Endover Palisades, LLC v. Stuart (In re Stuart)
Endover Palisades, LLC v. Stuart (In re Stuart)
Opinion of the Court
Before the Court is a Motion for Relief from Automatic Stay, and Brief in Support, Regarding Movant's Levy on Non-Debtor Real Estate (Docket No. 36)(the "Motion") filed by the above-named Movant (the "Movant"), on August 29, 2018. In the Motion, Movant seeks, out of an abundance of caution, relief from the automatic stay of
Movant further contends that the Debtor transferred the Property by limited warranty deed to an entity called The Multiple Sclerosis Center of Georgia, Inc. ("MSCG") on December 21, 2016, (the "Transfer"),
As to the effect of the automatic stay, Movant first argues that the automatic stay of
To the extent the automatic stay does apply to Movant's request to levy on the Property, Movant argues that relief from the automatic stay pursuant to
A hearing was held on the Motion on September 24, 2018 (the "Hearing"). Counsel for Movant appeared at the Hearing in support of the Motion, and counsel for the Debtor appeared in opposition. An attorney also appeared for both MSCG and Signature Bank of Georgia
At the Hearing, Movant initially reiterated the facts of this case and those underlying the Judgment. Movant also noted that, pursuant to a proof of claim filed in this case on September 12, 2018, later amended on September 19, 2018, it holds a claim against the Debtor in the amount of $889,111.78 by virtue of the Judgment. See Claims Register, Claim No. 6. Movant also renewed its arguments made in the Motion, specifically citing to In re Everchanged, Inc. ,
In the alternative, Movant asserted that even if the automatic stay applies to a levy on the Property, cause exists under Section 362(d) for lifting the stay to permit such action. For that proposition, Movant cited to In re Ohuche ,
The Debtor, through his counsel, first explained at the Hearing the Debtor's connection to MSCG. Based on those undisputed representations, the Debtor is the founder of MSCG, and currently works for the non-profit entity as both a medical practitioner and director. The Debtor's counsel also explained that, at the time of the Transfer in December 2016, the title examiner overlooked the FiFa, which resulted in the Property being transferred to MSCG without satisfaction of the Judgment. Finally, the Debtor contends that he is solvent and has sufficient assets (exclusive of the Property) to satisfy the Judgment.
As to the relief sought in the Motion, the Debtor asserted that the automatic stay of
The Debtor also explained that lifting the stay to permit a levy on the Property would result in significant and substantial harm not only to MSCG, but to the Debtor's employment with the entity and his ability to successfully reorganize in this case. The Debtor asserted that levying on the Property would a cause significant disruption to the operating medical practice conducted by MSCG on the Property. Further, the Debtor contended that, as his medical practice with MSCG constitutes a major source of his income, levying on the Property would jeopardize his ability to earn income and thus to reorganize.
Counsel for Signature Bank and MSCG then explained her efforts to negotiate a settlement with Movant, the title insurance company, and the Debtor regarding the lien arising from the Judgment and FiFa.
Finally, counsel for Signature Bank and MSCG also explained the negative impact *839stay relief would have on MSCG. She asserted that because the Property is only a portion of a larger medical facility, levy on the Property would disrupt day-to-day operations within MSCG's medical facility. She further contended that merely advertising a levy of the Property would significantly affect MSCG's donor base and its ability to fundraise. Finally, she stated that levying on the Property may cause the Property's mortgage lender to declare a default on the security deed, further impeding MSCG's operations at its facility.
LEGAL ANALYSIS
The threshold issue in this matter is whether a levy on the Property is prohibited by the automatic stay of 11 U.S.C. 362(a). If the stay does not apply to protect the Property from a levy, then Movant is free to pursue that remedy, and the Court need not address any of Movant's other arguments. If, however, the stay does apply to a levy on the Property, then Movant's request for stay relief must be addressed.
Upon the filing of a voluntary petition, Section 362(a) operates a stay as to certain collection activities, including, inter alia :
(1) the commencement or continuation ... of ... [an] action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title; ...
(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;
The parties do not dispute that the Property is not property of the Debtor or property of the bankruptcy estate under
As noted above, Section 362(a)(1) stays "the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor ... or to recover a claim against the debtor that arose before the commencement of the case ..."
The central issue in deciding whether the stay applies to the proposed levy is what the phrase "against the debtor," used twice in Section 362(a)(1) and once in 362(a)(6), modifies. For example, in the first half of Section 362(a)(1), does the phrase "against the debtor" modify both "commencement or continuation" and "judicial, administrative, or other action or proceeding," or does it modify only "judicial, administrative, or other action or proceeding?" If it is the former, then to violate the provision the action has to involve an action or proceeding that is against the Debtor, and has to involve the commencement or continuation of that action against the Debtor. If it is the latter, then any continuation of an action that is against the Debtor (even if only commenced or continued against others not in bankruptcy) would be stayed. Similarly, in Section 362(a)(6), does "against the debtor" modify both "act to collect, assess or recover" and "claim," or does it just modify "claim?" If it is the former, then only an act against the Debtor to collect on a claim against the Debtor is stayed, where if it is only the latter, then any act to "collect, assess or recover" on a claim against the Debtor is stayed.
It is not at all apparent from the statutory language which of these readings was intended by Congress. This issue has, however, been addressed by other courts. In that regard, "[t]he automatic stay of
*841With regard to Section 362(a)(6), the Debtor, rather than property of the Debtor or property of the estate, is the person the provision is designed to protect. See Divane v. A and C Elec. Co., Inc. ,
Similar to the second portion of Section 362(a)(1), there is nothing in the language of Section 362(a)(6) to indicate "that the legislature intended the scope of
Here, Movant seeks to collect on its judgment lien against the Property, not against property of the Debtor or the bankruptcy estate.
*842In re Everchanged , supra , is instructive with regard to Sections 362(a)(1) and (6) and the distinction between in personam actions against a debtor and in rem actions against non-debtor and non-estate property. In Everchanged , the subject real property was conveyed by the debtor corporation to a third-party entity prepetition; however, the debtor remained liable on the underlying loan. Everchanged ,
Similar to the foreclosure in Everchanged , a levy upon the Property constitutes an in rem action against the Property itself, and not an in personam action against the Debtor. Despite the fact that the Debtor is personally liable on the underlying claim, the FiFa and resulting judgment lien attached to the Property, such that a levy on the Property to execute on the Judgment does not constitute a proceeding to recover the underlying claim against the Debtor personally, or an act to collect, asses, or recover a claim against the Debtor personally. Instead, Movant seeks to enforce a claim-the Judgment-against the Property , in which neither the Debtor nor his bankruptcy estate have an interest. Because an in rem action against non-Debtor and non-estate property does not constitute an attempt to collect on the Judgment from the Debtor personally, it does not implicate the automatic stay of Section 362(a)(1) or (6).
*843CONCLUSION
Upon consideration of the Motion and statements made by the parties at the Hearing, and for the reasons set forth above, the automatic stay of Section 362(a) does not apply to a levy upon the Property. Accordingly, it is hereby
ORDERED that the Motion is GRANTED to the extent provided for herein. Movant may institute levy proceedings against the Property. And it is further
ORDERED that Movant shall not pursue any deficiency action, to the extent one arises after levy and execution on the Property, against the Debtor regarding the Judgment without further order of this Court. It is further
ORDERED that the foregoing does not permit Movant to take actions other than those related to a levy on the Property including, without limitation, the filing of a judicial foreclosure should one be required in these circumstances, because (i) that relief was not requested by Movant, and (ii) that relief may implicate the automatic stay in ways that a levy on the Property would not.
The Clerk is directed to serve copies of this Order upon Endover, counsel for Endover, the Debtor, counsel for the Debtor, MSCG, counsel for MSCG, and the Office of the United States Trustee.
IT IS ORDERED.
In the Motion, Movant explains that it had previously contacted the levying agent for Fulton County, Georgia (where the Property is located) regarding its intent to levy on the Property. Movant states that the attorney representing the levying agent refused to initiate a levy on the Property without an order from this Court lifting the automatic stay to permit the levy.
See Ex. A to the Motion, p. 10 of 36.
Movant has filed a proof of claim regarding the Judgment, Claim. No. 6. According to that proof of claim, the current balance of the Judgment is $889,111.78. The precise amount of the claim is not relevant for the purposes of this Order.
See Ex. B to the Motion, pp. 12-13 of 36.
See Ex. G to the Motion, pp. 27-33.
No party disputed any of these allegations at the Hearing.
Counsel asserted that Signature Bank holds a security deed on the Property, and that she was engaged to represent MSCG through its title insurance policy.
The Court has entered an order authorizing mediation regarding this dispute. See Docket No. 56.
Such action would no doubt be stayed pursuant to
The Court has subject matter jurisdiction over this proceeding pursuant to
For context only, the assertions at the Hearing were that the Property was sold for approximately $2.4 million, that an approximately $1.8 million existing loan secured by the Property was paid off, and that the new loan with Signature Bank for over $2 million was put in place at that time. If true, these facts demonstrate that the sale was for value (i.e. not simply a quitclaim to MSCG) and that the Debtor likely realized material cash proceeds from the sale. None of these asserted facts are material to the analysis in this Order.
Section 362(a)(2) is clearly inapplicable under these circumstances by its own plain terms, i.e., levy and execution on a prepetition Judgment against non-Debtor and non-estate property. See also 3 Collier on Bankruptcy ¶ 362.03[4] (16th ed. 2018)("Also stayed [by Section 362(a)(2) ] are levy and execution, pursuant to a prepetition judgment, against the property of the estate and against property of the debtor.").
"The conduct prohibited [by Section 362(a)(6) ] ranges from that of an informal nature, such as by telephone contact or by dunning letters, to more formal judicial and administrative proceedings that are also stayed under subsection (a)(1)." See 3 Collier on Bankruptcy ¶ 362.03[8][a] (16th ed. 2018).
Although it is true that the underlying claim upon which the Judgment rests was entered against the Debtor, when Movant recorded its FiFa which attached to the Property, the Property itself also became subject to the Judgment and Movant's underlying claim. The Debtor is correct in that Movant, by virtue of the Judgment, holds a claim against the Debtor; in fact, it has filed a proof of claim to that effect. See Claims Registry, Claim No. 6. Additionally, Movant also holds a claim, pursuant to the FiFa and resulting judgment lien, against the Property, which is distinct from the in personam liability the Debtor has on the Judgment. Pursuant to O.C.G.A. § 9-12-86(b), a judgment lien attaches to real property when "the judgment, decree, order, or writ of fieri facias is recorded in the office of the clerk of the superior court of the county in which the real property is located and is entered in the indexes to the applicable records in the office of the clerk." O.C.G.A. § 9-12-86(b). Here, the FiFa was recorded at a time when the Debtor owned the Property, which resulted in the creation of a judgment lien against the Property. Thus, even though the Property was subsequently transferred to MSCG, the judgment lien still remained on the Property and has not, according to the parties, been satisfied.
See O.C.G.A. § 9-12-86(b).
This Court may have the ability to enjoin a levy on the Property pursuant to its equitable powers under
Reference
- Full Case Name
- IN RE: William H. STUART, Debtor. Endover Palisades, LLC a/k/a the Palisades at West Paces, Inc., a Georgia Limited Liability Company, Movant v. William H. Stuart
- Status
- Published