In re Monticello Realty Investments LLC

526 B.R. 902, 25 Fla. L. Weekly Fed. B 233, 2015 Bankr. LEXIS 707, 2015 WL 1087378
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedMarch 6, 2015
DocketCase No. 3:14-bk-2892-JAF
StatusPublished
Cited by5 cases

This text of 526 B.R. 902 (In re Monticello Realty Investments LLC) 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 Monticello Realty Investments LLC, 526 B.R. 902, 25 Fla. L. Weekly Fed. B 233, 2015 Bankr. LEXIS 707, 2015 WL 1087378 (Fla. 2015).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JERRY A. FUNK, United States Bankruptcy Judge

This case came before the Court upon a confirmation hearing on Combined Disclosure Statement and Chapter 11 Plan filed by Monticello Realty Investments, LLC (the “Debtor”) on September 27, 2014 (Doc. No. 45; the “Plan”), Debtor’s Motion [906]*906to Designate and Disqualify the Ballots of the Jacksonville Bank as Cast in Bad Faith (Doc. No. 58; the “Motion to Designate”), and Debtor’s Objection to Claim No. 3 of The Jacksonville Bank (Doc. No. 60; the “Objection to Claim”). The Court conducted an evidentiary hearing on the matters on December 10, 2014. At the conclusion of the hearing, in lieu of oral argument, the Court directed the parties to submit post-trial memoranda in support of their respective positions. Upon the evidence and the applicable law, the Court makes the following Findings of Fact and Conclusions of Law.

Findings of Fact

In March of 2003, The Jacksonville Bank (the “Bank”) loaned $1,185,000.00 to Monticello Realty Investments, Inc. (“MRI Inc.”) to finance MRI Inc.’s acquisition of the Norco Office Center at 580 Ellis Road, Jacksonville, Florida 32254 (the “Property”). (Tr. at 80-81). The Property is a Class C Commercial Property which consists of a 29,000 square foot office complex. (Tr. at 9). The Bank’s loan to MRI Inc. was evidenced by a promissory note (the “Note”) and secured by a mortgage (the “Mortgage”) executed by MRI Inc. in favor of the Bank. (Tr. at 80-81). On May 24, 2004, MRI Inc. transferred the Property to the Debtor, subject to the Mortgage. (Tr. at 82-83). The Bank’s claim against the Debtor arises from the Debtor’s guaranty of the Note and Mortgage (the “Guaranty”), which the Debtor executed when it took title to the Property. (Tr. at 83-84). The maturity date of the Note was March 26, 2008. (Bank’s Ex. 18, Ex. A).

By a modification agreement dated March 26, 2008, the Note’s maturity date was extended to March 26, 2013. (Bank’s Ex. 18, Ex. J). By a modification agreement dated August 29, 2013, and made effective as of March 26, 2013, the Note’s maturity date was extended to August 15, 2014. (Bank’s Ex. 18, Ex. P). Debtor defaulted under the August, 2013 modification agreement. On November 21, 2013 the parties entered into another modification agreement. (Bank’s Ex. 18, Ex. Q). The November 21, 2013 modification agreement permitted Debtor to make interest only payments for five months. At the time the parties entered into the August, 2013 and November, 2013 modification agreements, the Property had an occupancy rate of approximately 56%, the Debtor was delinquent on property taxes, and the Debtor had missed months of payments. Stephen Coates, the account manager for the Bank, explained that the Bank entered into the extensions because it wanted to give the Debtor an opportunity to get back on its feet and maintain its operation. (Tr. at 138-139). The Bank had the option of commencing a foreclosure proceeding or working with the Debt- or and it chose to work with the Debtor. (Tr. at 139). Debtor immediately defaulted under the November 21, 2013 modification agreement. On May 5, 2014, the Bank instituted a foreclosure proceeding. (Bank’s Ex. 18).

On June 13, 2014 (the “Petition Date”), the Debtor (but not MRI Inc.) filed a voluntary petition under Chapter 11 of the Bankruptcy Code. (Tr. at 90-91).1 On its bankruptcy schedules the Debtor valued the Property at $1.4 million. (Bank’s Ex. 1). On June 25, 2014, the Debtor filed Emergency Motion for Authority to Use Cash Collateral (the “Emergency Motion”) (Doc. 21), to which the Bank objected (Doc. 32). On July 10, 2014, the Court conducted a hearing on the Emergency Motion at which it granted the Emergency Motion on an interim basis and directed the parties to submit an agreed order. On [907]*907August 21, 2014, the Court entered Interim Order Authorizing Use of Cash Collateral (the “First Cash Collateral Order”). (Bank’s Ex. 2). Therein the Debtor acknowledged and agreed that,' as of the Petition Date, it owed the Bank $850,054.38, which included $763,507.40 of principal, $42,481.98 of interest, $2,950.00 of appraisal costs, and $41,116.38 of attorney’s fees and expenses. The First Cash Collateral Order set forth the parties’ tentative agreement to restructure the Debt- or’s debt to the Bank. (Tr. at 93). The parties’ agreement was expressly conditioned upon the Debtor’s execution of new loan documents acceptable to the Bank. (Tr. at 97). The First Cash Collateral Order provided as follows:

i. The Debtor’s obligations to the Bank “shall be evidenced by new loan documents (to be negotiated between the Debtor and the Bank and attached as exhibits to the Plan) which shall provide for:” (a) $763,507.40 of the Bank’s secured claim to be repaid at 5.25% interest amortized over 30 years, subject to a balloon payment in five years and (b) the balance of the Bank’s secured claim not to exceed $144,718.24 to be paid at 6.5% interest only, subject to a balloon payment in five years. (Bank’s Ex. 2, ¶ 11);
ii. The First Cash Collateral Order “shall not constitute evidence concerning ... the terms of the Debt- or’s plan of reorganization in the event the Debtor and the Bank are unable to agree on the terms of the New Loan Documents to be attached to the Plan.” (Bank’s Ex. 2, ¶ 21); and
iii. The First Cash Collateral Order “shall not be deemed to modify any of the terms or conditions of [the Bank’s] [e]xisting [l]oan [documents” (which existing documents require all modifications to be in writing) (Bank’s Ex. 2, ¶ 18; Tr. at 94-96).

In September of 2014, the Bank provided the Debtor with drafts of two promissory notes, a mortgage and a proposed confirmation order containing terms consistent with the frame-work outlined in the First Cash Collateral Order. (Tr. at 98-99). According to Mr. Coates, the new loan documents were standard bank loan documents containing typical loan terms. (Tr. at 98-99). The Debtor responded by proposing • revisions to the new loan documents that were unacceptable to the Bank. (Tr. at 99-100). The Debtor proposed to eliminate (i) the Debt- or’s obligation to pay property taxes on the Property, (ii) the Debtor’s obligation to maintain insurance on the Property, (iii) cross-default provisions between the two promissory notes, (iv) a cross-default provision between the promissory notes and the mortgage, (v) the Debtor’s obligation to pay the Bank’s attorneys’ fees and appraisal expenses and (vi) the due-on-sale provision. (Tr. at 100-102). At some point, negotiations between the parties broke down. The parties did not execute new loan documents. (Tr. at 62-63).

On September 27, 2014, the Debtor filed the Plan without any new loan documents attached. Instead, the Plan provided that the Debtor would (i) repay $910,177.69 to the Bank (Bank’s Ex. 3, § 3.3a; Tr. at 105-106) and (ii) “enter into a new mortgage and new promissory notes” which the Debtor would file with the Court “on or prior to the Confirmation Hearing.” (Bank’s Ex. 3, § 3.3a).

On September 29, 2014, the Court entered Second Interim Order Authorizing Use of Cash Collateral (the “Second Cash Collateral Order”). Like the First Cash Collateral Order, the Second Cash Collat- " eral Order provided that the parties’ tenta[908]*908tive agreement to restructure the Debtor’s debt to the Bank was conditioned upon the execution of new loan documents. (Bank’s Ex. 4, ¶ 13). According to Mr.

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526 B.R. 902, 25 Fla. L. Weekly Fed. B 233, 2015 Bankr. LEXIS 707, 2015 WL 1087378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-monticello-realty-investments-llc-flmb-2015.