, North Carolina on March 1, 2017, at the conclusion of which the court took the matter under advisement. For the reasons that follow, the court will allow the objection.

BACKGROUND AND PROCEDURAL POSTURE

The debtor, O. William Faison (“Fai-son”), 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 certain assets, including sizeable real property holdings in Orange, Wake, and Vance counties. SummitBridge held prepetition claims against the debtor in the total amount of $1,627,239.82, secured by real property in Orange County. On November 10, 2016, SummitBridge filed a proof of claim (“Claim 16”) in the amount of $302,596,19, seeking allowance of a non-priority unsecured claim for attorneys’ fees [65]*65equal to 15% of the outstanding indebtedness. Specifically:

Pursuant to the terms of its promissory notes and N.C.G.S. § 6-21.2, Summit-Bridge is entitled to payment by the Debtor of attorneys^ fees] equal to fifteen percent (15%) of the outstanding balance of its debt(s). Fifteen percent (15%) of the outstanding indebtedness amount of $2,017,307.93 is $302,596.19. SummitBridge asserts a general unsecured claim against the Debtor/bankruptcy estate in such amount.
To the extent that the Court determines that SummitBridge is not entitled to attorneys’ fees in the amount of fifteen percent (15%) of its outstanding indebtedness, and that, instead, SummitBridge is only entitled to a general unsecured claim for its actual attorneys’ fees and costs, SummitBridge asserts a general unsecured claim in the total amount of $101,020.16 [for attorneys’ fees, costs and expert witness fees incurred subsequent to the filing of the bankruptcy case].

Addendum to Proof of Claim of Summit-Bridge, Claim 16-1 Part 2.

The debtor’s Fifth Amended Chapter 11 plan (“the Plan”) was confirmed on November 15, 2016, and became effective on December 1, 2016. SummitBridge does not dispute the debtor’s accounting of the procedural posture of the matter, which is as follows:

5.The Plan provided that Class 4 shall consist of the claims held by [Summit-Bridge] as set forth in (I) Claim No. 6, secured by Patterson Lots 16 & 17 and Walker Lots 1 & 2, (ii) Claim No. 5, secured by a first lien on Bellechene Lots 9 & 15, and the barn and acreage referred to as the “Barn -Tract,” and (iii) Claim No. 7, secured by a second lien on Bellechene Lots 9 & 15, and ... the “Barn Tract.” ... As of the Petition Date, the loans which form the bases for the filed claims were not in default.
6. The Plan treated the Class 4 claims as an Allowed Secured Claim in the aggregate amount of $1,715,000 inclusive of principal, prepetition interest, postpe-tition interest, appraisal fees, late fees, and attorneys’ fees incurred, as determined under Section 506 of the Bankruptcy Code. The Plan provided that the Debtor shall convey the SummitBridge Collateral to the holder of the Class 4 Claim or its designee, subject only to (i) ad valorem taxes for the calendar year 2016 and for the calendar year 2017, if applicable, and (ii) the existing deed of trust securing such indebtedness, in full satisfaction of such claim pursuant to Section 1129(b)(2)(A)(iii); provided however, such treatment shall not impair the right of the holder of the Class 4 Claim from filing or requesting allowance of an unsecured claim for attorneys’ fees and expenses in addition to the Class 4 Allowed Secured Claim, nor the right of the. Debtor or any party in interest to object to or oppose allowance of such an unsecured claim.
7. On December 1, 2016, Summit-Bridge provided written notice to the Debtor, pursuant to N.C.G.S. § 6-21.2, that SummitBridge intended to enforce the provisions in the loan documents which provide for recovery of its attorneys’ fees and costs, and that the Debtor may avoid any obligation to pay such fees and costs by paying the entire outstanding balance due within 5 days of the date of the letter....
8. On December 1, 2016, the Debtor tendered to SummitBridge a deed, duly executed and acknowledged, sufficient to convey the SummitBridge Collateral to the designee of SummitBridge in satisfaction of the Class 4 Allowed Secured Claim....

[66]*66Debtor’s Objection to Claim No. 16 Filed by SummitBridge (D.E. # 544) (“Debtor’s Objection”) at 2-3. At the time the petition was filed, the debtor was not in default.

The debtor contends that to the extent SummitBridge may be entitled under North Carolina law to recover its post-petition attorneys’ fees and legal expenses, the mandatory written notice component of that recovery was satisfied by the debtor’s delivery to SummitBridge of the duly executed and acknowledged deed to the Sum-mitBridge collateral. Because delivery of the deed “constituted payment-in-kind in the full amount of the indebtedness,” the debtor argues, SummitBridge cannot recover attorneys’ fees or costs under state law. Alternatively, the debtor maintains that if tender of the deed did not constitute payment of the outstanding indebtedness “so as to bar recovery of any attorneys’ fees or costs,” then SummitBridge still is not entitled to recover those fees under applicable federal law: “Summit-Bridge has already received what was permitted under Section 506(b) pursuant to the Plan, and the Bankruptcy Code does not provide for allowance of an unsecured claim for post-petition attorneys’ fees or costs.” Debtor’s Objection at 4.

Responding, SummitBridge points out that it “initially brought the attorneys’ fee issue to the fore in an Amended Motion to Lift Stay filed on April 22, 2016.” Reply by SummitBridge National Investments III, LLC To Objection (D.E. # 549) (“Summit-Bridge Reply”) at 2. In the April 2016 motion to lift stay, which was heard in connection with the debtor’s initial plan confirmation hearing, SummitBridge asked the court to lift or modify the stay to allow SummitBridge to serve the attorneys’ fee notice required by N.C.G.S. § 6-21.2(5). By order entered on September 2, 2016, the court denied both confirmation and the motion to lift stay, without prejudice. (D.E. #501) SummitBridge filed an additional motion for relief from stay on October 3, 2016. That motion was denied as moot in connection with the eventual confirmation of the debtor’s Plan, which lifted the stay as a matter of law on the plan’s effective date of December 1, 2016. This, Summit-Bridge argues, is relevant to the instant matter for the following reasons:

[T]he Debtor takes the position that the deliver of the deed to SummitBridge constitutes “payment-in-kind” of the full amount of the SummitBridge indebtedness (within the statutory 5 day time period), and that SummitBridge is therefore not entitled to recover any attorneys’ fees under applicable North Carolina law. Had the Court lifted the automatic stay back when Summit-Bridge originally requested such relief (in the spring of 2016), and at a time when the surrender of SummitBridge’s collateral was not contemplated, then the debtor would not have been able to (arguably) “pay” SummitBridge’s debt via the delivery of a deed.

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Cite This Page — Counsel Stack

Bluebook (online)
574 B.R. 63, 77 Collier Bankr. Cas. 2d 1977, 2017 Bankr. LEXIS 1936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-faison-nceb-2017.