Bankruptcy: Relief from Automatic Stay - Lack of Adequate Protection

In the case of Equitable Life Assurance Society of U.S. v. James River Associates, the United States District Court at Newport News upheld a Bankruptcy Court ruling that where a creditor held a note executed by a debtor and secured by a first deed of trust on a hotel and a conference center in Williamsburg, Virginia, the creditor was entitled to relief from the automatic stay in order to foreclose because the creditor's "equity cushion" in the property was only two percent.

In the trial of this case the Bankruptcy Court found that the creditor was not adequately protected because 1) its equity cushion was deteriorating as interest accrued, 2) real estate taxes were delinquent, 3) the creditor had not received payments on the note for numerous months and 4) the priming lien necessary for the debtor to reorganize would further deteriorate the creditor's security position.

On appeal to the District Court the debtor argued that the Bankruptcy Court erred in its finding that the creditor's equity cushion was deteriorating due to the accumulation of unpaid interest. The District Court opined that under the "equity cushion" theory if a debtor has equity in a property sufficient to shield the creditor from either the declining value of the collateral or an increase in the claim from accrual of interest or expenses, then the creditor is protected. The District Court ruled that the Bankruptcy Court's conclusion that the creditor was inadequately protected because of the deterioration of its equity cushion from accumulating interest was not in error. The District Court noted that although several courts had previously rejected the equity cushion theory, it did not need to decide the merits of the equity cushion theory since the Bankruptcy Court found that there were other sufficient justifications for finding a lack of adequate protection. These are detailed in the following paragraphs.

First, the Bankruptcy Court found that the real estate taxes were delinquent for two tax years in a total amount of $264,624. The District Court ruled that the failure to pay real estate taxes may constitute a basis for finding lack of adequate protection.

Second, the Bankruptcy Court found that there was a lack of payments to the creditor for several months, including, no payments since the bankruptcy petition. The District Court ruled that a continued failure to make monthly payments under loan documents can constitute cause for granting relief from the automatic stay. The District Court ruled that there was no error in granting relief from the automatic stay for failure to make payments.

Third, the Bankruptcy Court found that the creditor's security position would be deteriorated by the proposed priming lien which the debtor needed to reorganize. Given the lack of an equity cushion and the speculative nature of the repayment plan, the District Court ruled that there was no error in granting relief from the automatic stay because of the deterioration of the creditor's security position due to the priming loan.

In conclusion, the District Court concluded that the Bankruptcy Court did not err in granting the creditor's motion for relief from the automatic stay. The Bankruptcy Court properly found that the diminishing equity cushion, the delinquent real estate taxes, the lack of payments on the note for several months, and the deterioration of the creditor's security position under the priming lien constitute, both independently and together, a lack of adequate protection for the creditor. 

Collections: Confessed Judgment Set Aside

The United States District Court at Alexandria, Virginia, set aside a confessed judgment in the case of Benton Land Fund, L.P. v. NvMercure Ltd Partnership because the entry of the judgment was by a party not specifically authorized to confess judgment. The Court found that the provisions in the note at issue stated that judgment may be confessed by "any attorney admitted to practice in any jurisdiction or any vice president or senior vice president of the bank". The Court found that this language was not sufficiently specific to allow the plaintiff limited partnership to confess judgment because of certain ambiguities among the documents in identifying the "Bank" referred to in the note. Further, the language in the note did not entitle the person who actually confessed judgment to act as the attorney-in-fact for that purpose.

This case serves as another reminder as to why competent legal advice should be sought, and why loan documents and contracts should be carefully read and strictly followed.

Foreclosure: Notice of Sale

The Code of Virginia provides specific guidance as to giving notice of a foreclosure sale.

§55.1-321 and 322 require that the written notice of sale contain the time, date and place of the proposed sale, as well as either (i) the instrument number, or, deed book and page number, of the instrument of appointment filed (appointment of substitute trustee), or, (ii) a copy of the executed and notarized appointment of substitute trustee. Personal delivery or mailing a copy of the advertisement by certified or registered mail is sufficient.

Virginia Code requires the trustee to send written notice of the time, date and place of the sale to (i) the present owner of the property … (ii) any subordinate lienholder … (iii) any assignee of such note … (iv) any condominium unit owner’s association that has filed a lien … (v) any property owner’s association that has filed a lien … (vi) any proprietary lessees’ association that has filed a lien.

It is important to know that in addition to the notice required by statute, the note or the deed of trust may contain additional notice requirements. Accordingly, the trustee should examine both of these documents.

Real Estate: Homeowner Associations – Damages Caused by Common Area Tree

Townes at Grand Oaks Townhouse Association, Inc. v. Baxter is case from Richmond Circuit Court that illustrates the importance of carefully drafted HOA agreements. The HOA sought to recover expenses for removing a tree that fell from common area onto a homeowner’s condo. The Richmond Circuit Court held that the HOA agreement did not exempt the HOA from paying removal costs because a portion of the tree remained on the common area. The court noted that there was no Virginia authority for these facts, but stated that the Supreme Court of Virginia ruled that in cases of fallen trees between adjoining properties in the absence of negligence, there is no liability for property damages on the landowner from where the tree fell. However, the HOA agreement is a contract that created the obligation for the HOA. The agreement had a provision requiring the HOA to maintain and replace trees, and another provision exempting the HOA from liability to an owner for repairing or replacing any portion of the lot or the improvements provided the homeowner has insurance as required by the agreement. The HOA relied on the first provision, but the court determined that that reliance was misplaced as it did not cover this situation. The HOA relied on the second provision because the homeowner did not have the required insurance for “the structure of each lot”, but only insurance for the inside of the home. However, the court heard evidence from the homeowner that he understood the language to only require internal insurance. The court noted three primary reasons for holding for the homeowner: 

(1) “Removal of the tree from the lot is not a repair or replacement, but merely something necessary before the physical work of restoration of the damaged structure can begin.” 

(2) “The exemption from liability applies when the homeowner has "fire and extended coverage insurance" with applicable coverage. Considering the varying types of insurance that the market may provide, there is no evidence that the insurance required under the contract terminology must cover trees removal. Whether such a policy would is left to speculation.”

(3) “The tree removal would necessarily involve removal of a portion of the tree from the common area as well as from Defendant's lot and home. I question whether, in any event, the total removal cost should be assigned to the defendant rather than some prorated amount.”

It is important to ensure that HOA agreements include provisions that would govern a broad spectrum of potential issues and disputes. We have experience in drafting, reviewing, and amending HOA documents, as well as, representing HOAs in court.