In re Kraz, LLC
In re Kraz, LLC
Opinion of the Court
MEMORANDUM OPINION ON AMOUNT OF CLAIM
More than three years ago, a state court denied Branch Banking & Trust’s attempt to foreclose its mortgage on the Debtor’s property because the state court determined BB & T had improvidently declared a default. Now, as part of its claim in this bankruptcy case, BB & T seeks to recover interest that accrued on its loan while its foreclosure action was pending, as well as attorney’s fees and costs incurred after the
The Court concludes BB & T is not entitled to accrued interest or attorney’s fees and costs as a matter of law. The state court judgment plainly provides that the loan would be reinstated nunc pro tunc to the day before the default was declared and that no “accrued principal and interest payments” would be due. And because BB & T orchestrated a default for its own benefit, it would be improper to award BB & T fees incurred in enforcing its promissory note in state court (even post-judgment). There is a question of fact, however, as to whether BB & T is entitled to post-maturity default interest because it is unclear whether BB & T prevented the Debtor from timely tendering the required balloon payment. Accordingly, the Court will grant the Debtor’s motion for summary judgment as to accrued interest and attorney’s fees and costs as a matter of law but deny the summary judgment motion as to the post-maturity interest without prejudice.
Undisputed Facts
Despite years of contentious litigation between the parties, the facts of this dispute are, for the most part, uncontested and relatively straightforward. The Debt- or operates a storage facility and flex commercial space known as Causeway Self Storage. It developed the storage facility using nearly $5.2 million in funding from Colonial Bank in 2006.
But Judge William Levens, the state court judge who presided over the foreclosure action, ruled against BB & T at the conclusion of a March 1-2, 2012 bench trial.
It is therefore ORDERED and ADJUDGED that the loan and all loan documents be reinstated nunc pro tunc to June 80, 2009 (i.e., pre-“default”). The terms of the loan and the loan documents shall remain in effect as they would have as of that date. The maturity of the loan is extended fourteen months from the effective date of this order. As there was no “default,” there are no accrued principal and interest payments due from Defendants. Rather, Defendants will pick up payments where such payments left off in June 2009 (after such principal is credited with all such amounts as detailed below).8
The final judgment required BB & T to credit the Debtor for payments the state court receiver made to BB & T and any payments the state court receiver received from the Debtor.
BB & T appealed the state court judgment. While the appeal was pending, BB & T determined that the principal balance due on the loan as of June 30, 2009— taking into account the credits required by Judge Levens — was $4,799,763.98 and that the new monthly payment on the loan was $30,760.49.
BB & T does not dispute that the Debt- or made each of the $30,760.49 monthly payments between February 28, 2014 and April'28, 2015. Nor is there any dispute that the Debtor did not pay the note in full by April 28, 2015, although the reason for nonpayment does appear to be in dispute. In any case, on April 30, 2015, two days after the extended maturity date, BB & T filed an action in federal court seeking to foreclose its mortgage on the Debtor’s property.
The Debtor filed this chapter 11 case to stop BB & T’s foreclosure action.
It quickly became apparent to the Court that this case had none of the hallmarks of a typical Phoenix Piccadilly bad-faith filing.
The Debtor’s ability to confirm a plan within a reasonable time principally turns on two issues raised by BB & T’s motions: (1) the amount of BB & T’s claim; and (2) the value of the Debtor’s property. The Court took evidence on both of those issues during three days of trial.
Conclusions of Law
Although the parties both agree that the principal amount of BB & T’s claim as of June 30, 2009 was $4,754,860.26,
First, BB & T says it is entitled to $1,060,640.25 in accrued interest from June 30, 2009 through April 28, 2015. Second, BB & T says it is entitled to $671,780.48 in attorney’s fees and costs. Third, BB & T ' says it is entitled to $410,350.50 in default interest since April 28, 2015. The Court concludes that BB & T is not entitled to accrued interest or attorney’s fees as a matter of law.
The dispute over whether BB & T is entitled to accrued interest centers on one sentence in Judge Levens’ final judgment: “As there was no ‘default,’ there are no accrued principal and interest payments due from Defendants.”
The final judgment specifically provides that the loan is to be reinstated “nunc pro tunc” to June 30, 2009.
It is worth noting that this Court’s interpretation of Judge Levens’ order is consistent with BB & T’s same understanding at the time the judgment was entered. On October 8, 2012, BB & T filed a motion seeking to compel compliance with a final judgment that Judge Levens entered six months earlier. In that motion, BB & T stated that the adjusted loan balance to be amortized “omits and excuses approximately twenty-five (25) months of interest provided for under the Loan Documents from the date that the Obligors stopped paying on the Obligation until the judgment date.”
A colloquy between Judge Levens and BB & T’s counsel at a February 13, 2014 hearing on BB & T’s second motion is illuminating:
Court: Well at some point we have to— we have to have a new starting line. And use the old NASCAR adage, you know, we have had a wreck, they have cleaned up the track, and now it is time to restart the race. So just from a simplistic standpoint, when do you propose that we restart the race?
Counsel: Because the other interest that is listed is what is in the loan history that is admitted into evidence at trial. It is not anything that has been added posttrial which we—other than that*893 one month because that is based on the language of the judgment itself only because what was admitted into evidence ended on May 29 of 2009. That is the only difference. And in the response, I pointed to the page and the exhibit number that is on. So to talk about—
Court: Well, again, I am going to shoot from the hip or from memory or whatever, but it seems to me like what I was trying to do is basically freeze things. I did not want all kinds of — I didn’t think it was fair while both sides were battling it out on appeal to continue running up additional interest.
Counsel: Correct.
Court: Basically, just put things back to status quo.
Counsel: Yes, and that is what the accounting—
Court: Restart the—
Counsel: That is what the accounting that the bank filed—
Court: Does.
Counsel: —does. I mean, it is only interest that was listed through May 2009, and then the judgment itself says through June 2009. So as the one month based on the per diem that was already in the record. And it stated in the accounting—
Court: So you are not trying to tack on—
Counsel: It is that seven—
Court: —interest during all this—
Counsel: No. There is no interest added on for the entire— from June 2009 through today, there is no interest added on in this accounting that was filed with the court.32
BB & T, however, says it is not judicially estopped by its earlier statements from taking the position here that it is entitled to accrued interest.
While that may be the case, BB & T’s earlier statements — made around the time Judge Levens issued his final judgment and other related orders — are certainly probative as to the meaning of the phrase “there are no accrued principal and interest payments due.” It is true that BB & T has taken the position in the district court litigation and this bankruptcy case, as well as various estoppel letters sent to the Debtor, that it has a claim for accrued interest. But BB & T’s after-the-fact litigation position in the district court litigation and this case is hardly relevant to the Court’s determination of how to interpret Judge Levens’ final judgment. Accordingly, the Court concludes that BB & T is not entitled to any accrued interest.
BB & T is not entitled to attorney’s fees.
BB & T also seeks entitlement to $671,780.48 in attorney’s fees and costs. The Debtor contends BB & T is not entitled to prevailing party attorney’s fees because it plainly did not prevail in the state court foreclosure action.
The First District Court of Appeal’s decision in RJ & RK, Inc. v. Spence, where the court reversed a trial court fee award under similar circumstances, is instructive.
On appeal, the First District Court of Appeal reversed the fee award.
The same is true in this case. Like the trial court in Spence, Judge Levens expressly found that BB & T had orchestrated a default and denied BB & T the right to accelerate the note or foreclose its mortgage.
There is a factual issue whether BB & T is entitled to post-maturity interest at the default rate.
BB & T claims it is entitled to $410,350.50 in post-maturity interest at the default rate because the Debtor failed to pay the note in full by the maturity date. The Court is sympathetic to the Debtor’s argument that BB & T declared a premature default.
The Court, however, does have some concern that BB & T arguably prevented the Debtor from tendering the balloon payment. As a practical matter, the only way the Debtor (whose sole asset is the storage facility) could have tendered the final balloon payment is if it could have sold the storage facility or refinanced it. In either case, the Debtor would have needed an estoppel letter from BB & T. It is undisputed that the Debtor requested and received several estoppel letters from BB & T, and in each case, the estoppel letter overstated the amount due on the loan (either by $2.3 million or $4.7 million depending on the estoppel letter).
Florida courts have held, in a variety of contexts, that the refusal to accept a proper tender will prevent the collection of interest because the failure to receive payment is due to the promisee’s own action: Here, there is a question of fact whether BB & T’s failure to provide an accurate estoppel letter prevented the Debtor from tendering the actual amount due on the note or if BB & T would have accepted a tender of the correct amount due if the Debtor could have raised the funds absent a proper estoppel letter.
In those cases the tender of performance will not operate as a discharge of the debt nor does the refusal to accept the money tendered operate as a discharge of the debt. However, the refusal to accept a proper tender will prevent the collection of interest or other damages because the failure to receive payment is due to the . promisee’s own action.48
The Court realizes it previously discouraged parties from putting on evidence regarding the estoppel letters. But in light of the argument about post-maturity default interest, the estoppel letters and the effect they had, if any, on the Debtor’s ability to fund the balloon payment is relevant. Accordingly, the Court will decline to rule whether post-maturity default interest is recoverable as a matter of law and consider additional evidence (and argument) on that issue at the December 30, 2015 confirmation hearing.
Conclusion
There is no dispute that the Debtor owed $4,754,860.26 as of June 30, 2009 or that the Debtor made $461,407.35 in payments from February 28, 2014 through April 28, 2015.
. Doc. No. 129-2.
. Doc. No. 129-1. The terms of the loan provided for interest only payments for the first twenty-four months. Colonial Bank was then supposed to give the Debtor written notice that it was required to begin making principal and interest payments. Id.; Doc. No. 129-2. The Debtor apparently was never given notice it was required to begin making principal and interest payments.
. Doc. No. 129-2.
. Doc. Nos. 129-2 & 129-3.
. Doc. Nos. 129-2 & 129-3.
. Doc. Nos. 129-2 & 129-3.
. Doc. No. 129-3.
. Id.
. Id.
. Id.
. Doc. No. 129-4.
. Doc. No. 129-7. The issue that BB & T prevailed on was a secondary issue and is of no consequence to the current dispute between the parties.
. Doc. No. 129-18.
. Doc. No. 129-24.
. Doc. Nos. 1 & 4.
. Doc. No. 42.
.- Doc. No. 41.
. Doc. No. 115 at 78-81.
. The trial was conducted on September 1, 2015; September 23, 2015; and October 1, 2015.
. Doc. Nos. 129 & 130.
. With one minor exception not relevant here, Federal Rule of Bankruptcy Procedure 7052 incorporates Federal Rule of Civil Procedure 52. Federal Rule of Bankruptcy Procedure, in turn, provides that Rule 7052 ap'plies to contested matters.
. Claim No. 3-1; Doc. No. 129-21. In particular, BB & T contends that the principal balance on the loan was $5,146,773.61 as of June 30, 2009. After crediting the Debtor with $391,913.35 in "Receiver Credits” as required under Judge Levens' final judgment, BB & T recalculated the principal loan balance as $4,754,860.26. Although BB & T credited those payments as of February 28, 2014 (the effective date of the final judgment), the Court’s analysis remains the same.
. Doc. No. 130.
. Doc. No. 129-3.
. Doc. No. 130 at 10-14.
. Doc. No. 129 at 14-19.
. Doc. No. 129-3.
. Black’s Law Dictionary 1097 (7th ed. 1999).
. Doc. No. 129-3.
. Doc. No. 129-4 at 4.
. Doc. No. 129-14.
. Doc. No. 129-17 at p. 6, 11. 7-12; p. 14, 1. 4 - p. 15,1. 14 (emphasis added).
. Doc. No. 129 at 24-25.
. Doc. No. 130 at 11-12.
. Id. at 12.
. Doc. No. 129 at 22-23; Doc. No. 1.
. 855 So.2d 642, 644 (Fla. 1st DCA 2003).
. Id.
. Id.
. Id.
. Id.
. Doc. Nos. 129-2 & 129-3.
. Doc. No. 130 at 14-15.
. Doc. No. 129-1.
.Doc. No. 129-24.
. Doc. No. 130 at 14-15.
. Doc. No. 130 at 14; Doc. No. 130-7.
. See, e.g., Multach v. Adams, 418 So.2d 1254, 1255 (Fla. 4th DCA 1982); Fowler v. Gartner, 89 So.3d 1047, 1049 (Fla. 3d DCA 2012).
. Doc. No. 129-21.
. One other issue remains unresolved. In its proof of claim, BB & T claims $288,091.74 in ad valorem taxes and $8,996.40 in real estate taxes. Those amounts are also included in the report by BB & T’s expert. Doc. No. 129-21. The Debtor objects on the basis that BB & T has offered no evidence to support those amounts. Neither party, however, adequately briefed the issued. So the Court will overrule the Debtor’s objection without prejudice and resolve this issue at the December 30 confirmation hearing.
Reference
- Full Case Name
- IN RE: KRAZ, LLC, Debtor
- Cited By
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- Published