In re Reg'l Evangelical Alliance of Churches, Inc.

592 B.R. 375
CourtUnited States Bankruptcy Court, D. Kansas
DecidedNovember 6, 2018
DocketCase No. 18-11065
StatusPublished
Cited by3 cases

This text of 592 B.R. 375 (In re Reg'l Evangelical Alliance of Churches, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Reg'l Evangelical Alliance of Churches, Inc., 592 B.R. 375 (Kan. 2018).

Opinion

Dale L. Somers, United States Chief Bankruptcy Judge

The question is whether this case was filed in good faith. Karbank Holdings, LLC (Karbank), a creditor of Debtor Regional Evangelical Alliance of Churches, Inc. (Debtor), alleges that it was not and has moved to dismiss this case, or alternatively for relief from stay (the Motion).1 Prepetition Karbank sued Debtor and others in state court to enforce a Right of First Negotiation and First Refusal Agreement (Rights Agreement) with Debtor, which granted Karbank certain rights to purchase real property owned by Debtor. The state court found that the Rights Agreement had been breached by Debtor's transfer of the Property to Diversified Acquisitions, Inc. (Diversified). Before the court ruled on the remedy to which Karbank was entitled, which the parties anticipated would have allowed Karbank to purchase the property for considerably less than market value, Diversified transferred the property to Debtor. The next day, Debtor filed for relief under Chapter 11. Karbank responded with the Motion.

An evidentiary hearing on the Motion was held on August 15, 2018.2 At the close of trial, the Court requested the parties to brief the applicability of the Rooker-Feldman doctrine to this controversy. Those briefs have been received. After considering the record, testimony, exhibits, briefs, and arguments of counsel, the Court finds that this case should be dismissed because it was not filed in good faith, as that term is understood in the bankruptcy context.

I. Findings of Fact

Debtor is "a church planting alliance, committed to planting and overseeing missional parishes (churches),"3 which are self-sufficient churches under the authority of Debtor. Craig McElvain is the executive director of Debtor. In the summer or fall of 2013, Debtor purchased real property located at 7501 Belinder Street in Prairie Village, Kansas (the Property) for approximately $1.2 million. Approximately $950,000 of the purchase price was financed *379by the Bank of Prairie Village. The Property was used as a parish, known as Reach in the Village, and the down payment was financed, in part, by loans from individuals. Craig McElvain became seriously ill in late spring of 2015 and was unable to attend to the affairs of Debtor during his illness. In December 2015, Reach in the Village was dissolved. The Property ceased to be used for religious services and is not currently occupied.

On July 27, 2015, Debtor and Karbank executed a Parking Lot Lease that granted Karbank, which has offices on 75th Street across the street from the Property, the right to use 60 of the 350 parking spaces on the Property. Karbank paid $70,000 in lieu of periodic rent and offset the cost of repairing, repaving, and striping a portion of the parking lot.

Contemporaneous to the execution of the Parking Lot Lease, Debtor and Karbank entered into the Rights Agreement. A memorandum of the agreement was recorded with the Register of Deeds in Johnson County, Kansas. Generally, the Rights Agreement requires Debtor to give notice to Karbank of any proposed sale of the Property and granted Karbank an exclusive right for a period of 30 days after such notice to give notice that it would purchase the Property on the terms in the offer.

The Parking Lot Lease and the Rights Agreement were signed by three individuals, as Trustees of Debtor. David Christie was one of those trustees. David Christie also negotiated both agreements on behalf of Debtor. Craig McElvain and David Christie have been friends since childhood.

In the fall of 2015 it was determined that the unoccupied Property should be sold or leased. On November 1, 2015, Debtor entered into a Commercial Exclusive Right to Represent Seller/Landlord Agreement with Christie Development Associates, LLC, a company wholly owned by David Christie. It granted Christie Development the exclusive right to market and sell the Property for the period beginning on November 1, 2015 through February 1, 2017 for the price of $1.5 million. After December 2015, David Christie took over management of the Property.

In the fall of 2016, Debtor's loan from the Bank of Prairie Village (the Bank) was maturing, and the Bank gave notice that it would not renew the obligation. David Christie negotiated with the Bank for Diversified, a company owned 80% by David Christie and 20% by Matt Pennington, to purchase the loan for the outstanding balance of $909,163.24. The Bank and Diversified entered into a Loan Sale Agreement dated November 6, 2015, and an amendment of that agreement extending the closing date to December 28, 2015. The transaction closed, and the note, together with the security documents, were transferred to Diversified.

On December 28, 2015, Diversified and Debtor entered in to a Loan Modification and Deed-in-Lieu Agreement. It extended the maturity date of the loan, then owned by Diversified, to May 1, 2016. Executed but undated copies of a Special Warranty Deed in Lieu of Foreclosure transferring ownership of the Property from Debtor to Diversified and an Affidavit Regarding Deed in Lieu of Foreclosure were attached as exhibits to the agreement. The affidavit recites that the deed- in-lieu is an absolute conveyance of title to the Property and is not intended as a mortgage, that Debtor acted freely and voluntarily, and that the value of the consideration was equal to or greater than the value of the Property.

From December 28, 2015 to June 1, 2016, attempts were made to sell the Property to a religious organization, but no qualified buyers were located. On June 1, *3802016, the modified note was in default and Diversified, in lieu of foreclosure, was granted title to the Property. The Special Warranty Deed-In-Lieu of Foreclosure was dated June 1, 2016 and filed with the Johnson County Register of Deeds on June 17, 2016.

Approximately two weeks later, on July 1, 2016, Pendev, LLC, owned 100% by Matt Pennington, who also had a 20% interest in Diversified, offered to purchase the Property from Diversified for $2.1 million. The purchase contract states that closing was subject to waiver by Karbank of its rights under the Rights Agreement. On July 1, 2016, Christie Development sent a letter to Karbank, stating it was giving notice of a proposed sale as required by the Rights Agreement and enclosing a copy of the Pendev contract. Karbank requested a title commitment and became aware of the transfer of the Property from Debtor to Diversified.

On July 29, 2016, Karbank filed a Petition for Temporary Restraining Order, Injunction and Damages in Johnson Court District Court against Debtor, Pendev, and Diversified. The counts for temporary restraining order and injunction sought an order "prohibiting Diversified from conveying the ... Property to any person or entity."4 The claims against Debtor included the allegation that the Rights Agreement was breached when the Property was transferred to by Debtor to Diversified by the Special Warranty Deed. As remedies, Karbank sought specific performance or, in the alternative, damages. A Temporary Restraining Order was issued the same day. It stated, "A order is necessary to restrain Pendev LLC and Diversified Acquisitions LLC from taking any further action regarding the sale and purchase of the ... Property."5

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592 B.R. 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-regl-evangelical-alliance-of-churches-inc-ksb-2018.