In re Friedberg

502 B.R. 8, 2013 WL 6133360, 2013 Bankr. LEXIS 4936
CourtUnited States Bankruptcy Court, D. Connecticut
DecidedNovember 21, 2013
DocketNo. 08-51245 AHWS
StatusPublished
Cited by1 cases

This text of 502 B.R. 8 (In re Friedberg) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Friedberg, 502 B.R. 8, 2013 WL 6133360, 2013 Bankr. LEXIS 4936 (Conn. 2013).

Opinion

Memorandum of Decision and Order on Trustee’s Rule 9019 Motion

ALAN H. SHIFF, Bankruptcy Judge.

Introduction

The chapter 7 trustee1 has filed a motion under Bankruptcy Rule 9019, Fed. R. Bankr.P., for approval of a settlement of all claims against the debtor’s bankruptcy estate. The debtor, and Giannina Pradella and Milan Olich (“P & 0”), who are not creditors of the estate but claim to be creditors of Monteverde, LLC, one of the debtor’s wholly owned or controlled non-debtor entities, object. For the reasons that follow, the trustee’s motion is granted.

Background

The court provided a detailed background of this case in a prior decision. See In re Friedberg, Case No. 08-51245, 2012 WL 966940, slip op. (Bankr.D.Conn. Mar. 21, 2012) (hereafter, “P & O Claim Denial ”).2 Familiarity with that decision is assumed; however, certain of the findings will be restated as context to the conclusion reached in this controversy.

On December 12, 2008, the debtor filed for bankruptcy relief under chapter 11. According to his schedules, he claimed controlling interests in various entities, including Monteverde, LLC (“Monteverde”) and North South Development, LLC (“North South”). See P & O Claim Denial, 2012 WL 966940, at *1. Monteverde was established to hold real property in Cortlandt Manor, New York (“NY Property”). The debtor was the 100% member of Monteverde. (See Trial Tr. 27:17-20 (Nov. 9, 2011); ECF No. 1019.) North South was a limited liability company through which the debtor held real property in South Carolina (“SC Property”). (See id.) Neither Monteverde nor North South have sought bankruptcy protection. See P & O Claim Denial, 2012 WL 966940, at *1.

On July 28, 2009, P & O filed a proof of claim based on a 2005 real estate transaction in which they sold the N.Y. Property to Monteverde. See id. As part of the consideration for the sale, P & O received a $5 million note from Monteverde and North South (“Note”), which was secured solely by a mortgage on the SC Property (“Mortgage”). See id. That restriction on recourse was specifically stated in the Mortgage and incorporated into the Note. The relevant language in the Mortgage stated:

AND IT IS FURTHER AGREED THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS MORTGAGE OR IN THE NOTE, Mortgagee [P & O] shall satisfy any judgment obtained by [11]*11it against Monteverde LLC or Mortgagor [ie., North South] for any amounts due under and in accordance with the terms and conditions of the Note by the exercise of the rights of Mortgagee under this Mortgage to foreclose on the Mortgage Premises as herein provided and not otherwise. No other property or assets of Mortgagor or Monteverde LLC or any member, partner, officer, director or shareholder of Mortgagor or Monteverde LLC shall be subject to levy, execution or other enforcement procedures for the satisfaction of any payments required under the Note. Mortgagee shall not bring any action to obtain a judgment against Mortgagor or Monteverde LLC or any member, partner, officer, director or shareholder of mortgagor or Monteverde LLC or any member, officer, director or shareholder of any of them for any amounts becoming due and owing under the Note except as part of a judicial proceeding to foreclose under and in accordance with this mortgage.

(ECF No. 854-2 at 29-30 (bold in original; italicized emphasis added).) The corresponding Note stated “that all of the covenants, conditions, and agreements contained in said mortgage are hereby made part of this instrument.” (ECF No. 854-2 at 22.)

On or about January 30, 2009, after Monteverde and North South defaulted on the Note, P & O commenced a foreclosure action in South Carolina (“Foreclosure Action”). The text of the foreclosure complaint alleged a basis for a deficiency judgment against both Monteverde and North South, but the relief sought was limited to a “right to a judgment against [North South] for any deficiency”. (Cf., Foreclosure Complaint at ¶ 9, p. 3, with “Prayer for Relief’ at ¶4, p. 5; ECF No. 165-2.) It is noteworthy that the summons served with Foreclosure Complaint placed Mon-teverde and the other defendants on notice that if they failed to file a responsive pleading, P & O would seek a default judgment “for the relief demanded in the Complaint”. (See Summons, Foreclosure Action, ECF No. 165-2 (Exh. A) (emphasis added).)

On April 13, 2009, Monteverde and North South filed an answer (“Foreclosure Answer”), which included affirmative defenses that P & O’s recourse was limited to the SC Property and that Monteverde was not a party to the Mortgage and not subject to any deficiency action. (See Foreclosure Answer, Third Defense, and Fourth Defense, p. 4; ECF No. 1433-1 (Exh. A.).)

The South Carolina court stayed the Foreclosure Action over concerns that it might adversely affect this bankruptcy case. See P & O Denial Decision at *2. On June 26, 2009, P & O filed a motion for relief from the automatic stay. See 11 U.S.C. § 362(d). On July 30, 2009, this court entered an order (“Stay Relief Order”), which granted P & O limited relief from stay to proceed with the Foreclosure Action. See id. The Stay Relief Order concluded: “No deficiency judgment shall be enforced without the further order of this court.” (ECF No. 194 (emphasis added).) Thus, although P & O were not prohibited from seeking and obtaining a deficiency judgment, they were barred from enforcing any such deficiency judgment without the further order of this court, which they neither sought nor received.

Thereafter, a sale of the SC Property was ordered, and it was sold for approximately $3.1 million. See id. Because the sale proceeds did not satisfy the amount claimed, P & O continued the prosecution of their Foreclosure Action to obtain a [12]*12deficiency judgment against Monteverde and North South.

On July 22, 2010, a deficiency judgment hearing was conducted. (See Trustee’s Reply Brief at B; ECF No. 1458.) Although, as noted, Monteverde and North South had filed an answer, neither defended P & O’s Foreclosure Action. (See P & O’s Reply to Trustee’s Supplemental Brief at 7; ECF No. 1443; see also June 17, 2010 Order in Foreclosure Action (granting motion of counsel of North South and Monteverde to withdraw); ECF No. 1433-3 (Exh. Q.) On December 31, 2010, a deficiency judgment of $1.9 million entered in the Foreclosure Action against Monteverde and North South (“Deficiency Judgment”). See P & O Denial Decision at *2.

On December 3, 2010, as the Foreclosure Action was pending, the trustee, as holder of the entire equity interest of the debtor in Monteverde, filed a motion to sell the N.Y. Property free and clear of all interests with any interest to attach to the proceeds. See 11 U.S.C. § 363(f). (See Trustee’s “Motion for an Order (i) Authorizing and Approving Bidding Procedures ... (iii) Scheduling an Auction and Sale Hearing ... and (v) Granting Related Relief ...”; ECF No. 686.) P & O did not object.

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Related

Neier v. Friedberg (In re Friedberg)
516 B.R. 205 (D. Connecticut, 2014)

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Bluebook (online)
502 B.R. 8, 2013 WL 6133360, 2013 Bankr. LEXIS 4936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-friedberg-ctb-2013.