In re Mount Vernon Plaza Community Urban Redevelopment Corp. I

79 B.R. 306, 1987 Bankr. LEXIS 1815
United States Bankruptcy Court, S.D. Ohio·Decided August 21, 1987·No. Bankruptcy Nos. 2-86-03789 — 2-86-03791, 2-86-03788; EIN 31-1112220·Published·Cited by 1 cases

Opinion

ORDER OVERRULING OBJECTION TO CONFIRMATION (BELL FACTION OF BOARDS OF TRUSTEES)

BARBARA J. SELLERS, Bankruptcy Judge.

This matter is before the Court upon an objection to confirmation of the Plan of Reorganization proposed by The Adrian Company, subsequently modified to become a plan of reorganization jointly proposed, not only by Adrian, but also by the Flowers faction of the boards of trustees of Mount Vernon Plaza Community Urban Redevelopment Corporations I, II and III and Bry-den Road Plaza, Inc. (the “Plan”). The objection was filed by Gladys Bell, Estelle Porter and Elminie Rickman (the “Bell faction”), asserted members of the boards of trustees of the debtor corporations, and was heard by the Court.

The Bell faction’s objection to confirmation falls into four major categories: (1) issues relating to authority and jurisdiction; (2) issues relating to the omission from the Plan of a related corporate entity, Neighborhood Development Corporation; (3) the feasibility of the Plan; and (4) alternative courses of action available to the debtors. For reasons set forth below, the Court finds the objection to be without merit.

This case has been marked from its onset by deep personal rifts among members of the governing boards of trustees of these non-profit corporations. Since the case was transferred to this Judge, significant court time has been spent hearing of the need for professional management of the highrise apartments, family units and commercial spaces which comprise the primary physical assets of the debtors. Following the appointment of a managing agent, by agreement of the parties, the Court has supervised that agent, primarily because the board factions are unable to communicate or cooperate with one another. Because of certain frictions, the adversary action seeking a declaratory judgment as to the proper composition of the boards, now in active trial, has also required greater than average court intervention in the pretrial process.

These events are mentioned only as background relevant to understand the context of the objection. The objection also requires the Court to focus upon the statutory process under the Bankruptcy Code by which a non-debtor entity is permitted and encouraged to propose and seek confirmation of a plan of reorganization, independent of actions by the debtors, outside a 120-day exclusive period within which only the debtors may propose a plan. 11 U.S.C. § 1121.

The jurisdiction of this Court cannot seriously be questioned. To commence what is now a jointly administered case, four voluntary petitions under Chapter 11 of the Bankruptcy Code were filed with this Court on September 26,1986. At that time, jurisdiction of the Court was invoked pursuant to 28 U.S.C. § 1334(a). Indeed, there is no [308]*308other Court which would have bankruptcy jurisdiction over these matters. While the split among the members of the boards of trustees has impacted upon the abilities of the debtors to govern themselves during the pendency of these cases, nothing has occurred to divest this Court of the jurisdiction invoked by the initial filings.

Following a lengthy trial on motions filed by the Bell faction and by the Mount Vernon Highrise Residents’ Council of Mount Vernon Plaza Community Urban Redevelopment Corporation I, the parties reached a settlement which provided for the appointment of a managing agent. The agreement setting forth that settlement was approved by the Court on April 24, 1987. Section 3.1 of that settlement agreement provides, with certain nonapplicable exceptions and subject to § 3.2, that:

“[t]he Flowers faction shall continue to operate as representatives of the debtors and debtors in possession in each of the above captioned cases until further order of the Court. As representatives of the debtors and debtors in possession, the Flowers faction shall have all rights and duties resulting from such status under the Bankruptcy Code and Rules and other applicable law that they had prior to the entry of this order ...
§ 3.2. The Flowers faction as representatives of the debtors and debtors in possession, as well as the debtors and the debtors in possession themselves, hereby waive the exclusive right to propose, file and/or seek confirmation of a Plan of Reorganization in each of the above captioned cases. However, the Flowers faction may, as representatives of the debtors or debtors in possession, propose, file, and seek the confirmation of a Plan of Reorganization in any of the above captioned cases on behalf of debtors and debtors in possession.”

The Court finds that the sections of the Order set forth above, agreed to by the representative of the Bell faction, clearly and unambiguously authorize the Flowers faction to join in the proposal of a plan of reorganization. Such provision also effectively waives any issue of the authority of that faction to proceed with the confirmation process. The Bell faction was also eligible, pursuant to the preservation of its rights and duties under the Bankruptcy Code as set forth in other provisions of that settlement agreement, to propose its own plan of reorganization or to join forces with a third party for that purpose. In fact, it has done exactly that in a recent plan filed with the Court. That a viable proposal first has been brought forward by the Flowers faction is, therefore, not a matter of which the Bell faction may properly complain. Accordingly, objections to the jurisdiction of this Court or the authority of the Flowers faction to act in this regard are overruled.

The next issue raised by the Bell faction’s objection relates to the propriety of omitting Neighborhood Development Corporation (“NDC”) from the Plan. Under the Articles of Incorporation of the debtors, NDC is the sole member of each corporation within the provisions of Ohio Revised Code, § 1702.13. The objection asserts not only that NDC must be included by virtue of that membership, but also that the five corporations are but one entity insofar as creditors are concerned.

The Court finds that, although NDC is a separate non-profit corporation which is not part of the Plan submitted for these related debtors, the Plan proposes payment for many of NDC’s creditors. Specifically, any creditors of NDC which provided money, goods or services for the properties owned and operated by these debtors are to be paid in full from the cash proceeds of the sales of those properties contemplated by the Plan. The Plan anticipates that all currently existing unsecured creditors of NDC will be paid in this matter. The Plan also proposes to pay approximately $250,-000 to the Ohio Housing Finance Agency, a creditor of NDC which holds mortgages against various properties owned by NDC. Holders of other secured claims against NDC have been or are being paid through sales of the properties to which their liens relate or by abandonment of the properties to the lienholders. Claims arising from NDC’s involvement with the operation of [309]*309the Singletary Plaza are not proposed to be paid under the Plan of these debtors.

The Court finds further that all creditors of NDC were given notice of the confirmation hearing and were served copies of the Amended Disclosure Statement and Plan of these debtors. None have complained of their exclusion.

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In re Mount Vernon Plaza Community Urban Redevelopment Corp. I, 79 B.R. 306, 1987 Bankr. LEXIS 1815 (Ohio 1987).

79 B.R. 306 (In re Mount Vernon Plaza Community Urban Redevelopment Corp. I) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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