In re Investors Capital Partners II, LP

495 B.R. 809, 2013 WL 849029, 2013 Bankr. LEXIS 842, 57 Bankr. Ct. Dec. (CRR) 182
CourtUnited States Bankruptcy Court, W.D. Kentucky
DecidedMarch 6, 2013
DocketNos. 12-11675, 12-11676, 12-11677, 13-10004
StatusPublished

This text of 495 B.R. 809 (In re Investors Capital Partners II, LP) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Investors Capital Partners II, LP, 495 B.R. 809, 2013 WL 849029, 2013 Bankr. LEXIS 842, 57 Bankr. Ct. Dec. (CRR) 182 (Ky. 2013).

Opinion

MEMORANDUM-OPINION

JOAN A. LLOYD, Bankruptcy Judge.

This matter is before the Court on the Motions to Dismiss for Improper Venue filed by Creditor Capital Bank, N.A. (“Capital Bank”) and Creditor PBI Bank, Inc. (“PBI”) (collectively referred to as “the Banks”). The Court considered the Banks’ Motions, the Response of Debtors Investors Capital Partners II, LP, Investors Capital Partners I, LP, Investors Land Partners II, LP, and Investors Towne Center Partners I, LP (“Debtors”), the evidence submitted at the hearing held on the matters and the post-hearing briefs of the parties. For the following reasons, the Court will GRANT the Motions in part and DENY the Motions in part. An Order transferring Case No. 12-11676, Case No. 12-11677 and Case No. 13-10004 to the United States Bankruptcy Court for the Middle District of Tennessee accompanies this Memorandum-Opinion.

FACTS

On December 19, 2012, Debtors Investors Capital Partners II, LP (“Inv. Cap. II”), Case No. 12-11675, Investors Capital Partners I, LP (“Inv. Cap. I”), Case No. 12-11676 and Investors Land Partners II, LP (“Inv. Land II”), Case No. 12-11677 filed Voluntary Petitions under Chapter 11 of the United States Bankruptcy Code with this Court. On January 2, 2013, Debtor Investors Towne Center Partners I, LP (“Towne Center I”), Case No. 13-10004, filed its Voluntary Petition under Chapter 11 of the United States Bankruptcy Code with this Court.

Debtor Inv. Cap. II, is a Tennessee limited partnership with its principal assets in Barren County, Kentucky. It is undisputed by all parties that venue for that case is proper in this Court.

Debtor Inv. Cap. I and Debtor Towne Center I, are Tennessee limited partnerships with their principal assets in Tennessee. Debtor Inv. Land II is a Delaware limited partnership with its principal assets in Tennessee. None of these Debtors have ever registered to do business in Kentucky, nor do they have assets in Kentucky.

Capital Bank is a secured creditor of Inv. Cap. I.

PBI is a secured creditor of Inv. Land II.

The Banks contend that the Inv. Land II, Inv. Cap. I and Towne Center cases should be dismissed or transferred to the Middle District of Tennessee for improper venue. The Debtors in these cases contend venue is proper in this Court pursuant to 28 U.S.C. § 1408 and 1409.

An Organizational Chart of the Investor Companies was submitted showing the structure of the companies. See, Exhibit A to Debtors’ Response and Objection to Motions to Dismiss for Improper Venue. Each of the Debtor companies are limited partnerships.

The general partner of Debtor Inv. Land II is Investors Land Fund Services II, LLC, which is owned 100% by Investors Equity Partners I, LLC.

The general partner of Debtor Inv. Cap. I is Investors Capital Fund Services I, [811]*811LLC. The general partner of Debtor Inv. Cap. II is Investors Capital Fund Services II, LLC. The general partner of Debtor Towne Center is Investors Towne Center Fund Services I, LLC. Investors Equity-Partners II, LLC is the 100% owner of the three general partners, Fund Services I, Fund Services II and Towne Center Fund Services I.

At the top of the Organizational Chart is Investors Equity Holdings, LLC which owns 76% of Investors Equity Partners I, LLC and Investors Equity Partners II, LLC. James E. Himelrick is the Chairman and President of Investors Equity Holdings, LLC. He is also a 45% owner of Investors Equity Holdings, LLC, along with Robert Pierce who owns 44.1% and Robert Keith who owns 10%.

LEGAL ANALYSIS

The statute governing venue of eases under Title 11 is 28 U.S.C. § 1408. Under Subsection 1, a case may be commenced in the district court for the district in which the “principal assets” of the entity had been located for the 180 days immediately preceding the filing. Debtor Inv. Cap. II, LP, Case No. 12-11675 meets this test. No party disputes that venue for that case is proper in this Court.

Debtors in the three remaining limited partnership cases contend venue for their cases is proper in this Court based on Subsection (2) of 28 U.S.C. § 1408, which provides that a case may be commenced in the district “in which there is a pending case under Title 11 concerning such person’s affiliate, general partner or partnership.” The parties dispute whether the three Debtors are “affiliates” of Debtor Inv. Cap. II, LP.

The term “affiliate” is defined by the Bankruptcy Code at 11 U.S.C. § 101(2). This statute sets up three basic structures under which related entities shall be considered “affiliates”. The Debtors contend they meet the requirement of the third structure which reflects a “horizontal relationship between a debtor and another entity which share a common parent or (a parent-like) entity, which accordingly justifies treating the debtor and its sibling entity as affiliates.” In re Reichmann Petroleum Corp., 364 B.R. 916, 920 (Bankr.E.D.Tex.2007). Debtors claim they meet the requirements of § 101(2)(B) which defines an “affiliate” as

B) A corporation 20 percent or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote, by the debt- or, or by an entity that directly or indirectly owns, controls or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor, ...

Debtors contend they are affiliates because there is an entity that directly or indirectly owns, controls or holds with power to vote, 20% or more of the outstanding voting securities of the Debtor.

At the hearing on the pending Motions, James Himelrick testified about the structure and relationship of the Debtors and the related entities. His testimony established that the general partners of the Debtor limited partnerships do not own, control or have power to vote 20% or more of the outstanding voting securities of the Debtor Inv. Cap II. The general partnerships interests are not voting “securities” as defined by the Code. While 11 U.S.C. § 101(49)(xiii) defines the term “security” to include “the interest of a limited partner in a limited partnership,” it does not include the general partnership interest. See, In re Maruki USA Co., Inc., 97 B.R. 166 (Bankr.S.D.N.Y.1988). In Maruki, the court discussed whether a limited partnership ought to be considered to have voting [812]*812securities for purposes of the definition of “affiliate”. The court stated:

Congress clearly understood the difference between corporations, unincorporated associations and limited partnerships when it drafted the Code.... it specifically defined ‘corporation’ to exclude a limited partnership. Had Congress meant to include within Section 101(2)(A) a limited partnership, it would not have used the words ‘outstanding voting securities of the debtor.’ Since a limited partnership has no voting securities, it would be inappropriate to expand Section 101(2)(A) beyond its plain meaning to embrace that type of entity.

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Related

Thompson v. Greenwood
507 F.3d 416 (Sixth Circuit, 2007)
In Re Maruki USA Co., Inc.
97 B.R. 166 (S.D. New York, 1988)
In Re Reichmann Petroleum Corp.
364 B.R. 916 (E.D. Texas, 2007)
Matter of Sporting Club at Illinois Center
132 B.R. 792 (N.D. Georgia, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
495 B.R. 809, 2013 WL 849029, 2013 Bankr. LEXIS 842, 57 Bankr. Ct. Dec. (CRR) 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-investors-capital-partners-ii-lp-kywb-2013.