In re Free Lance-Star Publishing Co.

512 B.R. 798, 2014 Bankr. LEXIS 1611
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedApril 14, 2014
DocketCase No. 14-30315-KRH (Jointly Administered)
StatusPublished
Cited by8 cases

This text of 512 B.R. 798 (In re Free Lance-Star Publishing Co.) 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 Free Lance-Star Publishing Co., 512 B.R. 798, 2014 Bankr. LEXIS 1611 (Va. 2014).

Opinion

Chapter 11

MEMORANDUM OPINION

Kevin R. Huennekens, UNITED STATES BANKRUPTCY JUDGE

On January 23, 2014 (the “Petition Date”), The Free Lance-Star Publishing Company of Fredericksburg, VA (“The Free Lance-Star”) and William Douglas Properties, LLC (“William Douglas” and, together with The Free Lance-Star, the “Debtors”) filed voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code. 11 U.S.C. § 101 et. seq. (the “Bankruptcy Code”). The Debtors’ bankruptcy cases are being jointly administered pursuant to the Court’s Order of January 30, 2014. The Debtors are continuing to operate their business as Debtors-in-Possession (“DIP”) under §§ 1107 and 1108 of the Bankruptcy Code.

The Debtors filed on the Petition Date a Motion to Sell Business Assets and a Mo[800]*800tion to Sell Tower Assets1 (collectively, the “Sale Motions”) seeking approval of bidding procedures for an auction of substantially all of the Debtors’ assets. On March 10, 2014, the Court entered orders approving the bidding procedures set out in each of the Sale Motions, including the right of DSP Acquisition, LLC (“DSP”) to credit bid its claim against the Debtors’ assets on which it had valid liens or security interests, as either (i) agreed to by the Debtors, DSP, and the Official Committee of Unsecured Creditors (the “Committee”) or (ii) as determined by the Court at a hearing to be held on March 24, 2014.

Also on March 10, 2014, DSP filed a Complaint (the “Complaint”) initiating Adversary Proceeding No. 14-03038 (the “Adversary Proceeding”). The Complaint seeks a declaration that DSP has valid and perfected liens on substantially all of the Debtors’ assets including the Tower Assets. DSP has also filed a motion seeking summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, as incorporated by Rule 7056 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) on all counts set forth in its Complaint (the “Plaintiffs Motion for Summary Judgment”). DSP filed the Declaration of Allyson Brunetti in support of the Complaint and Plaintiffs Motion for Summary Judgment,2 The Debtors, who are the named defendants in the Complaint, filed their own motion for summary judgment against DSP (the “Defendants’ Motion for Summary Judgment” and together with Plaintiffs Motion for Summary Judgment, the “Cross Motions for Summary Judgment”).

On March 24, 25, and 31, 2014, the Court conducted an evidentiary hearing (the “Hearing”) (i) to determine DSP’s right to credit bid its claim against the Debtors’ assets in connection with the Sale Motions and (ii) to determine the validity, extent and priority of the liens asserted by DSP in connection with the Cross Motions for Summary Judgment. At the conclusion of the Hearing, the Court ruled that DSP did not have valid, properly perfected liens on the Tower Parcels or the improvements thereon, the other Tower Assets, the FCC licenses, the rolling stock, insurance policies, and/or bank accounts. The Court also ruled that 11 U.S.C. § 552 prevented DSP from asserting a lien on any proceeds that may be derived from the disposition of any of the forgoing assets on which it did not have a valid lien as of the Petition Date. Accordingly, the Court denied Plaintiffs Motion for Summary Judgment and granted partial summary judgment in [801]*801favor of the Debtors on Defendants’ Motion for Summary Judgment.3 The Court ruled that DSP could not credit bid a claim against assets on which it lacked a valid lien or security interest. The Court found that DSP had engaged in inequitable conduct that, under the circumstances, required the Court to limit DSP’s credit bid right in order to foster a robust auction. This Memorandum Opinion sets forth the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.4

[802]*802In 2006, the Debtors developed a plan to expand their commercial printing business. To undertake this expansion, the Debtors borrowed funds from Branch Banking and Trust (“BB & T”) in the approximate amount of $50.8 million (the “Loan”). To secure this Loan the Debtors granted liens on, and security interests in, certain of the Debtors’ real and personal property. The Debtors did not agree to grant any liens on or security interests in the Tower Assets, nor did BB & T record deeds of trust covering the Tower Parcels. BB & T did not obtain or record any assignment of leases or rents concerning the Tower Parcels. The Credit Agreement makes no reference to granting liens on the Tower Assets, nor does the Security Agreement specifically reference the Tower Assets. It appears that during the time that BB & T held the Loan, BB & T did not record any financing statements perfecting a security interest in any of the Tower Assets.

With the Loan, the Debtors built a state-of-the-art printing facility that began operation in 2009. Construction of the facility coincided with the severe recession that began in December 2007 and ended in June 2009. In early 2009 the Company fell out of compliance with certain of the Loan covenants contained in its Loan agreement with BB & T. In December of 2011, the Company signed a forbearance agreement with BB & T. The Company continued to make timely payments to BB & T even as its revenue declined. Prevailing economic conditions prevented the Company from restructuring its business and becoming compliant with its Loan covenants. The Company was unsuccessful in its attempts to obtain replacement refinancing. Finally, in late June of 2013, BB & T sold its Loan to Sandton Capital Partners (“Sandton”).5

On July 3, 2013, Sandton informed the Debtors that it wanted the Company to file a Chapter 11 bankruptcy case and sell substantially all of the Debtors’ assets pursuant to 11 U.S.C. § 363. Sandton indicated that it intended to be the entity that purchased the Debtors’ assets at the bankruptcy sale. Sandton advised that it would continue to operate the business and that it intended to keep the Debtors’ management in place. Thereafter, the Debtors agreed to work on implementing a plan that would involve the Debtors filing a Chapter 11 bankruptcy case and selling all of their assets to DSP pursuant to 11 U.S.C. § 363, so long as it was done in the best interests of the estate, and was within the fiduciary duties of the Debtors’ officers and directors. ,

On or about July 25, 2013, the Debtors received, on behalf of DSP, a request that the Debtors execute three deeds of trust to encumber the Tower Parcels.6 On or [803]

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Cite This Page — Counsel Stack

Bluebook (online)
512 B.R. 798, 2014 Bankr. LEXIS 1611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-free-lance-star-publishing-co-vaeb-2014.