In re Red Door Lounge, Inc.

559 B.R. 728, 2016 Bankr. LEXIS 3731, 63 Bankr. Ct. Dec. (CRR) 73, 2016 WL 6068101
CourtUnited States Bankruptcy Court, D. Montana
DecidedOctober 14, 2016
DocketCase No. 15-61151-11
StatusPublished
Cited by2 cases

This text of 559 B.R. 728 (In re Red Door Lounge, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Red Door Lounge, Inc., 559 B.R. 728, 2016 Bankr. LEXIS 3731, 63 Bankr. Ct. Dec. (CRR) 73, 2016 WL 6068101 (Mont. 2016).

Opinion

MEMORANDUM of DECISION

Honorable Ralph B. Kirscher, Chief U.S. Bankruptcy Judge

At Butte in said District this 14th day of October, 2016.

In this Chapter 11 bankruptcy, the Court held a hearing in Missoula after notice on October 6, 2016 on: (1) Debtor’s Objection to Proof of Claim No. 4 filed by First Interstate Bank; (2) the Motion to Convert of Dismiss filed by First Inter-state Bank, successor by merger to Moun-tain West Bank, N.A.; (3) the United States Trustee’s Motion to Dismiss or Convert; (4) final approval of Debtor’s Disclosure Statement filed June 7, 2016;1 and (6) confirmation of the Debtor’s Chap-ter 11 Plan filed June 7, 2016. In response to objections to approval of Debtor’s Dis-closure Statement filed June 7, 2016, Debt- or filed an Amended Disclosure Statement on September 9, 2016. Debtor’s counsel acknowledged certain inconsistencies in both the Disclosure Statement filed June 7, 2016 and the Amended Disclosure Statement September 9, 2016 and represented that Debtor would file a further amended disclosure statement. Given the concession by Debtor, approval of Debtor’s Disclosure Statement and Amended Disclosure Statement is denied. Additionally, the Ballot Report filed September 13, 2016, relates to Debtor’s Chapter 11 Plan filed June 7, 2016. Counsel for Debtor, First Interstate Bank and the United States Trustee (“UST”) recognized that the ballots and the Ballot Report relate to Debtor’s Chap-ter 11 Plan, which Plan was superseded by a First Amended Chapter 11 Plan filed September 9, 2016, at docket no. 63. Given that approval of Debtor’s Disclosure Statement and Amended Disclosure Statement was denied, and given that the filed ballots relate to a plan that was superseded, con-firmation of any plan is premature at this time. The Court thus proceeded with the hearing on the motions to dismiss or con-vert and on Debtor’s Objection to First Interstate Bank’s Proof of Claim.

This Court has jurisdiction of this Chap-ter 11 bankruptcy case under 28 U.S.C. § 1334(a). Debtor’s Objection to First In-terstate Bank’s claim is a core proceeding under 28 U.S.C. § 157(b)(2)(B) and the [730]*730motions to dismiss or convert filed by the UST and First Interstate Bank are core proceedings under 28 U.S.C. § 157(b)(2)(A). This Memorandum of Decision includes the Court’s findings of fact and conclusions of law.

Debtor was represented at the hearing by James A. Patten of Billings, Montana. First Interstate Bank was represented at the hearing by Benjamin P. Hursh of Mis-soula, Montana. The UST was represented at the hearing by Neal G. Jensen of Great Falls, Montana. John C. Foster (Debtor’s President, and sole shareholder) and Jim Koontz (Debtor’s accountant) testified and Exhibits 1 through 16 and Exhibits A, B and C were admitted into evidence.

BACKGROUND

Debtor filed a prior Chapter 11 bank-ruptcy case on August 18, 2011. See Case No. 11-61605-11. Debtor’s Chapter 11 plan was confirmed in that case on September 7, 2012. As part of the confirmation pro-cess, Debtor entered into a stipulation with Mountain West Bank wherein Debtor and Mountain West Bank agreed to the follow-ing treatment of Mountain West Bank’s secured claim:

The Allowed Secured Claim of Class Three Creditor, Mountain West Bank (the “Bank”), consists of the re-capital-ized sum of the principal balances of the two loans (loan # 260005318 and loan no.' 260005723) that were merged in into the prepetition Judgment in favor of the Bank against, plus accrued and unpaid interest and authorized fees and costs, in the total amount of $848,801.40 as of August 31, 2012. That Allowed Secured Claim shall be paid in 240 monthly in-stallments commencing on the Effective Date at 4.25% per annum for the first 5 years (60 months) after the Effective Date equal to monthly payments of $5,256.68, and thereafter and on every five (5) years after the Effective Date during the repayment term, the interest rate shall be readjusted to an annual interest rate equal to the prime rate for major New York banks shown in the Wall Street Journal Money Section on that day plus 1% and the monthly payment shall be adjusted accordingly,

A final decree was entered and that case was closed on March 7, 2013.

Debtor commenced this Chapter 11 bankruptcy case on December 10,2015. On Schedule D filed December 24, 2015, Debt- or listed First Interstate Bank as having a secured claim in the amount of $683,102. On April 22, 2016, First Interstate Bank filed Proof of Claim No, 4 asserting a secured claim in the amount of $942,380.42. Attachments to Proof of Claim No. 4 show that Debtor has not made a payment to First Interstate Bank since June 4, 2014, that the remaining principal balance owing is $804,751.42 and that an additional $51,911.97 is owed in post-judgment inter-est. The attachments also show that First Interstate Bank is claiming $85,717.03 for the 2010-2014 real property taxes First Interstate Bank paid on August 28, 2015. Debtor objects to First Interstate Bank’s Proof of Claim arguing that First Inter-state Bank is not, under the approved' stipulation with Mountain West Bank, enti-tled to late fees and charges and that the Proof of Claim should be allowed in the amount of $886,617.45. Debtor’s objection does not provide any explanation as to how Debtor’s counsel arrived at the figure of $886,617.45.

Despite having not made any payments to .First Interstate Bank since June 2014, and despite having not paid any real prop-erty taxes since 2010, Debtor only had $5,015.00 in cash on hand and an additional $352.00 in the bank at the time Debtor commenced this case on December 10, [731]*7312015.2 The Debtor derives its income from two sources; the rental of real property and the operation of a lounge and casino. Per the Disclosure Statement filed June 7, 2016, Debtor intends to fund its Chapter 11 Plan with estimated monthly bar and lounge revenues of $25,685, gaming reve-nues of $4,364 and commercial leases of $8,000, for a total of $38,049 per month. In the Amended Disclosure Statement filed September 9, 2016, Debtor adjusted its monthly revenue projections downward to $21,525 from its bar and lounge operations, $4,687 from its gaming operation, $7,328 from commercial leases and $1,793 from assignments of revenue by Montana Mo-tors, Inc., for a total of $35,333 per month.3 While Debtor projects monthly income of $35,333, Debtor’s Monthly Operating Re-port (“MOR”) for December of 2015, shows Debtor’s income that month was $30,589 and Debtor’s expenses were $23,467; Debtor’s MOR for January 2016 shows Debtor’s income -that month was $39,468 and expenses were $30,572; Debtor’s MOR for February 2016 shows Debtor’s income was $29,668 and expenses were $29,307;* Debtor’s MOR for March 2016 shows income was $32,652 and expenses were $30,396; Debtor’s MOR for April 2016 shows income was $30,182 and ex-penses were $29,627; Debtor’s MOR for May 2016 shows income was $29,915 and expenses were $26,006; Debtor’s MOR for June -2016 shows income was $42,339 and expenses were $26,470; and Debtor’s MOR for July 2016 shows income that month was $33,213 and expenses were $35,920.

DISCUSSION

A. Debtor’s Objection to First Interstate Bank’s Proof of Claim.

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Bluebook (online)
559 B.R. 728, 2016 Bankr. LEXIS 3731, 63 Bankr. Ct. Dec. (CRR) 73, 2016 WL 6068101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-red-door-lounge-inc-mtb-2016.