In re Nugelt, Inc.

142 B.R. 661, 1992 Bankr. LEXIS 1154, 23 Bankr. Ct. Dec. (CRR) 126
CourtUnited States Bankruptcy Court, D. Delaware
DecidedJune 16, 1992
DocketBankruptcy Nos. 88-493, 88-297 and 88-325
StatusPublished
Cited by6 cases

This text of 142 B.R. 661 (In re Nugelt, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Nugelt, Inc., 142 B.R. 661, 1992 Bankr. LEXIS 1154, 23 Bankr. Ct. Dec. (CRR) 126 (Del. 1992).

Opinion

MEMORANDUM OPINION AND ORDER

HELEN S. BALICK, Bankruptcy Judge.

First Federal Savings Bank (of Delaware) and the United States Trustee have moved for the conversion, dismissal, or appointment of a trustee in three related Chapter 11 cases: NuGelt, Inc., Mybev Associates and Michael Moskowitz. The court held a three-day hearing on these motions in March. Post-trial the United States Trustee argued that dismissal is the only appropriate remedy. ' The court agrees.

I. FACTS

Michael Moskowitz is the president and sole shareholder of NuGelt, a Delaware corporation. NuGelt operates two restaurants, one on the Kirkwood Highway in Wilmington and the second in Newark. Mybev is a partnership originally comprised of NuGelt, Michael Moskowitz and his former wife Beverly Moskowitz. Today the sole partners are Michael and NuGelt. Mybev holds title to the land the Kirkwood Highway restaurant occupies. Michael and Beverly held title to a nearby lot on Logan Lane used for employee parking. Carolyn Moskowitz, neé Durbin, is Secretary and Vice President of NuGelt. She was Vice President of NuGelt at the time of the loan transactions with First Federal. She is now married to Michael.

In March of 1987 First Federal approved a $1,850,000 mortgage loan package consisting of a $1,600,000 term loan to Michael and Beverly Moskowitz and a $250,000 loan to NuGelt in the form of a letter of credit or a line of credit and an equipment loan [663]*663and a line of credit. The monthly payment for the term loan alone began at $8,889 and would have increased during the 15-year payback period.

The loan was secured by a first mortgage lien on the Kirkwood Highway restaurant real estate, allegedly including the Logan Lane parcel held by Michael and Beverly Moskowitz. (But only a mortgage lien on the property held by Mybev was actually conveyed at the closing.) NuGelt provided the lender with an MAI appraisal report: the two parcels were valued at $2,500,000 and the restaurant machinery and equipment at $500,000.

Michael Moskowitz accepted the loan on behalf of NuGelt. Michael, Beverly and Carolyn also accepted the terms individually and so are personally liable on the note. NuGelt was the corporate guarantor for Michael and Beverly’s term loan; it executed a promissory note to First Federal secured by NuGelt’s equipment, inventory, contracts and accounts receivable.

At closing, the Logan Lane parking lot was not included in the mortgage documents. The parties debate the scope of the land mortgage (First Federal claims an equitable interest in the Logan Lane lot), but that is not relevant to the court’s decision today.

Mybev filed under Chapter 11 on June 2, 1988. Michael Moskowitz filed under Chapter 11 on June 14, 1988. NuGelt filed under Chapter 11 on September 20, 1988. There were related concurrent Chapter 11 filings in this court which were long ago discharged or converted. The business debtors are represented jointly; the individual debtor has separate counsel.

The Debtors’ petitions listed the following assets and liabilities. NuGelt: assets of $3,500,000 and liabilities of $9,600,000 of which $3,500,000 is secured debt divided among three creditors ($14,264 cash on hand). Mybev: assets of $3,000,000 and liabilities of $7,300,000 divided between two secured creditors. Moskowitz: assets of $340,000 and liabilities of $9,600,000; $447,-750 of which is secured debt and $9,100,000 unsecured.

From the beginning, litigation has been heavy in these proceedings. First Federal’s post-trial memorandum lists eight adversaries, stay motions, and motions in the main cases currently pending before the court. The United States Trustee has been active in these eases as well. Most recently there have been Motions to Convert in Mybev (filed December 2,1991) and NuGelt (filed February 10, 1992) and a Motion for an Order Fixing Deadline for Filing Plan of Reorganization and Disclosure Statement in Moskowitz (filed July 16, 1991). Only the motion in Mybev was noticed for hearing on March 6,1992, but the United States Trustee asked to join in First Federal’s motions as well.

NuGelt and Mybev filed disclosure statements and plans of reorganization on December 29, 1989. First Federal objected to the disclosure statements. Hearings were held on February 2 and 7, 1990. There was a two day valuation hearing in April of 1990 to determine the amount of First Federal’s secured claim in connection with its objection to the Debtors’ disclosure statement. A decision on the exact underlying value of First Federal’s collateral is pending. Michael Moskowitz also filed a disclosure statement and plan on December 29, 1989.

In October of 1989 First Federal and NuGelt entered into a stipulation under which NuGelt would pay First Federal $10, 000/month commencing November 1, 1989. The payments were to continue until confirmation, dismissal or conversion, or the court scheduled a hearing on First Federal’s motion to convert, dismiss or appoint a trustee (which the court did on January 27, 1992). The court approved the stipulation on October 23, 1989. The payments were made as scheduled until August 1991 when NuGelt purposely stopped, without prior court approval or notice.

First Federal responded with a motion for rule to show cause why the Debtors should not be held in contempt for violation of this court’s October 23, 1989 Order. At the January 27, 1992 hearing the court deferred ruling on the motion, preferring to combine the motion with an update on the nearly two-year old expert valuation testimony for the 1990 valuation motion; [664]*664First Federal’s renewed motions to convert, dismiss or appoint a trustee in the cases; and the United States Trustee’s motion to convert, dismiss or appoint a trustee in Mybev. Testimony was presented on March 6, 10 and 11 with post-trial briefing completed on April 2, 1992. This opinion follows.

II. DEBTORS’ POST-PETITION OPERATIONS

A. The Debtors’ Monthly Reports

Chapter 11 debtors are responsible for filing monthly operating reports with the United States Trustee. Mybev has interpreted this requirement to be purely a formality; “a useless gesture.” Tr. at 6. This is allegedly the result of Mybev’s status as a title holding company; its fortunes rise and fall with NuGelt’s. Accordingly, there are no monthly reports available to chart Mybev’s progress through its Chapter 11 case. Similarly Moskowitz has also stopped filing monthly reports as they were allegedly duplicative of NuGelt’s. Tr. at 69. The court does not understand why a corporation and an individual’s monthly statement of receipts and disbursements should be identical, but there it is: only monthly reports are available for NuGelt.

NuGelt’s monthly operating report itemizes two large categories of disbursements under “Other operating expenses paid”: “Wage Attachments” (12b.) and “Share holder distributions” (sic) (13b.). There was extensive testimony at trial by the Debtor’s principals as to what these monies went to, and that will be discussed in some detail infra. Suffice to say now that these are all checks written on the DIP account and signed by Michael or Carolyn Moskow-itz, the two signatories. The wage attachments total approximately $62,686.80 through February 1992. The shareholder distributions total approximately $327,000 through February 1992. The Monthly Reports list “NONE” under salaries of officers and owners.

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142 B.R. 661 (D. Delaware, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
142 B.R. 661, 1992 Bankr. LEXIS 1154, 23 Bankr. Ct. Dec. (CRR) 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nugelt-inc-deb-1992.