In re Speer

522 B.R. 1, 2014 WL 5846760
CourtUnited States Bankruptcy Court, D. Connecticut
DecidedNovember 12, 2014
DocketNo. 14-21007 (ASD)
StatusPublished
Cited by7 cases

This text of 522 B.R. 1 (In re Speer) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Speer, 522 B.R. 1, 2014 WL 5846760 (Conn. 2014).

Opinion

MEMORANDUM OF DECISION ON INVOLUNTARY PETITION

ALBERT S. DABROWSRI, Bankruptcy Judge.

I. INTRODUCTION

In this involuntary Chapter 7 case, the parties have called upon the Court to determine whether the Petitioning Creditors’ claims are one, “contingent as to liability,” and/or “the subject of a bona fide dispute as to liability or amount” within the meaning of Section 303(b)(1) of Title 11; and whether, Sheri Speer (hereinafter, the “Alleged Debtor”) the owner and manager of residential and non-residential real estate primarily located in the Norwich/New London, Connecticut area, is “generally not paying her debts as such debts become due,” within the meaning of § 303(h)(1). The Alleged Debtor has also asked the Court to deny the Involuntary Petition on the basis that it was filed in “bad faith,” or dismiss or suspend the proceedings pursuant to § '305(a).

II. JURISDICTION

The United States District Court for the District of Connecticut has jurisdiction over the instant matter by virtue of 28 U.S.C. § 1334(b); and this Court derives its authority to hear and determine this proceeding on reference from the District Court pursuant to 28 U.S.C. §§ 157(a) and (b)(1) and the District Court’s General Order of Reference dated September 21, 1984. This is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(A) and (C).

III. PROCEDURAL AND FACTUAL BACKGROUND

On May 20, 2014 (hereinafter, the “Petition Date”), Michael Teiger, M.D. (hereinafter, “Dr. Teiger”), SLS Heating, LLC [3]*3(hereinafter, “SLS”), and Clipper Realty Trust (hereinafter, “Clipper Realty”) (heretofore and hereinafter, collectively, the “Petitioning Creditors”), commenced the present bankruptcy case by filing an involuntary Chapter 7 petition (hereinafter, the “Involuntary Petition”) against the Alleged Debtor alleging one, that the Petitioning Creditors are eligible to file the petition pursuant to 11 U.S.C. § 303(b); two, that the Alleged Debtor is a person against whom an order for relief may be entered under Title 11 of the United States Code; three, that the Alleged Debt- or has failed to pay her unsecured debts as they came due to each of the Petitioning Creditors in the amounts of $30,000, $5,137.22 and $3,500, respectively, and four, that such debts are not the subject of bona fide dispute as to liability or amount. See Involuntary Petition, ECF No. 1.

The Alleged Debtor responded to the Involuntary Petition on May 28, 2014, by filing a Motion to Dismiss (hereinafter, “Motion to Dismiss”) 1, ECF No. 4, and a supporting Affidavit, ECF No. 6, wherein the Alleged Debtor asserted, inter alia, that the debt to Dr. Teiger is secured by hens on real estate and is in bona fide dispute as to liability and amount; that the debt to SLS is in bona fide dispute as to Lability and amount; and that as to Clipper Realty, the Alleged Debtor has no existing liability. In response, to the Motion to Dismiss, the Petitioning Creditors filed on June 18, 2014 a Memorandum in Opposition to the Motion to Dismiss along with Exhibits and Affidavits (hereinafter, the “Memorandum in Opposition”), ECF No. 31. The Alleged Debtor then responded by filing on June 26, 2014, a Reply Memorandum to Plaintiffs Opposition to Motion to Dismiss (Doc. 31), ECF No. 39. Following a hearing held on June 26, 2014, the Court sustained the Petitioning Creditors’ Memorandum in Opposition, ECF No. 41, denied the Alleged Debtor’s Motion to Dismiss, set deadlines for the Alleged Debtor to file an answer to the Involuntary Petition and for the Petitioning Creditors to file a reply, and established a trial date for August 5, 2014. See Margin Order dated June 26, 2014, ECF No. 40.

On July 16, 2014, the Alleged Debtor filed an Answer to Involuntary Petition and Special Defenses, ECF No. 61. In her defense, the Alleged Debtor represented that the debts owed to Dr. Teiger and SLS were subject to bona fide dispute and that she had no liability to Clipper Realty. In her First Special Defense, the Alleged Debtor represented, inter alia, that her debt to Dr. Teiger was not in default; that any services provided by SLS were not provided to the Alleged Debtor but to a court-appointed receiver of rent or at a time when title to the properties in question had passed to third parties; and that the Alleged Debtor had no obligation to Clipper Realty for security deposits or rent collected from tenants, or that if any such obligation exists, it is contingent in light of tenants’ prepetition defaults. In her Second Special Defense, the Alleged Debtor represented, inter alia, that the Involuntary Petition was filed in bad faith and for the improper purpose of preventing the Alleged Debtor from prosecuting counterclaims in certain state court foreclosure proceedings brought by Seaport Capital Partners, LLC (hereinafter, “Seaport”), which the Alleged Debtor represented to be an alter-ego of Clipper Realty. In her Third Special Defense, the Alleged Debtor represented that in light of [4]*4bankruptcy litigation costs and the unknown value of her counterclaim against Seaport, the parties would be better pursuing payment and asserting defenses to their claims through state court proceedings following a dismissal of the Involuntary Petition pursuant to Bankruptcy Code § 305.

On July 24, 2014, the Petitioning Creditors filed a Petitioner’s Reply to Proposed Involuntary Debtor’s Special Defenses, ECF No. 70. In response to the Alleged Debtor’s First Special Defense, the Petitioning Creditors stated, inter alia, that the debt of Dr. Teiger is unsecured since, while he has a second mortgage on several properties of the Alleged Debtor in Norwich, there is no equity to support the second mortgage. As to the alleged debt of Clipper Realty, the Petitioning Creditors stated, inter alia, that Clipper Realty took title to the property located at 35 Rogers Avenue, Norwich on March 21, 2013, entitling it to monthly rents from tenants for the months of April and May 2013 and, pursuant to Conn. GemStat. § 47a-21(h)(3)(A), to tenant security deposits held by the Alleged Debtor as former owner. As to the alleged debt of SRS, the Petitioning Creditors denied that the services provided were for the benefit of anyone other than the Alleged Debtor. In response to the Alleged Debtor’s Second Special Defense, the Petitioning Creditors, inter alia, denied that the Involuntary Petition was filed in bad faith or for an improper purpose. In response to the Alleged Debtor’s Third Special Defense, the Petitioning Creditors asserted, inter alia, that the Alleged Debtors counterclaim against Seaport would be better evaluated by a neutral bankruptcy trustee rather than by the Alleged Debtor.

On Friday, August 1, 2014, Seaport filed a Motion to Join as Co-Petitioner, (hereinafter, the “Motion to Join”), ECF No. 91, in response to which to which the Alleged Debtor filed an Objection to Seaport Capital Partners’ Motion to Join Petition (Doc. 91), ECF No. 93.

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Bluebook (online)
522 B.R. 1, 2014 WL 5846760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-speer-ctb-2014.