Riggs National Bank of Washington v. Ross (In re Ross)

180 B.R. 130, 1995 Bankr. LEXIS 461
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedMarch 22, 1995
DocketBankruptcy No. 92-34475-S; Adv. No. 92-3194-S
StatusPublished

This text of 180 B.R. 130 (Riggs National Bank of Washington v. Ross (In re Ross)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riggs National Bank of Washington v. Ross (In re Ross), 180 B.R. 130, 1995 Bankr. LEXIS 461 (Va. 1995).

Opinion

SUPPLEMENTAL MEMORANDUM OPINION

BLACKWELL N. SHELLEY, Bankruptcy Judge.

This matter comes before the Court on the motion of The Riggs National Bank of Washington, D.C. (“Riggs”), filed herein on September 2,1994, to amend this Court’s Memorandum Opinion, which was entered on August 30, 1994, and on Riggs’ motion for entry of a final order, filed herein on October 3, 1994. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(b)(2)(I) and 1334.

FINDINGS OF FACT

The facts are set forth in this Court’s August 30, 1994 Memorandum, and need not be repeated in full here. To summarize, Riggs was the issuer of a Letter of Credit (“LoC”) for which a reimbursement agreement was guaranteed by George T. Ross (“Ross”). Ross was a general partner of Plaza One Associates (“Plaza”), builder of the Richmond Airport Hilton Hotel (“The Hotel”). The project was financed by issuing bonds secured by a first deed of trust on the Hotel. The LoC was to be drawn upon if Plaza did not make its required payments on the bonds.

In addition to Ross’ guaranty, the LoC was secured by a second deed of trust on the hotel. After several draws on the LoC, and upon default under the terms of the LoC, Riggs foreclosed under its second deed of trust. RBV, Inc. (“RBV”), a wholly-owned subsidiary of Riggs, bought the property at the foreclosure sale for $10,000.00, taking the property subject to the existing first deed of trust. Riggs filed a complaint in this Court to determine the dischargeability of the debt owed it by Ross. Following a hearing on the dischargeability complaint, this Court, in its Opinion of August 30,1994,180 B.R. 121 held that:

Ross’s outstanding indebtedness to Riggs should be considered nondischargeable after deducting therefrom such credits received by Riggs as a result of the liquidation of the asset, by it or its subsidiary RBV, which were properly credited to the balance due under the guaranty by Ross. The Court chooses to allow the parties to work together to find the correct amount of Ross’s outstanding indebtedness.

(Mem. Op. at 130).

Within two days of the Court’s entry of its Memorandum Opinion, Riggs filed its motion to amend. Pursuant to F.R.Civ.P. Rule 59, which is applicable to bankruptcy cases by way of F.R.Bankr.P. Rule 9023, this Court granted Riggs’ motion to amend during an October 17, 1994 hearing on Riggs’ motion for entry of final order.

The amendments to the August 30, 1994 Opinion are as follows:

[132]*132(a) The text of footnote 4, page 124, is replaced by the following:

RBV eventually sold the property to RIC Partners L.P. for a gross sales price of $4.7 million dollars.

(b) The last three sentences of the first paragraph of page 127 are replaced with the following:

The Court is also unsure as to the effect on Ross’s indebtedness of the $4.7 million dollar sale by RBV to RIC Partners L.P. It is possible that Riggs would receive the entire $4.7 million from its subsidiary RBV and collect $8.3 million from Ross, thereby receiving about $13,000,000 on a debt that had an original principal balance of about $7,700,000.

At that same October 17,1994 hearing, the Court learned that the parties were unable to work together in the manner anticipated by the Court in its August Opinion. Upon consideration of the parties’ additional memo-randa and oral argument on the issue of the amount of indebtedness, this Court permitted the parties some additional time to reach an agreement. The parties advised the Court in November that a settlement was being negotiated. By December, however, no agreement had been reached. After long deliberation on this matter, the Court now acts upon the Motion of Riggs for the entry of a final order.

CONCLUSIONS OF LAW

This Court’s initial concern was that the subsequent sale of the hotel by a Riggs subsidiary without crediting the proceeds to Ross’s guaranty obligation would result in a windfall to Riggs. (See Mem. Op. at 127, as amended). Upon further consideration, the Court is not certain that any windfall occurred. The sale to RIC was for $4.7 million dollars, $3.7 million of which was in the form of a loan to the purchaser. Only $1 million was received in the form of cash, and that amount might not have covered the expenses of sale. The Court has no evidence as to amounts, but it is conceivable that Riggs or RBV incurred expenses in completing, marketing and selling the property. Ross has conceded, and both parties agree, that the subsequent sale price of the property has no bearing upon Ross’s obligation to Riggs. Ross cites a Maryland case, Walton v. Washington County Hospital, 178 Md. 446, 13 A.2d 627 (1940), as persuasive authority. The Walton court stated:

The measure of liability of a guarantor of a mortgage is established after the amount of the deficiency is determined by the foreclosure ... the indemnity contemplated by the guarantor is ordinarily the deficiency determined by the auditor’s report ... it is not to be limited to the mortgagee’s ultimate loss.

Id. 13 A.2d at 629. The price that the foreclosure sale purchaser may receive through a subsequent sale does not determine the amount of the deficiency.

Ross maintains that no obligation survived the foreclosure sale because the bid price was $10,000.00 plus the amount of the debt, rather than the $10,000.00 bid recited in the deed and settlement documents. Ross reaches this conclusion by relying upon an inconclusive notation found in the margin of the deed and an even less conclusive statement of a bank officer given during testimony at the original hearing on this matter. As a legal basis for his conclusion that Riggs’ bid at the foreclosure sale must necessarily include the amount of Ross’s indebtedness, Ross relies solely upon In re Carter, 56 F.Supp. 385 (W.D.Va.1944). In Carter the Court stated:

But in any public sale of mortgaged property the creditor, for his protection, may bid at the sale and may apply the amount of his debt upon his bid. If some third party bids more than the amount of the debt secured, then the creditor will be paid in full from the proceeds of the sale. If the creditor is forced to buy in the property at the amount of his debt, or less, he has acquired the property in lieu of his debt.

Id. at 388 (emphasis added). While this language seems favorable to Ross, the Carter ease does not offer support for Ross’s argument. The language cited above is taken out of context, and is part of a general discussion of the law’s gradual recognition of a period of redemption. In addition, the language seems [133]*133to suggest that a creditor is not entitled to a deficiency judgment. This is not the state of the law, and Ross does, not contend that obtaining a deficiency judgment is improper. Proceeding to deficiency judgment is a lawful proceeding in Virginia. See Hubard & Appleby v. Thacker, 132 Va. 33, 110 S.E. 263 (1922).

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Related

Snidow v. Woods
96 S.E.2d 157 (Supreme Court of Virginia, 1957)
Kaplan v. Ruffin
193 S.E.2d 689 (Supreme Court of Virginia, 1973)
In Re Carter
56 F. Supp. 385 (W.D. Virginia, 1944)
Carter Coal Co. v. Litz
54 F. Supp. 115 (W.D. Virginia, 1943)
Walton v. Washington County Hospital Ass'n
13 A.2d 627 (Court of Appeals of Maryland, 1940)
Hubard & Appleby, Inc. v. Thacker
110 S.E. 263 (Supreme Court of Virginia, 1922)
Carter Coal Co. v. Litz
140 F.2d 934 (Fourth Circuit, 1944)

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Bluebook (online)
180 B.R. 130, 1995 Bankr. LEXIS 461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riggs-national-bank-of-washington-v-ross-in-re-ross-vaeb-1995.