Sullivan Central Plaza I, Ltd. v. Bancboston Real Estate Capital Corp. (In re Sullivan Central Plaza I, Ltd.)

935 F.2d 723, 1991 U.S. App. LEXIS 15233
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 17, 1991
DocketNos. 89-7001, 89-7002 and 90-1391
StatusPublished
Cited by8 cases

This text of 935 F.2d 723 (Sullivan Central Plaza I, Ltd. v. Bancboston Real Estate Capital Corp. (In re Sullivan Central Plaza I, Ltd.)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan Central Plaza I, Ltd. v. Bancboston Real Estate Capital Corp. (In re Sullivan Central Plaza I, Ltd.), 935 F.2d 723, 1991 U.S. App. LEXIS 15233 (5th Cir. 1991).

Opinion

GOLDBERG, Circuit Judge:

An architect gazing upon the Metropolitan Financial Tower2 in Dallas could doubtless explain the structural members that support this sixteen-story office tower. An engineer might be more interested in the maze of ducts and cables that carry the life-force of a modern edifice. As judges, however, our focus must be the morass of bankruptcy litigation that has enveloped this building for over two years.

The procedural posture of today's matter is complex. We have before us two separate appeals. In Nos. 89-7001 and 89-7002, we reconsider the issue we previously [725]*725decided adversely to the debtor, Sullivan Central Plaza I, Ltd. (Sullivan Central), namely, whether its appeal of certain bankruptcy court orders was rendered moot by the sale of the Tower. In No. 90-1391, we consider for the first time Sullivan Central’s appeal of a district court order affirming the bankruptcy court’s involuntary conversion of Sullivan Central’s Chapter 11 proceeding into a Chapter 7 proceeding.

Upon due consideration, we continue to believe that events have mooted Sullivan Central’s first appeal, and we find that the conversion order was proper. Accordingly, we affirm the orders of the bankruptcy and district courts.

Procedural Background

The background of this litigation has been recounted in previous opinions,3 but a summary here will serve as a reminder. In 1985, Sullivan Central executed a promissory note in favor of Appellee BancBoston Real Estate Capital Corporation, in the face amount of $39 million. This note was secured by an office building, the Metropolitan Financial Tower. Sullivan Central failed to pay the interest installments and BancBoston posted the Tower for a September 6, 1988 foreclosure sale.

On September 6, 1988, Sullivan Central filed its voluntary petition under Chapter 11, and BancBoston was automatically stayed from conducting the foreclosure sale. After extensive hearings, the bankruptcy court concluded on February 27, 1989 that Sullivan Central wholly lacked equity in the Tower, that Sullivan Central’s amended plan for reorganization could not be confirmed, and thus, that no prospect for reorganization existed. Therefore, the bankruptcy court entered an order lifting the automatic stay arising under 11 U.S.C. § 362, thereby allowing BancBoston to post the Tower for foreclosure. Sullivan Central sought and was denied reconsideration of the stay order. Sullivan Central then filed notice of appeal of the order lifting the automatic stay, and also requested that the order itself be stayed pending appeal (this would have left the automatic stay in effect pending appeal). The bankruptcy court denied this request.

Sullivan Central next sought emergency injunctive relief under 11 U.S.C. § 105, simultaneously filing a Second Amended and Restated Plan for Reorganization. The bankruptcy court found a substantial likelihood that this plan would be confirma-ble, and issued a temporary restraining order on April 4,1989, enjoining a foreclosure scheduled for that day. After a subsequent hearing, the court modified the TRO by placing additional financial requirements on Sullivan Central. A month later, determining that Sullivan Central had failed to meet these conditions, the court vacated the TRO. BancBoston then posted the Tower for a June 6, 1989 foreclosure sale.

On May 18, 1989, Sullivan Central filed a notice of appeal from the orders modifying and vacating the TRO. On May 25, 1989, Sullivan Central filed with the bankruptcy court an emergency motion for a stay pending appeal, which was denied. Sullivan Central then presented an identical motion to the district court, which was also denied. Sullivan Central then sought a writ of mandamus from this court, which too was denied on June 5, 1989. The June 6, 1989 foreclosure occurred as scheduled, and Dallas Central Development Corporation, an affiliate of BancBoston, bought the Tower.

Following the foreclosure, BancBoston filed its Motion to Convert Case to Chapter 7. The bankruptcy court conducted a hearing on this motion, then continued the motion pending the district court’s decision on the appeals of the bankruptcy court’s orders regarding § 362 and § 105 relief. The district court subsequently dismissed both appeals as moot,4 and Sullivan Central ap[726]*726pealed to this court.5

The continued hearing on the Motion to Convert was scheduled for November 3, 1989. In lieu of an evidentiary presentation, Sullivan Central and BancBoston submitted letter briefs to the bankruptcy court regarding the district court’s decision. After reviewing these letter briefs and the record, the bankruptcy court ordered the proceeding converted from a Chapter 11 proceeding to a Chapter 7 proceeding. Sullivan Central appealed this decision to the district court. The district court affirmed, and Sullivan Central appealed to this court.

After a panel of this court rendered its decision on the question of § 362 and § 105 relief, see In re Sullivan Central Plaza, I, Ltd., 914 F.2d 731 (5th Cir.1990), Sullivan Central filed a Suggestion for Rehearing En Banc. Treating that motion as a petition for panel rehearing, the panel granted rehearing and consolidated the rehearing with the appeal of the conversion order. Nos. 89-7001 and 89-7002 — Stay and Injunction Orders

In its petition for rehearing, Sullivan Central argues for the first time that Bankruptcy Code § 5496 grants this court the power to set aside the foreclosure sale. We disagree. Section 549 allows the avoidance of a transfer of property out of the estate only where the transfer “is not authorized ... by the court.” Here, the bankruptcy judge lifted the automatic stay and vacated the TRO, knowing that the result would be a transfer of the property (as permitted by state foreclosure law). Under these circumstances we cannot say that the transfer was not authorized by the court. In practical terms, the lifting of the stay and vacation of the TRO constituted authorization to conduct a foreclosure sale as provided under state law.7 Accordingly, § 549 provides Sullivan Central no remedy in this case, and we reaffirm our unwillingness to exercise our equitable power so as to fashion one.

No. 90-1391 — Involuntary Conversion

In its new appeal, Sullivan Central appeals the district court’s order affirming the bankruptcy court’s conversion order, converting this proceeding from a Chapter 11 proceeding to a Chapter 7 proceeding. Sullivan Central presents a number of arguments, none of which we find persuasive.

First, Sullivan Central argues that BancBoston lost its standing to prosecute the Motion to Convert. Under Bankruptcy Code section 1112(b), only a party in interest or the United States trustee may file a motion to convert. Section 1109(b) provides a non-exclusive list of “parties in interest,” which list includes a “creditor.” “Creditor” is defined in section 101(10) as an entity that has a claim against the debt- or that arose at the time of or before the order for relief concerning the debtor.

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In The Matter Of Sullivan Central Plaza I, Ltd.
935 F.2d 723 (Fifth Circuit, 1991)

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Bluebook (online)
935 F.2d 723, 1991 U.S. App. LEXIS 15233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-central-plaza-i-ltd-v-bancboston-real-estate-capital-corp-in-ca5-1991.