In re Whatever, LLC

478 B.R. 700, 2012 WL 4336264, 2012 Bankr. LEXIS 4349, 57 Bankr. Ct. Dec. (CRR) 5
CourtUnited States Bankruptcy Court, W.D. Pennsylvania
DecidedSeptember 20, 2012
DocketNo. 11-26288-JAD
StatusPublished
Cited by2 cases

This text of 478 B.R. 700 (In re Whatever, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Whatever, LLC, 478 B.R. 700, 2012 WL 4336264, 2012 Bankr. LEXIS 4349, 57 Bankr. Ct. Dec. (CRR) 5 (Pa. 2012).

Opinion

[702]*702 MEMORANDUM OPINION

JEFFERY A. DELLER, Bankruptcy Judge.

The matter before the Court is a Motion to Enforce Settlement Agreement filed by Whatever, LLC (the “Debtor”). This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(b)(2)(A)(B), (K) and (O). During the June 18, 2012 evidentiary hearing, both parties, through their counsel, consented to this Court entering final judgment on the instant matter. Such consent is sufficient to allow this Court to hear and finally determine the matter, regardless of whether it is statutorily defined as “core” or “non-core”. See ARDI Limited Partnership v. The Buncher Company, (In re River Entertainment Co.), 467 B.R. 808 (Bankr.W.D.Pa.2012). For the reasons set forth below, the Motion to Enforce Settlement Agreement is denied.

I.

The Debtor owns commercial real estate located at 610-960 Chauvet Dr., North [703]*703Fayette Township, PA 15275 (the “Property”). The Property is subject to a mortgage (the “Mortgage”) held by Wells Fargo Bank, N.A. as successor to LaSalle Bank National Association, as Trustee for the Registered Certificate Holders of America Commercial Mortgage, Inc., Commercial Mortgage Pass-Through Certificates, Series 2001-PB1 (“Wells Fargo”). Toward the end of 2008, at the peak of the financial crisis in the United States, two tenants in the Property filed for bankruptcy protection and a third tenant informed the Debtor of its intent to not renew its lease, leaving 70% of the Property vacant.

In October of 2009, the Debtor ceased making payments on the Mortgage to pursue a potential settlement with Wells Fargo. At that time, the Debtor began discussions with the loan servicer, Centerline Servicing n/k/a C-III Asset Management (“Loan Servicer”), which offered the Debt- or two options: a discounted payoff (“Discounted Payoff’) or a deed in lieu of foreclosure (“Deed in Lieu”). A Discounted Payoff would allow the Debtor to pay the loan off at a discount, while a Deed in Lieu would involve the Debtor conveying the property to Wells Fargo in satisfaction of the mortgage.

At this point, a series of e-mails commenced settlement negotiations between the parties. These negotiations began on December 16, 2009, with Mr. Michael S. Wasserman, a principal of the Debtor, discussing options with Mr. Michael Dickerson, an employee of the Loan Servicer. After these initial discussions failed to produce a settlement, the attorneys for both sides took over the negotiations. The attorney for the Debtor was Peter C. Coteli-dis (“Attorney Cotelidis”) and the attorney for Wells Fargo was Richard A. O’Hallo-ran (“Attorney O’Halloran”). Over a period of approximately four months, Attorney Cotelidis and Attorney O’Halloran attempted to negotiate and effectuate a Discounted Payoff arrangement presented initially by Attorney O’Halloran in an e-mail directed to Attorney Cotelidis on December 23, 2009.

This December 23, 2009 e-mail details an offer (the “Draft Discounted Payoff Offer”) from Wells Fargo to accept $2,518,000.00 in full payment of the Debt- or’s Mortgage, less $213,205.00 of reserve credit held by Wells Fargo, leaving a net Discounted Payoff amount of $2,304,795.00 to be paid. The e-mail farther provided that the Discounted Payoff amount was to be made by January 15, 2010. (Doc. # 94, Proposed Exhibits of Trustee, Exhibit 1-A). While the Discounted Payoff amount was to be tendered by January 15, 2010, the payoff terms further provided that the funds were to be “[wjired to counsel’s escrow account not later than 12/31/ 09.” (Id. at ¶ 7). Under this offer, the Debtor’s December and January Payments were waived, but the Debtor was required to pay its November payment of $31,850.03 immediately. (Id.) The email also included the following language underneath the payoff terms:

Subject to final approval by committee and satisfactory documentation.
Subject to written or email confirmation from borrower (through counsel) of acceptance of the above terms, not later than 12/31/09.

(Id.; Doc. No. 102, Transcript regarding Hearing Held 6/18/12, pp. 47: 13-25, 48: 1-13).

On January 5, 2010, which was after the December 31, 2009 deadline described above, Attorney Cotelidis e-mailed a response to Attorney O’Halloran. In his January 5, 2010 e-mail, Attorney Cotelidis acknowledges the condition for final approval by committee as contained within the Wells Fargo Draft Discounted Payoff Offer. Mr. Cotelidis stated in his e-mail:

My client is prepared to wire the sum of $31,850.03 upon receipt that the commit[704]*704tee has approved the [Discounted Payoff] as a note purchase. If the closing is not completed by 1/31/10 through no fault of my client, there should be no additional payments made by my client.

(Doc. # 94, Exhibit 7). This e-mail was the first reference of a note purchase as opposed to a true discounted payoff.

Later on January 5, 2010, Attorney O’Halloran responds, again by e-mail, noting that Attorney Cotelidi’s understanding of the committee approval condition may be misguided, as Attorney Cotelidi’s seemed to be interpreting such approval as a condition precedent, rather than a condition subsequent, to the Debtor’s depositing the net payoff amount into Attorney Cotel-idi’s escrow account. Attorney O’Halloran stated in his e-mail the following:

Your e-mail also marks the first time we have been notified that the borrower takes the position that committee approval is a condition precedent to your clients performance. I have no authority to agree to any such a condition.

(Doc. # 94, Exhibit 7). Attorney Cotelidis, also on January 5, 2010, then responded in part:

... my client needs to be able to do it as a note purchase. If that can be accomplished we are ready to proceed. If that can’t be done, we may have to go back to the [Deed in Lieu] scenario ...

(Id.; Doc. # 102, p. 52: 9-19).

The following day, Attorney Cotelidis followed up on his note purchase request in an email to Attorney O’Halloran asking, “Any word from your client concerning the note purchase?” (Doc. # 94, Exhibit 7). Attorney O’Halloran responds on the same day, “Not yet. I think it’ll take a couple more days but I’ll stay on it.” (Id.) On January 11, 2010, Attorney O’Halloran sends another email to Attorney Cotelidis, notifying him that “The note sale structure is still under review/discussion internally.... I’ll ... be back to you as soon as I have word.” (Id.)

These e-mail negotiations continued over the following month, but the Discounted Payoff was never completed. On February 18, 2010, after the December 31, 2009 deadline for depositing the Discounted Payoff funds into escrow had expired, Attorney O’Halloran emailed Attorney Cotel-idis and inquired, “Has your client deposited the $2,304,795.00 in payoff funds? If so, I am ready to prepare the documentation — which will allow us to close this month.” (Doc. # 94, Exhibit 9; Doc. # 102, p. 24:1^1). Attorney Cotelidis responds, “Rich, I was not aware that you were not going to prepare the docs until I had the in hand ... ”(Doc. # 94, Exhibit 9). On February 19, 2010, Attorney O’Hallo-ran extended the closing deadline and wrote:

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Cite This Page — Counsel Stack

Bluebook (online)
478 B.R. 700, 2012 WL 4336264, 2012 Bankr. LEXIS 4349, 57 Bankr. Ct. Dec. (CRR) 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-whatever-llc-pawb-2012.