In re Hunter

597 B.R. 287
CourtUnited States Bankruptcy Court, M.D. North Carolina
DecidedFebruary 19, 2019
DocketCase No. 18-51081
StatusPublished
Cited by3 cases

This text of 597 B.R. 287 (In re Hunter) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Hunter, 597 B.R. 287 (N.C. 2019).

Opinion

Lena Mansori James, United States Bankruptcy Judge

This matter coming before the court on February 6, 2019 on the Debtor's Motion to Convert this case from Chapter 7 to Chapter 11 (the "Motion"). At the hearing, Thomas W. Waldrep, Jr. and John R. Van Swearingen appeared on behalf of the Debtor, Ellis B. Drew, III appeared on behalf of Mountain Commerce Bank ("MCB"), Kiah T. Ford IV appeared on behalf of Todd O'Gara and Wanu Water, Inc. ("Wanu"), Robert E. Price, Jr. appeared on behalf of the Bankruptcy Administrator, and C. Edwin Allman, III, the Chapter 7 trustee, also appeared. Having considered the Motion and all other matters of record, including those incorporated through judicial notice, the evidence presented at the hearing, and the arguments of counsel, the court finds and concludes as follows:

BACKGROUND

The Debtor filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code on October 17, 2018 (the "Petition Date"), and C. Edwin Allman, III was appointed to serve as Chapter 7 trustee (the "Trustee"). On the Petition Date the Debtor, who holds an MBA from Wake Forest University, was earning income as an independent contractor with a three-month contract with Musubu, a local technology company, in the amount of $ 12,500.00 per month. His original Schedule I showed household income of $ 15,500.00, and original schedule J showed expenses of $ 14,759.31, leaving net income in the amount of $ 740.69. The Schedule I indicated that the Debtor did not expect any increase or decrease in income within a year. Shortly after the Petition Date, the Debtor was offered a position as a director *290at Musubu where his duties now include marketing, sales, operations, and finance.1 According to an Amended Schedule I filed January 4, 2019 the Debtor now has gross wages of $ 12,916.00 a month and household income of $ 15,916.00. He shows no amount on line 5a for taxes, Medicare, and Social Security deductions for himself. According to an amended Schedule J filed January 4, 2019 the Debtor had expenses of $ 14,759.31 and net income $ 1,156.69; his latest amended Schedule J filed the week before the hearing shows expenses of $ 13,214.31, including $ 4,000.00 a month for taxes, leaving monthly net income of $ 2,701.69.

The Debtor's schedules and statement show that prior to obtaining employment with Musubu, the Debtor had been in severe financial distress for a number of years. His Statement of Financial Affairs ("SOFA") lists gross income of $ 9,259.00 for 2018 as of the Petition Date, and $ 14,122.0 for 2016.2 The Debtor's SOFA shows that in 2018 he took an early IRA withdrawal and a deferred compensation early payout to have a total of over $ 330,000.00 in other income. In 2017, the Debtor's SOFA shows that he liquidated over $ 300,000.00 in assets, and in 2016 the Debtor liquidated over $ 370,000.00 in assets. The Debtor and his spouse own a home with a petition value of $ 695,500.00 encumbered by a first mortgage with a balance of approximately $ 550,000.00 and a second mortgage in favor of his parents. He listed the amount of his parents' claim as $ 90,000.00, but admitted at the February 6 hearing that the claim was closer to $ 39,000.00. He has a half interest in a 2008 Lexus with 290,000 miles on it and a value of $ 4,280.00. The Lexus is encumbered by a lien in the amount of $ 19,235.00. He lists priority debts totaling $ 45,636.86 and general unsecured claims in the amount of $ 738,546.59 in an amended Schedule E/F. The Debtor lists interests in Hunter Family LLC and Kingsley Investment Group, LLC in Schedule A/B with values of $ 0.00.3

Also on his Schedule A/B, the Debtor lists a civil action pending in the United States District Court for the Middle District of North Carolina, Case No. 15-CV-1050 styled Gregory Hunter and Hunter Family Capital, LLC v. Mountain Commerce Bank and Bobby A. Brown (the "Civil Case") which the Debtor valued at $ 3,000,000.00.4 In the Civil Case, the Debtor asserts that MCB's employee made a number of false or misleading statements in connection with an SBA loan application for Kingsley Investments,5 an entity originally *291owned 50% by Bob Feathers and 50% by Hunter Family Capital. The Debtor presently owns a 35% interest in Hunter Family Capital.6 As generally described at the February 6 hearing, the SBA loan application with MCB was part of a business plan by Kingsley Investments to obtain multistore financing for a number of East Coast Wings franchises in Tennessee. The Debtor asserts that he, individually, suffered damages as a result of MCB's false or misleading statements indicating that the SBA loan was being processed when in fact, it was not. Among other contentions, the Debtor alleges that he sold his book of business from his previous employment as an Oppenheimer financial advisor under financial duress. The Civil Case is currently set for trial in April 2019, and a motion for summary judgment is pending. According to the Debtor's schedules, he has essentially no other nonexempt assets of value other than his potential damages in the Civil Case.

On December 13, 2018, the Trustee filed a Motion for Approval of Settlement of Disputed Claim against MCB and Bobby A. Brown (Docket No. 21) seeking approval of a proposed settlement of the Debtor's claims in the Civil Case for the sum of $ 150,000.00 along with subordination of MCB's claim in the bankruptcy case. This settlement would not affect the Hunter Family Capital claim against MCB. In response, the Debtor has filed the Motion seeking to convert to Chapter 11. His stated intent is twofold: (1) he wishes to incorporate his postpetition income into his bankruptcy estate7 and (2) he wishes to continue prosecution of the Civil Case because he does not agree with the Trustee's proposed settlement. Todd O'Gara and Wanu8 as well as MCB9 filed objections asking that the court deny the Motion for cause. In addition, the Trustee filed a response describing the Civil Case as an ill-conceived and fanciful lawsuit and requesting the court enter such order as it deems appropriate (Todd O'Gara, Wanu, MCB, and the Trustee are collectively referred to herein as the "Respondents").

DISCUSSION

Section 706 of the Bankruptcy Code provides in relevant part

(a) The debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if *292the case has not been converted under section 1112, 1208, or 1307 of this title. Any waiver of the right to convert a case under this subsection is unenforceable.
....
(d) Notwithstanding any other provision of this section, a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter.

Though § 707(a) gives a debtor broad authority to convert, the Supreme Court has interpreted § 707(d) to limit a debtor's right to convert a Chapter 7 case to a case under Chapter 13. Marrama v. Citizens Bank of Mass. , 549 U.S. 365

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Cite This Page — Counsel Stack

Bluebook (online)
597 B.R. 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hunter-ncmb-2019.