Mirada Del Lago, LLC

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
Mirada Del Lago, LLC,
No. 11-12-14204 TA
Debtor.
MEMORANDUM OPINION
This matter came before the Court at the request of the Debtor and
First American Bank (“First American”) that the Court hold a separate
hearing, 	prior 	to 	a 	hearing 	on 	confirmation 	of 	Debtor’s 	plan 	of
reorganization and/or First American’s Motion to Dismiss or Convert, on the
value of Debtor’s real property. The Court held a final valuation hearing on
May 22, 2013. 	Debtor was represented by its counsel David Hernandez.
First American was represented by its counsel Sutin Thayer & Browne (Gail
Gottlieb and Christopher Holland). 	Each party retained an appraiser, who
testified and submitted an appraisal. 	Being sufficiently advised, the Court
makes the following findings of fact and conclusions of law. 	This is a core
matter.
I. 	BACKGROUND
1. 	Debtor filed this chapter 11 case on November 15, 2012.
2. 	Debtor owns a contiguous 180.2 acre parcel of real property in
Sierra County, New Mexico (the “Property”). 	About 100.53 acres is
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 1 of 13

-2-
unimproved (the “Unimproved Tract”), while the balance is improved with a
31 lot subdivision (the “Improved Lots”). 1
3. 	The Property is on the southeast side of Elephant Butte Lake,
about 8 miles east of Truth or Consequences, New Mexico.
4. 	The property is among a number of residential subdivisions
clustered in the area, including Champagne Hills, Vista del Lago, Rancho
del Lago, Estancias del Lago, and McRae Canyon.
5. 	The area has electric and telephone utility service, but no gas,
water, or sewer service.
6. 	First American has a mortgage on the Property, securing a debt
of about $1,172,327 as of the petition date.
7. 	First American filed a proof of claim on March 8, 2013 (claim
3-1), asserting a secured claim of $725,000.
8. 	There 	are 	unpaid 	pre-petition 	property 	taxes 	of 	about
$29,141.05.
9. 	The Elephant Butte real estate market crashed in 2008, and has
not yet recovered. Debtor’s appraiser testified that real property such as the
Property lost 70% of its value between October, 2008 and today. 	This was
in part due to the fact that some of the demand for the lots is for second
1 One lot has been sold, leaving 30 unsold lots.
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 2 of 13

-3-
homes, and the national market for second homes plunged and remains very
weak.
10. 	The population of Sierra County was 13,261 in 2000, and
11,988 on April 1, 2010, per the U.S. Census statistics.
11. 	The 	U.S. 	Census 	estimates 	that 	Sierra 	County’s 	2012
population is about 11,895.
12. 	Debtor seeks to retain the Property, reorganize, and then sell the
Property post-confirmation lot by lot, paying First American’s secured debt
with the sales proceeds and obtaining partial lien releases when each sale is
closed.
II. 	LEGAL STANDARDS
When valuing property pursuant to 11 U.S.C. § 506(a), the “‘proposed
disposition or use’ of the collateral is of paramount importance . . . .”
Associates Commercial Corp. v. Rash, 520 U.S. 953, 962 (1997). 	See also
In re Heritage Highgate, Inc., 679 F.3d 132, 141 (3d Cir. 2012) (citing Rash,
the Third Circuit stated that “the appropriate standard for valuing collateral
must depend upon what is to be done with the property-whether it is to be
liquidated, surrendered, or retained by the debtor). 	See also 11 U.S.C. §
506(a)(1) (“Such value shall be determined in light of the purpose of the
valuation and of the proposed disposition or use of such property, and in
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 3 of 13

-4-
conjunction with any hearing on such disposition or use or on a plan
affecting such creditor’s interest”).
In Chapter 11, if the debtor intends to retain a creditor’s collateral, the
proper value is fair market value, rather than liquidation or foreclosure
value. 	Heritage Highgate, 679 F.3d at 142, citing In re Winthrop Old Farm
Nurseries, 50 F.3d 72, 75 (1 st Cir. 1995); In re Adam Aircraft Industries,
Inc., 2013 WL 773044 (D. Colo. 2013); In re Castleton Plaza, LP, 2011 WL
4621123 	(Bankr. 	S.D. 	Ind. 	2011); 	In 	re 	Mayslake 	Village-Plainfield
Campus, Inc., 441 B.R. 309 (Bankr. N.D. Ill. 2010) (the court used full fair
market value or replacement value, because a chapter 11 debtor intended to
retain and operate the property). 	In this case, there is no dispute that the
proper way to value the Property is to determine its full fair market value,
rather than using a liquidation, distressed sale, or similar discounted value.
11 U.S.C. § 502(a) and Bankruptcy Rule 3001(f) provide that a
properly filed proof of claim is entitled to prima facie validity. 	The debtor
thus has the initial burden of proof to overcome the presumed validity and
amount of the creditor’s secured claim. 	See Heritage Highgate, 50 F.3d at
140; In re Williams, 381 B.R. 742, 744 (W.D. Ark. 2008). The burden then
shifts to the creditor to demonstrate by a preponderance of the evidence both
the extent of its lien and the value of the collateral securing the loan.
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 4 of 13

-5-
Williams, 381 B.R. at 744. 	Here, because First American filed a proof of
claim asserting a secured claim of $725,000, Debtor has the initial burden of
proof.
III. 	GENERAL VALUATION ISSUES
Debtor retained Dr. Vincent Barrett, MIA to appraise the Property.
Dr. Barrett was qualified as an expert witness by stipulation.2
First American retained Mr. Gareth Burman, MIA, MRICS, as its
appraiser. 	Mr. 	Burman 	also 	was 	qualified 	as 	an 	expert 	witness 	by
stipulation.
The appraisers agreed that the main driver of demand for the Property,
and hence of value, would be new jobs and increased employment in Sierra
County.
Sierra 	County 	has 	prospects 	for 	substantial 	employment 	growth,
including Spaceport America, the Copper Flat Mine, and a Biofuels plant.
These enterprises, combined, could generate thousands of jobs and cause a
substantial increase in population and housing demand.
However, there is substantial uncertainty about whether any or all of
2 Dr. Barrett had been retained by High Desert State Bank in June, 2008 to appraise the
Property. 	He appraised it for $5,874,000 ($3,500,000 for the Improved Lots, and
$2,374,000 for the Unimproved Tract). High Desert was closed by the federal regulators,
and First American acquired the subject loan. 	First American retained Dr. Barrett to
appraise the Property in October, 2010. 	He appraised it for $4,243,000 ($3,055,000 for
the Improved Lots, and $1,188,000 for the Unimproved Tract).
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 5 of 13

-6-
these 	enterprises 	will 	actually 	materialize, 	how 	many 	jobs 	would 	be
produced by these (or other) enterprises, and when hiring would begin.
Primarily but not solely because of the market crash, there are very
few comparable sales available for use to help determine the current fair
market value of the Property. 	For example, there have been six lot sales in
the vicinity in the last five years, and only two lot sales in the last three
years.
The Court finds that appraisal of the Property is substantially more
difficult than a typical appraisal, given the lack of comparable sales, lack of
current demand, and the extent to which speculative job growth determines
value. 	These difficulties probably are the main reasons for the wide
difference 	between 	the 	values 	arrived 	at 	by 	the 	appraisers 	(Barrett’s
$1,690,000 value is about 233% higher than Burman’s $725,000 estimate).
IV. 	THE IMPROVED LOTS
Dr. Barrett opined that the Improved Lots are worth $988,000. 	Mr.
Burman’s view is that the lots are worth $474,000.
Dr. Barrett opined that the average value of the Improved Lots is
$60,785, or about $.63 per square foot. His method of arriving at this value
was somewhat complicated, and involved the use of a linear regression
analysis, using two sets of data. 	The first data set was information from
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 6 of 13

-7-
(supposedly) comparable sales. 	Dr. Barrett’s linear regression analysis on
this data set resulted in a high projected value for the Improved Lots:
$110,360 per lot, or $1.106 per square foot. However, this data set included
sales before 2010 (including some sales from 2006), as well as property
listed for sale but not sold. The Court does not know what the result would
have been had the analysis been conducted without using sales that do not
appear to be comparable, and without using lists prices rather than actual
sales prices.
Dr. Barrett’s second linear regression analysis used data for all lot
sales in the area between April 19, 2008 and April 19, 2013. 	Again, these
sales do not appear to be comparable because, inter alia, the undisputed
testimony was that the market value of similar lots in Sierra County declined
by about 70% between 2008 and 2012, so the older sales would have to be
substantially adjusted. 	It is not clear that they were. 	Furthermore, there is
no indication whether the lots sold were comparable in terms of location,
view, utilities, terrain, or other features typically adjusted for in the appraisal
process.
Mr. Burman opined that the average value of the Improved Lots is
$47,167, or about $.49 per square foot. 	To arrive that this estimate, Mr.
Burman used two sales, an 11.41 acre lot in Estancias del Lago, which sold
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 7 of 13

-8-
for $70,000 in August 2012,3 and a 3.95 acre lot in Champagne Hills that
sold in May, 2010 for $57,000. 	The 11.41 acre lot does not have a view of
Elephant Butte Lake. It is not clear to the Court how comparable an 11 acre
parcel without lake views is to a 2.3 acre parcel with lake views. Similarly,
the 3.95 acre lot in Champagne Hills may or may not be comparable, but it is
undisputed that there is an arroyo running through the middle of the
property, 	which 	likely 	has 	a 	substantial 	negative 	effect 	on 	its 	value.
Furthermore, while Mr. Burman concludes that “lots with good views or
acreage have a value in the $50,000 range,” he made downward adjustments
to 	most 	of 	Debtor’s 	lots 	based 	on 	size 	or 	location. 	Mr. 	Burman’s
adjustments may have been accurate and justifiable, but it is not possible for
the Court to say, because the precise method and rationale for deciding the
size of the adjustments was not disclosed.
Having arrived at their different current values, the appraisers agreed
that the proper next step is to estimate how long it would take to sell the lots
to 	retail 	customers 	(the 	“absorption 	period”). 	After 	estimating 	the
absorption period, both appraisers then deducted estimated sales and other
costs, and discounted the projected net proceeds to present value.
3 The seller, Robert Janes, is an insider of Debtor, and may have obtained the lot in
payment of attorney fees, so there is some reason to wonder whether the sale was typical
and should have been relied upon so heavily.
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 8 of 13

-9-
The appraisers apparently agreed that an appropriate present value
discount rate is about 19-20%.4
The appraisers disagree about how long it would take Debtor to sell
the Improved Lots. 	Dr. Barrett estimates that Debtor could sell the lots in
four and a half years, or by the end of 2017, with all but two lots sold by the
end of 2016, and 26 lots sold between 2014-2016.
Mr. Burman, on the other hand, is of the opinion that it would take
about eight years to sell the lots, with 26 of the sales occurring in 2017-
2021.
The difference in the projected absorption period results in much of
the difference in the appraisers’ opinion about the value of the Improved
Lots.
V. 	THE UNIMPROVED TRACT
Dr. Barrett valued the Unimproved Tract at $6,500 per acre, for a total
value of $702,000. However, at the hearing it was established that the actual
size of the Unimproved Tract is about 100.5 acres rather than the 108.04
acres Dr. Barrett assumed, so Dr. Barrett’s value has to be decreased by
$49,010, to $652,990.
4 Dr. Barrett’s discount rate was 15%, but he also deducted for “entrepreneurial profit.”
Mr. Burman testified that he recalculated Dr. Barrett’s present value analysis to
determine what the analogous discount rate would be if the entrepreneurial profit line
item were eliminated. 	Mr. Burman testified that the resulting rate was 19%. 	This
testimony was not questioned or contradicted by Debtor or Dr. Barrett.
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 9 of 13

-10-
Dr. Barrett arrived at his per acre figure by using 12 comparable sales,
which ranged from $1,538 to $17,686 per acre. 	Dr. Barrett adjusted the
sales prices using an undisclosed process. 	Of the six comparables with a
higher per acre price than $6,500, four were sold in 2007 or 2008, one is a
listing rather than a sale, and one is in downtown Truth or Consequences and
was purchased to build a hospital. 	Of the six comparables with a lower per
acre value, three are listings.
Mr. Burman valued the Unimproved Tract at $251,000, or $2,500 per
acre. He reached his opinion by using the same 11.4 acre parcel he used for
the Improved Lots, which may be questionable (it seems unlikely that the
same lot can be comparable to both a 2.3 acre improved residential lot and a
100 acre unimproved tract), together with two sales of large tracts in 2010
and 2011. There is no discussion whether these two tracts are comparable to
the Unimproved Tract, and/or what adjustments Mr. Burman made to those
sales to arrive at a value for the Unimproved Tract.
Overall, 	the 	Court 	finds 	that 	appraisers’ 	respective 	methods 	for
determining the per acre value of the Unimproved Tract can be questioned.
However, it is likely that the dearth of good, recent comparable sales is
largely to blame.
Dr. Barrett and Mr. Burman agree that future job growth is an
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 10 of 13

-11-
important factor in the value of the Unimproved Tract, because the highest
and best use of the tract is residential development, and the value of future
residential lots is based on housing demand fueled by job and population
growth.
VI. 	DISCUSSION
The main difference in the appraisals is the difference in opinion
about future job growth in Sierra County. 	Dr. Barrett’s estimate of value is
based primarily on optimistic assumptions about relatively large numbers of
jobs to be created by the Spaceport, the Copper Flat mine, and the Biofuel
plant. 	Mr. 	Burman’s 	valuation, 	on 	the 	other 	hand, 	is 	based 	on 	the
assumption that those jobs will not materialize at nearly the numbers or
timetable Dr. Barrett projects.
The Court finds that, if the Spaceport “takes off” soon, or if one or
both of the other big projects begins operations in the near future, Dr.
Barrett’s $1,640,990 value5 could be realistic. 	On the other hand, if the
projects do not materialize as hoped, or are substantially delayed, then Mr.
Burman’s more pessimistic $725,000 value could be more accurate. 	Given
the inherent difficulty of making accurate predictions about future economic
5 Dr. Barrett’s original figure of $1,690,000, less $49,010 (7.54 acres X $6,500 per acre).
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 11 of 13

-12-
growth,6 it is not easy to evaluate the likelihood that Dr. Barrett’s rosy
economic forecast could be realized. 	See generally Consolidated Rock
Products Co. v. Du Bois, 312 U.S. 510, 526 (1941) (valuation based on
necessary prediction of what will happen in the future, an estimate is all that
can be made); Muskegon Motor Stockholders Protective Committee v. Davis,
366 F.2d 522 (6 th Cir. 1966) (citing Consolidated Rock Products and stating
that “the valuation of a business remains an art based on the use of informed,
careful judgment (including that of the court), and it cannot be expected to
yield mathematically precise results”).
Nevertheless, the Court must make a finding of value. 	Based on the
evidence presented at the final hearing, the Court finds that there is a 1/3
chance of Dr. Barrett’s optimistic result being accurate, and a 2/3 chance of
Mr. Burman’s pessimistic result being accurate. 	The Court therefore elects
to find a value for the Property that is a weighted average of the two
appraised values, with 2/3 of the weight given to Mr. Burman’s value.
The result is a value of the Property of $1,030,330. In addition, to the
extent it may be needed at a future hearing, the Court finds that 62% of this
figure is the value of the Improved Lots ($638,804.60), and 38% is the value
6 “Prediction is very difficult, especially about the future.” Neils Bohr (Danish physicist
(1885-1962)).
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 12 of 13

-13-
of the Unimproved Tract ($391,525.40). 7
VII. 	CONCLUSION
The 	Court 	finds 	that 	the 	value 	of 	the 	Property 	is 	$1,030,330,
comprised of $638,804.60 for the Improved Lots and $391,525.40 for the
Unimproved Tract. A separate order will be entered.
___________________________________
Hon. David T. Thuma
United States Bankruptcy Judge
Entered on docket: May 28, 2013
Copies to:
Gail Gottlieb
Sutin, Thayer & Browne
P.O. Box 1945
Albuquerque, NM 87103-1945
David N Hernandez
2221 Rio Grande Blvd. NW, #100
Albuquerque, NM 87104
Leonard K Martinez-Metzgar
P.O. Box 608
Albuquerque, NM 87103-0608
7 Dr. Barrett assigned about 58% of his total value to the Improved Lots, while Mr.
Burman assigned 65% of his total value to the Improved Lots.
Case 12-14204-t11 Doc 120 Filed 05/28/13 Entered 05/28/13 14:14:11 Page 13 of 13