In re East Ridge Associates, Ltd.
In re East Ridge Associates, Ltd.
Opinion of the Court
ORDER
This matter is before the Court on the Application of the Life Insurance Company of Georgia (“Life of Georgia”) for Allowance of Attorneys’ Fees (hereinafter referred to as the “Application”), filed on May 18, 1990. The United States Trustee’s office filed comments concerning the Application on June 6, to which Life of Georgia responded on June 12.
' FINDINGS OF FACT
On May 5, 1972, Charles H. Raines, Mildred Anne Raines, W.T. Goodloe Rutland, and Ann M. Rutland (the “Owners”), owners of a parcel of real property in Jefferson County, Alabama (“Parcel One”), signed a promissory note for the benefit of Central Bank and Trust Company in the principal amount of $1,500,000, and they granted a security interest in the property to the bank pursuant to an accompanying mortgage.
On or around November 30, 1983, Rut-land and Raines Partnership transferred Parcel One to First Equities Corporation (“First Equities”), a corporation that acquires property for and syndicates limited
The end result of this series of transactions was the development of the East Ridge Apartments complex on the two parcels. Debtor later defaulted on its mortgage obligations, however, and on May 8, 1989, it filed a Chapter 11 petition. Life of Georgia now seeks attorneys’ fees under certain provisions of the mortgages which encumber the property.
CONCLUSIONS OF LAW
According to § 506(b) of the Bankruptcy Code,
[t]o the extent that an allowed secured claim is secured by property the value of which ... is greater than the amount of such claim, there shall be allowed to the holder of such claim ... any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.
11 U.S.C. § 506(b) (1990). Attorneys’ fees can only be recovered under this provision if they are provided for in a contractual agreement, In re D.W.G.K. Restaurants, Inc., 84 B.R. 684 (Bankr.S.D.Cal. 1988). In this case Life of Georgia’s claim arose from provisions in the Central Mortgages and the Life of Georgia Mortgage. Debtor was not named as a party to these mortgages, however, and Debtor and Great Southern argue that as a result Debtor is not obligated to pay the fees to Life of Georgia. For support, they cite Judge Murphy’s decision in In re Club Associates, 107 B.R. 794
. The purpose of the privity requirement, implies Judge Murphy in Club Associates, is to prevent an unwitting stranger to an agreement from being stuck with an obligation for which he or she did not bargain. Debtor was no stranger to the Life of Georgia Mortgage, however. First, Debtor is closely linked to First Equities (who executed the Mortgage) through Donald Nichols, who is both the vice president of First Equities and the general partner of First Equities Associates-N, Debtor’s general partner. In fact, Mr. Nichols signed the Mortgage. Second, Debtor was intimately involved in the series of same-day transactions that included the Mortgage.
The Court must look beyond the face of a contract to the surrounding facts when identifying the true parties to the contract, Tri-Cities Newspapers, Inc. v. Tri-Cities Pressmen and Assistants Local 349, 427 F.2d 325, 327 (5th Cir. 1970). Having done so, the Court concludes that Debt- or was a nominal party to the Life of Georgia Mortgage and was therefore obligated by paragraphs 8 and 9 of that mortgage to pay Life of Georgia’s attorneys’ fees. Moreover, the Court agrees with Life of Georgia that a party should not be able to avoid its attorneys’ fees obligation under a mortgage provision simply by transferring the encumbered property to a closely related entity. Accordingly, it is ORDERED that Life of Georgia’s Application is GRANTED.
IT IS SO ORDERED.
. The United States Trustee requested identification of a party whose initials were found on the fee request documents, and Life of Georgia identified the party in its June 12 response. The United States Trustee also challenged the hourly fee charged by a paralegal employed by Life of Georgia’s attorneys, but this Court finds that the $65 per hour fee is commensurate with paralegal fees at comparable law firms and the charge is therefore reasonable.
. The parties entered a stipulation as to the authenticity of these and all of the agreements described herein on August 13, 1990.
. The Central Mortgages, which were assigned to Life of Georgia and which continue to encumber the property, included the following provision:
8. Mortgagors shall immediately pay to mortgagee all sums, including costs, expenses, and reasonable agent’s or attorney’s fees, which it may expend or become obligated to pay in any proceedings ... to establish or sustain the lien of this mortgage or its priority, or to defend against liens, claims, rights, estates, easements, or restrictions, asserting priority to this mortgage; in payment, settlement, discharge, or release of any asserted lien, claim, right, easement or restriction made upon advice of competent counsel that the same is superior to the lien of this mortgage; ... or to recover any sums hereby secured, together with interest on all such sums at the rate of 81/2% per annum until paid; and for payment of such sums and interest, this mortgage shall stand as security in like manner and effect as for the payment of said indebtedness.
Similar provisions are found in the Life of Georgia Mortgage:
8. ... [I]f there be commenced any action or proceeding affecting the premises or the title thereto, then Mortgagee, at its option ... may appear in any such action or proceeding and retain counsel therein, and take such action as Mortgagee deems advisable, and for any such purposes, Mortgagee may advance such sums of money as it deems necessary ... 9. Mortgagor will pay to Mortgagee, immediately and without demand, all sums of money advanced by Mortgagee pursuant to this mortgage, together with interest on each such advancement at the rate of thirteen percent (13%) per annum, and all such sums and interest thereon shall be secured hereby.
. Of course, the same cannot be said for Debt- or's relationship to the Central Mortgages. Those mortgages were executed ten years earlier by parties totally unrelated to either Debtor or Life of Georgia. Accordingly, the Central Mortgages do not create a right to attorneys' fees in this proceeding.
Reference
- Full Case Name
- In the Matter of EAST RIDGE ASSOCIATES, LTD., a Georgia Limited Partnership, Debtor
- Status
- Published