In re Queen Elizabeth Realty Corp.

586 B.R. 95
CourtDistrict Court, S.D. Illinois
DecidedMarch 8, 2018
Docket17 Civ. 2594 (KPF); Case No. 13–12335 (SMB)
StatusPublished
Cited by7 cases

This text of 586 B.R. 95 (In re Queen Elizabeth Realty Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Queen Elizabeth Realty Corp., 586 B.R. 95 (S.D. Ill. 2018).

Opinion

KATHERINE POLK FAILLA, District Judge:

Debtor-Appellant Queen Elizabeth Realty Corp. ("Queen Elizabeth" or "Appellant") brings this appeal from an interlocutory order granting Creditor-Appellee SMS Financial G, LLC ("SMS" or "Appellee") ) permission to file a late proof of claim pursuant to Federal Rule of Bankruptcy Procedure 9006(b)(1). Debtor's bankruptcy petition was filed in July 2013, and creditors were required to file notices of claim by October 28, 2013. SMS's predecessors-in-interest had not been given notice of the proceeding or its attendant deadlines; did not learn of it until December 2015; and filed a proof of claim four months later. After extensive discovery and briefing on this issue, United States Bankruptcy Judge Stuart M. Bernstein granted SMS's motion to file a proof of claim untimely on the basis of excusable neglect. Because Judge Bernstein's decision was not an abuse of his discretion, the order below is affirmed.

*99BACKGROUND1

A. Factual Background

1. Foodmart-All Points Agreement

On June 25, 2009, Foodmart International II, Corp. ("Foodmart II") entered into a chattel mortgage with Sierra Credit Corp. ("Sierra"); the agreement was signed by Lewis Wu, President of Foodmart II. (Ex. A). The same day, Lewis Wu executed a guaranty agreement, whereby the entities Foodmart International V, Corp. ("Foodmart V"), Queen Elizabeth, and Farmer's Best Market Corp. ("Farmer's") agreed to guarantee the payments due to Sierra under the mortgage. (Id. ). Lewis Wu signed on behalf of all guarantor entities. (Id. ). That same day, Sierra executed a collateral assignment of contract documents wherein it assigned all rights under the Foodmart II contract to All Points Capital Corp. ("All Points"). (Id. ). Lewis Wu signed, on behalf of Foodmart II, a notice and acknowledgement of the assignment to All Points. (Id. ).

2. All Points State Court Litigation

On October 5, 2011, All Points filed suit in New York State Supreme Court, Nassau County, against Foodmart II, Foodmart V, Queen Elizabeth, Farmer's, and Lewis Wu to recover an unpaid sum due and owing of $1,594,682.96. (Ex. A). All Points was represented by Lee Mendelson of Moritt Hock & Hamroff LLP. (Id. ). In a short form order dated June 13, 2012, Justice Stephen A. Bucaria entered summary judgment in favor of All Points, and ordered that an inquest be held. (Id. ).

On February 13, 2013, the parties filed a stipulation with the Supreme Court in which the parties consented to a judgment against Foodmart V, Farmer's, Queen Elizabeth, and Wu in the amount of $1,500,000 in lieu of an inquest. (Ex. B). Lewis Wu signed the stipulation on behalf of himself, Foodmart V, and Farmer's; no representative of Queen Elizabeth signed the stipulation. (Id. ). Also on February 13, 2013, the Supreme Court entered judgment against Foodmart V, Farmer's, and Wu in the amount of $1,500,000. (Ex. A). The judgment explicitly excluded Queen Elizabeth. (Id. ("ADJUDGED, that Plaintiff sever and continue the action against Defendant, Queen Elizabeth[.] ) ). The last entry on the docket for this case is dated February 15, 2013, and reads "settled before trial." (Ex. B).

3. Bankruptcy Filing and All Points' Assignment to SMS

Queen Elizabeth filed for bankruptcy under Chapter 11 on July 17, 2013. (Bankr. Dkt. # 1). By Order dated September 13, 2013, Judge Bernstein set the deadline for filing proofs of claim (the "Bar Date") as October 28, 2013. (Bankr. Dkt. # 24). The September 13, 2013 Order required Queen Elizabeth to serve notice of the Bar Date on, inter alia , "all creditors and other *100known holders of claims as of the date of this Order," and "all parties to litigation with the Debtor." (Id. ). On January 14, 2016, Judge Bernstein held a confirmation hearing on Queen Elizabeth's Chapter 11 reorganization plan. (Bankr. Dkt. # 325). He then confirmed the plan on January 26, 2016. (Bankr. Dkt. # 322).

Meanwhile, on December 8, 2015, Capital One Equipment Finance Corp. ("Capital One," formerly known as All Points), had assigned its rights under the June 25, 2009 agreement with Foodmart II to distressed debt buyer SMS. (Ex. A). Schedule A to the general assignment and assumption agreement contains a list of litigation proceedings and judgments-on that list is an entry for Foodmart II as "borrower" and Queen Elizabeth as "judgment debtor." (Id. ). The entry includes the docket number for Queen Elizabeth's Chapter 11 proceeding and says "no disposition." (Id. ).

Discovery in connection with the instant litigation disclosed that in November 2015, Capital One had invited SMS to bid on the June 25, 2009 contract. (Ex. E). SMS conducted due diligence and asked that Capital One "run a search to disclose any bankruptcy filings related to the contemplated transaction." (Id. ). On December 2, 2015, Capital One became aware of Queen Elizabeth's bankruptcy case, and it was added to Schedule A of the assignment agreement. (Id. ).

Further insight into the relevant timeline was obtained in June 2016, when Queen Elizabeth deposed Daniel Shorr, a partner and managing director at SMS, in connection with this litigation. Shorr confirmed that Queen Elizabeth's bankruptcy case had been added to Schedule A following SMS's bankruptcy litigation due diligence. (Shorr Dep. 12:1-14:23). Shorr testified that a few days after the Capital One deal closed (at which point he owned the judgment against Queen Elizabeth), he "personally pulled the docket report ... to see what the bankruptcy was about." (Id. at 15:16-17). Shorr learned from the docket entries that Queen Elizabeth was "moving through their Fourth Amended Plan and they had financing in place, hadn't yet funded, but they were looking at some takeout financing on their building in Manhattan." (Id. at 16:23-17:1). Shorr saw that the Bar Date had passed, "and that All Points and Capital One [had never been] noticed as a [c]reditor in the bankruptcy." (Id. at 17:7-9). He did not learn (and, the Bankruptcy Court later determined, would not have learned) from the docket of the pending confirmation date of Queen Elizabeth's reorganization plan.

On December 14, 2015, Shorr retained Lee Mendelson-who was the attorney of record on the judgment-"to file the Assignment of Judgment and file an Appearance and a Motion for the Late Proof of Claim[.]" (Shorr Dep. 15:12-16:8). But, Shorr explained, Mendelson never filed anything in the bankruptcy case and lied when Shorr asked him about it. (Id. at 17:17-23). Shorr testified:

[H]e lied. With a string of phone calls and emails, Mr. Mendelson said he had filed the Assignment of Judgment, he said he had filed the late-the Motion for Late Proof of Claim, and he said he had spoken to opposing counsel. I later determined none of it was true and immediately terminated him in March.

(Id. ).

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586 B.R. 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-queen-elizabeth-realty-corp-ilsd-2018.