Phillip Montoya v. United States Bankruptcy Court for the District of New Mexico ( 2017 )

FILED
U.S. Bankruptcy Appellate Panel
of the Tenth Circuit
August 30, 2017
Blaine F. Bates
NOT FOR PUBLICATION * Clerk
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE TENTH CIRCUIT
IN RE SANDIA RESORTS, INC., BAP No. NM-17-003
Debtor.
HARMINDER SIAN, Bankr. No. 15-11532
Chapter 7
Appellant,
v. OPINION **
PHILLIP J. MONTOYA, Chapter 7
Trustee, NCG, LLC, and STATE OF
NEW MEXICO, TAXATION AND
REVENUE DEPARTMENT,
Appellees.
Appeal from the United States Bankruptcy Court
for the District of New Mexico
Before KARLIN, Chief Judge, NUGENT and MOSIER, Bankruptcy Judges.
KARLIN, Chief Judge.
The Debtor, Sandia Resorts, Inc., owned America’s Best Value Inn in
Albuquerque, New Mexico. Appellant Harminder Sian is the president and sole
shareholder of the Debtor. He appeals the bankruptcy court’s order authorizing
*
This unpublished opinion may be cited for its persuasive value, but is not
precedential, except under the doctrines of law of the case, claim preclusion, and
issue preclusion. 10th Cir. BAP L.R. 8026-6.
**
After examining the briefs and appellate record, Appellant has withdrawn
his request for oral argument and the Court has determined unanimously to honor
the parties’ request for a decision on the briefs without oral argument. See Fed. R.
Bankr. P. 8019(g).
the sale of the hotel. Because he failed to obtain a stay of the bankruptcy court’s
order pending this appeal and the sale subsequently closed, we must evaluate the
threshold issue whether the appeal is moot. Our review of the entire record
demonstrates that the appeal is moot, and we thus must dismiss it.
I. BACKGROUND
In 2004, Appellant signed a promissory note on behalf of the Debtor in the
amount of $1,950,000 in favor of First National Bank of Santa Fe. A mortgage on
the hotel, an assignment of rents, and a security interest in the hotel’s furnishings
all secured the note. After the Debtor defaulted on the note, the bank filed a
foreclosure action in June 2011. To halt the foreclosure, the Debtor filed a
voluntary petition under Chapter 11 of the United States Bankruptcy Code. 1 The
Debtor’s plan of reorganization was confirmed, but the Debtor subsequently
defaulted on its plan payments to the bank. The bank then reopened the
foreclosure and obtained an order appointing a receiver.
Meanwhile, the bank sold the note to NCG, LLC in January 2015 but failed
to disclose that sale to the Debtor or to the state court. Six months later, the
Debtor filed a second Chapter 11 case in attempt to thwart the receiver’s
collection of the hotel’s income. The bank moved to dismiss the second Chapter
11 on the basis that the Debtor was simply trying to modify its previously
confirmed plan. The bankruptcy court granted that motion, finding the second
case was an “impermissible attempt to circumvent the prohibition against
post-substantial consummation modifications.”2 But upon being advised by the
Debtor, in a motion for reconsideration, that the bank had no standing to pursue
dismissal because it no longer owned the note, the bankruptcy court reopened the
1
All future references to “Code,” “Section,” and “§” are to the Bankruptcy
Code, Title 11 of the United States Code, unless otherwise indicated.
2
Memorandum Opinion at 18, in Appellant’s App. at 84.
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Debtor’s second bankruptcy case and set aside the dismissal order. 3 When the
Debtor was unable to confirm another plan, the bankruptcy court converted the
case to one under Chapter 7.
The bankruptcy court appointed Philip Montoya as the Chapter 7 Trustee.
The Trustee and NCG almost immediately entered into a contract for NCG to
purchase the hotel, resulting in the filing of the Chapter 7 Trustee’s Motion to
Sell Estate Assets Free and Clear of All Liens Pursuant to 11 U.S.C. § 363(f). 3
The motion indicated NCG had offered to purchase the hotel, as well as its
furniture and other goods located at the hotel, for a cash payment of $550,000 and
forgiveness of the balance of the note owed by the Debtor (essentially a credit bid
based on its $2 million loan). 4
Appellant objected to the sale, but only made one argument in opposing the
sale: that NCG had no lien with which to make a credit bid because the bank’s
assignment of the note and associated mortgage to it was void. He based this
argument on his reading of New Mexico Statute § 47-1-7, arguing that the bank
had failed to record “any power of attorney or other writings containing
authority” for the bank’s officer to convey the note to NCG. 5 From this point,
Appellant argued the bankruptcy court should not approve the sale, since
effectively it was only for $550,000 cash compared to the $1.2 million appraised
3
For reasons not explained in the record before this Court, the bank and its
counsel continued to pursue relief in bankruptcy court in the bank’s own name
despite assigning the note to NCG. NCG filed a proof of claim just prior to the
hearing on the bank’s motion to dismiss, and Appellant apparently learned of this
assignment only after that motion to dismiss was granted.
3
Appellee’s App. at 385.
4
Proofs of claim filed by NCG show varying amounts due, but all reflect a
balance, with interest, exceeding $2 million on an original note of $1.95 million
at 6.25% interest. Claims Register at 2-3, in Appellant’s App. at 293-94; Proof of
Claim 9-1, in Appellant’s App. at 303.
5
Objection to Chapter 7 Trustee’s Motion to Sell Assets to NCG, LLC, at 2,
in Appellee’s App. at 414.
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value for these assets.
The bankruptcy court conducted a hearing on the sale motion and several
days later entered the Order Granting Chapter 7 Trustee’s Motion to Sell Estate
Assets Free and Clear of All Liens Pursuant to 11 U.S.C. § 363(f). 6 In its written
decision, the bankruptcy court concluded NCG’s offer was “fair, reasonable, and
beneficial to creditors and the estate” and found it unlikely the Trustee would
receive a better offer.7 The bankruptcy court also found the sale “was negotiated
at arm’s length . . . . [and n]o party involved ha[d] an improper or bad motive,”
and that the “Trustee properly exercised his business judgment in negotiating the
sale.” 8
The bankruptcy court overruled Appellant’s specific objection concerning
NCG’s ability to credit bid. It concluded New Mexico Statute § 47-1-7 did not
require the bank to have a separate power of attorney specifying the officer’s
authority to execute the assignment, and thus, the assignment was valid.
Accordingly, the bankruptcy court approved the sale, free and clear of all liens,
finding that NCG’s offer to purchase the assets for $550,000, coupled with
forgiveness of NCG’s remaining debt, was worth $2.5 million, far exceeding the
value of those assets.
Appellant timely appealed the sale order and also requested a stay pending
appeal (which the bankruptcy court denied). Appellant did not then seek a stay
from this Court. The sale closed January 19, 2017, and the Trustee’s Report of
Sale reflects payment from the sale proceeds of $316,445 to various taxing
6
Appellant’s App. at 235.
7
Order Approving Sale at 5, in Appellant’s App. at 239.
8
Id., in Appellant’s App. at 239.
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authorities, and transfer of title to the hotel to NCG. 9
II. JURISDICTION & STANDARD OF REVIEW
This Court has jurisdiction to hear timely filed appeals from “final
judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit,
unless one of the parties elects to have the district court hear the appeal. 10
Appellant appeals an order granting a motion to sell real property free and clear
of all liens pursuant to § 363(b) and (f), which is a final order.11 None of the
parties elected to have this appeal heard by the United States District Court for
the District of New Mexico.
A bankruptcy court’s interpretation of the Code is a conclusion of law,
reviewed de novo.12 “De novo review requires an independent determination of
the issues, giving no special weight to the bankruptcy court’s decision.” 13 The
bankruptcy court’s decision on a motion to sell pursuant to § 363(b) is reviewed
9
Appellee’s App. at 430. Early in the appeal, this Court entered an Order to
Show Cause why Appeal Should not be Dismissed as Moot pursuant to § 363(m),
but ultimately decided to defer ruling on mootness until we could review the
entire record on appeal. We deferred because Appellant had boldly asserted in his
response that NCG was not a good faith purchaser. See BAP ECF No. 17. But the
only reference he now makes on appeal regarding the good faith purchaser issue
has nothing at all to do with the actual sale. Instead, the acts he points to relate to
the bank’s representations that it was a party in interest even after it had
transferred the note to NCG. He never suggests NCG is not the holder of the note.
Further, the good faith purchaser question involves whether the sale of the hotel
was in good faith, not whether NCG or the bank acted in bad faith in front of the
state or bankruptcy court in failing to reveal the assignment two years earlier.
10
28 U.S.C. § 158(a)(1), (b)(1), & (c)(1); Rule 8005; 10th Cir. BAP L.R.
8005-1.
11
In re Lotspeich, 328 B.R. 209, 216 (10th Cir. BAP 2005).
12
Foust v. McNeill (In re Foust), 310 F.3d 849, 853 (5th Cir. 2002) (stating
application of § 543 reviewed de novo); Santander Consumer, USA, Inc. v. Houlik
(In re Houlik), 481 B.R. 661, 668 (10th Cir. BAP 2012).
13
Houlik, 481 B.R. at 668-69 (citing Salve Regina Coll. v. Russell, 499 U.S.
225, 238 (1991)).
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for abuse of discretion,14 while the bankruptcy court’s underlying factual findings
are reviewed for clear error.15 Findings of good faith under § 363(m) are also
reviewed for clear error.16 The clearly erroneous standard requires a “definite and
firm conviction that a mistake has been committed.”17 The bankruptcy court’s
determinations regarding state law are reviewed de novo. 18
III. DISCUSSION
The Trustee and NCG argue this appeal is statutorily moot pursuant to
§ 363(m) because Appellant failed to obtain a stay pending appeal and the sale to
NCG closed in January 2017. Section 363(m) provides the “reversal or
modification on appeal of . . . a sale or lease of property does not affect the
validity of a sale or lease . . . to an entity that purchased or leased such property
in good faith . . . .”19 Thus, § 363(m) moots an appeal “where a party appealing
from an order authorizing the sale of a debtor’s property fails to obtain a stay of
the order and the property is subsequently sold to a ‘good faith purchaser.’” 20
However, an appeal is not mooted solely by § 363(m) if any other applicable law
14
In re Buerge, Nos. KS-12-074, KS-12-077, KS-12-078, KS-13-022-025,
2014 WL 1309694, at *9 (10th Cir. BAP Apr. 2, 2014) (citing In re 240 N. Brand
Partners, Ltd., 200 B.R. 653, 656 (9th Cir. BAP 1996) (“bankruptcy court has
discretion when ruling on a § 363(b) motion”)).
15
In re Adkins, 42 F. App’x 252, 254 (10th Cir. 2002) (quoting Osborn v.
Durant Bank & Tr. Co. (In re Osborn), 24 F.3d 1199, 1203 (10th Cir. 1994)).
16
In re Lotspeich, No. WO-08-016, 2008 WL 1989758 at *3 (10th Cir. BAP
May 7, 2008) (“we review . . . determination of good faith under § 363(m) for
clear error.”) (citing In re Bel Air Assocs., Ltd., 706 F.2d 301, 305 (10th Cir.
1983)).
17
Easley v. Cromartie, 532 U.S. 234, 243 (2001) (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948)).
18
Salve Regina Coll., 499 U.S. at 231 (concluding “a court of appeals should
review de novo [the trial] court’s determination of state law.”).
19
11 U.S.C. § 363(m).
20
In re BCD Corp., 119 F.3d 852, 856 (10th Cir. 1997); In re Crowder, 314
B.R. 445, 448-49 (10th Cir. BAP 2004).
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would allow a court to fashion equitable relief not affecting the validity of the
sale. 21
At the outset, the Court acknowledges the purpose underlying § 363(m). It
is designed to protect the public’s interest in finalizing bankruptcy sales, it
encourages buyers to purchase estate property knowing an appeal—the results of
which might not be known for years—won’t later divest it of title, it ensures that
adequate sources of financing remain available for other actions the estate needs
to pursue, and it ultimately prevents injury to creditors. 22
Since the Appellant did not obtain a stay, this Court must decide if NCG
qualifies as a good faith purchaser under § 363(m). “[T]o obtain good faith status
under § 363(m), a purchaser must (i) buy the property without ‘fraud, collusion
between the purchaser and other bidders or the trustee, or an attempt to take
grossly unfair advantage of other bidders’ and (ii) pay ‘at least 75% of the
appraised value of the assets.’” 23
As a preliminary matter, Appellant’s written objection to the sale never
challenged NCG’s good faith purchaser status. And we are unable to determine if
Appellant made an oral objection on this basis at the hearing on the sale motion
because Appellant did not include any part of the transcript of the hearing on the
21
In re C.W. Mining Co., 740 F.3d 548, 555 (10th Cir. 2014) (citing In re W.
Pac. Airlines, Inc., 181 F.3d 1191, 1197 (10th Cir. 1999)); In re C.W. Mining Co.,
641 F.3d 1235, 1239 (10th Cir. 2011) (Ҥ 363(m) forecloses any remedy [ ] that
would affect the validity of [a] sale. But it does not preclude a remedy that would
not affect the validity of the sale.”).
22
C.W. Mining, 641 F.3d at 1238-39 (quoting Osborn v. Durant Bank & Tr.
Co (In re Osborn), 24 F.3d 1199, 1203 (10th Cir. 1994) abrogated in part on
other grounds by Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1156 (10th Cir.
2007)).
23
Crowder, 314 B.R. at 450 (quoting In re Bell Air Assocs., Ltd., 706 F.2d
301, 305 n.11-12 (10th Cir. 1983)).
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sale motion.24 As a result, we cannot determine what arguments he preserved, or
what evidence he presented, in support of his objection to the sale. The Tenth
Circuit routinely holds “the lack of a required transcript leaves [ ] no alternative
but to affirm the affected ruling.” 25
While we are under no obligation to remedy Appellant’s failure to provide
an adequate record, we have nevertheless considered the findings made in the sale
order related to NCG’s good faith.26 Although the bankruptcy court did not make
an explicit finding that NCG was a good faith purchaser—presumably because
Appellant never challenged its status, when we view the findings in their totality,
they nevertheless satisfy the Tenth Circuit’s test for establishing good faith
pursuant to § 363(m).
First, the bankruptcy court found the sale to be “negotiated at arm’s length”
and that no party had “an improper or bad motive.”27 As the Tenth Circuit notes,
an arm’s length transaction is “[a] transaction in good faith in the ordinary course
of business by parties with independent interests . . . .”28 When the “arm’s length”
and absence of “improper or bad motive” findings are coupled, it is clear the
bankruptcy court found no evidence of fraud or collusion. 29
Additionally, the bankruptcy court found the purchase price to be “fair,”
24
See 10th Cir. BAP L.R. 8018-1(e) (“The appendix must contain all
transcripts necessary for this Court’s review.”).
25
McGinnis v. Gustafson, 978 F.2d 1199, 1201 (10th Cir. 1992) (citing
Deines v. Vermeer Mfg. Co., 969 F.2d 977, 979 (10th Cir. 1992); McEwen v. City
of Norman, 926 F.2d 1539, 1550 (10th Cir. 1991)).
26
In re Tollefsen, No. NO-07-057, 2008 WL 762487, at *2 (10th Cir. BAP
Mar. 11, 2008) (summarily affirming bankruptcy court upon appellant’s failure to
provide a transcript).
27
Order Approving Sale at 5, in Appellant’s App. at 239.
28
In re United States Med., Inc., 531 F.3d 1272, 1277 n.4 (10th Cir. 2008)
(quoting Black’s Law Dictionary 109 (6th ed. 1990)).
29
Order Approving Sale at 5, in Appellant’s App. at 239.
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“reasonable,” and based on the Trustee’s sound judgment. 30 NCG’s offer was
worth approximately $2.5 million (the amount of NCG’s mortgage lien plus
$550,000 in cash). Appellant claimed, in his objection to the sale motion, that the
property was worth $1.2 million. It was thus no stretch for the bankruptcy court to
find the Trustee’s decision to sell the property to NCG was fair and reasonable. 31
Appellant has never argued the bankruptcy court’s findings concerning the
parties’ motives or concerning the good faith of the sale were erroneous, or
pointed to evidence presented on this issue at the hearing, other than one line in
his briefs stating NCG is “far from being an innocent purchaser of the Hotel.” 32
We do not believe this terse comment rises to a level of a preserved objection to
NCG’s status as a good faith purchaser. In addition, Appellant did not list this as
an issue on appeal in his Statement of Issues. Thus, Appellant has waived this
issue.
In liberally reviewing the matter due to Appellant’s pro se status, however,
this Court has looked for that evidence in the record Appellant provided and finds
no evidence of fraud or collusion on the part of NCG. Admittedly, because
Appellant did not include the transcript of the hearing on the sale motion in the
record before this Court, we cannot confirm whether he made a more cogent
argument, or presented evidence, to the bankruptcy court on that point. Again,
“when the party asserting an issue fails to provide a record sufficient to consider
an issue, we may decline to consider it.” 33
30
Id., in Appellant’s App. at 239.
31
Although also not argued by Appellant, the second part of the good faith
purchaser test—that the purchaser pay “at least 75% of the appraised value of the
assets”—is also easily met here. Crowder, 314 B.R. at 450. In fact, NCG
effectively paid over 200% of the appraised value.
32
Appellant’s Br. 16; Appellant’s Reply Br. 21.
33
Colby v. Milholland (In re Milholland), No. CO-16-019, 2017 WL 895752,
(continued...)
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Finally, to the extent this one line about NCG not being an innocent
purchaser relates to the events surrounding the bank’s assignment of its note and
mortgage to NCG two years before the sale, we note that the bankruptcy court
was well aware of those circumstances34 and found nothing suspicious when
presented with the sale motion.
Lacking evidence in the record to contradict the bankruptcy court’s
findings, the Court has no basis to conclude that NCG was anything but a good
faith purchaser. But before we can dismiss this appeal based on statutory
mootness, we must be satisfied that Appellant has not offered some permissible
theory that would allow the Court to fashion equitable relief not affecting the
sale’s validity. A careful review of Appellant’s filings in this Court demonstrate
he has made no attempt to offer such a theory.
Although a trustee who has sought and received permission to sell estate
assets under § 363(b) has the burden of demonstrating that the appeal of a sale
order is statutorily moot under § 363(m),35 he can meet that “burden if the
appellant[s] fail[s] to offer a permissible theory for relief” that would allow the
33
(...continued)
at *7 (10th Cir. BAP Mar. 7, 2017); 10th Cir. BAP L.R. 8009-3.
34
Although it does not serve as the basis for the dismissal of the case, we also
agree with the argument made by Appellees that Appellant should be estopped
from now arguing that NCG is not the owner of the note and holder of the
mortgage given that he asserted the opposite position when arguing that the
bankruptcy court should set aside the dismissal of the case because the bank had
assigned the note and mortgage to NCG. Order Approving Sale at 5, in
Appellant’s App. at 239. See Bradford v. Wiggins, 516 F.3d 1189, 1194 (10th Cir.
2008) (per curiam) (quoting New Hampshire v. Maine, 532 U.S. 742, 749-50
(2001)) (The doctrine of judicial estoppel is based upon protecting the integrity of
the judicial system by “prohibiting parties from deliberately changing positions
according to the exigencies of the moment.”).
35
In re C.W. Mining Co., 740 F.3d 548, 555 (10th Cir. 2014) (citing In re
C.W. Mining Co., 641 F.3d 1235, 1239 (10th Cir. 2011)).
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Court to fashion equitable relief.36 An appellant “must at least identify an
available remedy that will not affect the sale’s validity” to overcome the § 363(m)
mootness.37 Furthermore, a trustee need not “disprove every possible legal remedy
imaginable,” in demonstrating an appeal is mooted by § 363(m). 38
Here, Appellant has not even tried to identify a remedy short of setting
aside the sale of a hotel that is apparently now being operated by NCG or
someone to whom it might have sold the hotel since its purchase in January
2017.39 He does not explain how NCG, or the taxing authorities who received
$316,445 at closing, or the estate, could be protected. As a result, we find that the
Trustee has met his burden of showing § 363(m) moots this appeal, and thus this
appeal shall be dismissed as moot.
Even were we to reach the merits of this appeal, Appellant’s arguments fail.
His first three issues assert the bankruptcy court erred by allowing the receiver to
operate the Debtor, by failing to order the receiver to return income collected, and
by concluding the bankruptcy case without requiring the receiver to return income
collected. But none of these issues were either discussed or disposed of in the sale
order that is the only subject of this appeal, and no other order entered in the
fourteen days prior to the notice of appeal addressed these issues. Therefore, any
36
Id. (citing In re W. Pac. Airlines, Inc., 181 F.3d 1191, 1197 (10th Cir.
1999)).
37
Id.; In re Lane, Nos. WY-14-053, WY-14-054, 2015 WL 1285976, at *2
(10th Cir. BAP Mar. 20, 2015) (“Because the only relief requested by [appellant]
would affect the validity of [a] sale, [appellant’s] appeals are moot under
§ 363(m).”).
38
C.W. Mining Co., 740 F.3d at 555.
39
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991)
(“Despite the liberal construction afforded to pro se pleadings, the court will not
construct arguments or theories for the [appellant] in the absence of any
discussion of those issues.”) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th
Cir. 1989)).
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appeal of these issues is untimely. 40
Appellant’s fourth issue is the only issue he raised in opposing the sale
motion, and is the only legal issue that would be properly before us if the entire
appeal had not been statutorily mooted by the express provisions of § 363(m). It
deals with whether the bankruptcy court properly interpreted and applied New
Mexico Statute § 47-1-7. Appellant contends this statute required the bank to
have first recorded a power of attorney to authorize its corporate officer to
execute the conveyance documents to NCG.
This Court agrees with the bankruptcy court that as a matter of law, the
statute governs situations where one party is seeking to convey property on behalf
of a different party, usually the owner, and thus does not apply under these
facts.41 And Appellant has once again failed to provide any record that he
presented evidence in support of his flawed legal theory, such as that the bank’s
corporate bylaws required a power of attorney for its corporate officers to execute
documents.
IV. CONCLUSION
The appeal of an order authorizing a sale pursuant to § 363 is statutorily
moot where the completed sale was made to a good faith purchaser and no court
40
Fed. R. Bankr. P. 8002(a).
41
The Court also agrees with the bankruptcy court’s further explanation,
contained in its order denying a stay: “Here, the bank officer did not act through a
power of attorney, but by rights granted under applicable corporate statutes. See,
e.g., N.M.S.A. § 53-11-3(E) (corporations have the right to convey, mortgage,
pledge, lease, exchange, transfer and otherwise dispose of all or any part of its
property or assets), and 53-11-48 (all officers have the authority to manage the
corporation as provided in the bylaws or as determined by resolution of the board
of directors). See also N.M.S.A. § 53-11-6 (giving the general rule that a
corporation cannot act ultra vires).” In re Sandia Resorts, Inc., No. 15-11532
t11, 2017 WL 1067749, at *3 (Bankr. D.N.M. Mar. 21, 2017). We also agree that
under New Mexico law, “even if the assignment in question were defective (it is
not), the general rule in New Mexico and elsewhere is that a mortgage ‘follows’
the promissory note it secures, so a subsequent holder of a note can enforce a
mortgage securing payment even without a formal assignment of the mortgage.”
Id. (citing In re Sandford, No. 11-10-14424 TS, 2012 WL 6012785, at *5 (Bankr.
D.N.M. Dec. 3, 2012)).
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issues an order staying that sale pending appeal. An appellant may overcome a
finding of mootness upon showing that some equitable relief that does not affect
the validity of the sale can be fashioned. Appellant failed to obtain a stay pending
appeal, and he failed to identify any available remedy this Court could fashion
that would not affect the sale’s validity. He further failed to provide an adequate
record on which we could review the bankruptcy court’s findings. For all these
reasons, this appeal is dismissed as moot pursuant to § 363(m).
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