In re Kay

185 B.R. 873, 1995 Bankr. LEXIS 1238, 1994 WL 842855
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedFebruary 13, 1995
DocketBankruptcy No. 93-04459-6B7
StatusPublished
Cited by1 cases

This text of 185 B.R. 873 (In re Kay) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kay, 185 B.R. 873, 1995 Bankr. LEXIS 1238, 1994 WL 842855 (Fla. 1995).

Opinion

MEMORANDUM OPINION

ARTHUR B. BRISKMAN, Bankruptcy Judge.

This matter came before the Court on the Risa L. Kay, the Debtor’s, Motion to Convert Case to Chapter 11. After reviewing the pleadings, evidence, receiving testimony, exhibits, and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

On September 15, 1993, the Debtor sought protection under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. The Court entered its Order Converting Case to Chapter 7 pursuant to 11 U.S.C. § 1112 on February 28, 1994. Thereafter, James C. Orr was appointed Chapter 7 Trustee.

The Debtor owns several parcels of Central Florida real estate, and based upon the Debtor’s estimate as to the relative value of each, over 70% of the total value of these parcels consists of unimproved non-income producing land. The Debtor’s real estate holdings are encumbered by mortgages in excess of $5.7 million held by three secured creditors. The Debtor has failed to pay loans secured by her real estate holdings other than her homestead and has been involved in protracted state court litigation defending foreclosure actions brought by secured lenders.

Simkins Industries, Inc. d/b/a Westfield Financial Corporation (“Westfield”) originated a loan on May 19, 1989 in the principal sum of $1,260,000.00 secured by 11.131 acres of real property situated at the Southwest quadrant of the intersection of State Road 436 (Semoran Boulevard) and Michigan Avenue in Orlando, Orange County, Florida (the “Southside Michigan Property”). The underlying note and mortgage evidencing the indebtedness to Westfield matured on May 19, 1991. A judicial foreclosure sale of the property was stayed by the Debtor’s filing of a Chapter 11 petition on the morning of the foreclosure sale.

Westfield obtained a final judgment in foreclosure on April 26, 1993 in the amount of $1,915,257.20 with interest at 12% per annum. As of December 14, 1994, the interest due on the judgment was $375,924.93 for an aggregate amount due of $2,291,222.13. Interest continues to accrue at the per diem rate of $625.69. The Debtor failed to pay Orange County, Florida ad valorem real estate taxes assessed on the Southside Michigan Property since 1990 in the sum of $109,-141.37. The Trustee succeeded the Debtor as the real party in interest of a counterclaim and appeal from final judgment arising in the state foreclosure action filed by Westfield in September 1991.

[875]*875Firstate Financial, F.A. (“Firstate”) is seeking to foreclose three properties located in Orange County and Polk County, Florida in which Firstate held a mortgage with the following values:

Alafaya (Orange County) $1,540,000
No. Michigan Street (Orange County) $1,100,000
Baseball City (Polk County) $950,000

Since the loan was modified and extended in June 1990, the Debtor made no payment to Firstate on the loan nor paid any property taxes. Firstate seeks a principal balance of $1,830,319.83, advanced taxes of $269,850.15, interest of prime plus 2.5% to February 1, 1995 of $764,868.85, (the default rate of prime plus 7.5% from February 1,1991 to February 1, 1995 of $1,167,686.28), attorney fees, and costs.

The Debtor filed a counterclaim against Firstate for fraud and breach of fiduciary duty and a third-party claim against her former attorneys for negligence and breach of contract based on events related to the closing of a modification of the mortgage loan. Those attorneys filed a third-party claim against Firstate’s former attorneys and a claim against Firstate for fraud.

The RTC Mortgage Trust (“RTC”), successor in interest to Resolution Trust Corporation, as Receiver for Commonwealth Federal Savings and Loan Association, filed a foreclosure action against the Debtor arising from a loan consisting of a $1,500,000.00 promissory note and a $250,000.00 promissory note. The loan was secured by a first mortgage on the property referred to as Fairmont Plaza Shopping Center in Long-wood, Florida. Pursuant to the terms of the loan, the notes matured and became due in full on March 23, 1990. On January 1, 1990, the loan went into default for failure to pay the regular monthly payment. No loan payments have been made since this date.

On August 29, 1990, the RTC filed a foreclosure action. The Debtor filed affirmative defenses and a counterclaim alleging the RTC tortiously interfered with the Debtor’s business relationship with prospective purchasers and prospective tenants of Fairmont Plaza and for willfully and maliciously preventing the Debtor from selling or leasing space in Fairmont Plaza thus preventing the Debtor from satisfying amount owed the RTC.

The state court entered an Order on Sequestration of Rents which provided that the Debtor would manage Fairmont Plaza and be entitled to a fee of $2,500.00 per month. From January through August 1993, the total rental income collected by the Debtor was $30,413.50. During this period and pursuant to the state court Order, the Debtor paid herself $20,499.86 in management fees, 67% of the total rents collected. Pursuant to an agreement between the Debtor and RTC and this Court’s Order of November 29,1993, the Debtor received a management fee from rents collected at Fairmont Plaza in the sum of $1,000.00 per month and $2,500.00 per month from Amoco Oil Company. The Order Converting Case to Chapter 7 of February 28, 1994 rescinded all authorization to pay compensation to the Debtor.

On September 15, 1993, the date of the petition, the amount due the RTC was the sum of $1,769,263.28 consisting of $1,314,-339.98 in principal and $454,923.30 interest calculated at the contract rate.

The Debtor has attempted to sell each parcel of real estate since 1990 with no success. Significant amounts of interest and real estate taxes continue to accrue on the Debtor’s obligations resulting in a continuing loss to and diminution of the estate. The Debtor’s inability to sell any of the properties, make payments on her mortgages, and pay real estate taxes has resulted in unreasonable delay that is prejudicial to creditors.

On October 11, 1994, the Debtor filed a Motion to Convert to Chapter 11 alleging: the trustee’s compromises do not bring in enough money to the estate; since conversion to Chapter 7, the Debtor has continued to enhance the value of property of the estate by continuing to lease property in the Fair-mont Plaza; several creditors caused harm to the estate by pursuing state court actions in violation of the automatic stay during the Chapter 11 and after conversion to Chapter 7; A1 Frith and John Stump filed claims as creditors although they were not owed any money by the Debtor; and the Debtor should [876]*876be allowed to propose a plan of reorganization.

The Motion to Convert to Chapter 11 is interwoven with three motions for and notices of proposed compromises of controversy (the “compromises”) filed by the Trustee to resolve litigation involving secured creditors and other parties. The three compromises are in the best interest of the estate and have been approved.

CONCLUSIONS OF LAW

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Cite This Page — Counsel Stack

Bluebook (online)
185 B.R. 873, 1995 Bankr. LEXIS 1238, 1994 WL 842855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kay-flmb-1995.