FH Partners, LP v. Water's Edge, LLC et al

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
FH Partners, LP v. Water's Edge, LLC, et al.
05-01202
Order Denying [6-1] Motion for an Order remanding FH Partners LP v. Water's
Edge LLC, Cause NO. CV-2005-07017 to the Second Judicial District by FH
Partners, LP AND Granting [3-1] Motion To Quash Lis Penmdens and Transcript of
Judgment by Investment Company of the Southwest, Inc .
Received on: 2006-02-22 13:53:01.000
2006-02-22 00:00:00.000
2006-02-22 00:00:00.000
Mary Anderson
Case 05-01202-s Doc 31 Filed 02/22/06 Entered 02/22/06 15:36:00 Page 1 of 13

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
INVESTMENT COMPANY OF THE SOUTHWEST, INC.,
Debtor. 	No. 11-02-17878 SA
FH PARTNERS, L.P.,
Plaintiff,
v. 	Adv. No. 05-1202 S
WATER'S EDGE, LLC et al.,
Defendants.
MEMORANDUM OPINION AND ORDERS DENYING MOTION FOR
REMAND OR ABSTENTION AND QUASHING LIS PENDENS
Before the Court are the motion of Plaintiff F.H. Partners,
L.P. to remand this adversary proceeding to state court, or
alternatively to abstain, and the motion of Defendant Investment
Company of the Southwest, Inc., to quash the lis pendens. 	The
motion to remand or abstain is denied, and the motion to quash is
granted.
Background
On August 26, 2002, Compass Bancshares, Inc. n/k/a Compass
Bank, the predecessor in interest of Plaintiff, obtained
judgments of $2,004,031.21 against Investment Company of the
Southwest, Inc. (“ICS”) and of $1,992,746.46 against Bob and
Patsy Tinley. 	On September 30, 2002, Compass Bank recorded
transcripts of both judgments in Bernalillo County, New Mexico.
On November 26, 2002, ICS initiated this chapter 11 case.
Mr. Tinley is ICS’s representative party in the chapter 11
proceedings.
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1 FHP appears to agree with that explanation. 	Notice of
Related State-Court Action by F.H. Partners, L.P. and (as
appropriate): 1. Motion for Relief from the Automatic Stay to
Pursue State-court Claims; or 2. Motion for Leave to File Post-
petition Adversary proceeding to Address Lien in Concealed and
Unadministered Assets, at 2 (doc 298 in the main case) (“Notice
of State Court Action”). 	In any event, ICS’s calculation was
proven wrong when the Credit Union promptly obtained stay relief.
Doc 65.
Page 2 of 	12
Water’s Edge, LLC (“Water’s Edge”) was formally constituted
on January 2, 1998. 	Its 100% owner is and always has been ICS.
Bob Tinley has been the manager of both ICS and Water’s Edge at
all relevant times. 	On December 31, 1997, Water’s Edge purchased
from New Mexico Educators Federal Credit Union (“Credit Union”)
approximately two acres of land near the intersection of Coors
Blvd. and La Orilla N.W. (“Property”). 	Water’s Edge fell behind
on its payments to the Credit Union, and the Credit Union
initiated a foreclosure action. 	On March 10, 2003, Water’s Edge
recorded a special warranty deed transferring the Property to
ICS. 	Mr. Tinley thought that transferring the Property into the
ICS estate would stop the Credit Union’s foreclosure action
pursuant to the automatic stay provisions of § 362. 1
Compass Bank sold to FHP all of its rights to the
obligations owed to it by ICS and Robert [sic – should be “Bob”]
and Patsy Tinley on May 12, 2005. 	(Doc 30: State Court
Complaint, para. 18 (Doc 30, Exhibit A); Assignment of Judgment
and Interest in Pending Litigation, at 2 (Doc 30, Exhibit E).)
On September 14, 2005, FHP filed a quiet title action in the
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2 The Court derived this number from the figures in the
November 9 stipulated order (doc 15).
Page 3 of 	12
Second Judicial District Court in Bernalillo County, New Mexico
(“State Court Action”), pursuant to which it filed a lis pendens
identifying the Property. 	ICS immediately removed the State
Court Action by filing a removal notice in this Court thereby
commencing this adversary proceeding. 	ICS then promptly filed a
motion to quash the lis pendens. 	On September 28, 2005 (doc 8)
the Court entered a stipulated interim order that permitted the
sale of the Property and the payment of the Credit Union
mortgage, with the lis pendens to attach to the remaining
proceeds. 	On November 9, 2005 the Court entered a second
stipulated interim order (doc 15) that permitted the sale (or
monetization) of the real estate contract which had served as
partial payment for the Property, and which also permitted ICS to
make several major payments to creditors, including one to FHP.
As a result the sum of approximately $220,000 2 remains with an
escrow company, still subject to the lis pendens unless the Court
rules otherwise.
Analysis
Since ICS did not directly own the Property on November 26,
it did not list the Property in Schedule A. 	Instead it listed
its interest in Water’s Edge on Schedule B/13, with the location
of the property. 	Doc 14. 	ICS provided a reasonably full
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3 Compass Bank’s counsel participated fully in the
confirmation hearing, and presumably had read the Third Amended
Disclosure Statement and had listened to the Court’s oral
findings and conclusions. (The April 6, 2004 minute cover sheet
has attached to it an almost verbatim transcript of the Court’s
oral ruling.) 	Thus the allegation that FHP first learned of ICS’
ownership of the Property in September 2005 (State Court
Complaint, ¶ 41) is surprising, since FHP on its own certainly
would have been expected to examine the bankruptcy court records
in this case as a matter of due diligence, and because FHP’s
counsel in this case was also one of Compass Bank’s counsel for
the bankruptcy court proceedings.
Page 4 of 	12
description of the Property in the Third Amended Disclosure
Statement, at pages 18-19, filed September 29, 2003. 	Doc 134.
Mr. Tinley testified about the Property during the confirmation
hearing on the Debtor’s Second Amended Plan, on February 19,
2004. 	Transcript, at pages 82 and 106. 	Doc 213. 	And the Court
mentioned the Property and valued it in its oral findings of fact
and conclusions of law denying confirmation of the Second Amended
Plan, read into the record on April 6, 2004. 	Minutes at page 3.
Doc 209. 	Thus the allegations in FHP’s state court complaint to
the effect that ICS did not disclose the property are incorrect. 3
Concerning the stay motion, the Credit Union (but not ICS) did
have an obligation to serve the stay motion on Compass Bank,
Fed.R.Bank.P. 4001(a)(1), but because the resulting order
modifying the stay did not come about because of an agreement
between the Credit Union and ICS, there was no requirement that
the order modifying the stay be noticed to any creditors.
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4 Mr. Tinley was not listed as a defendant in the style of
the state court complaint; however, he is described in the body
of the complaint and in one of the requests for relief.
Page 5 of 	12
Compare Fed.R.Bank.P. 4001(d)(1). 	So it cannot be said that ICS
concealed what happened.
The Credit Union and STIFF, LLC, are in effect no longer
parties because the Property has been sold to STIFF and the
Credit Union was paid at closing. 	In consequence the parties
remaining in this adversary proceeding are only FHP, Water’s
Edge, ICS and perhaps Mr. Tinley. 4 	The proceeds remaining from
the closing of the sale of the land and the monetization of the
real estate contract, after payment of the Credit Union lien and
other estate obligations, remain with the escrow company and
subject to whatever force the lis pendens has. 	Docs 8 and 15.
Remand
FHP promptly moved to have this Court remand the action.
Doc 6.
28 U.S.C. § 1452(b) provides in relevant part as follows:
The court to which such claim or cause of action is
removed may remand such claim or cause of action on any
equitable ground.
Illustrative grounds for remand include forum non conveniens, the
removal has resulted in the bifurcation of an action between two
courts, the state court is better able to resolve issues of state
law, the state court has already tried the matter and is prepared
to rule, or that the original court has a particular expertise in
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5 To be clear, FHP has always emphasized that it had no
intention of stopping the sale of the Property to STIFF. 	E.g.,
State Court Complaint, ¶ 57. 	What it has always wanted is the
net proceeds of the sale.
Page 6 of 	12
the subject matter (e.g., the Court of International Trade). 	1
Resnick and Sommer, Collier on Bankruptcy (15 th Ed. Rev. 2005) ¶
3.07[5] at 3-94.
In this case, it is hard to imagine any justification for
remanding this case. 	The case arose from FHP’s attempt to obtain
for itself, and to prevent ICS from using, the funds that would
result from Water’s Edge selling the Property to STIFF. 5 	The
filing of the lis pendens had the practical effect of imposing a
lien on the Property and stopping the sale to STIFF, letter from
Mr. Behles to Mr. Klenda (doc 30, Exhibit G), thus necessitating
the issuance of an order which instructed the title company that
the Property could be sold out from underneath the lis pendens.
Doc 8. 	These are matters that go to the heart of bankruptcy in
general and the reorganization process in particular. 	Even if
the primary issue to be decided were the effect of a lis pendens
rather than whether FHP’s actions violated § 362, this Court is
just as capable as is a state court of analyzing the statutes and
case law that deal with a lis pendens. 	On the other hand, this
Court probably has far more resources at hand than the state
court, including time and a law clerk, to quickly decide what
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Page 7 of 	12
should follow from the filing of the lis pendens and of the State
Court Action.
In addition, the state court has taken no action on the
matter; the case was removed to the bankruptcy court the day
after it was filed. 	The only remaining parties are those who are
already closely tied to the proceedings that have been ongoing in
the bankruptcy court since November 2002. 	The dispute has
resolved itself down to a tug of war over a single sum of money
held by the escrow agent.
Abstention
In its remand motion, FHP also briefly requested
“permissive” abstention as alternative relief. 	Doc 6, ¶ 16.
28 U.S.C. § 1334(c)(1) provides:
Nothing in this section prevents a district court in
the interests of justice, or in the interest of comity
with State courts or respect for State law, from
abstaining from hearing a particular proceeding arising
under title 11 or arising in or related to a case under
title 11.
The Court finds that there is no basis for abstaining.
[28 U.S.C. § 1334(c)(1)] allows the district court to
abstain from hearing a non-core proceeding "in the
interest of justice, or in the interest of comity with
State courts or respect for State law." 	Court have
considered a host of factors in applying this
subsection, including: effect (or lack thereof) on the
efficient administration of the bankrupt estate,
predominance of state law issues over bankruptcy
issues, difficulty or unsettled nature of the
applicable law, existence of related proceedings in
state court, whether other bases for federal subject
matter jurisdiction exist, the burden on the federal
court's docket, the extent to which the commencement of
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Page 8 of 	12
the case in federal court involved forum shopping,
existence of the right to a jury trial, and presence of
non-debtor parties, comity, possibility of prejudice to
the other parties in the case, the economical use of
judicial resources, and the expertise of the court.
Rice v. Bridgestone/Firestone, Inc. (In re Bridgestone/Firestone,
Inc. Tires Products Liability Litigation), 2002 WL 31243417, *3
(S.D. Ind. 2002). 	The Bridgestone/Firestone standards almost all
counsel retention of this case. 	Dealing with this adversary
proceeding will not adversely affect the efficient administration
of the estate; in fact, given the importance of this asset to the
implementation of the Debtor’s plan, it will aid the case to deal
with the adversary proceeding, thereby promoting the economical
use of judicial resources. 	The state law aspect of the lis
pendens and FHP’s behavior are a minor aspect of the matter,
there is no difficult or unsettled state law to consider, there
are no related proceedings in state court, the apparent stay
violation provides an independent basis for this Court’s
jurisdiction, the relative burden of the matter on this Court’s
docket is light, there is no request for a jury trial, all the
remaining parties are intimately tied in with what needs to be
done and there will be no prejudice to any other parties. 	ICS
undeniably has engaged in forum shopping, but the result has been
to put this matter where it can best be decided. 	Finally, this
Court has the expertise to deal with the overall matter, and it
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Page 9 of 	12
is hard to imagine that the state court would feel slighted in
the least by this Court adjudicating the matter.
Quashing the lis pendens
There is no question that the Property, having been deeded
to the estate by special warranty deed executed and recorded
March 10, 2003 (doc 30, Exhibit F), became property of the estate
upon the transfer. 	Compass Bank’s transcript of judgment against
ICS, arising out of its mortgage, gave FHP no rights to estate
property that was not subject to the mortgage, or transcript of
judgment, before the petition was filed. 	§ 552(a). 	And of
course as “property of the estate”, the Property came under the
protection of the automatic stay. 	§ 362(a).
Whatever may be the status of the lis pendens under state
law, FHP’s actions clearly violated several provisions of §
362(a), which provides in relevant part as follows:
[A] petition...operates as a stay, applicable to all
entities, of --
(1) the commencement or continuation, including the
issuance or employment of process, of a judicial,
administrative, or other 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;
(3) any act to obtain possession of property of the
estate or property from the estate or to exercise
control over property of the estate;
(4) any act to create, perfect, or enforce any lien
against property of the estate;
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Page 10 of 	12
(5) any act to create, perfect, or enforce against
property of the debtor any lien to the extent that such
lien secures a claim that arose 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 Property, acquired by the estate post-petition, was protected
by the automatic stay. 	In consequence, filing the state court
action and the lis pendens violated the stay and is void.
Franklin Savings Ass’n v. Office of Thrift Supervision, 31 F.3d
1020, 1022 (10 th Cir. 1994). 	In this instance, because the
Property was quickly sold and the resulting real estate contract
quickly liquidated, all that remains is to eliminate the effect
of the lis pendens on the unspent funds, which the Court now does
with the entry of this order.
It is true that a day after filing the State Court Action,
FHP filed its Notice of State Court Action (doc 298), and then a
day after that noticed out a twenty-day period for objections
(doc 299). 	The Notice of State Court Action recited, among other
things, that it was a motion for stay relief, and in fact was
docketed as such. 	Doc 298 (docket text). 	However, the State
Court Action had already been filed, when no relief had been
granted allowing its filing. 	Rather, the Notice of State Court
Action was essentially an announcement of what FHP had already
done in state court; it could not camouflage or redeem the
obvious stay violation. 	A “reasonably [contemporaneous]” filing,
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Page 11 of 	12
Notice of State Court Action at 5, is simply not filed soon
enough.
FHP hardly treated its filing with a genuine sense of
urgency; for example, it did not take the steps necessary to get
a prompt ruling, such as asking for a hearing. 	N.M.L.B.R. 9013-
1(c). 	Nor did it file a stand-alone motion for stay relief that,
under the Court’s local rules, would have started the process for
the quick hearings contemplated by the Code. 	§ 362(e);
N.M.L.B.R. 4001-1. 	Even taking those steps, however, would have
constituted little more than embroidery on a fig leaf.
ICS has also asked for damages and costs arising from FHP’s
actions. 	FHP has not faced the necessity of specifically arguing
against such relief and neither party has had the opportunity to
offer evidence on the issue. 	Therefore the Court will set a
status conference to consider those matters.
Ruling
IT IS THEREFORE ORDERED as follows:
1. 	The motion of FH Partners, L.P., for remand or abstention is
denied;
2. 	The remaining funds from the sale of the Property are
declared to be no longer subject to any restriction from the
lis pendens; and
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Page 12 of 	12
3. 	The Court will conduct a status conference on the remaining
course of this adversary proceeding.
Honorable James S. Starzynski
United States Bankruptcy Judge
I hereby certify that on February 22, 2006, a true and correct
copy of the foregoing was electronically transmitted, faxed,
delivered, or mailed to the listed counsel and/or parties.
Daniel J Behles
226-A Cynthia Loop NW
Albuquerque, NM 87114-1100
R Thomas Dawe
PO Box 1027
Albuquerque, NM 87103-1027
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