In re Singh

588 B.R. 136
CourtUnited States Bankruptcy Court, E.D. New York
DecidedJune 22, 2018
DocketCase No. 8-17-75330-reg
StatusPublished
Cited by1 cases

This text of 588 B.R. 136 (In re Singh) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Singh, 588 B.R. 136 (N.Y. 2018).

Opinion

Robert E. Grossman, United States Bankruptcy Judge *137Introduction

This matter is before the Court pursuant to Aspire Federal Credit Union's ("Aspire's") objection to confirmation of the Chapter 13 plan proposed by Baldev Singh (the "Debtor"). Aspire filed a proof of claim based on the Debtor's guaranty of payment on Aspire's loan to Wheel Trans Corporation. Wheel Trans Corporation, a corporation owned by the Debtor and his spouse, own two taxi medallions. Aspire, as part of the loan agreement, was granted a security interest in the medallions. As additional collateral, the Debtor executed a guaranty of payment in favor of Aspire. Several issues were raised in connection with confirmation of the Debtor's plan. The first issue is whether the Debtor qualifies as a Chapter 13 debtor under § 109(e) of the Bankruptcy Code, which requires an individual to have noncontingent, liquidated, unsecured debts of less than $394,725.00 and secured debts of less than $1,184,200.00 on the date of the filing. Because the event giving rise to Debtor's liability under the guaranty did not occur prior to the bankruptcy filing, Aspire's claim is a contingent claim for the purposes of § 109(e). Thus, the Debtor is eligible as a Chapter 13 debtor.

The second issue is whether the Debtor's proposed plan is confirmable. The Debtor proposed to pay the unsecured creditors 100%, but because Wheel Trans Corporation, according to the parties, is current on its obligations to Aspire, there is no claim against the Debtor by Aspire and, therefore, the Plan need not and does not include payments on account of the Debtor's guaranty. However, despite Wheel Trans Corporation being current on its obligation under the Note, the Debtor's insolvency, as evidenced by the commencement of this bankruptcy proceeding, triggered an event of default under the Guaranty, thus rendering the entire amount due and payable to Aspire. It is a fixed obligation of the Debtor and is therefore a current unsecured claim. Because the claim of Aspire is not given the same treatment as the other unsecured claims, the Debtor's plan cannot be confirmed as proposed. The third issue raised by Aspire is whether the Debtor's plan was proposed in good faith. Aspire alleged that the Debtor was using the plan process to retain his home, which had substantial equity, while precluding Aspire from receiving payment in full on the obligation incurred by Wheel Trans Corporation and guaranteed by the Debtor. Because the plan as proposed is not capable of confirmation, the Court need not address this issue.

Facts

According to the Debtor's schedules, the Debtor has a 50% ownership interest in Wheel Trans Corporation, and his non-filing spouse owns the remaining 50%. On December 12, 2013, Aspire loaned $1.6 million to Wheel Trans Corporation pursuant to a promissory note ("Note"), which matures and is due and payable on July 1, 2018. The obligations of Wheel Trans Corporation under the Note are secured by two New York City Taxi and Limousine Commission taxi medallions owned by Wheel Trans Corporation, which are valued at approximately $852,284.70 as of September 30, 2017 (30 days post-petition). On December 12, 2013, the Debtor and his non-filing spouse executed a guaranty ("Guaranty"), whereby they guaranteed, as primary obligors, to pay to Aspire "any and all liabilities of" Wheel Trans Corporation. The Guaranty was secured by a Pledge Agreement dated December 12, 2013, pursuant to which the Debtor and his *138spouse pledged their shares of Wheel Trans Corporation to Aspire as collateral.

The Guaranty provides, on page 2 under subsection (c), that "the death or insolvency (however evidenced) of [Wheel Trans Corporation] or any person (including the undersigned)" constitutes an "Event of Default" under the Guaranty. The Guaranty further provides, under subsection (g), that any proceeding "commenced by or against [Wheel Trans Corporation] or [the Debtor or the Debtor's spouse] under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt, receivership, liquidation or dissolution law or statute" constitutes an event of default. Upon the occurrence of any event of default, Aspire may "make the liabilities of [Wheel Trans Corporation] to [Aspire], whether or not then due, immediately due from and payable" by the Debtor or the Debtor's spouse, and Aspire "shall be entitled to enforce the obligations of [the Debtor and the Debtor's spouse]."

On August 31, 2017 (the "Petition Date"), the Debtor filed a petition for relief under Chapter 13 of the Bankruptcy Code. According to Debtor's schedules, the Debtor owns real property that has equity of $400,000.00 in excess of the mortgage debt. Debtor also listed three creditors in his Schedules: Nassau County Treasurer as a secured creditor with a $0 claim; Bank of America as an unsecured creditor with a claim of $728.00; and Aspire as an unsecured creditor with a contingent claim of $1,463,000.00.

According to the Debtor's Chapter 13 Plan, the Debtor intends to make 36 consecutive monthly payments to the Trustee in the amount of $1,000.00 per month. The Plan also provides a 10% commission to the Trustee, in addition to a $3,500.00 fee for the Debtor's attorney's fees. The Plan further acknowledges the Debtor's personal liability to Aspire and provides that Wheel Trans Corporation will "remain current and remit payments to [Aspire] outside of bankruptcy." It further provides that the "[i]ndividual Debtor shall not remit any post-petition payments to this creditor." Finally, the plan provides that unsecured creditors will receive a 100% distribution of their allowed claims. On December 20, 2017, Aspire filed its proof of claim in the amount of $1,465,230.09, with a secured portion of $852,284.70 and an unsecured portion of $612,945.39.

On January 11, 2018, the Debtor's case was dismissed pursuant to the Trustee's Motion to Dismiss for failure to provide the Trustee with several documents. The case was subsequently closed on February 6, 2018. On April 9, 2018, the Debtor filed a motion to reinstate his Chapter 13 case because he cured the prior deficiencies, and the case was reopened by Court order on May 1, 2018. Aspire subsequently filed an objection to confirmation of the Debtor's plan on May 9, 2018, arguing that the Debtor's plan was unconfirmable because it was not proposed in good faith. According to Aspire, the Debtor could not use the Chapter 13 process to evade his impending liability under the Guaranty by obtaining a discharge before the debt to Wheel Trans Corporation was paid in full.

At the confirmation hearing held on May 24, 2018, the Court questioned both parties about the nature of the debt owed by the Debtor, including whether the Guaranty was secured by a pledge of stock in Wheel Trans Corporation. The parties agreed that the Debtor and his spouse pledged their stock interests, but disagreed as to whether the stock pledge was perfected by Aspire. The Court also questioned both parties about the nature of the Guaranty and its terms and conditions. Both the Debtor and Aspire claimed that the Guaranty did not include any provision that the *139filing for bankruptcy by either guarantor constituted an event of default thereunder.

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Cite This Page — Counsel Stack

Bluebook (online)
588 B.R. 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-singh-nyeb-2018.