Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re R & S St. Rose Lenders, LLC

United States District Court, D. Nevada

June 2, 2017

In re R & S ST. ROSE LENDERS, LLC, Debtor.
v.
R & S ST. ROSE LENDERS, LLC, R&S ST. ROSE, LLC, R & S INVESTMENT GROUP, COMMONWEALTH LAND TITLE INSURANCE COMPANY, THE CREDITOR GROUP, AND U.S. TRUSTEE, Appellees. BRANCH BANKING AND TRUST COMPANY, Appellant,

          ORDER (APPELLANT'S EMERGENCY MOTION TO STAY - ECF NO. 2)

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This case concerns an appeal of a decision of the Bankruptcy Court for the District of Nevada in which the court confirmed debtor R & S St. Rose Lenders, LLC's (“Lenders”) Third Amended Plan of Liquidation. Before the Court is Branch Banking and Trust Company's (“BB&T”) Emergency Motion to Stay Pending Appeal Pursuant to Federal Rule of Bankruptcy Procedure 8007 (“Motion”) (ECF No. 2). Appellee/debtor Lenders filed a response (ECF No. 5) and BB&T filed a reply (ECF No. 9).

         For the reasons discussed below, the Motion is denied.

         II. BACKGROUND

         While this appeal concerns the bankruptcy of Lenders, the bankruptcy of a related entity, R&S St. Rose, LLC (“Rose”), is relevant in understanding the procedural posture of this case. The following facts are taken from BB&T's Motion.[1]

         Rose was created to purchase 38 acres of raw land located in Henderson, Nevada (“the Property”), while Lenders was formed for the sole purpose of real estate investment.[2](ECF No. 2 at 3.) Rose obtained a $29, 305.250 (“Acquisition Loan”) from Colonial Bank, N.A. (“Colonial”) in August of 2005, which was secured by a first position deed of trust recorded against the Property. (Id. at 4.) In addition, Rose obtained additional funds from a group of investors whose loans were secured by a deed of trust (“Lenders DOT”) that was recorded in second position against the Property. Rose obtained title to the property around August 25, 2005.

         Colonial issued a second loan to Rose in 2007 for $43, 980, 000 (“Construction Loan”) to develop the Property, which was secured through a Deed of Trust and Security Agreement and Fixture Filing with Assignment of Rents (“Colonial DOT”). Some of the Construction Loan was used to pay off the Acquisition Loan. (Id. at 5.) Colonial required (and believed it received) a first position deed of trust against the Property for the Construction Loan. Colonial conditioned disbursements of the Construction Loan on receiving this first positon deed of trust, which would have required that the Lenders DOT be released or subordinated. However, sometime between July and September of 2008, it became apparent that the Lenders DOT and not the Colonial DOT had been placed in first position against the Property.

         In August of 2009, BB&T became the successor-in-interest to Colonial after the Federal Deposit Insurance Corporation was appointed as received for Colonial.

         On April 4, 2011, Rose and Lenders filed separate voluntary Chapter 11 bankruptcy petitions (“Rose Case”). On August 2, 2013, Rose filed a proposed Chapter 11 liquidating plan (“the Rose Plan”) in its bankruptcy case, which was then confirmed by order of the bankruptcy court on November 8. The Court ordered that the Property be sold. Pursuant to the Rose Plan, the net proceeds from this sale were then paid to Lenders. According to BB&T, Lenders reported a cash balance of $11, 685, 324 in March of 2017.

         On April 18, 2016, Lenders filed a proposed Chapter 11 liquidating plan (“the Lenders Plan”) in Lenders Case, and a revised version of this Plan was filed on November 1. (Id. at 9.) On November 7, the bankruptcy court held an evidentiary hearing, which resulted in the bankruptcy court's confirmation of the Lender's Plan. The bankruptcy court's order confirming the Lenders' Plan was entered on April 28, 2017. (See Lenders Case, ECF No. 1039.) That same day, BB&T filed a notice of appeal of the bankruptcy court's confirmation order as well as a motion to stay pending appeal (see Lenders Case, ECF No. 1043). (ECF No. 2 at 10.) On May 10, 2017, the motion to stay was heard by the bankruptcy court and continued to May 12, 2017, for further proceedings. However, on May 12, 2017, the bankruptcy court denied BB&T's motion to stay.

         BB&T filed its election to appeal the bankruptcy court's confirmation order to the District Court on May 3, 2017.

         III. DISCUSSION

         BB&T argues that its emergency motion should be granted because, “[s]hould the Lenders Plan be implemented, approximately $5, 000, 000.00 will be distributed to the holders of claims in Class 1 beyond any meaningful recovery should BB&T succeed on various appeals.” (ECF No. 2 at 10.) In its Motion, BB&T makes reference to three other distinct appeals, [3] claiming that success on any of these appeals “will eliminate Lenders' ability to distribute funds under the Lenders Plan.” (Id. at 3.) Although these appeals, if successful, may change the nature and amount of disbursement under the Lenders Plan, the Court may not consider the existence or potential success of these appeals in its analysis. This Court's jurisdiction and consideration of the Motion is limited to the appeal of the bankruptcy court's confirmation of the Lenders Plan in Lenders Case (and not the Rose Case).[4] Because BB&T fails to focus ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.