Joing v. O & P Partnership (In re Joing)

82 B.R. 500, 1987 Bankr. LEXIS 2071
CourtDistrict Court, D. Minnesota
DecidedDecember 31, 1987
DocketBankruptcy No. 3-84-891; Adv. No. 3-85-86
StatusPublished
Cited by3 cases

This text of 82 B.R. 500 (Joing v. O & P Partnership (In re Joing)) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joing v. O & P Partnership (In re Joing), 82 B.R. 500, 1987 Bankr. LEXIS 2071 (mnd 1987).

Opinion

ORDER

DENNIS D. O’BRIEN, Bankruptcy Judge.

The matter before the Court is Plaintiff’s/Debtor’s motion for this Court to reconsider its June 26, 1986 Order, 61 B.R. 980, in this adversary proceeding, in light of the Federal District Court Order, dated February 3, 1987, 82 B.R. 495, vacating that Order and remanding this proceeding to the Bankruptcy Court for further review. A hearing was held on August 13, 1987, and both parties submitted written memoranda in support of their positions. Ann Ladd appeared for the Debtor; and Peter Orlins appeared for O & P Partnership (O & P). Based on the arguments of counsel and the record and files herein, the Court makes this Order pursuant to the Federal and Local Rules of Bankruptcy Procedure.

I.

The Debtor commenced this proceeding pursuant to 11 U.S.C. § 548 to recover real estate sold at a mortgage foreclosure sale on November 10,1983. The facts are fully described in this Court’s June 26, 1986, Order and in the District Court’s February 3 Order; and therefore, will not be re[501]*501peated here. The issue at trial and on appeal to the District Court was whether the Plaintiff received the reasonably equivalent value for his interest transferred at the foreclosure sale. At trial, this Court determined that the Debtor had no equity in the property transferred as the property was encumbered by $126,982.50 in liens and had a fair-market value no greater than $90,000.00. The Court found that the value of the interest transferred was the value of the foreclosing lien, $12,293.00; that Plaintiff had only a one-half interest in that amount; and that Plaintiff received $12,293.00 in the form of cancellation of this joint and several liability on the underlying indebtedness of the foreclosing lien. Based on this finding, the Court concluded that the Debtor received at least the reasonably equivalent value of his interest transferred.

The District Court determined that a comparison of a bid price to the sum of the Debtor’s equity in the property and the value of the foreclosing lien, is not always and, particularly in this case, was not an appropriate method of determining whether a Debtor received the reasonably equivalent value of the interest transferred. The Court stated that while that method insured that the Debtor would be compensated for his equity interest in the property, it would not insure that he was compensated for interest created by statute under state law.

State law creates a range of equitable and statutory 'interests] of the debtor in the property’ which are cognizable under § 548. Among the statutory interest relevant to ‘reasonably equivalent value’ under § 548 is the debtor’s right to the surplus, if any, available after satisfying the debt underlying the foreclosing mortgage out of the proceeds of the foreclosure sale.

Joing v. O & P Partnership, 82 B.R. 495, 498 (D.Minn.1987) (citations omitted).

On remand, this Court was instructed to “reconsider its determination that the Debtor received the reasonable equivalent of his interest transferred at the foreclosure sale, taking into account the Debt- or’s statutory interest in the surplus proceeds, if any, of the sale.” 82 B.R. at 499.

II.

Upon reconsideration, the Court concludes that there were no surplus proceeds from the foreclosure sale in this case. However, the Court finds that its earlier determination as to the nature of the Debt- or’s interest transferred at the foreclosure sale was in error. Nevertheless, as discussed below, the result in this proceeding remains unchanged.

MINN.STAT. § 580.10 states:

In all cases not provided for in section 580.09, if, after sale of any real estate, made as herein prescribed, there remains in the hands of the officer making the sale any surplus money, after satisfying the mortgage, with interest, taxes paid, and costs of sale, the surplus shall be paid over by such officer, on demand, to the mortgagor, his legal representatives or assigns.

The purchaser paid $12,293.30 in cash at the foreclosure sale, which amount constituted full consideration for the debt owed on a second mortgage. Additionally, the purchaser assumed the first mortgage. The purchaser’s bid did not exceed the amount of the first and second mortgages, and therefore, there were no surplus proceeds remaining from the sale after satisfying the mortgages.

It is true that on November 1, 1984, when O & P sold the property to a third party for $90,000.00, it realized a profit. However, the November 1 sale was not a foreclosure sale. No mortgages or liens were foreclosed. The sale was a real estate transaction conducted in ordinary course. MINN.STAT. § 580.10 applies only to foreclosure sales.

Moreover, on November 1, 1984 the statutory right of redemption of both the Debt- or and junior lienors had expired. Neither, therefore, had a legal or equitable interest in the profit realized by O & P on November 1. MINN.STAT. § 580.10 does not and was not intended to apply to resale of land previously purchased at a foreclosure sale, [502]*502particularly, where the resale occurs long after the foreclosure and expiration of any statutory right of redemption.

There is no technical term for the interest that passes to a purchaser at a foreclosure sale.1 Buchanan v. Reid, 43 Minn. 172, 45 N.W. 11 (1890).

[The interest] is anomalous — a purely statutory interest. It is personal property — a lien on real property. In many respects, the interest of the purchaser is the same as that of the mortgagee before sale, but not in all respects. It is not an estate. It is not an interest in realty, within the meaning of the statute authorizing actions to determine adverse claims, and yet it is an interest in realty to the extent that it passes by deed, and by statute, it is made subject to levy as realty.
The purchaser has a lien on the premises to the amount of the purchase price, but he has something more than a mere right to receive back his purchase money and interest. He has a right to acquire absolute title to the land unless it is redeemed within the time allowed by law by one who has a right under the statute to redeem, and he cannot be deprived of this right by one who is not a lawful redemptioner.

12 Dunnell Minn.Dig.2d, Mortgages, § 16.02 (3rd Ed.1986).

The purchaser’s lien and potential right to acquire absolute title to the property transferred in this case, was not worth significantly more than the cost of paying off and assuming respectively the first and second mortgages. The Debtor, the State of Minnesota, and the IRS all had the right to redeem the property. The property was worth $90,000.00,2 and the redemption price was about $53,500.00. In this circumstance, the probability that at least one of the parties would redeem the property was very high. It is unlikely that the purchaser could have sold his interest in the purchased property for much more than what he paid for it.

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Bluebook (online)
82 B.R. 500, 1987 Bankr. LEXIS 2071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joing-v-o-p-partnership-in-re-joing-mnd-1987.