In re LPN Healthcare Facility Inc.

498 B.R. 196, 2013 WL 5312374, 2013 Bankr. LEXIS 4000, 58 Bankr. Ct. Dec. (CRR) 139
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedSeptember 10, 2013
DocketNo. 09-64850
StatusPublished
Cited by1 cases

This text of 498 B.R. 196 (In re LPN Healthcare Facility Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re LPN Healthcare Facility Inc., 498 B.R. 196, 2013 WL 5312374, 2013 Bankr. LEXIS 4000, 58 Bankr. Ct. Dec. (CRR) 139 (Ohio 2013).

Opinion

MEMORANDUM OPINION AND ORDER ON COMPENSATION APPLICATION OF SI DIGMAN, LLC AND ORDER VACATING APPOINTMENT (DOCS. NOS. 91 AND 443)

CHARLES M. CALDWELL, Chief Judge.

This Order addresses a Compensation Application filed by Si Digman, LLC (Movant), and the Objection of the United States Trustee (“UST”). Movant provides accounting services and tax preparation to individuals and small businesses, and requests compensation for accounting services provided to LPN Healthcare Facility Inc. (“Debtor”). Movant seeks $60,285.60, including final allowance of $39,631.70 previously paid. If approved, Movant would receive the net sum of $20,653.90. The UST objects on the basis that the Movant failed to disclose the simultaneous provision of accounting services to individuals and/or entities associated with the Debtor, and that services performed did not benefit the estate. In the alternative, Movant seeks compensation as an administrative expense claimant (11 U.S.C. § 503(a)), which is also opposed by the UST.

The Court has determined that Movant maintained business connections with individuals and entities related to the Debtor, and that there was a failure of timely and accurate disclosure of these relationships. However, Movant may have provided services necessary to the administration of this estate. The Court has concluded that the order retaining Movant must be vacated in view of the failed disclosures, but that the Movant should be granted leave to file an application for administrative expenses once the administration of this estate is complete. A brief history of this case and the details of the Court’s disposition follow.

The Debtor operated an 80-bed skilled nursing center in Newark, Ohio. Movant provided accounting services to the Debtor and related individuals and entities for several years prior to the bankruptcy filing. This relationship included payroll, bookkeeping, reconciliation, preparation of Medicaid/Medicare reports and tax returns. On December 21, 2009, the Debtor filed Chapter 11, and was represented by Attorney David M. Whittaker (“Mr. Whit-taker”) from the law firm of Bricker and [198]*198Eckler LLP (“Bricker”). Movant continued to provide accounting services for the Debtor after the Chapter 11 was filed, including the preparation of monthly operating reports. Movant testified, however, that he was not consulted by Debtor’s counsel in preparing information for the bankruptcy filing, and indeed was not aware of the bankruptcy until a meeting on January 15, 2010, with the Debtor’s principal that was also attended by Mr. Whittaker and Laura Zaremski of the Bricker firm.

Movant testified that that he worked with the Bricker firm on the details of his employment application and affidavit, and that he was told that he would have to be a “disinterested person”, disclose any association with the Debtor’s managers or owners, and waive his outstanding fees. In contemplation of retention, the Movant indeed waived prepetition fees of $106,970.20, according to his affidavit.

Movant testified that he was provided with court filings to determine his affiliation with any creditors or owners of the Debtor. Mr. Whittaker’s firm then prepared the Movant’s retention application and affidavit for his review. According to the Movant he did not obtain any advice from other counsel regarding his retention. In the affidavit the Movant disclosed that he provided tax and accounting services to the principal of the Debtor, Michael B. Johnson, Sr. (“Mr. Johnson”) and his mother and sole shareholder of the Debt- or, Sara Johnson (“Ms. Johnson”). The retention application and affidavit were filed on May 13, 2010, some five months after this case was filed. Based upon the disclosed information, the Movant was appointed as Debtor’s Accountant on June 15, 2010 (Doc. No. 91). Movant testified that this was the first time he served as an accountant to a Chapter 11 debtor.

However, at the same time the Movant served as accountant for the Debtor, services continued to be provided to individuals and entities related to the Debtor, including to: (1) Mr. Johnson, who served as the administrator of the Debtor’s business and part shareholder of an assisted living facility known as Goosepond Retirement Village (“Goosepond”); (2) Ms. Johnson, the Debtor’s sole shareholder and mother of Mr. Johnson; (3) Ms. May M. Ghiloni (“Ms. Ghiloni”), part shareholder of Goose-pond, an officer of the Debtor, and the sister of Mr. Johnson; (4) Northtowne, a senior citizen apartment community (“Northtowne”); (5) Mr. John Ghiloni, manager of Northtowne, and the husband of Ms. Ghiloni; and (6) Goosepond.

According to Movant’s testimony, Goose-pond is an unlicensed assisted living community owned by Mr. Johnson and Ms. Ghiloni. Movant testified that Goosepond received income at the first of the month and would fund the Debtor’s payroll. When the Debtor received income on the 15th of each month, it would then repay the loan. Such transactions were listed in the first operating report prepared by the Movant and filed with the Court on February 22, 2010, by Mr. Whittaker (Doc. No. 56). In addition, later operating reports prepared by the Movant and filed by Mr. Whittaker, showed reconciliation details of transactions involving Goosepond and Northtowne. For Northtowne, Movant testified it was not an entity separate from the Debtor, but was a d/b/a of the Debtor that was used by Ms. Johnson to lease 84 apartments for senior housing that were in turn leased to the Debtor commencing in the 1980’s. Movant testified that Mr. Ghi-loni was Northtowne’s principal manager.

Movant testified that he did not disclose in the retention application and affidavit his business relationship with Mr. and Ms. Ghiloni because these individuals were not [199]*199managers or owners of the Debtor and were not on the list of creditors. Goose-pond was not mentioned on the application to employ because Movant testified that he did not think it had any ownership interest in the Debtor and was also not on the list of creditors. However, the Movant testified that the Bricker firm knew from him, and probably Mr. Johnson, that that he provided services to Mr. and Mrs. Ghiloni and Goosepond. Regarding Northtowne, the Movant testified that it was not included because he was told by Mr. Whittaker it was not related to this case. No testimony was provided by Mr. Whittaker or any member of the Bricker firm on any of these points.

On December 28, 2010, the Court entered an Order approving the sale of substantially all of the Debtor’s assets to Autumn Health Care, LLC, and the Debtor ceased operations. For more than a year afterward work on the case centered upon distribution of sale proceeds and the liquidation of related claims; however, during this extended period operating reports were not filed. As a result, on January 4, 2012, the UST filed a Motion to Convert this case to Chapter 7, based upon the lack of filing of operating reports since the December 2010 reporting period and failure to comply with other UST requirements. This dispute was resolved through an Agreed Order entered by the Court on January 26, 2012. The Order set deadlines for the filing of operating reports and an amended chapter 11 plan and disclosure statement.

However, less than a month later, on February 15, 2012, the UST filed an Emergency Motion for the Appointment of a Chapter 11 Trustee. In this Motion it was alleged that the Debtor’s principal, Mr. Johnson “...

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Cite This Page — Counsel Stack

Bluebook (online)
498 B.R. 196, 2013 WL 5312374, 2013 Bankr. LEXIS 4000, 58 Bankr. Ct. Dec. (CRR) 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lpn-healthcare-facility-inc-ohsb-2013.