In re Lichtin/Wade, L.L.C.

478 B.R. 204, 2012 WL 3745036, 2012 Bankr. LEXIS 3950
CourtUnited States Bankruptcy Court, E.D. North Carolina
DecidedAugust 28, 2012
DocketNo. 12-00845-8-RDD
StatusPublished
Cited by1 cases

This text of 478 B.R. 204 (In re Lichtin/Wade, L.L.C.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.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 Lichtin/Wade, L.L.C., 478 B.R. 204, 2012 WL 3745036, 2012 Bankr. LEXIS 3950 (N.C. 2012).

Opinion

ORDER GRANTING DEBTOR’S MOTION FOR ORDER EXTENDING THE PERIOD IN WHICH TO CONFIRM THE DEBTOR’S PLAN PURSUANT TO 11 U.S.C. § 1121(c)(3) AND DENYING MOTION OF ERGS II, L.L.C. PURSUANT TO SECTIONS 1121(c)-(d) OF THE BANKRUPTCY CODE FOR AN ORDER TERMINATING THE EXCLUSIVITY PERIODS WITHIN WHICH THE DEBTOR MAY FILE AND SOLICIT ACCEPTANCES TO A PLAN OF REORGANIZATION

RANDY D. DOUB, Bankruptcy Judge.

Pending before the Court is the Debt- or’s Motion for Order Extending the Period in Which to Confirm the Debtor’s Plan Pursuant to 11 U.S.C. § 1121(c)(3) (the “Motion”) filed by Lichtin/Wade, L.L.C. (the “Debtor”) on July 25, 2012, and the Objection of ERGS II, L.L.C. to Debtor’s Motion for Order Extending the Period in Which to Confirm the Debtor’s Plan Pursuant to 11 U.S.C. § 1121(c)(3) (the “Response”) filed by ERGS II, L.L.C. (“ERGS”) on August 10, 2012; and the Motion of ERGS II, L.L.C. Pursuant to Sections 1121(e) & (d) of the Bankruptcy Code for an Order Terminating the Exclusivity Periods within Which the Debtor May File and Solicit Acceptances to a Plan of Reorganization filed by ERGS on July 17, 2012 (the “ERGS Motion”) and the Debtor’s response to the ERGS Motion filed on August 10, 2012. The Court conducted a hearing on the Motion and Response and the ERGS Motion and response in Wilson, North Carolina on August 13, 2012.

BACKGROUND

The Debtor filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) on February 2, 2012. The Debtor owns two office buildings known as Wade I and Wade II, plus approximately twelve acres of vacant land upon which three additional office buildings may be constructed, referred to as Wade III, Wade IV, and Wade V (the “Property”). The Property is encumbered by several deeds of trust and assignment of rents originally in favor of Branch Banking & Trust Company (“BB & T”), securing a promissory note with unpaid principal and interest of $39,052,661.91 as of the petition date. On March 27, 2012, BB & T sold and assigned the underlying indebtedness to ERGS. ERGS filed claim number ten in the [208]*208amount of $39,236,631.03 on May 2, 2012.1

On March 26, 2012, the Debtor filed the Plan of Reorganization (the “Plan”) and Disclosure Statement. The Court entered the Order Conditionally Approving Disclosure Statement on March 28, 2012 and scheduled the hearing on confirmation of the Plan on May 30, 2012. On April 11, 2012, the Debtor withdrew the Plan and Disclosure Statement and then re-filed the Plan and the Disclosure Statement. The Court again entered the Order Conditionally Approving Disclosure Statement and indicated the hearing on confirmation of the Plan would remain scheduled on May 30, 2012. On May 16, 2012, the Court entered the Order Continuing Hearing for the plan confirmation on the Motion of ERGS to July 10, 2012. After a hearing on the Motion of ERGS II, L.L.C. to Determine Classification of Claims, the Court referred the Debtor and ERGS to mediation by an order entered on May 30, 2012. The parties participated in a mediated settlement conference from approximately June 27, 2012 to July 20, 2012. Ultimately, the mediator declared the parties at an impasse.

On July 19, 2012, the Debtor filed the First Amended Plan of Reorganization (the “Amended Plan”) and the First Amended Disclosure Statement. The Court entered the Order Conditionally Approving Amended Disclosure Statement on July 23, 2012 and set a confirmation hearing on September 17, 2012. On July 17, 2012, ERGS filed the ERGS Motion, seeking an order terminating the exclusivity periods within which the Debtor may file and solicit acceptances to a plan of reorganization pursuant to 11 U.S.C. § 1121(c)-(d), and terminating the period for the Debtor to exclusively file and solicit acceptances to a plan of reorganization. On July 25, 2012, the Debtor filed the Motion seeking to extend the period to exclusively file and solicit acceptances to a plan of reorganization. ERGS filed a disclosure statement of its own on July 26, 2012 and a competing plan of reorganization on July 27, 2012. ERGS filed the Response to the Motion on August 10, 2012.

In the Motion, the Debtor seeks to extend the exclusive period to file and solicit acceptances to a plan of reorganization until a hearing is held on the Motion on August 13, 2012. Pending the outcome of the hearing, the Motion also seeks to extend the exclusivity period until September 30, 2012, after the date set for the . hearing on confirmation. The Court entered the Order Allowing Debtor’s Motion for Order Extending the Period in Which to Confirm Debtor’s Plan Pursuant to 11 U.S.C. § 1121(c)(3) on July 26, 2012, extending the exclusivity period until the hearing on August 13, 2012.

The Debtor argues that cause exists to extend the exclusivity period to a date after the scheduled confirmation hearing pursuant to 11 U.S.C. § 1121(d)(1). In support of the Motion, the Debtor contends that (1) the case is complex; (2) the Debtor is making good faith progress toward confirmation; (3) the Debtor is capable of paying its debts as they become due while maintaining adequate protection payments to ERGS; (4) the Debtor needs additional time to conduct discovery; and (5) the Debtor is not seeking extension of time to place pressure on creditors to vote in favor of the Amended Plan.

[209]*209In the Response, ERGS contends there is insufficient cause to grant the Motion. ERGS rebuts the Debtor’s arguments and incorporates the arguments contained in the ERGS Motion to terminate the exclusivity periods. In the ERGS Motion, ERGS asserts (1) the case is neither large nor complex; (2) the Debtor’s plan is not confirmable on its face; (3) the Debtor has no reasonable prospects for filing a feasible, viable plan; (4) the amount of time elapsed is significant for a case of this type; (5) the Debtor has had sufficient time to negotiate and file a confirmable plan but has failed to do so; and (6) maintaining exclusivity is detrimental to ERGS and other creditors.

DISCUSSION

Section 1121 of the Bankruptcy Code provides that for the 120 days after the date of the entry of the order for relief, the Debtor has the exclusive right to file a plan of reorganization. 11 U.S.C. § 1121(b). Furthermore, the Debtor has an additional sixty days to receive acceptances of the plan by each class of claims or interests that is impaired under the plan. 11 U.S.C. § 1121(c). The date of the order for relief is February 2, 2012. The deadline for the Debtor to file a plan of reorganization was June 1, 2012 and the deadline for the Debtor to obtain accepting votes for a plan of reorganization was July 31, 2012, unless the time was reduced or extended by the court within the respective periods. 11 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
478 B.R. 204, 2012 WL 3745036, 2012 Bankr. LEXIS 3950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lichtinwade-llc-nceb-2012.