In re Ferguson

474 B.R. 466, 2012 WL 2989977, 2012 Bankr. LEXIS 3061
CourtUnited States Bankruptcy Court, D. South Carolina
DecidedJuly 6, 2012
DocketNo. 11-02958-jw
StatusPublished
Cited by1 cases

This text of 474 B.R. 466 (In re Ferguson) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ferguson, 474 B.R. 466, 2012 WL 2989977, 2012 Bankr. LEXIS 3061 (S.C. 2012).

Opinion

ORDER DENYING APPROVAL OF DISCLOSURE STATEMENT

JOHN E. WAITES, Chief Judge.

This matter comes before the Court upon the request of Charles R. Ferguson d/b/a The Meridian Company a/k/a Charles R. Ferguson, Jr. (the “Debtor”) for approval of the Amended Disclosure Statement for Second Amended Chapter 11 Plan Dated April 27, 2012 as Revised on June 27, 2012 (the “Modified Disclosure Statement”) pursuant to 11 U.S.C. § 1125.1 The Modified Disclosure Statement is the fifth version of a disclosure statement proposed by the Debtor in this case.2 Priorto the filing of the Modified Disclosure Statement, the United States Trustee; Bank of the Ozarks, as successor in interest to Woodlands Bank (“Ozarks”); and Har-bourside Mortgage, a division of The Savannah Bank, N.A. (“Harbourside”), filed objections to the Second Amended Disclosure Statement (as defined below). The Court conducted a hearing on the Disclosure Statement on June 25, 2012 (the “Hearing”). No evidence was presented at the Hearing.

This Court has jurisdiction over this matter as a core proceeding pursuant to 28 U.S.C. §§ 1334 and 157. Pursuant to Fed. R.Civ.P. 52, which is made applicable to this matter by Fed. R. Bankr.P. 7052 and 9014(c), and based upon the filings of the parties in this matter, the Debtor’s filed schedules and statement of financial af[468]*468fairs, the arguments and statements of counsel at the hearing, and the Debtor’s most recently filed plan and disclosure statement, the Court makes the following findings of fact and conclusions of law:3

FINDINGS OF FACT

1. The Debtor filed his voluntary petition for relief under Chapter 11 of the Bankruptcy Code on May 2, 2011 (the “Petition Date”).

2. On May 27, 2011, Harbourside filed a motion for modification of the automatic stay pursuant to § 362(d)(1) and (2) (the “Harbourside Motion”). The Debtor’s primary residence located at 100 Pap-Kee Lane, Seabrook, South Carolina (“Residence”) was the subject of the Harbour-side Motion. . As set forth in the certification of facts in the Harbourside Motion, based on an appraisal performed in February 2010, the Residence was valued at $650,000. The Savannah Bank also filed a secured claim against the Debtor on behalf of Harbourside, amended as of June 25, 2012, in the amount of $645,014.63. The Debtor and Harbourside subsequently entered into a settlement order resolving the Harbourside Motion, which was entered by the Court on July 11, 2011 (the “Settlement Order”). Pursuant to the terms of the Settlement Order, the Debtor agreed to, among other things, continue making post-petition payments to Harbourside pursuant to the terms of the prepetition loan documents, maintain adequate insurance coverage on the Residence, and file a confirmable plan of reorganization by October 31, 2011 that provided for the cure of Harbourside’s arrearage claim in full.

8. On June 1, 2011, Michael C. McChesney filed a motion for relief from the automatic stay pursuant to § 362(d) (the “McChesney Motion”). The property that was the subject of the McChesney Motion was .6 acres of property located in the Williman Island in Beaufort County, South Carolina (“Williman Property”).4 As set forth in the certification of facts attached to the McChesney Motion, the value of the Williman Property was $71,000. No objections to the McChesney Motion were filed, and, on June 24, 2011, the Court entered an order granting Mr. McChesney relief from the automatic stay with respect to the Williman Property. Mr. McChesney did not file a proof of claim in this case.

4. On August 9, 2011, Debtor’s original attorney, Felix B. Clayton, withdrew as counsel for the Debtor. The Debtor subsequently filed an application to employ the Law Office of Michael W. Mogil, PA. as substitute bankruptcy counsel, which was approved on September 13, 2011.

5. On January 13, 2012, Ozarks filed a motion seeking (i) relief from the automatic stay pursuant to § 362(d)(1) and (2) regarding certain property located at 2735 Depot Road, Beaufort, South Carolina 29902 (the “Depot Road Property”), and (ii) a waiver of the 14-day stay of the order provided in Federal Rule of Bankruptcy Procedure 4001(a)(3) (the “Ozarks Motion”).

6. On February 14, 2012, after filing two previous disclosure statements, the Debtor filed a modified version of the amended disclosure statement originally [469]*469filed on January 31, 2012 (as modified, the “First Amended Disclosure Statement”).

7. On February 22, 2012, after filing two previous plans of reorganization, the Debtor filed a modified version of the amended plan of reorganization originally filed on February 1, 2012 (as modified, the “First Amended Plan”).

8. On February 23, 2012, the Court entered its order approving the adequacy of the First Amended Disclosure Statement.

9. On March 23, 2012, the United States Trustee filed a motion seeking to dismiss or convert this case, asserting the existence of cause under § 1112(b)(4)(A) based on the Debtor’s failure to propose a plan that was feasible and filed in good faith. The United States Trustee’s motion was continued to the Hearing and was subsequently continued to the earlier of the Supplemental Hearing (as defined below) scheduled for July 10, 2012 or a confirmation hearing, if one was scheduled.

10. The Court held a confirmation hearing on the First Amended Plan on April 17, 2012. At the time of the hearing, six objections to the First Amended Plan were filed with the Court, and no class voted to accept the First Amended Plan. Seven classes voted to reject the First Amended Plan. The Court denied confirmation of the First Amended Plan, but granted the Debtor a ten-day extension to file an amended plan of reorganization.

11. On April 27, 2012, the Debtor filed the Second Amended Plan of Reorganization Dated April 27, 2012, Amending Plan Dated February 14, 2012 (the “Second Amended Plan”) and the Disclosure Statement for Second Amended Chapter 11 Plan Dated April 27, 2012 (the “Second Amended Disclosure Statement”).

12. Following a hearing on the Ozarks Motion on April 17, 2012, the Court entered an order on May 31, 2012 regarding the motion of Ozarks for relief from the stay regarding the Depot Road Property (the “362 Order”). The 362 Order conditionally denied Ozarks’ request for relief without prejudice. In addition, the 362 Order scheduled a supplemental hearing for July 10, 2012 at 1:30 p.m. (the “Supplemental Hearing”) and provided that, if the Debtor failed to obtain approval of the Second Amended Disclosure Statement, including any subsequent modifications prior to the Supplemental Hearing, such hearing would go forward and Ozarks’ request for relief from stay would again be considered.

13. On June 19, 2012, the Debtor filed the Motion for Valuation of Secured Claims and Avoidance of Liens Pursuant to 11 U.S.C.

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Bluebook (online)
474 B.R. 466, 2012 WL 2989977, 2012 Bankr. LEXIS 3061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ferguson-scb-2012.