In Re Vienna Park Properties

132 B.R. 517, 1991 Bankr. LEXIS 1427, 1991 WL 203839
United States Bankruptcy Court, S.D. New York·Decided October 4, 1991·No. 18-13467·Published·Cited by 3 cases

Opinion

CORNELIUS BLACKSHEAR, Bankruptcy Judge.

This matter comes to this Court pursuant to a motion (the “Motion”) by Vienna Park Properties (the “Debtor”), under section 506(a) of the Bankruptcy Code (the “Code”), seeking a determination of the current value of a 300 unit garden apartment complex (the “Property”) located in Vienna, Virginia. The Property is the Debtor’s principal asset. The secured creditors, consisting of Resolution Trust Corporation, as conservator for Trustbank Federal Savings Bank, and United Postal Savings Association (the “Secured Creditors”), object to the Debtor’s determination of valuation.

A trial on the Motion was commenced on April 26, 1991, and was continued on April 29, 1991, May 20, 1991 and May 31, 1991 (collectively, the “Trial”). 1 Prior to the Trial, both parties hired appraisers who completed appraisal reports. The Debtor’s appraisal, admitted into evidence as Exhibits 5 and 5A, has been referred to as the “2nd RERC Appraisal”. The Debtor’s appraiser, Real Estate Research Corporation (“RERC") completed an initial appraisal report in November, 1989 (the “1st RERC Appraisal”) which was admitted into evidence as Exhibit 8. The Secured Creditors’ appraisal, admitted into evidence as Exhibit 11, has been referred to as the “Harvey Update.” William C. Harvey & Associates (“Harvey”) had also previously appraised the property in March, 1990 (the “1st Harvey Appraisal”) which appraisal was admitted into evidence as Exhibit 11A.

William C. Harvey of Harvey testified at Trial on behalf of the Secured Creditors. James Britton of RERC testified at Trial on behalf of the Debtor, as did Dan Wudske of Grady Management (“Grady”), the manag *519 ing agent of the Property. Messrs. Harvey and Britton were each qualified as expert appraisers. Tr. 4/29/91 at 28-31; Tr. 5/20/91 at 204. Mr. Wudske was qualified as an expert in the field of property management and related matters. Tr. 4/26/91 at 37-47.

In their current and prior reports, both appraisers analyzed the “cost approach,” the “sales comparison approach” and the “income capitalization approach” in valuing the Property. Both appraisers conclude that the “income capitalization approach” is the most reliable valuation method for the Property. See Tr. 4/29/91 at 78-9; Tr. 5/20/91 at 220. Pursuant to this approach Harvey valued the Property at $15,500,000 and RERC valued the Property at $15,300,-000. Harvey Update at 25; 2nd RERC Appraisal at 74. However, RERC concluded that, because the condition of the Property was substantially more deteriorated than comparable projects and required virtually immediate corrective measures involving the prompt expenditure of $2,000,-000, such condition warranted a diminution in the appraised value by that amount. As a result, RERC concluded that the value of the Property should be $13,300,000.

The crux of the dispute between the Secured Creditors and the Debtor lies in Mr. Britton’s $2,000,000 deduction. The Secured Creditors’ argue that such a deduction is arbitrary and improper under modern appraisal practice because:

(a) A deduction for “deferred maintenance” is improper under modern appraisal practice; expenditures that are required in respect of deferred maintenance can be made from a value derived pursuant to an income capitalization analysis only if the amount of the expenditure can be recouped, i.e., only if the expenditure is economically feasible;
(b) the deductions made by Mr. Britton for “deferred maintenance” results in “double dipping” since the derived value of the Property had already been adjusted to account for the Property’s condition relative to comparable rental properties prior to the deduction of the $2,000,000;
(c)the $2,000,000 amount was uncritically adopted by Mr. Britton from the statements by the Property’s controlling party — Brookhill Management.

The Secured Creditors also believe that Mr. Britton made other serious errors. Because of the alleged errors made by Mr. Britton, the Secured Creditors believe that the 2nd RERC Appraisal is not as credible as the Harvey Update.

THE PROPERTY

The fact that the Property is in poor condition is not disputed. Tr. 5/22/91 at 240. In the Harvey Update, the Property is described as being in “fair to average condition.” Harvey Update at 39. Indeed, it was because of the failure of the former property management agent, GLM Corporation (“GLM”) to provide the proper maintenance services that the Debtor refused to renew GLM’s contract and instead hired Grady in 1989. It is quite apparent that because of GLM’s 5 year tenure, the Property is presently in a state manifesting neglect.

Upon Grady’s retention, comprehensive property management services were performed. As a matter of standard course, Grady independently conducts market surveys and property inspections to assist it in sub-managing the Property. As an extension of its property management services and pursuant to Order of this Court dated November 2, 1990, in March 1991, Grady produced a three (3) volume asset and market analysis (the “Grady Analysis”) containing voluminous demographic information, a thorough report on the condition of the Property and suggested rehabilitation programs. The Analysis was admitted into evidence at the Trial as Exhibits 3-A, 3-B and 3-C. Grady bid out the cost of the proposed rehabilitation programs. Detailed bids received by Grady were introduced into evidence as Exhibits 4-A through 4-T. To date, the Debtor has been able to implement only minor repairs due the unavailability of funds. 2

*520 DISCUSSION

A. Section 506(a)

Under § 506(a) of the Code “[a]n allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor's interest in the estate’s interest in such property....” 11 U.S.C. § 506(a). The value of the property “shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property....” Id. (emphasis added).

In the present case, the reasons for pursuing the valuation are twofold:

1. to facilitate this Court’s determination of the Secured Creditors’ motion for relief from the automatic stay, pursuant to § 362(d) of the Code; and
2. to enable the Debtor to properly address the Secured Creditors' claims under a chapter 11 plan of reorganization, pursuant to which it will be proposed that the Property be retained and operated by the Debtor.

Free access — add to your briefcase to read the full text and ask questions with AI

In Re Vienna Park Properties, 132 B.R. 517, 1991 Bankr. LEXIS 1427, 1991 WL 203839 (N.Y. 1991).

132 B.R. 517 (In Re Vienna Park Properties) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Koch v. Rogers (In Re Broumas)
203 B.R. 385 (D. Maryland, 1996)
Matter of Atlanta Southern Business Park, Ltd.
173 B.R. 444 (N.D. Georgia, 1994)
Hubbard v. United States (In Re Hubbard)
135 B.R. 430 (S.D. Florida, 1991)