In Re West Chestnut Realty of Haverford, Inc.

186 B.R. 612, 1995 Bankr. LEXIS 1263, 27 Bankr. Ct. Dec. (CRR) 1027, 1995 WL 529330
United States Bankruptcy Court, E.D. Pennsylvania·Decided September 7, 1995·No. 19-11277·Published·Cited by 8 cases

Opinion

OPINION

STEPHEN RASLAVICH, Bankruptcy Judge.

Procedural and Factual Background

The narrow issue before the Court concerns the allowance of attorney’s fees under 11 U.S.C. 506(b) to the oversecured Mortgag *615 ee of the above Chapter 11 Debtor, West Chestnut Realty of Haverford, Inc. (“West Chestnut” or the “Debtor”). The Mortgagee, V. DiFrancesco and Sons (“DiFrancesco”) is the holder of a first mortgage encumbering West Chestnut’s principal asset — a landfill property known as the Llanarch Quarry. The two parties have been at loggerheads since the inception of the bankruptcy case, and in fact since long before that. Their relationship dates at least to July 22, 1982, when West Chestnut acquired the landfill property from DiFrancesco. The stated one million dollar purchase price consisted of $35,000 in cash and a Promissory Note in the face amount of $965,000 the latter secured by the aforesaid first mortgage. It became clear, during the course of the bankruptcy case that along with the cash and Promissory Note, a material part of the consideration for the sale consisted of certain rights granted to DiFrancesco under a stock option agreement executed contemporaneously with the promissory note and mortgage. Under the stock option agreement, DiFrancesco, generally speaking, was granted specific rights to obtain a future twenty percent (20%) ownership interest in the quarry business for a relatively nominal sum of money, or, alternatively, to be paid a relatively large sum of money upon, inter alia, any future sale of the quarry by West Chestnut.

West Chestnut eventually defaulted on the promissory note, prompting DiFrancesco to confess judgment thereon and, ultimately, to schedule an execution sale of the quarry property (Based on its judgment and not the collateral mortgage). On October 14, 1993, prior to any such sale, West Chestnut commenced this Chapter 11 ease.

This has been a relatively contentious bankruptcy case and these two parties, in particular, have agreed on little. At the outset of the case, DiFrancesco asserted a collateral interest in the cash receipts generated by West Chestnut from its landfill customers based on the assignment of rents clause in its mortgage. The Court, in an Opinion reported at 166 B.R. 53, aff'd, 173 B.R. 322, determined that these “tipping fees” did not constitute cash collateral within the meaning of 11 U.S.C. § 363 and denied the DiFrancesco Motion. West Chestnut thereupon embarked upon a series of attempts to confirm a plan of reorganization. In this respect, West Chestnut had several problem creditors to contend with besides DiFrancesco. Specifically, West Chestnut had disputes with the Township of Haver-ford — within whose borders the Llanarch Quarry lies, as well as disputes with the owners of various adjacent residential properties. In addition, the Debtor had to contend with an active committee of unsecured trade creditors. West Chestnut ultimately succeeded in resolving its problems with Haverford Township, the neighboring property owners, and the creditors committee. Its disputes with DiFrancesco however consistently stymied its reorganization efforts. In this regard it was the stock option agreement, and not the DiFrancesco mortgage, which represented the impediment. Indeed, the treatment of the DiFrancesco secured claim essentially never varied from the treatment detailed in the Debtor’s initial proposed reorganization plan; to wit: satisfaction of the mortgage debt through payment in full on the effective day of a confirmed plan.

The treatment, of the stock option agreement, on the other hand, evolved over time. Initially, the Debtor, who had characterized the Stock Option Agreement as an executory contract, proposed to “reject” the option contract under 11 U.S.C. § 365, and thereby extinguish DiFrancesco’s option rights, just as the rights of existing equity holders were to be extinguished under its reorganization plan. This plan failed after the Court upheld DiFrancesco’s objection to the proposed treatment of its option related claim. In doing so the Court noted that while the treatment of the interests of the existing shareholders and DiFrancesco was consistent in one sense (i.e. extinguishment), DiFran-cesco’s treatment was highly discriminatory in another sense, since under the proposed reorganization plan existing shareholders were afforded an opportunity to acquire new ownership interests in the reorganized Debt- or corporation by making contributions of “new value.” This right to a continued ownership interest was not to be afforded to DiFrancesco under the Debtor’s plan, yet neither did the Debtor propose any monetary *616 compensation to DiFraneesco for the damages it might suffer through the divestment of its option right. The latter point, i.e., no monetary compensation, was partially defensible in that the evidence adduced at related hearings made clear that the Debtor corporation had no present net worth. Thus, the present right to an ownership interest in the Debtor was worth zero. However, the entitlement of DiFraneesco to receive the substantial alternative monetary payments contemplated under the stock option agreement depended upon events which might never occur. The situation presented therefore was one wherein it was essentially impossible to quantify the value of DiFrancesco’s rights (and therefore its rejection damages) under the stock option agreement. The Court nevertheless easily concluded that to permit the Debtor to reject the stock option contract and extinguish DiFrancesco’s right to any future ownership interest in the business, without compensation, was reprehensibly unfair. In the face of this dilemma, the Court adopted case law which suggested that in such event the proposed rejection of an exec-utory contract should be denied, with the contract permitted to simply pass through the Chapter 11 case unaffected. In re Walnut Associates, 145 B.R. 489 (Bankr.E.D.Pa.1992).

After indications from the Court that it would deny confirmation of any plan which called for mere extinguishment of the DiFrancesco contingent equity interest “without more,” the Debtor returned to its drawing board and attempted to refine its plan. Without belaboring the Debtor’s various efforts in this respect, it is noted that the Debtor ultimately produced a confirmable reorganization plan which satisfactorily dealt with the DiFraneesco Stock Option Agreement, as well as certain nagging problems the Debtor had encountered along the way with respect to the absolute priority rule. During this process DiFraneesco consistently held the Debtor’s “feet to the fire” by pressing for modification of the automatic stay and/or conversion of the ease. While the plan process arguably took longer than it should have, particularly in light of the Debt- or’s unrealistic position as to the import of the stock option agreement, the automatic stay nevertheless was left in place. In making this decision the Court relied, inter alia, upon the facts that 1) the DiFraneesco secured claim was indisputably over encumbered, 2) the Debtor had always operated profitably, and 3) the Debtor had forged a consensus with all other creditor classes in its case.

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In Re West Chestnut Realty of Haverford, Inc., 186 B.R. 612, 1995 Bankr. LEXIS 1263, 27 Bankr. Ct. Dec. (CRR) 1027, 1995 WL 529330 (Pa. 1995).

186 B.R. 612 (In Re West Chestnut Realty of Haverford, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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