In re Mandalay Shores Cooperative Housing Ass'n

112 B.R. 440, 1990 Bankr. LEXIS 549, 1990 WL 32525
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedMarch 2, 1990
DocketBankruptcy No. 86-1183-8P1
StatusPublished
Cited by3 cases

This text of 112 B.R. 440 (In re Mandalay Shores Cooperative Housing Ass'n) 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 Mandalay Shores Cooperative Housing Ass'n, 112 B.R. 440, 1990 Bankr. LEXIS 549, 1990 WL 32525 (Fla. 1990).

Opinion

ORDER ON MOTION (OR PETITION) FOR VOLUNTARY WITHDRAWAL OR DISMISSAL OF PETITION FOR RELIEF VOLUNTARILY FILED UNDER CHAPTER 11 OF THE BANKRUPTCY CODE FOR THE PURPOSE OF TERMINATING CASE AND RENEWED MOTION TO DISMISS

ALEXANDER L. PASKAY, Chief Judge.

THIS is the third Chapter 11 case commenced by the Mandalay Shores Cooperative Housing Association, Inc. (MSCHA), and the matters under consideration are two Motions. The first is filed by MSCHA and is entitled “Motion (or Petition) for Voluntary Withdrawal or Dismissal of Petition for Relief Voluntarily Filed under Chapter 11 of the Bankruptcy Code for the Purpose of Terminating Case”. The second is a Renewed Motion to Dismiss this Chapter 11 case filed by Elizabeth M. Cannon (Cannon) and Ralph Meyer (Meyer). The Motion filed by MSCHA presents a unique twist in that the Debtor who sought relief in the bankruptcy court three times under Chapter 11 now urges that its third Chapter 11 should be dismissed because it was filed in bad faith, because of the continuing loss or diminution of assets of the estate, and because of the total absence of the likelihood of rehabilitation. In addition, MSCHA also urges that it is unable to effectuate a plan of reorganization, there are delays which are prejudicial to the creditors, and the Chapter 11 should be dismissed because of the Debtor’s failure to file a reorganization plan within the time fixed by the Court.

The Renewed Motion to Dismiss filed by Cannon and Meyer urges a dismissal on the basis that the second Chapter 11 case filed by MSCHA in the Northern District of Illinois was dismissed with prejudice. Accordingly, this third Chapter 11 case, In re Mandalay Shores Co-op. Housing Ass’n, Inc., 63 B.R. 842 (M.D.Ill.1986), is a legal nullity and cannot be maintained by this Debtor, according to Cannon and Meyer.

In order to put the Motions under consideration in proper focus, it should be helpful to highlight both the problems which beset [441]*441MSCHA from the outset and the underlying cause for its inability to achieve rehabilitation. It should be noted that rehabilitation would have been nothing more than a disposition of the only asset of MSCHA, monies on deposit in an Illinois bank which were collected by MSCHA from MSCHA members. It should be also helpful to state the reasons why this Court permitted MSCHA to remain under the protective umbrella of this Court for so long, and the concern which prompted this Court to go to an extra length to allow MSCHA to initially maintain the first and then this third Chapter 11 case.

MSCHA is an association organized under Fla.Stat. § 617.01 as a non-profit corporation. MSCHA was formed by the tenants of an apartment complex known as Mandalay Shores. The complex, which is located in Clearwater Beach, Florida, was owned by Housing and Urban Development (HUD), an agency of the U.S. Government, when the first Chapter 11 case was filed.

The record reveals that MSCHA was originally formed for the singular purpose of acquiring Mandalay Shores from HUD to prevent HUD from selling the complex to a private entrepreneur who most likely would convert Mandalay Shores into a condominium operation. Specifically, the tenants, most of whom were senior citizens, were told by the MSCHA organizers that the sale by HUD to a private developer would result in the loss of their very advantageous leases, even if the complex was not converted into a condominium project. Inasmuch as most of the retiree-tenants were not in the financial position to either purchase a condominium unit in the event of conversion or to pay an increased rent, their fear was well-founded and understandable. Faced with these frightening prospects, it is not surprising that the tenants of Mandalay Shores were anxious to join forces at the urging of the promoters, who initially promised the tenants that their combined efforts and resources would assure the preservation of their tranquil life, free of fear of losing their well-established residences and free of anxiety over their future. Thus it is not surprising that the management of the newly formed organization, MSCHA, had no difficulty in collecting over $1 million from the tenants to achieve the announced goal of MSCHA.

Initially, it appeared that MSCHA might have been able to achieve its goal. However, in spite of the vigorous, albeit unsuccessful, attempts, first on an administrative level and then in the various courts, MSCHA never had a chance to succeed, simply because HUD refused to consider MSCHA as a qualified purchaser of Mandalay Shores.

As noted earlier, MSCHA collected over $1 million from its members. Each member paid approximately $3,200 and obtained a receipt evidencing the amounts paid. Some of the receipts stated that in the event MSCHA's attempts to purchase Mandalay Shores proved unsuccessful, members may request a refund of their contribution or a general meeting of all members of MSCHA would be called to decide by a majority vote the next step to be taken by MSCHA concerning the future course of action to be pursued by MSCHA.

It appears that at the meeting, from which the members who had demanded back their contributions were excluded, the management of MSCHA changed the bylaws of MSCHA, and those in attendance, that is, the group loyal to the management, decided that they would attempt to purchase some similar apartment complex for the purpose of making available to the members suitable living facilities at reasonable prices.

As noted, several of the members demanded the return of their funds since they did not desire to participate in any further attempts by the management to acquire any property other than Mandalay Shores. Some of the members received refunds. However, the management decided not to honor any further requests for refunds and declared that members who demanded refunds were no longer members in good standing and lost their right to participate in the affairs of MSCHA. At this time, several of the dissident members instituted an action in the Circuit Court for Pinellas County and sought to recover not only [442]*442their contributions, but also sought punitive damages based on alleged fraud by the management. The Plaintiffs in the state court action also applied for and obtained the appointment of a receiver. However, the imposition of receivership turned out to be meaningless inasmuch as the only assets of MSCHA, the funds collected from the members, were on deposit in the Northern District of Illinois and the receiver never acquired control of the funds.

When all efforts of MSCHA’s management to purchase Mandalay Shores failed, and it was faced with the receivership imposed by the state court, MSCHA filed its first voluntary Petition for Relief under Chapter 11 in this Court on April 3, 1981. In spite of repeated attempts by MSCHA to produce a viable plan of reorganization, all its efforts failed and certain disgruntled former members sought repeatedly to have a dismissal of the Chapter 11 case, or in the alternative to convert the Chapter 11 case to a Chapter 7 liquidation case.

In due course, the Motion to Dismiss was heard. The Court considered all the alternatives and concluded that while this case was facially ripe for conversion, it could not be done without MSCHA’s consent, because MSCHA was “a non-monied, non-business, non-commercial” corporation and as such its case could not be converted absent consent to a Chapter 7 liquidation case by virtue of § 1112(c) of the Bankruptcy Code.

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Bluebook (online)
112 B.R. 440, 1990 Bankr. LEXIS 549, 1990 WL 32525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mandalay-shores-cooperative-housing-assn-flmb-1990.