In re Helligrath

569 B.R. 709, 2017 Bankr. LEXIS 2075
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedJune 12, 2017
DocketCase No. 17-10081
StatusPublished
Cited by2 cases

This text of 569 B.R. 709 (In re Helligrath) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Helligrath, 569 B.R. 709, 2017 Bankr. LEXIS 2075 (Ohio 2017).

Opinion

MEMORANDUM DECISION REGARDING LEGAL ISSUES RELATED TO CONFIRMATION

Beth A. Buchanan, United States Bankruptcy Judge

In their joint Identification of Legal Issues to be Briefed in Conjunction with Receiver’s Objections to Confirmation [Docket Number 97], the parties identified certain threshold legal issues, related to New Growth Advisors Inc.’s Objection to Confirmation [Docket Number 86], which have been thoroughly briefed and argued before this Court. See Docket Numbers 104, 106, 109, 110, and 111. The legal issues identified by the parties are as follows:

1. Whether (a) all of the Receiver’s Claim (No. 16), both for pre-petition and post-petition services, is secured by a perfected judicial lien by virtue of the state court’s Order Appointing Receiver or by other applicable law, and if so, (b) such judicial lien attaches to the Property (as defined in the Order Appointing Receiver);
2. Whether the priority of the “fees, costs and expenses incurred by the Receiver, including professional fees incurred by the Receiver[,]” set forjdi in Para. 22 of the Order Appointing Receiver is entitled to preclusive effect by the Court, or can the Court modify such treatment without the consent of the Receiver; and
3. Whether 11 U.S.C. sec. 1326(b)(1) requires the payment of the entire unpaid amount of the allowed administrative expense claim of the Receiver before or at the time of the first payment to creditors under the Plan, or may the Court approve a Plan which provides for the disbursement of payments, whether by the Trustee, Debtor, or otherwise under the Plan, to other creditors before the [712]*712allowed administrative expense claim of the Receiver is paid in full,

[Docket Number 97],

After careful review of the parties’ arguments, this Court concludes that; (i) the Receiver’s claim is not perfected by a judicial lien; (ii) the Bankruptcy Code,1 rather than the Receivership Order’s priority scheme, provides the exclusive system for determining priority of claims in a bankruptcy case; and, (iii) Bankruptcy Code Section 1326(b)(1) permits concurrent monthly payments of any allowed administrative expense claim in favor of the Receiver together with monthly adequate protection payments to MainSource before making payments on any other claims.

I. Background

On August 16, 2016, Creditor Main-Source Bank (“MainSource”) filed a state court complaint initiating a foreclosure action against Debtor Jennifer Lynn Helli-grath (“Debtor”) and other defendants on certain promissory notes in MainSource Bank v. Helligrath, et al., Hamilton County, Ohio Court of Common Pleas Case No. A1604576 (the “Foreclosure Proceeding”). MainSource requested the appointment of a receiver, specifically New Growth Advisors, Inc. (the “Receiver”) [Docket Number 97, Ex. B] and on August 31, 2016, Judge Dinkelacker entered an Order Appointing Receiver (“Receivership Order”) in the Foreclosure Proceeding [Id., Ex. A], Pursuant to the Receivership Order, the Receiver took possession and began operating the nine (9) parcels of real property securing the promissory notes that are more fully described in the Receivership Order (the “Property”) [Id,, Ex. A pp.1-2]. The Receiver asserts that it entered a contract to sell the Property in December of 2016 and that its sale motion was set to be heard in the Foreclosure Proceeding on January 12, 2017.

On January 11, 2017, the Debtor filed her Chapter 13 bankruptcy petition. Main-Source initially opposed the Debtor’s use of its cash collateral [Docket Number 55] as well as the turnover of the Property to the Debtor [Docket Number 13], Both matters were subsequently resolved by the agreement of the parties. MainSource was granted adequate protection for the Debt- or’s use of its cash collateral as set forth in the Agreed Order on Motion of Debtor for Orders Authorizing Use of Cash Collateral [Docket Number 77] (the “Cash Collateral Order”), the terms of which were incorporated into the Debtor’s proposed plan [Docket Number 122] (the “Plan”). Main-Source and the Receiver also agreed to turn over possession of the Property to the Debtor, in accordance with the Order on Motion of Creditor MainSource Bank for an Order Excusing the Turnover Requirement of Section 5⅛8 entered by this Court on March 2, 2017 [Docket Number 76].

The Receiver subsequently filed a proof of claim for $70,512.43, purportedly secured by a judicial lien on the Property and/or entitled to priority as an administrative expense pursuant to Bankruptcy Code Section 507(a)(2) [Proof of Claim Number 16-1], The Receiver also filed its administrative expense request [Docket Number 84] and an objection to confirmation of the Debtor’s Chapter 13 plan [Docket Number 86].

Relevant to the threshold issues and particularly the status of the Receiver as the holder of a judicial lien or administrative expense claim, is the Receivership Order’s provisions explaining how the Receiver is to be paid for its fees and expenses. First, in Paragraph 12, Judge Dinkelacker [713]*713provides that the Receiver may borrow money from MainSource in the amounts necessary to carry out the Receiver’s duties [Id., ¶12], Any amounts so advanced by MainSource to the Receiver “shall be secured by a first and best lien on the Property” [Id.]. However, the Receiver focuses on another paragraph of the Receivership Order that provides for how the Receiver would be paid out of the sale of the receivership property. Specifically, Paragraph 22 provides:

22. Receipts received from operation or sale of the Property by the Receiver shall be applied in the following order of priority after payment of expenses associated with the Property:
(a) to payment and reimbursement of the Receiver for all fees, costs and expenses incurred by the Receiver, including professional fees incurred by the Receiver;
(b) to payment of authorized insurance premiums;
(c) to payment of the Receiver’s delegates of any management fees for managing real estate of the type involved;
(d) to payment of the Obligations to Plaintiff; and
(e) the balance, if any, shall be held or disbursed as ordered by the Court.

[Id., ¶ 22],

II. Legal Analysis

A. The Receiver’s Claim Is Not Secured By A Judicial Lien

The Receiver asserts that its claim is secured by a judicial lien because the Receivership Order is a final appealable order in the nature of a judgment that grants a “charge” against the Property in favor of the Receiver that fits under the broad definition of a “lien” found in the Bankruptcy Code. The Receiver further relies on a relatively new receivership statute enacted in Ohio and Ohio case law to support that a receiver’s fees and expenses are generally paid out of the assets of the receivership. While this Court agrees that a receiver is generally paid out of the receivership corpus, neither the Receivership Order, nor the Ohio receivership statute and case law cited by the Receiver, provides it with a judicial lien on the Property of the receivership.

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Cite This Page — Counsel Stack

Bluebook (online)
569 B.R. 709, 2017 Bankr. LEXIS 2075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-helligrath-ohsb-2017.