In re Metro. Mortgage & Sec.

• Decision Date: 28 March 2011
• Docket Number: Civil No. 10–00623 JMS/KSC.
• Citation: 448 B.R. 527
• Court: U.S. District Court — District of Hawaii
• Parties: In re METROPOLITAN MORTGAGE & SECURITIES, CO., INC., and Summit Securities, Inc., Debtors.Summit Creditors' Trust, Plaintiff,v.Hawaii Forest Preservation, LLC; et al., Defendants.Finance Factors, Limited, Plaintiff,v.Summit Creditors' Trust; et al., Defendants.

448 B.R. 527

In re METROPOLITAN MORTGAGE & SECURITIES, CO., INC., and Summit Securities, Inc., Debtors.Summit Creditors' Trust, Plaintiff,

v.Hawaii Forest Preservation, LLC; et al., Defendants.Finance Factors, Limited, Plaintiff,

v.Summit Creditors' Trust; et al., Defendants.

Civil No. 10–00623 JMS/KSC.

United States District Court, D. Hawai‘i.

March 28, 2011.

Angela T. Thompson, Melvyn M. Miyagi, Tami Michie Yorimoto, Watanabe Ing & Komeiji LLP, Keith Y. Yamada, Lori K. Amano, Teri–Ann Emiko Shiroma Nagata, Theodore D.C. Young, Cades Schutte, Cheryl A. Nakamura, Susan A. Tius, Rush Moore LLP A Limited Liability Law Partnership, Gary G. Grimmer, Gary G. Grimmer & Associates, Enver W. Painter, Jr. John Y. Yamano, McCorriston Miller Mukai MacKinnon LLP, Henry F. Beerman, Jim on & Beerman, Honolulu, HI, for Plaintiff.

ORDER AFFIRMING BANKRUPTCY COURT'S AWARD OF INTEREST

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

Pursuant to 28 U.S.C. § 158(a), GBBY Ewa Limited Partnership (“GBBY”) appeals the United States Bankruptcy Court for the District of Hawaii's award of interest at a default rate of twenty-four percent in favor of Finance Factors, Limited (“Finance Factors”) as set forth in the Bankruptcy Court's (1) February 10, 2010 Findings of Fact, Conclusions of Law, and Order [regarding Interlocutory Decree of Foreclosure] (“Foreclosure Decree”) and the corresponding Foreclosure Judgment; (2) August 3, 2010 Order Granting in Part Finance Factors's Motion for Confirmation of Sales (“Confirmation Order”), and (3) corresponding September 27, 2010 Memorandum of Decision on Post Judgment Interest. The Memorandum of Decision denied GBBY's Motion for Reconsideration of the Confirmation Order regarding the nature and rate of interest awarded to Finance Factors.

GBBY contends that the Foreclosure Decree or the corresponding Foreclosure Judgment in favor of Finance Factors is a “money judgment” under 28 U.S.C. § 1961 such that interest after February 10, 2010 should have accrued at the much lower federal statutory rate rather than the twenty-four percent default rate. As a junior lien holder, GBBY has an understandable interest—it could be entitled to excess funds that would remain after the debtors' obligations to Finance Factors are satisfied.

For the reasons set forth, the decision of the Bankruptcy Court is AFFIRMED.

II. BACKGROUND

A. Factual Background1. The Foreclosure Decree and Foreclosure Judgment

This proceeding arose from a mortgage foreclosure action filed in state court involving multiple lenders and properties. GBBY's Excerpts of Bankr.Ct. R. (“ER”) at 92 [Doc. No. 7–2]. The Bankruptcy Court assumed jurisdiction upon the bankruptcy of an unspecified party ( see Answering Br. of Finance Factors, at 2 n. 1.), and proceeded to adjudicate the foreclosure proceedings.

The Foreclosure Decree found that Finance Factors was owed $5,247,231.66 (as of July 24, 2009), consisting of (1) $4,484,913.08 in principal, (2) $34,087.72 in pre-default interest due prior to April 1, 2009, (3) $360,280.88 in default interest at a contractual rate of twenty-four percent, and (4) $3,950 in loan fees. ER 12, ¶ 38 [Doc. No. 7–1]. It also found Finance Factors was entitled to further interest (also at the default rate of twenty-four percent) and late charges, attorneys' fees, and costs. Id.

The Foreclosure Decree concluded that Finance Factors had valid first mortgages as senior mortgagee on “Forest Preservation Properties” and “Kauilani Ewa Properties” (“the Mortgaged Properties”). Id. at 13, ¶ 2. As to GBBY, it concluded that GBBY was a junior mortgagee as to the Kauilani Ewa Properties. Id. ¶ 4.

Finance Factors was thus entitled to foreclose on the Forest Preservation and Kauilani Ewa Properties and have them “sold in the manner provided by law, and have the sale proceeds applied to the amounts owed to Finance Factors on the Notes and Mortgages.” Id. ¶ 5. Similarly, the Foreclosure Decree concluded that GBBY was entitled to have its mortgage on the Kauilani Ewa Properties foreclosed, to have those properties sold and to have the sales proceeds “disbursed to Finance Factors and GBBY in accordance with the Term Sheet (April 7, 2006).” Id. ¶ 6.

The Foreclosure Decree directed how the sale would proceed, as follows:

GBBY and [Defendant Summit Creditors' Trust's] claims for marshaling of collateral will be decided at the confirmation of sale hearings and the burden is on the parties advocating marshaling. The Commissioner appointed herein shall sell the Mortgaged Properties in the order agreed upon by the parties. If the parties cannot agree upon the order ... the Commissioner ... shall decide when and how the Mortgaged Properties are sold.

Id. ¶ 7.

It provided for certain fees:

Finance Factors is entitled to recover all loan and extension fees under the Notes and Finance Factors' recovery shall not be affected in any way by any collateral released by Finance Factors as Finance Factors owed no duty to any other party to maximize its recovery from properties in which other parties have no interest in.

Id. ¶ 9. It also awarded interest:

Finance Factors is entitled to recovery interest at the default interest rate of 24% per annum [in the applicable promissory notes] because it is legal under Hawaii law, was provided for under the loan documents, and because there was no contractual restriction against charging such amount.

Id. ¶ 11. And it provided for a possible deficiency judgment:

Finance Factors is entitled to a deficiency judgment against Defendants ... for the difference between the amount owed to Finance Factors on the Notes and the Mortgages, and proceeds of the sale of the Mortgaged Properties applied thereto.

Id. ¶ 12.

The Foreclosure Decree also appointed a Commissioner, who was empowered to (1) take possession, manage, preserve, and dispose of the Mortgaged Properties, (2) demand and collect rents due and owing from any tenant of the Mortgaged Properties, (3) sell the Mortgaged Properties according to a set procedure, subject to confirmation by the Bankruptcy Court, (4) file reports with the Bankruptcy Court after each sale, (5) execute and deliver documents transferring title after confirmation of sale, and (6) disburse sale and rent proceedings according to further orders of the Bankruptcy Court. Id. at 18–19. It allowed any party to bid for the Mortgaged Properties at the public auction, and provided that reopening of the auction would also occur at the confirmation-of-sale hearing. It then directed entry of a partial judgment under Rule 54(b) of the Federal Rules of Civil Procedure and Rule 7054 of the Federal Rules of Bankruptcy Procedure. Id. at 19–20.

The corresponding Foreclosure Judgment, entered separately, provided in pertinent part:

Pursuant to the [Foreclosure Decree] ... Judgment is hereby entered in favor of Plaintiff Finance Factors, Limited and against all Defendants on the foreclosure of the mortgaged properties ... [and] on Plaintiff Finance Factors, Limited's Amended Complaint, granting foreclosure of the (1) First Mortgage With Assignment of Rents, ... (2) Third Mortgage With Assignment of Rents ..., and (3) Mortgage With Assignment of Rents ... all as ordered by this Court.

Id. at 23–24.2. The Confirmation of Sales, and Objections to the Rate of Interest

The Mortgaged Properties were sold for $2,500,000 (Kauilani Ewa Properties) and $4,500,000 (Forest Preservation Properties), and confirmation proceedings followed. Id. at 44. Prior to the confirmation hearing, Defendant Lowell C.E. Ing (who did not appeal) objected, arguing that the Bankruptcy Court improperly awarded default interest at twenty-four percent on the Foreclosure Decree. Id. at 28. He contended that the proper rate should have been awarded as post-judgment interest under Hawaii Revised Statutes (“HRS”) § 478–3. Id. Another Defendant, Beverly Ing (who also did not appeal), made a similar objection, arguing that the twenty-four percent default rate on the notes “terminates with the entry of judgment, which occurred on February 10, 2010.” Id. at 32. GBBY joined Lowell Ing's Opposition, although GBBY contended that if a post-judgment statute applied, it would be the federal statute—28 U.S.C. § 1961—not the state statute. Id. at 35–36.

On August 3, 2010, the Bankruptcy Court confirmed the sales. Id. at 39. It found the $2,500,000 and $4,500,000 sales prices to be fair and equitable. It also (1) awarded the Commissioner fees and expenses of $32,435.03, (2) deferred Finance Factors' request for attorneys' fees and costs, (3) deferred addressing whether a deficiency judgment was necessary because of an open issue regarding another property (the “Lanikai Lot”), and (4) found that Finance Factors continued to be entitled to recover interest at the default rate of twenty-four percent per annum “until the entry of a deficiency judgment or payment in full, whichever first occurs.” Id. at 44–45. After the sales closed, the Bankruptcy Court ordered the Commissioner to pay to Finance Factors proceeds “up to the amount of its indebtedness, $6,356,182.04, plus per diem interest of $3,188.33 per day after July 2, 2010.” Id. at 48–49. This was an updated amount of indebtedness from the $5,247,231.66 (as of July 24, 2009) in the Foreclosure Decree. A separate judgment was entered under Rule 54(b) on August 3, 2010. Id. at 56–57.

GBBY moved for reconsideration on August 5, 2010, again arguing that the proper interest rate was the federal post-judgment interest rate under § 1961, and should have been calculated from February 10, 2010 (the date of the Foreclosure Decree and Judgment). Id. at 60–69 [Doc. No. 7–2]. On September 27, 2010, the Bankruptcy Court issued its Memorandum of Decision, denying GBBY's Motion for Reconsideration. Id. at 81–87.

B. Procedural Background

Under 28 U.S.C. § 158(a), GBBY timely appealed the Bankruptcy Court's denial of reconsideration. Id. at 89–92. GBBY's Opening Brief was filed on December 17, 2010. Finance...