In Re Green Hills Development Co., LLC
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE (1) MOTION TO DISMISS (#11); (2) RESPONSE TO MOTION TO DISMISS AND MEMORANDUM IN SUPPORT THEREOF (#29); (3) MOTION FOR SUMMARY JUDGMENT (#30); (4) REPLY IN SUPPORT OF MOTION TO DISMISS AND RESPONSE TO AND MOTION TO STRIKE, IN PART, MOTION FOR SUMMARY JUDGMENT (#38); AND (5) CREDIT UNION LIQUIDITY SERVICES, LLC’S: (A) MEMORANDUM BRIEF REPLYING IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT [DOCKET NO. 30]; AND (B) COMBINED OBJECTION TO MOTION TO STRIKE [DOCKET NO. 38J AND MEMORANDUM IN SUPPORT OF OBJECTION (# 45 & # 46)
THIS MATTER came before the Court on the (1) Motion to Dismiss (#11) filed by Green Hills Development Company, LLC; (2) Response to Motion to Dismiss and Memorandum in Support Thereof (# 29) filed by Credit Union Liquidity Services, LLC; (3) Motion for Summary Judgment (# 30) filed by Credit Union Liquidity Services, LLC; (4) Reply in Support of Motion to Dismiss and Response to and Motion to Strike, in Part, Motion for Summary Judgment (#38) filed by Green Hills Development Company, LLC; and (5) Credit Union Liquidity Services, LLC’s: (A) Memorandum Brief Replying in Support of Motion for Summary Judgment [Docket No. 30]; and (B) Combined Objection to Motion to Strike [Docket No. 38] and Memorandum in Support of Objection (#45 & #4.6). In the Motion to Dismiss, Green Hills Development Company, LLC seeks the dismissal of this involuntary petition for lack of standing or, in the alternative, on abstention grounds.
In the
Motion for Summary Judgment,
Credit Union Liquidity Services, LLC seeks entry of an order for relief against Green Hills Development Company, LLC. After considering the pleadings, the briefs, the testimony and the evidence presented at the trial, the Court finds that the
Motion to Dismiss (# 11)
filed by Green Hills Development Company, LLC should be denied, that the
Motion for Summary Judgment (#30)
filed by Credit Union Liquidity Services, LLC should be denied and that the involuntary petition should be dismissed on the merits. The Court further finds that the motion to strike included by Green Hills Developmеnt Company, LLC in its
Reply in Support of Motion to Dismiss and Response to and Motion to Strike, in Part, Motion for Summary Judgment
should be denied as moot. Finally the Court defers ruling on the request of Green Hills Development Compa
FINDINGS OF FACT
While there are many peripheral facts, the key facts involve a loan which was used to acquire and to develop certain real property in Brandon, Rankin County, Mississippi. The basic facts are as follows:
On or about August 5, 2005, 'Credit Union Liquidity Services, LLC 1 (CULS) entered into a loan agreement (Loan Agreement) with Green Hills Development Company, LLC (Green Hills) in which CULS agreed to loan Green Hills up to $14,500,000.00. Green Hills used the loan proceeds to purchase and to develop certain real property in Brandon, Rankin County, Mississippi. In connection with the Loan Agreement, Green Hills executed a promissory note payable to CULS with a maturity date of August 5, 2008. As security for the loan, Green Hills granted CULS a deed of trust on approximately 403 acres. 2 At the closing of the Loan Agreement, CULS tendered to Green Hills $8,260,000.00, of which $8,250,000.00 was designated the “Acquisition Loan Amount.” 3 The remaining amount committed by CULS under the Loan Agreement was $6,240,000.00.
In a transaction totally separate from the Loan Agreement with CULS and to further its attempt to develop the property, Green Hills formed the Stonebridge Public Improvement District (PID) in 2006. 4 Thereafter, the PID entered into a trust indenture in order to generate funds through the issuance of bonds in the amount of $22 million. The trustee under the indenture was the Bank of the Ozarks. The proceeds from the issuance of the bonds would be used by the PID to acquire real property and finance certain improvements. The bondholders would be repaid by the PID from special assessments levied against the real property located within the PID. Apparently all the real property within the PID includes the 403 acres owned by Greеn Hills which was subject to CULS’s deed of trust. However, no evidence was presented on this issue. The bonds were issued, and it appears that the money was used to make improvements to the real property.
Pursuant to the Loan Agreement, $5,500,000.00
5
was reserved for construction advances. The construction advances were to pay for costs associated with the improvement of the property, such as costs for labor, materials and other services. Starting in June of 2006 and ending in August of 2007, Green Hills made seven Requests for Disbursement for Construction Advances (Construction Draws). CULS funded all Construction Draws except for Construction Draw number seven.
Also during this same time period, several amendments were made to the original Loan Agreement between Green Hills and CULS. As the result of two of these amendments, CULS’s loan commitment was reduced from $14,500,000.00 to approximately $13,915,219.00, 7 and the maturity date was extended from August 5, 2008, to November 3, 2008.
From the time the Loan Agreement was entered into on August 5, 2005, until the note matured on November 3, 2008, Green Hills made payments on the loan, but did not satisfy the loan. As of the maturity date, Green Hills owed CULS a principal balance of approximately $8,074,348.57. 8 Then in June of 2009, Green Hills made an additional principal payment in the amount of $530,712.00. Therefore, as of the date of the trial, Green Hills has repaid CULS approximately $5,921,930.36 in principal. 9
In late 2008 and/or early 2009, the relationship between Green Hills and CULS deteriorated. On March 12, 2009, Green Hills filed Plaintiffs’ Original Petition (Complaint) in the District Court of Dallas County, Texas, 191st Judicial District, against CULS 10 (Texas Litigation). The Complaint contained the following causes of action and/or requests for relief against CULS: fraud, rescission/reformation, un-conscionability, duress, promissory estop-pel, equitable estoppel, breach of contract, breach of the covenant of good faith and fair deаling, breach of fiduciary duty, unjust enrichment, constructive trust, equitable subordination, permanent injunction, discharge of guarantors, conspiracy, and a request for an award of damages. See Trial Exhibit 1, Plaintiffs’ Original Petition.
As evidenced by the various pleadings filed and hearings held, the Texas Litigation was vigorously contested by all parties. See Trial Exhibits 1 through 11 and Trial Exhibit 13.
On September 17, 2010, CULS filed an involuntary petition (Petition) under Chapter 7 of the Bankruptcy Code against Green Hills (hereinafter, Alleged Debtor). CULS was the sole petitioning creditor.
At some time in October of 2010, CULS removed the Texas Litigation to the United States District Court for the Northern District of Texas. The Texas Litigation was referred to the United States Bankruptcy Court for the Northern District of Texas and was assigned to the Honorable Barbara J. Houser, where it is currently pending.
On October 19, 2010, the Alleged Debtor filed its
Motion to Dismiss
(Motion). The Alleged Debtor asserts that CULS’s claim is “subject to a bona fide dispute as contemplated in [11 U.S.C.] § 303, therefore it is not eligible to serve as a petitioning creditor. Dismissal of the involuntary petition is therefore proper since CULS lacks standing to file it.”
11
As an alternative ground for dismissal, the Alleged Debtor states that the Court should ab
CULS filed its
Response to Motion to Dismiss and Memorandum in Support Thereof (Response)
on November 15, 2010. In its Response, CULS states that “1) the involuntary petition is well-plead, and thus the Motion should be denied under
Also on November 15, 2010, CULS filed a
Motion for Summary Judgment
(MSJ) and a brief in support of its MSJ. In its MSJ, CULS alleges that “[t]he undisputed facts and summary judgment evidence in this case justify and warrant the entry of an order fоr relief under
The Alleged Debtor filed its Reply in Support of Motion to Dismiss and Response to and Motion to Strike, in Part, Motion for Summary Judgment on December 3, 2010. The Alleged Debtor states that the MSJ is seeking to have this Court resolve the Texas Litigation. “To the extent that the MSJ requests relief over and above a determination that [sic ] as to whether a bona fide dispute exists, it is improper.” 15
Several responses/objections and briefs were subsequently filed by both parties. By consent of the parties, the Court set for trial on January 6, 2011, the Motion, the MSJ, the contested Petition and related pleadings. At the conclusion of the trial, the Court took the matter under advisement and instructed the parties to submit post-trial briefs. On January 18, 2011, both parties submitted post-trial briefs.
CONCLUSIONS OF LAW
I. Jurisdiction.
This Court has jurisdiction of the subject matter and of the parties to this proceeding pursuant to
II.
Succinctly stated, the crux of the matter before the Court is whether CULS has met the requirements set forth in
As a threshold matter, the Court notes that the parties have approached this matter from different angles. The Alleged Debtor in the Motion to Dismiss insists that CULS lacks standing to file the Petition under § 803(b) because CULS’s claim against it is the subject of a bona fide dispute. On the other hand, CULS in its MSJ insists that it has satisfied all of the requirements for the entry of an order for relief in a contested case under
A.
As previously noted, the first hurdle a petitioning creditor must overcome is whether the alleged debtor can be a debtor under Chapter 7 or 11 of the Bankruptcy Code.
§ 303 . Involuntary cases
(a) An involuntary case may be commenced only under chapter 7 or 11 of this title, and only against ... a corporation ... that may be a debtor under the chapter under which such case is commenced.
In the case at bar, CULS filed the Petition against the Alleged Debtor under Chapter 7. Pursuant to § 109, which defines eligibility for liquidation under the Bankruptcy Code, the Alleged Debtor is eligible to be a debtor under Chapter 7. Therefore, CULS has met its burden under
B.
Since the Alleged Debtor is eligible to be a debtor under Chapter 7, the Court must next determine if CULS has standing to file the involuntary petition under
§ 303 . Involuntary cases
(b) An involuntary case against a person is commenced by thе filing with the bankruptcy court of a petition under chapter 7 or 11 of this title—
(1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute as to liability or amount....
(2) if there are fewer than 12 such holders, ... by one or more of such holders that hold in the aggregate at least $14,425 of such claims;
Since CULS was the sole petitioning creditor, CULS must meet the requirements set forth in part (b) of
As to the issue of the number of creditors the Alleged Debtor has, the Alleged Debtor concedеd that “Green Hills has less than twelve holders of claims that qualify under
Because the remaining requirements of
11 U.S.C. § 101 . Definitions
(5) The term “claim” means—
(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured;....
As to whether CULS’s claim is contingent as to liability, “[a] claim is contingent as to liability if the debtor’s legal duty to pay does not come into existence until triggered by the occurrence of a future
event....” In re All Media Properties, Inc.,
The next issue under
In its Motion, the Alleged Debtor asserts that CULS’s claim is subject to a bona fide dispute because of the pending Texas Litigation. At trial, however, the Alleged Debtor did not introduce any testimony contesting its liability as to the Loan Agreement. Instead, the Alleged Debtor submitted as an exhibit a copy of the
Plaintiff’s Original Complaint
in the Texas Litigation in which the Alleged Debtor states: “The Green Hills loan was closed on or about August 5, 2005,.... Pursuant to the Promissory Note, [CULS] was obligated to loan $14.5 Million to Green Hills. Green Hills was obligated to repay the loan, with interest at a rate of 6.75%.”
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This exhibit does not support the Alleged Debtor’s assertions. On the other hand, CULS submitted into evidence the August 4, 2005, Loan Agreement which was signed on behalf of the Alleged Debtor by “Ben
“So long as the petitioning creditor has established that there is no dispute regarding the debtor’s liability on the creditor’s claim, the creditor has standing under section 803(b) to bring a petition.”
Chicago Title Insurance Co. v. Seko Investment, Inc. (In re Seko Investment, Inc.),
Finally, as to the last requirement under
Having found that the Alleged Debtor is eligible to be a debtor under Chapter 7; that CULS may be the sole petitioning creditor; that CULS’s claim totals at least $14,425; that CULS’s claim is not contingent; and that CULS’s claim is not subject to a bona fide dispute as to liability or amount, the Court finds that CULS has standing under
C.
Once it has been established that a putative debtor is eligible to be a debtor under Chapter 7 or 11 under
§ 303 . Involuntary cases
(h) If the petition is not timely controverted, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed. Otherwise, after trial, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed, only if—
(1) the debtor is generally not paying such debtor’s debts as such debts become due unless such debts are the subject of a bona fide dispute as to liability or amount;....
Since the Alleged Debtor has controverted the filing of the involuntary peti
1. Generally paying debts.
Under subsection (h) of
is not a balance-sheet insolvency test based on a comparison of assets and liabilities. Because the test is whether the debtor is actually paying its debts as a general matter, not whether it could pay them based on a cash-flow analysis, the standard is not an “equity insolvency” standard either (although it bears a distinct similarity), since the “equity insolvency” standard considers whether the debtor can pay its debts, not whether it is paying its debts.
The Code does not define the term “generally not paying,” and courts have had to fashion their own definition. Despite a wide range of definitions among the courts, there is a general consensus that the determination of “generally not paying” should employ a multifactor test. It is a factual, as distinguished from legal, determination. There is no single mathematical formula that can be used to determine whether the standard has or has not been met. The diversity exhibited by those suffering financial distress calls for a broad definition rather than a mechanical test.
2 Collier on Bankruptcy ¶ 303.31, p. 303-93 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.) (footnotes omitted).
In
In re Smith,
Thus, the alleged debtor may not be “generally” paying his debts as they come due when he is not paying one hundred percent of his debts to only one creditor, or paying most of his debts in number to small recurring creditors, but is not paying a few creditors that make up the bulk of his debts.
Smith,
The bankruptcy court in
In re Moss,
As stated previously, CULS must prove by a preponderance of the evidence that at the time the Petition was filed, the Alleged Debtor was generally not paying its debts. In an attempt to satisfy its burden, CULS presented evidence at trial concerning unpaid debts that the Alleged Debtor owed to itself and to three other creditors, the PID, Rankin County, and
a.Debt to CULS.
CULS introduced into evidence the
Affidavit of Marty Caplinger.
23
Mr. Caplinger is the portfolio manager of CULS. Attached as Exhibit 23 to Mr. Caplinger’s affidavit is a loan transaction report which shows interest advances, loan disbursements and principal payments made under the Alleged Debtor’s loan. The Court finds from this evidence that CULS has met its burden under
b.Debt to PID and Rankin County.
At the trial, CULS admitted into evidence Exhibit D,
Summary of 2008 and 2009 [Special Assessments] and 2008 and 2009 Tax
Assessments
24
without objection from the Alleged Debtor. Upon rеview of Exhibit D, it appears that the Alleged Debtor is delinquent in paying the Special Assessments owed to the PID and is delinquent in paying the ad valorem taxes owed to Rankin County, Mississippi.
25
Since the Alleged Debtor did not object to the introduction of Exhibit D or offer any testimony or proof to controvert Exhibit D, the Court finds that CULS has met its burden under
c.Debt to the Bank of Ozarks.
As to the one remaining other creditor mentioned by CULS, the Bank of the Ozarks, the Court finds that CULS has not met its burden under
After the Stay Motion was admitted into evidence at the trial, CULS did nothing more to support the allegations made by the Bank against the Alleged Debtor. The Bank’s Stay Motion itself states that the PID had filed a motion to dismiss the chancery court litigation in which it “claim[ed],
inter alia,
that the Bank of the Ozarks lacked the authority to foreclose on
d. Application of the four-part test.
Having found sufficiеnt evidence that the Alleged Debtor was generally not paying its debts to CULS, the PID and Rankin County, the Court next considers the four-part test formulated in
Moss
for determining whether a debtor is generally paying its debts. As stated in
Moss,
the first prong of the four-part test requires this Court to quantify “the number of unpaid claims” of the Alleged Debtor. As noted previously, the Alleged Debtor conceded that it has less than twelve creditors. Although CULS proved by a preponderance of the evidence that it, the PID and Rankin County all hold unpaid claims of the Alleged Debtor, CULS did not provide the Court with proof to enable it to determine the total number of unpaid claims of the Alleged Debtor. Stated another way, CULS did not provide proof that it, the PID and Rankin County were the only unpaid creditors of the Alleged Debtor. CULS did not introduce into evidence a list of the Alleged Debtor’s creditors nor did CULS call as a witness a principal or representative of the Allеged Debtor in order to elicit testimony about any debts owed by the Alleged Debtor to any other creditors.
See, e.g., In re American Cotton Suppliers Int’l, Inc.,
No. 02-50003-7, 2002 Bankr.LEXIS 1972 (Bankr.N.D.Tex. Sept. 30, 2002) (tax returns, audited financial statements, bank accounts);
In re Moss,
Proof of a general failure to pay “requires not only general information abоut the debtor’s cash disbursements, but also about the due dates of its obligations, whether the debtor’s nonpayment of a past due obligation is the result of an inability or an unwillingness to pay, and, if the latter, whether the debtor’s dispute involves a substantial issue of fact or law.”
Why Creditors File So New Involuntary Petitions and Why The Number Is Not Too Small,
57 Brook. L. Rev. 803, 837 (1991) (footnote omitted). CULS did not produce any of the Alleged Debtor’s cash disbursements or due dates of its obligations nor did CULS produce any evidence as to whether the Alleged Debtor had failed to pay any of its debts because
Without proof as to thе total number of creditors and/or the number of unpaid claims of the Alleged Debtor, the Court cannot apply the remaining three prongs of the four-part test. Specifically, the Court has no way of determining “(2) the amount of such claims; (3) the materiality of the non-payments; and (4) the debtor’s overall conduct in her financial affairs.”
In re Moss,
The Court acknowledges that the amount of the debts allegedly owed by the Alleged Debtor to CULS, to the PID and to Rankin County, Mississippi, is considerable. Some courts have held that if the unpaid debts the debtor does not pay as they become due totals more than 50% of all of the debtor’s debt, then a debtor is generally not paying its debts as they become due. 30 However, without proof of the total number of creditors and the amount of unpaid claims against the Alleged Debt- or, the Court has no way of applying the 50% standard. In addition, the absence of such proof prevents the Cоurt from determining how the Alleged Debtor conducted its financial affairs. The burden was on CULS to prove by a preponderance of the evidence that the Alleged Debtor was generally not paying its debts. Without proof as to the number of creditors and the amount of the debt owed, the Court cannot conclude that the Alleged Debtor was generally not paying its debts.
In summary, “[a] finding that a debtor is generally not paying its debts ‘requires a more general showing of the debtor’s financial condition and debt structure than merely establishing the existence of a few unpaid debts.’”
Liberty Tool & Manufacturing v. Vortex Fishing Systems, Inc. (In re Vortex Fishing Systems, Inc.),
2. Bona fide dispute.
As stated above, CULS has not met its burden under the first part of
In the case at bar, the Alleged Debtor asserts that the Texas Litigation proves that there is a bona fide dispute as
The difference was discussed in the case of
In re Seko Investment, Inc.
There the debtor, Seko, was sued by a creditor in an attempt to collect on various notes. Seko then filed a counterclaim against the creditor. The creditor filed an involuntary petition against Seko, which Seko sought to dismiss. The Court of Appeals for the Ninth Circuit held that a counterclaim may not defeat a petitioning creditor’s standing to file an involuntary petition under
This may lead to the peculiar result that a counterclaim isn’t a “bona fide dispute” undersection 303(b) , but is a “bona fide dispute” undersection 303(h)(1) . This result comes about not because “bona fide dispute” has a different meaning in the two subsections, but because it modifies different terms. Compare11 U.S.C. § 303(b) (referring to “a claim against such person that is not ... the subject of a bona fide dispute”), withid. § 303(h)(1) (allowing an alleged debtor to avoid an involuntary filing when the “debtor’s debts ... are the subject оf a bona fide dispute”). It could certainly be the case that an alleged debtor does not dispute its liability on a claim, but instead disputes whether it owes a debt overall, as Seko does here. This objection is properly dealt with under subsection (h), not subsection (b).
In re Seko,
In reading its pleadings and briefs filed in the case at bar and in reading the exhibits from the Texas Litigation which were introduced into evidence, it is clear that the Alleged Debtor does not dispute that it entered into the Loan Agreement with CULS and that CULS has a claim against the Alleged Debtor for the amount loaned to it by CULS. Instead, the Alleged Debtor disputes its liability on the debt and/or the amount of the debt, which is exactly what
CULS offered five exhibits at the trial, and rested its case. The еxhibits CULS submitted are: (A) Affidavit of Marty Caplinger; (B) Excerpts of August 12, 2009, deposition of Benjamin O. Turnage; (C) Docket Sheet and Complaint for Judicial Foreclosure; (D) Summary of 2008 and 2009 [Special Assessments] and 2008 and 2009 tax assessments; and (E) Bank of the Ozarks, As Trustee’s Motion to Lift Automatic Stay. These exhibits are the same exhibits attached to CULS’s MSJ, except CULS added the Stay Motion as an exhibit at the trial.
At the trial, CULS focused its efforts on the standing issue of whether CULS had a claim that was subject to a bona fide dispute pursuant to
The Bankruptcy Amendments and Federal Judgeship Act of 1984 added the words “bona fide dispute” to
The Court of Appeals for the Fifth Circuit addressed for the first time the issue of what constitutes a bona fide dispute under
[T]he petitioning creditor must establish a prima facie case that no bona fide dispute exists. Once this is done, the burden shifts to the debtor to present evidence demonstrating that a bona fide dispute does exist. Because the standard is objective, neither the debtor’s subjective intent nor his subjective belief is sufficient to meet this burden. The court’s objective is to ascertain whether a dispute that is bona fide exists; the court is not to actually resolve the dispute. This does not mean that the bankruptcy court is totally prohibited from addressing the legal merits of the alleged dispute; indeed, the bankruptcy court may be required to conduct a limited analysis of the legal issues in order to ascertain whether an objective legal basis for the dispute exists. Finally, because the determination as to whether a dispute is bona fide will often depend ... upon an assessment of witnesses’ credibilities and other factual considerations, the bankruptcy court’s determination in this regard is a factual finding that may be overturned on appeal only if it is clearly erroneous. Rimell,946 F.2d at 1365 (citations omitted).
In re Sims,
Following the methodology adopted by the Fifth Circuit in
Sims,
CULS must
Even if CULS has established a prima facie case, the Court finds that upon review of the evidence submitted by the Alleged Debtor, the Alleged Debtor has shown that a bona fide dispute exists as to the liability or amount of the debt under
As stated above, the Alleged Debtor contends that the Texas Litigation shows the existence of a bona fide dispute, and the Alleged Debtor submitted exhibits at the trial to support this contention. As directed by the Fifth Circuit in
Sims,
the Court reviewed the Texas Litigation to determine if a bona fide dispute as to the liability or amount of the debt exists. In reviewing the Texas Litigatiоn, the Court “is not asked to evaluate the potential outcome of a dispute, but merely to determine whether there are facts that give rise to a legitimate disagreement over whether money is owed, or, in certain cases, how much.”
In re Vortex Fishing,
As stated previously, the Complaint the Alleged Debtor filed in Texas asserted the following grounds: fraud, rescission/reformation, unconscionability, duress, promissory estoppel, equitable estoppel, breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, unjust enrichment, constructive trust, equitable subordination, permanent injunction, discharge of guarantors, conspiracy, and a request for an award of damages. Trial Exhibit 4 is a copy of the Register of Actions (Texas Court Docket) in the Texas Litigation. While the Texas Court Docket is not easy to follow, it appears that from the time the Complaint was filed on March 12, 2009, until the last entry on the Texas Court Docket, on December 13, 2010, the parties filed approximately 27 motions, four of which were motions for summary judgment. During that same time period, it appears that the Texas court held between 12 to 15 hearings on various matters.
The Alleged Debtor introduced as exhibits the transcripts from two of the hearings held in the Texas Litigation. On several occasions the Texas judge made statements regarding the Alleged Debtor’s various causes of action and the various motions filed, but it appears no written orders were ever entered by the Texas judge at that time. In the following comments from an April 15, 2010, hearing on several pending motions, the Texas judgе discusses the application of several sections of the Texas Business and Commerce Code to the grounds the Alleged Debtor pled in its Complaint:
THE COURT: They’re alleging fraud or fraudulent inducement. That would, in effect, void the contract, not modify the terms. So I think a fraud cause of action is viable. I’m saying I think that a fraud claim can coexist with 26.02. [of the Texas Business and Commerce Code] I do agree with you that thepromissory estoppel on [sic ] the equitable estoppel are barred by 26.02, but I go back to unconscionability, duress, and I think those exist separate from 22.02 because they’re not trying to modify the terms of the contract; they’re trying to remove the contract. I mean, they’re trying to say that a contract never existed. Fiduciary duty I do think is a separate issue also. I agree with you, though. I think unjust enrichment, it goes to the same thing as promissory estoppel. I think 26.02 bars that because that’s a contract issue. And I’ll tell you one thing I don’t know about and we’re still debating over is the mistake issue because mutual mistake is— the problem is, the doctrine of mutual mistake is we both made a mistake, we intended it to be there, we didn’t. 26.02 seems to bar that. I mean, I think my ruling is going to have to be that 26.02, in my opinion, forecloses a mutual mistake cause of action.
Trial Exhibit 8, Transcript of Proceedings Held on April 15, 2010, pp. 69-70.
Then at the conclusion of the April 15, 2010, hearing, the Texas judge informed the parties that:
THE COURT: [Bjecause I think some of the summary judgments can proceed, pursuant to like the DTPA [Texas Deceptive Trade Practices Act], So to me, that’s purely a matter of law. Those can proceed.... I’ll get you a letter written that says what I think we can and cannot proceed with based on the MSJs. That should dramatically limit on the MSJs.
Trial Exhibit 8, Transcript of Proceedings Held on April 15, 2010, p. 125.
As she stated at the conclusion of the April 15, 2010, hearing, the Texas judge sent a letter to the attorneys for the Alleged Debtor and CULS. In the letter dated April 28, 2010, the Texas judge stated the following:
To all counsel:
Upon reviewing all pleadings filed in this case, the Court makes the following rulings:
1. Plaintiffs Motion for Continuance of Defendants’ Motion for Summary Judgment is granted as to fraud, mutual and/or unilateral mistake, unconsciona-bility, duress, breach of fiduciary duty, unjust enrichment, conspiracy, and breach of the duty of good faith and fair dealing. It is denied as to the DTPA claims, promissory estoppel, and equitable estoppel.
2. Defendants’ Motion to Strike Jury Demand is granted as to Green Hills Development Company LLC,.... It is denied as to Heartland Development Co., LLC and Benjamin Turnage. The Court orders that one trial will take place with the jury ruling on Heartland’s and Turnage’s causes of action and the court ruling on the remaining Plaintiffs causes of action.
Trial Exhibit 9, Letter Ruling, p. 1.
After the letter was sent to the parties, there does not appear to have been an order entered by the Texas judge regarding the first paragraph of her letter ruling.
33
However it does appear that on July 12, 2010, thе Texas court held a hearing and ruled on CULS’s motions for sum
Having considered the Motions, Plaintiffs’ Response to the Motions, the summary judgment evidence, the pleadings, and the argument of counsel, the Court finds that the Motions should be GRANTED in part and DENIED in part as set forth herein. It is therefore, ORDERED, ADJUDGED and DECREED that ... Green Hills ... shall take nothing on their claims against [CULS] for violation of the Texas Deceptive Trade Practices Act.
It is further ORDERED, ADJUDGED and DECREED that Defendants’ Motions as to the grounds of promissory estoppel and equitable estoppel are denied without prejudice and may be refiled.
Trial Exhibit 13, Letter and Order, p. 2.
This order was not entered by the Texas judge until February 7, 2011. Indeed, the order was entered after the Texas Litigation had already been removed to the District Court in October of 2010, after the litigation was no longer pending before the Texas judge, and after the January 2011 trial before this Court. When questioned at trial about why the order had not yet been entered, neither CULS’s attorneys nor the Alleged Debtor’s attorneys proffered an explanation. Then, on February 9, 2011, the Alleged Debtor filed in this case a Motion to Supplement Record. Attached to that motion was a copy of the order that was signed by the Texas judge on February 7, 2011. 35
The Court acknowledges that the validity of the late-filed order could be problematic for the Alleged Debtor if this Court were required to “evaluate the potential outcome of a dispute” 36 rather than to merely determine “whether there are facts that give rise to a legitimate disagreement over whether money is owed, or, in certain cаses, how much.” 37 However, relying alone on the transcripts from the Texas Litigation which were introduced into evidence, and without considering the late-filed order or the principles of issue and claim preclusion that may otherwise have applied, it does appear to this Court that the Texas judge found that portions of the Alleged Debtor’s Complaint survived CULS’s motions for summary judgment and that she was prepared to allow some of the causes of action to proceed to trial. In other words, the Court finds that the Texas judge, who held numerous hearings in the Texas Litigation over the nineteen months the case was pending before her, determined that there were facts which gave rise to a legitimate disagreement as to the liability and/or amount of debt the Alleged Debtor owed CULS.
Black’s Law Dictionary
defines prima facie case as “1. The establishment of a legally required rebuttable presumption .... 2. A party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.”
Blacks Law Dictionary
1310 (9th ed. 2009). After considering the pleadings, the exhibits, the testimony and the arguments of counsel, the Court finds that CULS has not met its burden to “establish a prima facie case that no bona fide dispute exists”
39
as to the liability or amount of the debt under
Since the Court has denied the MSJ, the motion to strike included in the Alleged Debtor’s Reply in Support of Motion to Dismiss and Response to and Motion to Strike, in Part, Motion for Summary Judgment should be denied as moot.
III.
In its Motion, the Alleged Debtor also raised abstention pursuant to
CONCLUSION
In order for an involuntary petition to withstand a motion to dismiss, the petitioning creditor must first prоve under
Further, CULS did not meet its burden of showing that its debt was not subject to a bona fide dispute as to liability or amount under
The request made by the Alleged Debt- or costs and damages under
A separate judgment consistent with this opinion will be entered in accordance with Rules 7054, 9014 and 9021 of the Federal Rules of Bankruptcy Procedure.
Notes
. At the time Green Hills Development Company, LLC entered into the transactions which are the subject of this matter, CULS was doing business as Texans Commercial Capital, LLC. In November of 2007, Texans Commercial Capital, LLC changed its name to Credit Union Liquidity Services, LLC. [Trial Exhibit A, Affidavit of Marty Caplinger, Exhibit A-l]. For purposes of this opinion and because the distinction is not relevant to the issues before the Court, the Court will use CULS.
. At the trial, the attorney for CULS stated that some of the property had been sold and that there remained approximately 282 acres which were subject to CULS's deed of trust. (Transcript, p. 52-53.)
. Trial Exhibit A, Affidavit of Marty Caplinger, p. 2.
. See Public Improvement District Act, Miss. Code §§ 19-13-1 to 19-13-51.
. This amount wаs later reduced to $4,915,219.00 by the first amendment to the Loan Agreement. See Trial Exhibit A, Affidavit of Marty Caplinger, p. 4.
. Trial Exhibit A, Affidavit of Marty Caplinger, pp. 3-4.
. Transcript, p. 17.
. Trial Exhibit A, Affidavit of Marty Caplinger, p.5.
. Id.
. The complaint was filed by Green Hills, Benjamin O. Turnage, and three other corporations: Heartland Development Company, LLC, Lennox Development, LLC and Pro-vonce Development, LLC. The common link between all of these corporations is Mr. Tur-nage.
. Motion to Dismiss, p. 1, October 19, 2010.
. Hereinafter, all code sections refer to the Bankruptcy Code found at Title 11 of the United States Code unless specifically noted otherwise.
. Response to Motion to Dismiss and Memorandum in Support Thereof, p. 1, November 15, 2010.
. Motion for Summary Judgment, p. 2, November 15, 2010.
. Reply in Support of Motion to Dismiss and Response to and Motion to Strike, in Part, Motion for Summary Judgment, p. 2, December 3, 2010.
. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 amended
. Brief in Support of Motion to Dismiss, p. 6, fa. 1, October 19, 2010.
. [This refers to the statutory change implemented by the Bankruptcy Amendments and Federal Judgeship Act of 1984.]
. Trial Exhibit 1, Plaintiffs’ Original Complaint, pp. 12-13.
. Trial Exhibit A, Affidavit of Marty Caplinger, Exhibit A-2.
. Trial Exhibit B, Deposition of Benjamin O. Turnage, p. 28.
.
. Trial Exhibit A.
. CULS lists the description of the exhibit as: Summary of 2008 and 2009 Tax Assessments and 2008 and 2009 Tax Assessments. However, the exhibit is actually a summary of the special assessments owed to the PID and the tax assessments owed to Rankin County, Mississippi.
. The first page of Exhibit D lists the total amount of unpaid taxes and special assessments as $4,480,885.65.
. Trial Exhibit E.
. This Court entered an order on December 15, 2010, holding the Stay Motion and the Alleged Debtor's response in abeyance until after the Court has ruled upon the Alleged Debtor's Motion and CULS’s MSJ.
. Bank of the Ozarks, as Trustee’s Motion to Lift the Automatic Stay to Allow State Court Litigation to Continue Against the Alleged Debtor, Green Hills Development Company LLC, ¶ 3, p. 3, November 10, 2010.
. Trial Exhibit A, Affidavit of Marty Caplinger, p. 3.
.
In re American Cotton Suppliers Int'l, Inc.,
No. 02-50003-7,
. "[B]ecause an order for relief should be entered against Green Hills under
"[B]ecause an order for relief should be entered against Green Hills under
"Moreover, entry of an order for relief is appropriate under
“[UJnder
. Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. 98-353, Tit. 3 § 426(b)(1), 98 Stat. 333, 369 (July 10, 1984).
. It does appears that an order was entered as to the jury trial ruling issued by the Texas judge in paragraph 2 of her letter ruling. Trial Exhibit 5 is a copy of a Petition for Writ of Mandamus filed by CULS with the Court of Appeals for the Fifth Court of Appeals District. In the writ, CULS asks the appeals court to reverse Judge Slaughter's order which allowed a jury trial as to Heartland and Turnage. A copy of the appeals court’s order denying CULS's writ is included in Trial Exhibit 5.
. Trial Exhibit 13, Letter and Order, p. 1.
. There is no indication that the Texas Litigation was remanded before the entry of this order.
See
.
In re Vortex Fishing,
. Id.
. CULS does not state whether it is referring to a bona fide dispute as to the claim under
.
In re Sims,