In re Mirchou
| Decision Date | 01 June 2018 |
| Docket Number | Case No. 10-28345-MKN |
| Citation | 588 B.R. 555 |
| Parties | IN RE: Rafael MIRCHOU dba Alexa Professional Plaza, LLC, Debtor. |
| Court | U.S. Bankruptcy Court — District of Nevada |
Matthew Q. Callister, Las Vegas, NV, for Debtor.
Robert Atkinson, Atkinson Law Associates Ltd, Brian D. Shapiro, Las Vegas, NV, for Trustee.
ORDER ON MOTION TO REOPEN BANKRUPTCY CASE PURSUANT TO FEDERAL RULE OF BANKRUPTCY 50101
On May 16, 2018, the court heard the Motion to Reopen Bankruptcy Case Pursuant to Federal Rule of Bankruptcy 5010 ("Motion"). The appearances of counsel were noted on the record. After arguments were presented, the matter was taken under submission.
On September 28, 2010, a voluntary Chapter 11 petition was filed by Rafael Mirchou dba Alexa Professional Plaza, LLC ("Debtor"). (ECF No. 1).
On October 14, 2010, a proof of claim in the amount of $489,543.73 was filed by Real Time Resolutions, Inc. ("Real Time"), secured by property located at 2021 S. Valadez Street, Las Vegas, Nevada 89117. That proof of claim ("Real Time POC") specifies that notices in connection with the creditor should be sent to: Agent for BAC (fka Countrywide), 1750 Regal Row, Suite 120, Dallas, TX 75235. Attached to the Real Time POC are copies of a Home Equity Credit Line Agreement and Disclosure Statement dated June 8, 2006, in the amount of $450,000, as well as a Deed of Trust of the same date, recorded on June 14, 2006 ("Real Time DOT").
On October 28, 2010, a request for special notice was filed on behalf of Wachovia Bank, N.A. (ECF No. 20).
On November 2, 2010, a request for special notice was filed on behalf of BAC Home Loans Servicing LP. (ECF No. 21).
On November 30, 2010, Debtor filed his schedules of assets and liabilities ("Schedules") along with his statement of financial affairs ("SOFA"). (ECF No. 25). On his real property Schedule "A," Debtor listed a property located at 2021 S. Valdez2 Street, Las Vegas, Nevada 89117 ("Valadez Property"). On his secured creditor Schedule "D," Debtor listed Wachovia as having a claim in the amount of $1,443,387 secured by a first mortgage against the Valadez Property. Debtor also listed Real Time as having a claim in the amount of $495,975.51,3 secured by the Valadez Property. Debtor also listed the value of the Valadez Property as $1,745,500, which was the same value shown for the same property on his Schedule "A."
On December 9, 2010, a request for special notice was filed on behalf of Wells Fargo Bank, N.A., aka Wachovia Mortgage, etc. ("Wells Fargo"). (ECF No. 31). On the same date, Wells Fargo filed a proof of claim in the amount of $1,498,741.88, secured by the Valadez Property. The proof of claim specifies that notices in connection with the creditor should be sent to: Pite Duncan, LLP, 4375 Jutland Drive, Suite 200, P.O. Box 17933, San Diego, California 92177-0933.
On December 13, 2010, a request for special notice was filed on behalf of The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of Cwalt, Inc., Alternative Loan Trust 2006-OA16, Mortgage Pass-Through Certificates, Series 2006-OA16. (ECF No. 32).
On February 22, 2011, a request for special notice was filed on behalf of Ascension Capital Group, Inc., regarding BMW Financial Services NA, LLC. (ECF No. 56).
On March 18, 2011, after obtaining substitute bankruptcy counsel,4 Debtor filed amended Schedules (ECF No. 71) and an amended SOFA (ECF No. 72). On amended Schedules "A" and "D," the value of the Valadez Property was shown as $1,200,000, rather than $1,745,500.5 On amended Schedule "D," Wells Fargo was listed as having a claim in the amount of $1,498,741.88 secured by a first mortgage against the Valadez Property. Bank of America was listed as having a claim in the amount of $459,860 secured by a second mortgage against the Valadez Property. Debtor also listed Real Time as having a claim in the amount of $449,861, secured by a second mortgage against the Valadez Property.
On October 6, 2011, a request for special notice was filed on behalf of Bank of America, N.A., Successor by Merger to BAC Home Loans Servicing, LP. (ECF No. 145).
On December 13, 2011, Debtor filed a Disclosure Statement ("DS"), Exhibit "A" to which is a proposed Chapter 11 plan of reorganization ("Proposed Plan"). (ECF No. 167). The DS states that under Class 1a of the Proposed Plan, the claim of Wells Fargo will be deemed fully secured, but that the Valadez Property will be sold through a court-approved short sale. See DS at 7:10-15. The Proposed Plan similarly indicates that in Class 1(a), the Valadez Property will be subject to a short sale, but that any unsecured portion of Wells Fargo's claim would be treated as an unsecured claim in Class 5 (which did not exist in the proposed plan). See Proposed Plan at 2:9-19.
On December 23, 2011, Debtor filed a motion to sell the Valadez Property ("Valadez Sale Motion") to a buyer identified as Jaldeep Daulat ("Daulat"). (ECF No. 168). The motion was noticed to be heard on January 25, 2012. (ECF No. 170). On the same date, Debtor filed a motion to employ a real estate broker for the sale to Daulat. (ECF No. 172). The latter motion also was noticed to be heard on January 25, 2012. (ECF No. 174).
On January 11, 2012, opposition to the Valadez Sale Motion was filed by the Debtor's estranged spouse, as well as by Wells Fargo. (ECF Nos. 178 and 179).
On January 23, 2012, Debtor filed a reply in support of the Valadez Sale Motion. (ECF No. 181).
On January 25, 2012, the Valadez Sale Motion was heard by the assigned bankruptcy judge who denied the motion, but granted the Debtor permission to sell the Debtor's interest in the Valadez Property. Debtor's bankruptcy counsel, however, did not submit a written order memorializing the court's ruling on the Valadez Sale Motion.
On August 10, 2012, Debtor filed a Motion to Value Collateral, "Strip Off" and Modify Rights of Secured Creditors Pursuant to 11 U.S.C. § 506(a) and § 1123 ("Valuation Motion"). (ECF No. 220).6 A notice of hearing on the Valuation Motion ("Hearing Notice") was filed specifying that the matter would be heard on September 12, 2012. (ECF No. 221). A certificate of service was filed by the Debtor's counsel ("Service Certificate") attesting that the Valuation Motion and Hearing Notice were electronically transmitted to counsel for various parties, were served by certified mail on Wells Fargo, and were served by first class mail on counsel for various entities.7 (ECF No. 226).
On August 29, 2012, Debtor filed a First Amended Disclosure Statement ("FAD") to which was attached another proposed Chapter 11 plan of reorganization ("Second Proposed Plan"). (ECF No. 235). The FAD disclosed that the Valadez Property will be surrendered to the holder of the secured claim under Class 2(f) and any deficiency would be treated as unsecured debt. See FAD at 9:22-28. The attached plan similarly indicated that the Valadez Property would be surrendered and specified that Wells Fargo held the first mortgage. See Second Proposed Plan at 29:13-19. A notice was filed scheduling a hearing to approve the FAD for October 24, 2012. (ECF No. 237).
On September 13, 2012, an order was entered granting the Valuation Motion ("Valuation Order"). (ECF No. 240). The Valuation Order was prepared and submitted by Debtor's bankruptcy counsel. Attached to the Valuation Order is the same certification under Local Rule 9021(c) that was attached to the proposed order accompanying the Valuation Motion. See note 6, supra. In addition to granting the Valuation Motion, the order includes the following provisions:
Valuation Order at 2:9-23.
On October 9, 2012, numerous objections to approval of the FAD were filed. (ECF Nos. 245, 247, and 248).
On October 31, 2012, an order was entered denying approval of the FAD. (ECF No. 260).
On December 31, 2012, Debtor filed a Second Amended Disclosure Statement ("SAD") to which was attached another proposed Chapter 11 plan of reorganization ("Third Proposed Plan"). (ECF No. 267).8 The SAD states that the Valadez Property will be surrendered to the holder of the secured claim under Class 2(f) and any deficiency would be treated as unsecured debt. See SAD at 11:9-16. The attached plan similarly indicated that the Valadez Property would be surrendered and specified that Wells Fargo held the first mortgage. It also specified that the unsecured portion of Wells Fargo's claim would be treated in unsecured Class 5. See Third Proposed Plan at 31:9-16.9 Notices were filed scheduling a hearing to approve the SAD (as amended) for February 27, 2013. (ECF Nos. 270 and 272).
On February 12, 2013, a motion for relief from stay was filed by Wells Fargo with respect to the Valadez Property. (ECF No. 292). A notice was filed scheduling a hearing for March 30, 2013. (ECF No. 293).
On February 13 and February 16, 2013, objections to approval of the SAD were filed. (ECF Nos. 298 and 305).
On March 27, 2013, an order was entered granting Wells Fargo relief from stay with respect to the Valadez Property. (ECF No. 317).
On August 1, 2013, the Office of the United...
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