In re Hertz

536 B.R. 434, 74 Collier Bankr. Cas. 2d 568, 2015 Bankr. LEXIS 3040, 61 Bankr. Ct. Dec. (CRR) 143, 2015 WL 5271332
CourtUnited States Bankruptcy Court, C.D. California
DecidedSeptember 8, 2015
DocketCase No.: 2:15-bk-12813-DS
StatusPublished
Cited by5 cases

This text of 536 B.R. 434 (In re Hertz) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Hertz, 536 B.R. 434, 74 Collier Bankr. Cas. 2d 568, 2015 Bankr. LEXIS 3040, 61 Bankr. Ct. Dec. (CRR) 143, 2015 WL 5271332 (Cal. 2015).

Opinion

MEMORANDUM DECISION ON THE DEBTORS’ MOTION TO REJECT EXECUTORY CONTRACT WITH THE GRAYFOX TRUST PURSUANT TO 11 U.S.C. § 365(a)

Deborah J. Saltzman, United States Bankruptcy Judge

Debtors and debtors in possession John Edward Hertz (“Hertz”) and Diane Gam-roth Hertz (together with Hertz, the “Debtors”) move for an order (the “Motion,” Docket No. 68) approving rejection of a real estate purchase contract between the Debtors and The Grayfox Trust Dated March 1, 2004 (the “Trust”) for the property located 28754 Grayfox Street, Malibu, California 90265 (the “Property”).

I. BACKGROUND

The Debtors listed the Property for sale in January 2014 through real estate broker Chris Cortazzo (“Cortazzo”) of Coldwell Banker Residential Brokerage Co. (“Cold-well”) at an initial price of $7,850,000. Declaration of Christopher Cortazzo, attached to the Trust’s opposition to the Motion, Docket No. 79 (“Cortazzo Deck”), ¶ 6. The Debtors had previously reached out to Cortazzo for evaluation of the Property in 2008 and 2012. In December 2008, [436]*436Cortazzo wrote in response to a request from the Debtors that he believed that the market value of the Property was approximately $8,500,000. Declaration of John Hertz, attached to the Motion, Docket No. 68 (“Hertz Deck”), ¶9, Ex. 3. Cortazzo responded to another request by letter in April 2012, at which time he stated his belief that the Property could acquire a sale price between $8,000,000 and $8,500,000. Hertz Decl. ¶ 9, Ex. 4.

On June 26, 2014, The Trust made an offer to purchase the Property. Cortazzo Deck ¶ 13. After a series of counteroffers were exchanged by the parties, on July 3, 2014, the Trust accepted a counteroffer pursuant to which the sale price was $6,850,000 and the Debtors would have a one-year leaseback, with an option for a second year on mutual agreement (the “Purchase Contract”). Hertz Deck ¶ 2; Cortazzo Deck ¶ 13. The escrow holder was Terra Coastal Escrow, Inc. (“Escrow”), whose lead escrow officer for the transaction was Stephany Keith (“Keith”). Declaration of Stephany Keith in Support of Motion for Relief from Stay — Action in a Non-Bankruptcy Forum (“Keith Deck”), Docket No. 57-2, ¶ 2.

Escrow opened on July 9, 2014, when the Purchase Contract was provided to Escrow. The Debtors and the Trust each signed a copy of Supplemental Instructions & General Provisions governing the terms of escrow. Keith Deck ¶ 3, Ex. A. In August 2014, following disclosures by the Debtors, the Trust removed all contingencies under the Purchase Contract. Cor-tazzo Deck ¶ 17; Declaration of Victor Meschures in Support of Motion for Relief from Stay — Action in a Non-Bankruptcy Forum (“Meschures Deck”), Docket No. 37-5, Ex. 1, ¶ 6. Escrow issued amended escrow instructions, dated August 12, 2014, confirming the removal of contingencies, reducing the price to $6,840,000, and.setting closing for August 29, 2014 or sooner, if possible. Keith Deck ¶ 4, Ex. B. Keith prepared and sent two more escrow instructions, both dated August 27, 2014, that authorized Escrow to pay certain amounts from the Trust’s funds and other amounts from the Debtors’ proceeds, each of which was executed by the relevant parties. Keith Deck ¶ 5, Exs. B & C. In further preparation for closing, Keith had the Debtors execute a grant deed, but as Escrow did not close, it has not been recorded. Keith Deck ¶ 7, Ex. D.1

A preliminary title report on the Property reflected several encumbrances. Hertz Deck ¶ 3, 5; Keith Deck ¶ 8. Keith sought and received payoff demands and release documents for the monetary encumbrances shown on the title report by late September 2014. Keith Deck ¶¶ 8-9. On September 15, 2014, the Debtors sent a letter to Keith instructing her not to close the sale until they had “signed the demands of’ lienholding creditors Tom Block, Hardy Thomas, and Paula Zanay. Keith Deck ¶ 9, Ex. E. Craig Morse (“Morse”), acting on behalf of the Debtors, also advised Coldwell, through its employee Lily Har-fouche (“Harfouche”), that the sale could not close because of liens and a lis pendens against the Property. Declaration of Craig Morse, attached to the Motion (“Morse Deck”), ¶ 3; Declaration of Lily Harfouche in Support of Motion for Relief from Stay — Action in a Non-Bankruptcy Forum (“Harfouche RFS Deck”), Docket No. 57-4, ¶ 8; Meschures Deck ¶¶ 8-9. According to Harfouche, Morse provided [437]*437her with updates - on the status of the Debtors’ negotiations with the lienholders, and at one point indicated to her that he thought the sale would be ready to close very soon. Harfouche Decl. ¶¶.8-9. According to Morse, in response to a third request to Harfouche that the Trust not wire the balance of the sale price into Escrow, Harfouche told Morse that the Trust wired the funds into escrow despite the. Debtors’ request. Morse Decl. ¶ 3.

On September 30, 2014, the Trust deposited the balance of the purchase price into Escrow. Hertz Decl. ¶ 12; Meschures Decl. ¶ 10; Keith Decl. ¶ 10. Harfouche and Morse discussed the deposit on or about September 30, 2014. Harfouche states that she and Morse discussed an extension fee of $3,000 per day if Escrow did not close by October 1, 2014, and that Morse stated that the amount was not a sufficient incentive for the Debtors, but that Hertz was also on the call, and agreed to the $3,000 daily fee. Harfouche RFS Decl. ¶ 10. Morse and Hertz characterize the fee differently, stating that the Trust “demanded” the payments. Hertz Decl. ¶ 12; Morse Decl. ¶ 3. Escrow prepared an amended instruction, dated September 30, 2014, providing for an extension of Escrow beyond October 1, 2014, conditioned on the $3,000 daily fee, but the amendment was never executed by the Debtors. Hertz Decl. ¶ 12, Ex. 6; Har-fouche RFS Decl. ¶ 10.

On October 8, 2014, the Trust sent Debtors a “Demand to Close Escrow,” demanding that , the Debtors close and transfer title to the Property within three days. After the Debtors did not comply, on October 29, 2014, the trustees of the Trust filed a complaint in California Superior Court for specific performance of the Purchase Contract. Complaint for [1] Breach of Written Contract — Specific Performance; and [2] Breach of Written Contract — Damages, attached as Ex. 1 to the Trust’s motion for relief from stay, Docket No. 37. A hearing on the Trust’s motion to compel arbitration of the dispute pursuant to- an arbitration provision of the Purchase Contract was set for March 10, 2015. The Debtors filed their chapter 11 petition on February 25, 2015, the day their opposition to the motion to compel arbitration was due in Superior Court.

Following the Debtors’ bankruptcy petition, the Trust filed a motion for relief from stay, seeking an order (1) declaring that the Purchase Contract could not be rejected, and (2) granting relief to. the Trust to continue to prosecute the state court action (Docket No. 37). Because that motion was premature in light of the Debtors’ right to seek to reject the Purchase Contract, the motion for relief from stay was continued until the instant Motion could be filed and heard.

On May 14, 2015, the Debtors filed the Motion to reject the Purchase Contract, arguing that it is an executory contract that they may reject under 11 U.S.C. section 365(a), and that such rejection is in the interests of their estate and its creditors.

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Cite This Page — Counsel Stack

Bluebook (online)
536 B.R. 434, 74 Collier Bankr. Cas. 2d 568, 2015 Bankr. LEXIS 3040, 61 Bankr. Ct. Dec. (CRR) 143, 2015 WL 5271332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hertz-cacb-2015.