PHOENIX DEVELOPMENT AND LAND INVESTMENT LLC v. SCBT NATIONAL ASSOCIATION

Filing 12

ORDER affirming the decision of the bankruptcy court re: 1 Bankruptcy Appeal, filed by PHOENIX DEVELOPMENT AND LAND INVESTMENT LLC. Ordered by Judge Clay D. Land on 04/16/2012. (aaf) ***

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
PHOENIX
DEVELOPMENT
INVESTMENT, LLC,

&

LAND *
*

Appellant,
*
vs.

CASE NO. 3:11-CV-148 (CDL)
*

SCBT, NATIONAL ASSOCIATION,
*
Appellee.
*
O R D E R
This bankruptcy appeal arises from the bankruptcy court’s
denial

of

the

confirmation

of

Phoenix

Development

and

Land

Investment, Inc.’s (Phoenix) Chapter 11 Plan of Reorganization
(“the plan”) and the granting of secured party creditor SCBT,
National

Association’s

(“SCBT”)

motion

for

relief

from

stay.

Phoenix appeals these rulings by the bankruptcy court.

For the

following

of

reasons,

the

Court

affirms

the

rulings

the

bankruptcy court.
Before addressing the merits of the appeal, the Court must
first determine whether it has jurisdiction to decide it.

It is

undisputed that this Court has appellate jurisdiction over the
bankruptcy

judge’s

stay,

both

and

order

parties

granting
concede

relief

this

from

issue.

the

automatic

See

Barclays–

Am./Bus. Credit, Inc. v. Radio WBHP, Inc. (In re Dixie Broad.,
Inc.), 871 F.2d 1023, 1026 (11th Cir. 1989).

The Court also

finds that it has jurisdiction over the appeal of the order
denying

confirmation

contrary.

and

rejects

SCBT’s

arguments

to

the

That order is deemed final and appealable because

upon its issuance, the bankruptcy court “shall grant relief from
the

stay,”

11

U.S.C.

§

362(d)(3)(A),

and

the

denial

of

confirmation can cause irreparable harm to Phoenix by permitting
foreclosure

on

its

single

immediately

reviewed,

asset

Growth

real

Realty

estate
Cos.

if

V.

it

is

Regency

not

Woods

Apartments (In re Regency Woods Apartments, Ltd.), 686 F.2d 899,
902 (11th Cir. 1982) (per curiam) (“[A]n order is treated as
final if it directs the immediate delivery of physical property
and subjects the losing party to irreparable injury if appellate
review

must

Further,

await

because

the

final

Phoenix,

outcome
debtor,

the

of

the

does

litigation.”).

not

have

another

opportunity to submit an alternative reorganization plan, the
order denying confirmation is final and not interlocutory.

See

11 U.S.C. § 362(d)(3)(A) (a single asset real estate debtor has
90

days

after

reorganization

its

Chapter

that

has

a

11

petition

reasonable

to

file

“a

possibility

plan
of

of

being

confirmed within a reasonable time); In re MCorp Fin., Inc., 139
B.R. 820, 822 (S.D. Tex. 1992) (“As long as the debtor has the
opportunity

to

submit

another

plan,

the

order

is

interlocutory.”); Notice of Appeal Attach. 7, Tr. of Hr’gs Re:
Mot.

for

Relief

from

Stay

&

Objection

2

to

Confirmation

of

Debtor’s Chapter 11 Plan at 69:14-15, In re Phoenix Dev. & Land
Inv., LLC, No. 10-32128 (Bankr. M.D. Ga.), ECF No. 1-7 (the
bankruptcy court stated, “I don’t think at this point that the
Debtor is entitled to go back and try to file another plan.”).
Because in this case the order denying confirmation is final and
led to the relief from stay, which is a final order, the Court
has jurisdiction to review the denial of confirmation on appeal.
Cf. Pleasant Woods Assocs. Ltd. P’ship v. Simmons First Nat’l
Bank (In re Pleasant Woods Assocs. Ltd. P’ship), 2 F.3d 837, 838
(8th Cir. 1993) (per curiam) (stating that an order is not final
until it confirms a plan or dismisses the underlying petition
and

“the

rejection

of

debtors’

proposed

plan

may

yet

be

considered on appeal from a final judgment either confirming an
alternative

plan,

or

dismissing

the

underlying

petition

proceeding.”) (internal quotation marks omitted).
Having jurisdiction to decide this appeal, the Court turns
to the merits of the appeal.

In reviewing a decision of a

bankruptcy court, the Court must accept the bankruptcy court's
findings of fact unless those facts are clearly erroneous.

Fed.

R.

make

Bankr.

P.

8013.

The

independent factual findings.

Court

is

not

authorized

to

Equitable Life Assurance Soc'y v.

Sublett (In re Sublett), 895 F.2d 1381, 1384 (11th Cir. 1990).
A finding of fact is clearly erroneous “if the record lacks
substantial evidence to support it,” Thelma C. Raley, Inc. v.

3

Kleppe, 867 F.2d 1326, 1328 (11th Cir. 1989) (per curiam), so
that the Court has the “definite and firm conviction that a
mistake has been committed.”
333 U.S. 364, 395 (1948).

United States v. U.S. Gypsum Co.,
Legal conclusions by the bankruptcy

court, however, are reviewed de novo.

Club Assocs. v. Consol.

Capital Realty Investors (In re Club Assocs.), 951 F.2d 1223,
1228 (11th Cir. 1992).
This

appeal

bankruptcy

court

presents
erred

three
in

issues:
determining

(1)
that

whether

the

Phoenix’s

reorganization plan was not feasible on the basis that it did
not provide for fair and equitable treatment because it did not
provide SCBT the indubitable equivalent of its secured claim;
(2) whether the bankruptcy court erred in determining that the
value of the single real estate asset, Long Grove, was less than
$4,650,000.00; and (3) whether the bankruptcy court erred in
granting SCBT’s motion for stay relief based on the finding that
Phoenix failed to present a plan with a reasonable prospect of
confirmation.
Based upon the Court’s thorough review of the record, the
Court finds no reversible error in the rulings of the bankruptcy
court.

First, the bankruptcy court did not commit clear error

when it (1) treated SCBT’s entire claim as secured for purposes
of evaluating the indubitable equivalent standard; (2) made the
factual finding that the value of Long Grove at the end of the

4

reorganization plan’s holding period was less than $4,650,000;
and (3) found that the value of Long Grove at the end of the
plan’s holding period was less than the secured debt owed to
SCBT.

Furthermore, based upon the Court’s de novo review, the

Court

finds

that

the

following

legal

conclusions

by

the

bankruptcy court do not constitute reversible error: (1) that
Phoenix’s plan was not feasible because it did not provide for
the

indubitable

equivalent

of

SCBT’s

claim

as

required

for

confirmation under 11 U.S.C. § 1129(b)(2)(A)(iii) and therefore
could

not

be

confirmed;

and

(2)

that

because

of

Phoenix’s

failure to present a plan that has a reasonable prospect of
confirmation as required by 11 U.S.C. § 362(d)(3)(A), SCBT was
entitled to relief from the automatic stay.
For

all of

these

reasons, the orders

of the bankruptcy

court are affirmed.

IT IS SO ORDERED, this 16th day of April, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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