In re Olive Street Investments, Inc.

117 B.R. 488, 1990 Bankr. LEXIS 1687, 1990 WL 113909
CourtDistrict Court, E.D. Missouri
DecidedAugust 8, 1990
DocketNo. 89-03056-BKC-JJB
StatusPublished

This text of 117 B.R. 488 (In re Olive Street Investments, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Olive Street Investments, Inc., 117 B.R. 488, 1990 Bankr. LEXIS 1687, 1990 WL 113909 (E.D. Mo. 1990).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JAMES J. BARTA, Bankruptcy Judge.

This cause coming to be heard on July 12, 1990, upon the Objections of The Howard Savings Bank (“Howard”) and the United States Trustee to Debtor’s Disclosure Statement filed April 30, 1990, the Amended Motion to Dismiss of The Howard Savings Bank filed May 11, 1990, Debtor’s Motion for the Court to Abstain pursuant to 28 U.S.C. § 1334(c)(2) filed May 9, 1990, and Howard’s Objection thereto; and all creditors and parties in interest having received more than twenty (20) days adequate written notice thereof; and the Court having held a full hearing thereon and announced its determinations and orders from the bench now enters these findings of facts and conclusions of law, pursuant to Bankruptcy Rule 7052 and Federal Rules of Civil Procedure Rule 52(a).

1. This is a core proceeding pursuant to 28 U.S.C. § 157(b)-(2)(A), and (O).

2. At 11:11 a.m. on July 25, 1989, Debt- or filed a voluntary petition for reorganization under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 1101 et seq.

3. Immediately after such filing, The Howard Savings Bank filed its Motion for, inter alia, Relief From or Modification of Automatic Stay (the “Motion for Relief”) seeking leave to proceed with its scheduled foreclosure sale of certain property of the Debtor known as the Syndicate Trust Building (the “Property”).

4. On July 25, 1989, the Bankruptcy Court granted Howard relief from the automatic stay (the “Order for Relief”) after conducting an expedited telephonic hearing. The Debtor and Howard were each represented by legal counsel. Evidence and legal argument were presented by both parties. The Court granted relief from the automatic stay for cause and upon a finding that the Debtor had no equity in the Property and that the Property was not necessary for an effective reorganization.

5. Debtor did not request or obtain a stay of the Order which granted relief from the stay. However, on July 31, 1989, the Debtor’s motion for a stay of the sale of the property pending appeal was denied by the Bankruptcy Court.

6. The record here indicates that Howard proceeded with its scheduled fore[490]*490closure sale on July 25,1990, that the Debt- or did not retain a right to redeem under state law, and that Howard acquired title to the Property as the successful bidder at foreclosure for $15,000,000.00.

7. Debtor filed its Notice of Appeal to the District Court for the Eastern District of Missouri, Eastern Division, on or about July 28, 1989. The District Court dismissed the appeal as moot on October 10, 1989. 106 B.R. 183.

8. Thereafter, the Debtor filed its Notice of Appeal to the United States Court of Appeals for the Eighth Circuit. This appeal was pending as of July 12, 1990.

9. On March 20, 1990, after a hearing on notice, this Court denied the Motion of The Howard Savings Bank to Dismiss or Convert so as to afford the Debtor additional opportunity to file a Disclosure Statement and to propose a Plan of Reorganization; ordered the appointment of an operating trustee (“the Bankruptcy Trustee”); ordered that the Bankruptcy Trustee report to the Court on April 30, 1990, concerning the administration of the estate and the recommendations described at 11 U.S.C. § 1106(a) — (5); and ordered the Debt- or to file a Disclosure Statement and proposed Plan of Reorganization no later than April 30, 1990.

10. A review of the testimony presented on March 20, 1990, and a review of the Schedules and Operating Reports filed on behalf of the Debtor, and a review of the evidence presented in support of these Motions indicates that after the commencement of this case Allan A. Pullman (“Pullman”), President and Sole Shareholder of the Debtor, transferred or caused the transfer of approximately $17,922.00 from the Debtor’s bank account to third parties. See, Footnotes 1, 4 and 5, Trustee’s Operating Report for April, 1990, and Exhibit B to February, 1990, Operating Report. These transfers were made without Bankruptcy Court authority and were for personal and non-debtor business use by Mr. Pullman. The amount of these transfers was repaid into the Debtor’s account by Mr. Pullman and/or entities controlled by him, prior to March 19, 1990, the first date set for a hearing on the motions of the United States Trustee to dismiss or convert this case, and for a return of property of the estate.

11. On April 30, 1990, the Bankruptcy Trustee reported to the Court that the value of the Property, which was essentially the Debtor’s sole asset prior to Howard’s acquisition of title through foreclosure, did not appear sufficient to sustain a feasible financial reorganization of the Debtor. He indicated that his report would not be changed if the Debtor were to reacquire title to such Property.

12. The Debtor filed a Disclosure Statement and proposed Plan of Reorganization on April 30, 1990. The hearing on the Disclosure Statement was set for June 12, 1990, and, upon request of Debtor was subsequently continued to July 12, 1990.

13. Both The Howard Savings Bank and the United States Trustee filed objections to the adequacy of the Disclosure Statement. Howard also filed an Amended Motion to Dismiss the Chapter 11 Reorganization Case.

14. On April 25, 1990, Debtor filed a Motion for the Court to Abstain pursuant to 28 U.S.C. § 1334(c)(2) seeking leave to file in state court a Complaint to Set Aside Foreclosure. Howard filed its objection thereto.

15. Howard is the holder of a claim in the approximate amount of $14,674,070.88 as of March 29, 1990, plus additional costs and expenses. This claim would increase to an amount in excess of $29,000,000 if Debtor were to reacquire title to the collateral foreclosed upon by Howard in partial satisfaction of the total claim.

16. The Debtor’s Disclosure Statement does not contain information sufficient to enable a hypothetical reasonable investor, as defined in 11 U.S.C. § 1125(a)(2), to make an informed judgment about the Plan of Reorganization as required by 11 U.S.C. § 1125(a)(1).

17. The Disclosure Statement contains insufficient financial information. Specifically, but not by way of limitation, the Disclosure Statement states that the fea[491]*491sibility of the Plan of Reorganization is contingent upon the Debtor’s ability to obtain title to and finance the Property. However, the Disclosure Statement does not disclose the affiliations of the Debtor with numerous other companies owned and/or controlled by Debtor’s sole stockholder and president, Allan A. Pullman, nor does it disclose the financial status of Pullman, or the Pullman controlled entities.

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Related

In re Olive Street Investments, Inc.
106 B.R. 183 (E.D. Missouri, 1989)

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Bluebook (online)
117 B.R. 488, 1990 Bankr. LEXIS 1687, 1990 WL 113909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-olive-street-investments-inc-moed-1990.