In re Kachina Village, LLC

538 B.R. 124, 2015 Bankr. LEXIS 3115, 61 Bankr. Ct. Dec. (CRR) 154, 2015 WL 5444008
CourtUnited States Bankruptcy Court, D. New Mexico
DecidedSeptember 15, 2015
DocketCase No. 15-10140-t11
StatusPublished
Cited by2 cases

This text of 538 B.R. 124 (In re Kachina Village, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kachina Village, LLC, 538 B.R. 124, 2015 Bankr. LEXIS 3115, 61 Bankr. Ct. Dec. (CRR) 154, 2015 WL 5444008 (N.M. 2015).

Opinion

MEMORANDUM OPINION

Hon. David T. Thuma, United States Bankruptcy Judge

Before the Court are a secured creditor’s motion to designate its collateral as “single asset real estate” (or “SARE”) and Debtor’s motion to set the monthly interest-only payment required if the subject property is SARE. The.crux of the dispute is whether the property comes within an exception to the SARE designation for certain residential property. For the reasons set forth below, the Court concludes that Debtor’s property does not fall within the exception, and therefore is SARE. The Court also concludes that the required monthly interest-only payment to LANB would be at the contract rate of 5.5%.

I. FACTS1

Debtor is a New Mexico limited liability company. On January 26, 2015, Debtor [126]*126filed a voluntary petition under Chapter 11. of the Bankruptcy Code. Debtor owns a 1.259 acre parcel of land (the “Property”) in the Village of Taos Ski Valley, New Mexico (the “Village”). In addition, Debt- or’s Schedule B lists bank accounts containing about $5,040, $100 in cash, office furniture and equipment, and a 2014 Subaru Crosstrek.

The Property, located near a ski lift in the Village, is undeveloped. Debtor represents that the Property is zoned for mixed use and cannot be subdivided. Debtor also represents that the restrictive covenants binding the Property require mixed-use development or multiple residences.

In 2007 Debtor obtained a conditional use permit for the Property that allowed commercial and residential development. Debtor’s plan in 2007 is not clear from the record, but included the construction of more than four residential units.

The conditional use permit expired around 2009. Debtor recently submitted an updated development application and plan to the Village of Taos to renew the conditional use permit. Debtor’s current development plan is to build five single-family houses, a three-unit town house, and a fringe commercial building. To date, the Village has not acted on Debtor’s request for an updated conditional use permit. It is unclear when any construction might begin; it is possible the Village might have to install a new water tank before the Property could be developed as planned.

Notwithstanding potential delays, Debt- or’s principal John Halley believes that a mixed use development permit could be approved in the future and plans to construct both residential and commercial units on the Property.

Los Alamos National Bank (“LANB”) holds a promissory note in the original principal amount of $330,000, secured by a mortgage on the Property. The non-default interest rate under the note is 5.5% per annum. The default interest rate is 16%. The note provides that the interest rate will never be less than 5.5%.

Debtor has not made a payment to LANB since August, 2012. LANB filed a foreclosure action against Debtor on May 1. 2013. LANB began charging default raté interest at that time. Debtor’s statement of financial affairs indicates the action is still pending.

II. DISCUSSION

A. SARE 'and Relief from the Automatic Stay. Section 101(51B)2 defines “single asset real estate”3 as:

[R]eal property constituting a single property or project, other than residential real property with fewer than 4 residential units, which generates substantially all of the gross income of a debtor who is not a family farmer and on which no substantial business is being, conduct-

[127]*127IN RE KACHINA VILLAGE, LLC Cite as 538 B.R. 124 (Bkrtcy.D.N.M. 2015) 127 ed by a debtor other than the business of operating the real property and activities incidental thereto. [1] Section 362(d), which addresses relief from the “automatic stay,” gives creditors with hens on SARE special protection: On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay ... (3) with respect to a stay of an act against single asset real estate under subsection (a), by a creditor whose claim is secured by an interest in such real estate, unless, not .later than the date that is 90 days after the entry of the order for relief ... or 30 days after the court determines that the debtor is subject to this paragraph, whichever is later— (A) the debtor has filed a plan of reorganization that has a reasonable possibility of being confirmed within a reasonable time; or (B) the debtor has commenced monthly payments that— (i) may, in the debtor’s sole discretion, notwithstanding section 363(c)(2), be made from rents or other income generated before, on, or after the date of the commencement of the case by or from the property to each creditor whose claim is secured by such real estate (other than a claim secured by a judgment lien or by an uhmatured statutory hen); and (ii) are in an amount equal to interest at the then applicable nonde-fault contract rate of interest on the value of the creditor’s interest in the real estate.... 11 U.S.C. § 362(d)(3). [2] In other words, the Court must modify the automatic stay as to SARE within the specified period unless the debt- or files a plan that appears to be confirma-ble within a reasonable time, or starts making monthly interest-only payments at the non-default contract rate. See In re Bluejay Properties, LLC, 2014 WL 948631, *2, 512 B.R. 390 (10th Cir. BAP 2014) (summarizing § 362(d)(3)). Sections 101(51B) and 362(d)(3) were added to the Code as part of the Bankruptcy Reform Act of 1994. In re Phil-mont Bevel. Co., 181 B.R. 220, 223 (Bankr. E.D.Pa.1995). “The purpose of § 362(d)(3) is to address perceived abuses in single asset real estate cases, in which debtors have attempted to delay mortgage foreclosures even when there is little chance that they can reorganize successfully.” 3 Collier on Bankruptcy, 11362.07[5][a] (16th ed.2010). See also In re Scotia Pacific Co., LLC, 508 F.3d 214, 225 (5th Cir.2007) (noting that “§ 362(d)(3) ... expedited] the time for SARE debtors to file a plan of reorganization or commence making monthly payments, failing which the automatic stay is promptly lifted”); In re Carolina Pediatric Eye Properties, LLC, 2015 WL 1806047, *3 (Bankr.M.D.N.C.2015) (“[Sjection 362(d)(3) was enacted to assist secured creditors in single asset real estate cases[J For this reason, cases that fall within the SARE designation are forced to proceed on an expedited time-line.”) (internal quotations omitted). B. Is the Property SARE? [3]1. General Test for SARE. Most courts break the definition of SARE into three parts: (1) The property must be a single parcel or project; (2) The property must generate substantially all of the debtor’s income; and (3) The debtor cannot conduct any substantial business other than operating the property. See, e.g., In re Scotia Pacific Co., LLC, 508 F.3d 214, 220 (5th Cir.2007) (“Three requirements emerge from th[e]

[128]*128definition [contained in § 101(51B) ] which must all be met for a debtor to be considered a SARE debtor...In re Meruelo Maddux Properties, Inc.,

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Bluebook (online)
538 B.R. 124, 2015 Bankr. LEXIS 3115, 61 Bankr. Ct. Dec. (CRR) 154, 2015 WL 5444008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kachina-village-llc-nmb-2015.