In re Haldes

503 B.R. 441, 2013 WL 6799075, 2013 Bankr. LEXIS 5378
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedDecember 20, 2013
DocketNo. 12 B 20050
StatusPublished

This text of 503 B.R. 441 (In re Haldes) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Haldes, 503 B.R. 441, 2013 WL 6799075, 2013 Bankr. LEXIS 5378 (Ill. 2013).

Opinion

MEMORANDUM OPINION

JANET S. BAER, Bankruptcy Judge.

George Haldes (“Debtor”) objects to proof of claim number 20, in the amount of $1,964,772.82, held by Burling Dickens Sheffield Real Estate Investors, LLC (“Burling Dickens”). Burling Dickens holds a promissory note (the “Note”) in the original principal amount of $1,718,148.50 secured by a senior mortgage against Debtor’s residence located at 2540 North Burling in Chicago (the “Bur-ling Property”). Neither party disputes the oversecured status of Burling Dickens’s claim. However, the parties dispute the amount of post-petition, pre-confirmation interest due to Burling Dickens. Debtor argues that Burling Dickens is entitled to collect interest only at the Note’s pre-default rate of 6.25 percent, whereas Burling Dickens argues that it is entitled to interest at the Note’s default rate of 16.25 percent. For the reasons set forth below, the Court sustains Debtor’s objection, in part, and determines the appropriate default interest rate to be 10.25 percent (an additional 4 percent above the pre-default contract rate).

Jurisdiction

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B).

Background

On May 16, 2012, Debtor filed a volun[443]*443tary chapter 11 case.1 Debtor is a real estate developer and property manager who owns and operates several commercial and residential buildings in Illinois. At the time the petition was filed, Debtor was indebted to Burling Dickens’s predecessor in interest, Bridgeview Bank Group (“Bridgeview”), under the terms of the Note dated April 23, 2010. The Note was secured by mortgage liens on the Burling Property and another property located at 1841 North Sheffield in Chicago (the “Sheffield Property”). The Note provides for an interest rate of 6.25 percent and a maturity date of April 28, 2012. It also provides for a late charge of 5 percent for any delinquent amount, as well as the recovery of attorneys’ fees and other costs in connection with any enforcement action. Finally, the Note provides the following with respect to “default interest”:

INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by adding a 10.000 percentage point margin (“Default Rate Margin”). The Default Rate Margin shall also apply to each succeeding interest rate change that would have applied had there been no default. After maturity, or after this Note would have matured had there been no default, the Default Rate Margin will continue to apply to the final interest rate described in this Note. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law.

Under the Note, Debtor and his wife were required to make monthly installment payments until the maturity date. They defaulted on their obligations when they failed to make the full monthly payment due February 23, 2012. The Note matured on April 23, 2012, at which point the entire outstanding balance became due and payable. Debtor was unable to renew, repay, or refinance his secured mortgage debt. This, along with the imminent foreclosure on one of his commercial properties and the declining real estate market, precipitated his filing for bankruptcy relief.

On August 3, 2012, Bridgeview filed a motion seeking, among other things, relief from the automatic stay (the “Bridgeview Motion”). The central issue was whether Bridgeview was adequately protected by an equity cushion in the Burling Property and the Sheffield Property. After conducting an evidentiary hearing, the Court denied the Bridgeview Motion without prejudice. On February 12, 2013, Bridge-view filed a renewed motion for relief from the automatic stay. The Court scheduled a hearing on the motion, which was continued several times and eventually rendered moot by the confirmation of Debtor’s Sixth Amended Plan of Reorganization (the “Plan”).

On April 30, 2013, the Debtor sold the Sheffield Property pursuant to an order approving the sale entered by this Court. On May 6, 2013, Bridgeview assigned its claim to Burling Dickens. Burling Dickens received $401,528.06 from the sale of the Sheffield Property pursuant to its secured claim.

On May 24, 2013, Debtor filed the instant objection to Burling Dickens’s proof of claim (the “Objection”). The Objection was pending when the Court held a hear[444]*444ing on confirmation of the Plan. On September 16, 2013, the Court confirmed the Plan without resolution of the Objection. The Plan provides for payment in full of all allowed unsecured claims. The Plan also requires Debtor to make ongoing monthly payments of principal and interest to Bur-ling Dickens at the rate of 5 percent amortized over thirty years. In addition, it requires Debtor to list the Burling Property for sale for no more than $3,250,000 and to continue to market the Burling Property actively. In the event Debtor fails to make a payment, or fails to sell the Bur-ling Property by September 30, 2014, Debtor is to auction the Burling Property pursuant to bid procedures attached to the Plan. ECF Nos. 345, 372. The confirmation order contained the following statement regarding the effective date of the Plan and Debtor’s payment obligations to Burling Dickens: “The effective date of the Plan with respect to [Burling Dickens] shall be September 16, 2013. The amount of Debtor’s payment obligations to [Bur-ling Dickens] shall be amended by the Court’s order on the Debtor’s objection to [Burling Dickens]’s Claim ..., which is set for hearing on September 25, 2013 at 10:30 a.m.” Order Confirming Plan, ECF No. 398.

The Court held a hearing on the Objection on September 25, 2013. Burling Dickens introduced evidence, through the testimony of Keith Bierman (“Bierman”), regarding the “reasonableness of the default interest charges that are provided for in the note.” Hr’g Tr. 24:10-11, Sept. 25, 2013. Bierman testified to his general knowledge that other banks in 2010 were charging between 4 percent and 15 percent in default interest on commercial real estate loans in Illinois. He offered testimony that the default rate of interest is intended, in part, to cover unforeseeable costs and risks associated with having a borrower in default, such as costs of actively monitoring the collateral, monitoring and participating in litigation, and complying with additional regulatory burdens imposed with regard to non-performing loans, as well as the additional risk of losses associated with a non-performing loan. Hr’g Tr. 31:10-33:7; Bierman Aff. ¶ 4. Bierman also testified generally about the process of establishing default rates of interest, as follows:

Q In your experience, what is the standard default rate for a loan such as this in Illinois?
A I think I touched on this a little bit before. I’ve provided a range of, you know, 4 to 15 percent. And, again, in my experience, when a borrower goes to a lender and asks for a loan, there’s usually a standard default interest rate that is proposed. And then there’s a negotiation process.

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Cite This Page — Counsel Stack

Bluebook (online)
503 B.R. 441, 2013 WL 6799075, 2013 Bankr. LEXIS 5378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-haldes-ilnb-2013.