In re Madawaska Hardscape Products, Inc.

476 B.R. 200, 67 Collier Bankr. Cas. 2d 1412, 2012 WL 2512917, 2012 Bankr. LEXIS 2621, 56 Bankr. Ct. Dec. (CRR) 195
CourtUnited States Bankruptcy Court, D. South Carolina
DecidedJune 8, 2012
DocketC/A No. 12-01093-JW
StatusPublished
Cited by1 cases

This text of 476 B.R. 200 (In re Madawaska Hardscape Products, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Madawaska Hardscape Products, Inc., 476 B.R. 200, 67 Collier Bankr. Cas. 2d 1412, 2012 WL 2512917, 2012 Bankr. LEXIS 2621, 56 Bankr. Ct. Dec. (CRR) 195 (S.C. 2012).

Opinion

ORDER

JOHN E. WAITES, Chief Judge.

This matter is before the Court on TD Bank, N.A.’s Emergency Motion for Order Prohibiting Use of Cash Collateral, filed on March 29, 2012; TD Bank, N.A.’s Motion for Relief from the Automatic Stay, filed on April 4, 2012; and Madawaska Hard-scape Products, Inc.’s Motion for Use of Cash Collateral, filed on April 5, 2012 (“Motions”). Pursuant to Federal Rule of Civil Procedure 52, which is made applicable to this matter by Federal Rules of Bankruptcy Procedure 7052 and 9014(c), the Court makes the following findings of fact and conclusions of law.1

FINDINGS OF FACT

1.Madawaska Hardscape Products, Inc. (“Debtor”) commenced this case on February 22, 2012 (the “Petition Date”) by filing a voluntary petition for relief under chapter 11 of the Bankruptcy Code. The petition was signed on behalf of Debtor by its president, Daniel B. Albert.

2. Debtor is a company engaged in the business of selling hardscaping products, including pavers and other stone products. It operates its business out of two locations: 1) 222 Riverside Street, Portland, Maine (“Maine Location”), and 2) 3146 Wade Hampton Boulevard, Taylors, South Carolina (“South Carolina Location”). Debtor manages both locations from its headquarters in Taylors, South Carolina. The real property upon which the businesses are located is not owned by Debt- or,2 and according to Mr. Albert’s testimony, are currently in foreclosure. The Maine Location is owned by 222 Riverside Corp. and is leased to Debtor for $2,500 per month.3 The South Carolina location is owned by 3146 WHB, LLC and is leased to Debtor for $7,500 per month. However, Mr. Albert testified that no lease payments have been made for either location during the three month period prior to the hearing on the Motions. According to Debtor’s schedules and statement of financial affairs, Mr. Albert is also the principal and owner of 222 Riverside Corp. and 3146 WHB, LLC.

3. TD Bank, N.A. (“TD Bank”) is a secured creditor of Debtor. On Schedule D, Debtor listed TD Bank as holding a claim in the amount of $595,795.96, secured by a UCC-1 Lien on a 1995 Mack Truck, Moffett Forklift, two Daewoo Forktrucks, a JCB Loader/Backhoe, inventory and other personal property. According to the parties, TD Bank has two loans that are at issue in this case: 1) the Madawaska [203]*203Hardscape Products, Inc. loan (“Madawas-ka Loan”); and 2) the 222 Riverside Corp. loan (“222 Riverside Loan”).

a. The Madawaska Loan is a commercial line of credit with a security agreement covering specified items of personal property owned by Debtor. This loan has three guarantors: Daniel B. Albert, Keystone Northeast, Inc., and 222 Riverside Corp. The guaranties executed by Daniel B. Albert and Keystone Northeast, Inc. are unsecured. The 222 Riverside Corp. guaranty is secured by a junior mortgage on the Maine Location. According to the testimony of TD Bank’s witness, Teall Gerrett, and the TD Bank Loan Summaries admitted into evidence, the balance owed on the line of credit as of April 24, 2012, is $605,329.87, with a per diem rate of $73.97964.
b. The 222 Riverside Corp. Loan is a promissory note and mortgage executed by 222 Riverside Corp. in favor of TD Bank dated March 31, 2003, in the principal amount of $300,000.00, which is secured by the Maine Location. This loan also has three guarantors: Daniel B. Albert, Keystone Northeast, Inc., and Debtor. The guaranties executed by Daniel B. Albert and Keystone Northeast, Inc. are unsecured. Debtor’s guaranty is secured by a commercial security agreement executed by Debtor in favor of TD Bank, which covers certain personal property of Debtor. Mr. Gerrett testified that the balance owed on this note is $212,239.16, as of April 24, 2012, with a per diem rate of $24.78226.

4. The history of Debtor’s financing relationship with TD Bank appears to be as follows:

a. On August 29, 2001, Debtor executed a commercial line of credit agreement for the Madawaska Loan with TD Bank in the amount of $100,000.00, secured by a “security agreement respecting personal property, namely (but without limitation); All Business Assets, 1995 Mack Truck ... 1998 Daewoo G25 Fork Lift and any other equipment purchased with loan proceeds” and the guaranties of Mr. Albert, Keystone Northeast, Inc. and 222 Riverside Corp.
b. Also on August 29, 2001, Debtor entered into a Security Agreement with TD Bank securing the obligations set forth in the line of credit agreement. The Security Agreement provides (in pertinent part):
Grant of Security Interest in Collateral. As security for the Secured Obligations described in section 2 hereof, Debtor hereby grants to the Secured Party a present and continuing security interest in and valid lien on all of the Debtor’s property described on Exhibit A attached hereto, together with any and all additions and accessions thereto, replacements, proceeds (including without limitation insurance proceeds) and products thereof, and substitutions therefor, wherever the same may be located and whether now existing or hereafter arising or acquired (hereinafter referred to collectively as the “Collateral”), authorizes Secured Party to file financing statements reflecting such grant, and ratifies any such financing statements filed prior to the execution of this Agreement.
Special Representations, Warranties and Covenants of Debtor. Debtor hereby warrants and covenants to the Secured Party that: ... The chief executive office of Debtor and all of Debtor’s addition[204]*204al places of business, if any, and the location of all the Collateral are listed in Exhibit B attached hereto. Debtor will not change its name, organizational number, the jurisdiction of its organization and existence, nor chief executive office nor any other place of business, nor the location of any collateral, without at least 30 days’ prior written notice to the Secured Party.
Exhibit A to the Security Agreement sets forth a detailed description of each type of collateral covered by the agreement (collectively, “Cash Collateral”), including:
(a) All of Debtor’s goods, accounts, instruments, chattel paper, documents, investment property, commercial tort claims, letter of credit rights, general intangibles, deposit accounts and money (as these terms are define in the Maine Uniform Commercial Code) including but not limited to the following:
(b) all of Debtor’s equipment, including all equipment, machinery, furniture, fixtures, trade fixtures, goods, computer hardware and software, motor vehicles, rolling stock and all other tangible personal property of Debtor other than inventory, any parts or accessions for any of the foregoing, and all documents evidencing Debtor’s title to any of the foregoing, all whether now owned or hereafter acquired and wherever located, ...;
(c) all of Debtor’s inventory, whether now owned or hereafter acquired, ...;
(d) any and all of Debtor’s rights to payments for goods sold or leased or for services rendered

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Bluebook (online)
476 B.R. 200, 67 Collier Bankr. Cas. 2d 1412, 2012 WL 2512917, 2012 Bankr. LEXIS 2621, 56 Bankr. Ct. Dec. (CRR) 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-madawaska-hardscape-products-inc-scb-2012.