Meadowbrook Investors' Group v. Thirtieth Place, Inc. (In Re Thirtieth Place, Inc.)

30 B.R. 503, 9 Collier Bankr. Cas. 2d 40, 1983 Bankr. LEXIS 6620, 10 Bankr. Ct. Dec. (CRR) 1409, 1983 WL 478683
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedMarch 15, 1983
DocketBAP No. AZ-82-1209, Bankruptcy No. 81-2297 PHX HMC, Adv. No. 81-885 HMC
StatusPublished
Cited by104 cases

This text of 30 B.R. 503 (Meadowbrook Investors' Group v. Thirtieth Place, Inc. (In Re Thirtieth Place, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meadowbrook Investors' Group v. Thirtieth Place, Inc. (In Re Thirtieth Place, Inc.), 30 B.R. 503, 9 Collier Bankr. Cas. 2d 40, 1983 Bankr. LEXIS 6620, 10 Bankr. Ct. Dec. (CRR) 1409, 1983 WL 478683 (bap9 1983).

Opinions

OPINION

KATZ, Bankruptcy Judge:

In the instant proceeding, the appellants seek review of the denial of their complaint to lift the debtor’s automatic stay or, in the alternative, to dismiss its Chapter 11 case with prejudice. In particular, the appellants question the trial court’s finding that the debtor’s petition was filed in good faith. After a review of the trial record, we must hold that the bankruptcy court’s finding of good faith is not supported by the record. REVERSED.

I. BACKGROUND

The facts of this case are, for the most part, uncontested. The appellant, MEA-DOWBROOK INVESTORS’ GROUP, was [504]*504organized in April 1980 by sixteen (16) individuals wishing to pool some $100,000 for investment purposes. The other appellant, JEROME DEITCH, is the Meadowbrook Group’s general partner.

On or about May 22, 1980, the Meadow-brook Group contracted with one JAMES BETZ to invest in the development of a townhouse condominium project to be located at Thirtieth Place and Coolidge in Phoenix, Arizona. To implement this agreement, Mr. Betz and the Meadowbrook Group formed a joint venture known as the COOLIDGE ASSOCIATES PARTNERSHIP. In return for their $100,000 investment, the Meadowbrook Group was promised $165,000 within one (1) year’s time. This promise was supported by a note signed by Mr. Betz and secured by a deed of trust on the Phoenix real property. The date of payment on the Betz note and trust deed was April 22, 1981.

In November 1980, without the knowledge of the Meadowbrook Group, Mr. Betz assigned his interest in the Coolidge partnership to one DENNIS ABERT. Although this transfer was in violation of the partnership agreement between Mr. Betz and the Meadowbrook Group, the latter investors ultimately agreed to permit Mr. Abert to assume Mr. Betz’ partnership position. Prior to the release of Mr. Betz, however, Mr. Abert was required to execute his own $165,000 note to the Meadowbrook Group and to issue them a new deed of trust on the Phoenix real property. The due date on these documents was April 23, 1981.

As the time approached for the payment on the Abert note and trust deed, it appears that Mr. Abert became concerned with the slow development of the Thirtieth Place and Coolidge project. He therefore sought the association of one RONALD CONQUEST to help him salvage this venture. Pursuant to this association, on March 31, 1981, he assigned his interest in the Phoenix real property to Mr. Conquest. Once again, this assignment was unknown to the Mea-dowbrook Group or to its individual partners.

Notwithstanding the involvement of Mr. Conquest, on April 23, 1981, Mr. Abert failed to make the $165,000 payment to the Meadowbrook Group. Thereafter, in June 1981, Meadowbrook noticed power of sale foreclosure proceedings on the Phoenix real property. This sale was subsequently set to occur on September 15, 1981.

Prior to foreclosure, however, Mr. Abert and Mr. Conquest sought and obtained a temporary restraining order from the Arizona Superior Court preventing the Mea-dowbrook Group’s sale. This order was predicated upon the posting of a $200,000 bond, which was never deposited with the Arizona court. Instead, on September 14, 1981, Mr. Abert formed a corporate entity known as COOLIDGE PROPERTIES, LTD. He and Mr. Conquest then quitclaimed their respective interests in the Phoenix real property to this entity and, on the date of the scheduled foreclosure sale, they filed a Chapter 11 petition on behalf of this new debtor.

The name chosen for the new debtor corporation was too similar to the name of an existing Arizona corporation and the final approval of the Arizona Corporation Commission was withheld. Faced with this problem and with a motion by the instant appellants to dismiss the Coolidge Chapter 11 case, on September 22, 1981, Coolidge Properties, Ltd., quitclaimed its interest in the subject real property to another new corporate entity known as THIRTIETH PLACE, INC. — the present debtor.

On November 18, 1981, the bankruptcy court dismissed the Coolidge case as a bad faith filing. Subsequently, however, the same bankruptcy court, another judge presiding, found that the Thirtieth Place Chapter 11 had been filed in good faith. It therefore refused to dismiss this debtor’s case or to lift its automatic stay. The Mea-dowbrook Group and its general partner have appealed this decision.

II. ANALYSIS OF THE FACTS AND THE LAW

The principal issue presented by the appellants is whether the trial court abused its [505]*505discretion in refusing to dismiss the Thirtieth Place, Inc., case as having been filed in bad faith. Essential to a resolution of this issue is the question of whether the court below clearly erred in finding that the debt- or’s petition was filed in good faith.

Although 11 U.S.C. § 1112(b) does not expressly require a petition for relief under Chapter 11 to be filed in good faith, evidence of an intent to abuse the reorganization process has been held to be sufficient “cause” upon which a case can be dismissed. In re 299 Jack-Hemp Associates, 20 B.R. 412 (N.Y.Bkrtcy.1982); In re Spenard Ventures, Inc., 18 B.R. 164, 166-67 (D.Alaska Bkrtcy.1982). A petition filed in bad faith may manifest an intent to cause hardship or to delay creditors by resort to the Chapter 11 device merely for the purpose of invoking the automatic stay, without an intent or ability to reorganize his financial activities.

The transfer of one’s assets to a new debtor on the eve of a Chapter 11 filing may be evidence of such an improper state of mind and such transfers will be scrutinized with great care. Matter of Levinsky, 23 B.R. 210, 218 (N.Y.Bkrtcy.1982); In re Beach Club, 22 B.R. 597, 599 (N.D.Cal.Bkrtcy.1982). Nevertheless, other factors may weigh against a finding of bad faith, even when a transfer to a new debtor is made immediately prior to a filing under Chapter 11.

We consider the determination of this question to require an examination of all the particular facts and circumstances in each case.

Whether it [good faith] exists in any case depends upon the facts and circumstances presented. No one evidentiary fact can be given paramount weight in deciding the question. If it is obvious that a debt- or is attempting unreasonably to deter and harass creditors in their bona fide efforts to realize upon their securities, good faith does not exist. But if it is apparent that the purpose is not to delay or defeat creditors but rather to put an end to long delays, administration expenses ... to mortgage foreclosures, and to invoke the operation of the [bankruptcy law] in the spirit indicated by Congress in the legislation, namely, to attempt to effect a speedy efficient reorganization, upon a feasible basis ... good faith cannot be denied.

Matter of Levinsky, id., at 218 quoting from Loeb Apartments, Inc. v. Malwitz (In re Loeb Apartments, Inc., 89 F.2d 461, 463 [(7th Cir. rehrg. denied (1937)]).

We believe the approach taken by the court in Levinsky, supra, at 218, as articulated by the Seventh Circuit regarding the good-faith requirement for a petition filed under § 77B of the Act, to be the most appropriate guide to determine whether the debtor in this case has filed in good faith.

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30 B.R. 503, 9 Collier Bankr. Cas. 2d 40, 1983 Bankr. LEXIS 6620, 10 Bankr. Ct. Dec. (CRR) 1409, 1983 WL 478683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meadowbrook-investors-group-v-thirtieth-place-inc-in-re-thirtieth-bap9-1983.