In re Tobacco Row Phase IA Development, L.P.

338 B.R. 684, 2005 Bankr. LEXIS 2859, 2005 WL 3817624
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedMarch 17, 2005
DocketNo. 03-40033-DOT
StatusPublished
Cited by1 cases

This text of 338 B.R. 684 (In re Tobacco Row Phase IA Development, L.P.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Tobacco Row Phase IA Development, L.P., 338 B.R. 684, 2005 Bankr. LEXIS 2859, 2005 WL 3817624 (Va. 2005).

Opinion

MEMORANDUM OPINION

DOUGLAS O. TICE, JR., Chief Judge.

Tobacco Row Phase IA Development, L.P., filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code in October 2003. Since its filing, debtor has operated and managed its business as a debtor-in-possession pursuant to Bankruptcy Code §§ 1107 and 1108. In November 2004, the court conducted a two day hearing that considered confirmation of debtor’s plan of reorganization, opposed by Beal Bank, S.S.B., along with Beal Bank’s motion to convert the case to a chapter 7.

Beal Bank is the holder of a second deed of trust on debtor’s principal asset. Under [687]*687the plan and 11 U.S.C. § 1124, debtor proposes to cure its defaults under Beal Bank’s note and reinstate the note’s original maturity date. To effect a cure and reinstatement of the note, debtor must cure all underpayments of principal and interest, and debtor must compensate Beal Bank for damages it has incurred in reasonable reliance on debtor’s default. Damages consist of Beal Bank’s reasonable attorney fees.

The major dispute between the parties is the amount debtor will be required to pay, upon confirmation, to cure the Beal Bank note default, including the amount of attorney fees damages. The attorney fees are claimed by the bank’s counsel, Piper Rudnik LLP. This issue is raised in debt- or’s objections to claims fifteen and sixteen of Beal Bank. The claims are of identical dollar amounts; claim fifteen is a secured claim that reflects Beal Bank’s contention that it is fully secured, and claim sixteen is an unsecured claim that reflects debtor’s contention that Beal Bank is fully unsecured. The parties have now agreed that Beal Bank’s note is fully secured.

At the conclusion of the hearing, the court stated from the bench that confirmation of debtor’s plan would be preferable to conversion of the case. The court is unable to make a final ruling on this issue until the cure amount is determined and accepted by the debtor as a modification of its plan. The court took under advisement ruling on the cure amount, including Piper Rudnik’s reasonable attorney fees.

Subsequent to the hearing, Beal Bank submitted an addendum in support of its request for attorney’s fees. Debtor filed an objection to and motion to strike the addendum, and other parties have joined in debtor’s objection.

For reasons stated in this opinion, the court finds that debtor has defaulted in its monthly note payments to Beal Bank’s note by making improper charges against operations that reduced “net cash.” The parties must recalculate the default cure amount in accordance with the court’s findings. The court has also calculated the reasonable attorney fees of the bank’s counsel Piper Rudnik, which comprise an element of the cure amount.

Findings of Fact.

Debtor is a Virginia limited partnership with its principal place of business in the City of Richmond, Virginia, where it operates a 259 unit residential apartment complex known as Tobacco Row Apartments (the “project”). Debtor was formed in 1989 for the purpose of purchasing and renovating tobacco warehouses in an older part of the city with many obsolete, long abandoned tobacco warehouses and factories. Completed in 1991, the project caters to professionals who prefer to live close to downtown Richmond, and apartment units are available on monthly, three month and twelve month terms. The project features amenities that include a pool and patio area and a fitness room and volleyball court. Debtor has maintained a 90% or greater occupancy rate since filing for bankruptcy, and it has no monetary defaults other than the disputed debt to Beal Bank.

TR-GP, Inc., a Virginia corporation, is the general partner of debtor, and AIG SunAmerica, Inc. is a limited partner. McCormack Baron Ragon, Inc., (MBR) manages the project pursuant to a 1998 management agreement and receives a monthly management fee of 5% of the project’s gross receipts.

Debtor financed the renovation of the warehouse though a United States Depart[688]*688ment of Housing and Urban Development (HUD) insured loan of $14,593,700.00 that was secured by a first priority mortgage lien on the renovation project. In 1995, debtor, HUD and the holder of first priority lien bifurcated the first mortgage loan into a new first mortgage loan with fixed monthly payments and a second mortgage loan (the “cash flow note” or “second note”) with a variable monthly payment. Beal Bank purchased the cash flow note from HUD in January 2001 and remains the holder of the note.

CW Capital LLC now holds the first mortgage. There are also three secured notes subordinate to Beal Bank’s cash flow note. The Bank of New York holds a third priority deed of trust lien on the project securing its note with an original principal amount of $2,000,000.00. AIG SunAmeriea, Inc., holds a fourth priority deed of trust lien on the project securing its note with an original principal amount of $900,000.00. Richmond Development LLC holds a fifth priority deed of trust lien on the project securing its note with an original principal amount of $1,900,000.00.

The cash flow note held by Beal Bank does not require a fixed monthly payment of principal and interest. Rather, the note requires debtor to pay to the note’s holder 60% of month ending “net cash.” The pertinent provisions of the note are as follows:

The said principal and interest shall be paid as follows:
[Tjhere shall be due an amount equal to sixty percent (60%) of available Net Cash as of the second preceding calendar month, which shall be applied first to interest accrued under this Second Deed of Trust Note and the remainder to principal. Net Cash will be calculated by subtracting from Net Operating Income amounts expended on (1) contributions to the Reserve for Replacements account established under the First HUD Regulatory Agreement; (2) debt service on the modified first Deed of Trust Note; (3) escrow deposits for real estate taxes, hazard insurance premiums, mortgage insurance premiums, and service charges due under the modified First Deed of Trust or hereunder; and (4) such other escrows or reserves as may be approved by Mortgagee. Net Cash will be calculated each calendar month and will be that sum shown on line four (4) of HUD Form 93479, Schedule A, Monthly Accounting Report.

Second Note, p. 1, Debtor’s Ex. 1. The second note also defines “Net Operating Income” as follows:

“Net operating income shall mean the amount derived by subtracting from the gross revenues derived from the Project the operating and maintenance expenses of the project, exclusive of debt service payments due under the first and second Deed of Trust Loans on the Project.”

Second Note, p. 2, Debtor’s Ex. 1.

The borrower’s charging of improper items against gross income or operating income harms the cash flow note holder Beal Bank because it reduces the final net cash figure of which Beal Bank is entitled to a fixed 60%.

The HUD Handbook instructs a borrower not to charge salaries of its “supervisory personnel” to the “project’s operating account.” HUD Handbook, 4381.1 Rev. 2, ¶ 6.38. The handbook also instructs the borrower not to fund “capital improvements” from project operating funds, but rather the borrower must use the retained [689]*68940% of net cash.

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Bluebook (online)
338 B.R. 684, 2005 Bankr. LEXIS 2859, 2005 WL 3817624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tobacco-row-phase-ia-development-lp-vaeb-2005.