Brampton Plantation, LLC. v. German American Capital Corporation

Filing 14

ORDER denying 6 Motion to Stay. The decision of the Bankruptcy Judge is affirmed. Signed by Judge B. Avant Edenfield on 3/5/2012. (loh) Modified on 3/5/2012 (wwp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
IN RE:
BRAMPTON PLANTATION, LLC,
Debtor.

BRAMPTON PLANTATION, LLC,
Appellant,
v.

4:12-cv-17

GERMAN AMERICAN CAPITAL
CORPORATION,
Appellee.
ORDER
I. INTRODUCTION
Before the Court are Debtor/Appellant
Brampton Plantation, LLC ’s (“Brampton
Plantation”) appeal of the Bankruptcy
Judge’s decision granting Appellee German
American Capital Corporation (“GACC”)
relief from the automatic bankruptcy stay
and “Emergency Motion for Stay of
Bankruptcy Court’s Valuation Order and
Order Lifting Automatic Stay Pending
Appeal and Request for Emergency Hearing
Prior to March 7, 2012.” See Doc. 6.
II. FACTS
Brampton Plantation filed its Chapter 11
case on May 3, 2010. See Doc. 1-6 at 284.

Brampton Plantation is the owner and
developer of a residential community on
Hutchinson Island, located across the
Savannah River from Savannah’s Historic
District. See id. The community is located
“adjacent to a resort quality golf course,
river and marsh frontages and views, and
[is] convenient to Savannah shopping and
commercial centers.” Id.
Brampton Plantation purchased the
property in two separate tracts: one for
$7,000,000 in 2003 and another for
$1,000,000 in 2005. See id. at 128.
Brampton Plantation spent $33,000,000
making infrastructural improvements to the
site and began marketing lots in 2006. See
id. at 129.
The property consists of ninety-plus
acres. “Phase I” accounts for approximately
fifty-eight of the ninety-plus acres in the
development. See id. As of September 8,
2011, Brampton Plantation had managed to
sell only 28 of the 242 lots in Phase I. See
id. The remaining thirty-six acres, “Phase
II” or “excess property,” “are cited and
approved for development and have some
infrastructure in place, but the subdivision
lot lines have not been recorded.” Id.
The value of the development, which is
pledged to GACC by assignment from
Branch Banking and Trust Company
(“BB&T”) to serve a loan, is the central
issue in this appeal. See id. at 285. The
original principal of the loan was
$21,000,000; the amount due on the loan is
now approximately $29,000,000 due to
interest at 7.75%, $1,431,500.25 of ad
valorem taxes paid by GACC, and other
charges. See id. at 285 & n. 1. Brampton

Revolving
Modification
to
Promissory
Note
dated
September 26, 2007 (which,
among other things, increased the
maximum principal amount
thereunder to $24,500,00), an
Allonge
and
Second
Modification to Revolving
Promissory Note dated March
11, 2009, and the Allonge and
Third Modification to Revolving
Promissory Note dated May 20,
2009; true and correct copies of
which are attached to the Motion
for Relief filed by BB&T in this
case.

Plantation also owes costs and attorney’s
fees. See id. at 285 n. 1. The interest in this
case accrues at approximately $5,100.00 per
day. See id.
The parties have stipulated to many facts
in this case:
1. The Debtor is a Delaware
limited liability company formed for
the purpose of owning and
developing for residential use
approximately 91 acres of land to be
known as The Reserve at Savannah
Harbor on Hutchinson Island,
Chatham County, Savannah, Georgia
(“the Property”).
2. The Property is the subject of
an approved master plan providing
for 815 units, currently has 200+ lots
platted, as well as infrastructure and
improvements in place consisting of:
roads, curbs, gutters, architectural
Street lamps, two lift stations, a
gated entrance with monument sign,
a greeter station, a park which is
fully completed known as Mary
Musgrove Park and a clubhouse
(dried-in and 75% complete).

(b) a Loan Agreement dated July
11, 2005 (as at any time
amended,
the
“Loan
Agreement”), between the
Debtor and BB&T, as amended
by a First Modification to Loan
Agreement and Other Loan
Documents dated September
26,2007, an Omnibus
Amendment of Loan Documents
dated September 26, 2007, a
Second Modification to Loan
Agreement and Other Loan
Documents dated March 11,
2009, and a Third Modification
to Loan Agreement and Other
Loan Documents dated May 20,
2009 . . . .

3. In connection with the
Debtor's acquisition and
development of the Property, Debtor
executed and delivered to Lender:
(a) a Revolving Promissory Note
dated July 11, 2005, in the
original principal amount of up
to $21,000,000, made by the
Debtor to the order of BB&T (as
at any time amended, the
“Revolving Note”), as amended
By an Allonge and First

(c) a Deed to Secure Debt and
Security Agreement dated July
11, 2005 (as at any time
amended, the “Security Deed”),
made by the Debtor in favor of
BB&T and recorded at Deed
2

Book 290-V, Page 49, Office of
the Clerk, Superior Court of
Chatham County, Georgia, as
amended by a Modification of
Deed to Secure Debt and
Security Agreement, Assignment
of Leases, Rents and Profits and
Other Loan Documents dated
December 5, 2005, and recorded
at Deed Book 298-0, Page 447,
aforesaid records, a Second
Modification of Deed to Secure
Debt and Security Agreement,
Assignment of Rents and Profits
and Other Loan Documents dated
September 26, 2007, and
recorded in Deed Book 332-H,
Page 475, aforesaid records, and
a Third Modification of Deed to
Secure Debt and Security
Agreement, Assignment of
Leases, Rents and Profits and
Other Loan Documents dated
March 11, 2009; and recorded at
Deed Book 349-K, Page 324,
aforesaid records . . . .

improvement costs is in excess of
$40,000,000.00.
6. The Revolving Note matured
by its terms on January 31, 2010.
7. By letter dated April 2, 2010,
Lender advised Debtor that Lender
intended to sell the property as
described in the Security Deed (the
“Property”) at foreclosure on May 4,
2010.
8. Between April 2, 2010, and
May 3, 2010, the Debtor and BB&T
continued to discuss a resolution of
the indebtedness, but were
unsuccessful.
9. At the time of the Debtor's
bankruptcy filing on May 3, 2010,
the approximate principal
indebtedness owed by Debtor to
Lender under the Revolving Note
was $23,966,217 plus interest and
other charges.
10. The non-default rate of
interest on the Revolving Note is the
Wall Street Journal prime rate, plus
one-half of one percent (.50%). The
maturity, or default rate of interest
under the Revolving Note is four
percent (4%) in excess of the
applicable rate of interest at the time
of default. The contract rate of
interest on the date of maturity was
3.75%, so that the default rate of
interest thereafter is 7.75%.

(d) a UCC- 1 financing statement
filed with the Delaware
Department of State on July 19,
2005, at File No. 5228932-1,
naming the Debtor as debtor and
BB&T as secured party . . . .
4. GACC is the holder of the
above-described loan documents by
virtue of assignment from BB&T.
5. The total of Debtor's
investment in the Property, including
acquisition,
development
and

11. As of October 14, 2011, the
total of unpaid county and city ad
valorem taxes on the property was
includes
which
$1,423,603.24,
3

and
interest
$216,161.00.

penalties

of

bankruptcy law or order of the
Bankruptcy Court.

12. The Debtor owns no assets
other than the Property.

20. Debtor has made no
improvements to the Property during
the pendency of this bankruptcy
case.

13. Debtor has had no income
since March of 2008.

21. The Debtor has attempted,
without success, to refinance the
indebtedness now owed to GACC.

14. Debtor has borrowed a total
of $195,000.00 from its officer from
the date of its bankruptcy filing
through May 31, 2011.

22. An Order was entered in the
Bankruptcy Court on July 26, 2010,
in which BB&T and the Debtor
agreed to Brampton's designation as
a single asset real estate debtor.

15. On September 14, 2011, the
City of Savannah Park and Tree sent
a letter to the Debtor, and to Branch
Bank & Trust (GACC's predecessor
in interest) advising of deficiencies
related to the Debtor's failure to plant
trees required by the City of
Savannah Tree Protection Ordinance.
...

23. Brampton filed a Plan of
Reorganization on August 20, 20 10
(the “Plan”) within 30 days of said
determination as required under 11
U.S.C. § 362(d)(3)(A) . . . . The Plan
asserted a value of the Property of
$32,180,000 based upon an appraisal
performed by Clayton Weibel, MAI,
appraiser for Brampton, dated July 5,
2010, (the “Weibel Appraisal”) and
generally calls for the Property to be
divided into parcels and granted to
creditors in a value proportionate to
their respective claims.

16. The Debtor filed this
bankruptcy case on the date prior to
the scheduled non-judicial
foreclosure sale of the Property.
17. Debtor has had only one
employee during the pendency of the
bankruptcy. This employee, Dana
Thompkins, has been paid a total of
approximately $25,573 since the date
of filing.

24. An evidentiary hearing on the
valuation of the Property was
conducted over the course of one full
day on July 22, 2011, wherein the
Bankruptcy Court received
appraisals and heard the testimony of
Joel Crisler, MAI, appraiser for
BB&T/GACC (the "Crisler
Appraisal") and Mr. Weibel. The
Crisler Appraisal values the Property
at $4,233,000 and the Weibel

18. Debtor has not sold any lot or
parcel of the Property since October
29, 2007.
19. Debtor has made no
payments to Lender during the
pendency of this bankruptcy case,
but the Debtor contends none has
been required by either operation of
4

makes thirteen-year projection periods such
as Crisler’s clearly speculative. See id. at
132. The Bankruptcy Judge stated that,
while he had doubts concerning “how
property subdivided, with infrastructure in
place at a total cost of $33 million can be
worth barely 13% of that number, no matter
how disastrous the real estate market
collapse,” Weibel’s determination was
“wildly optimistic and fundamentally
unsupported by solid facts.” See id. at 133.
The Bankruptcy Judge recognized Crisler’s
testimony that market conditions have
caused the precipitous drop in value from
one year to the next as unchallenged. See id.
Focusing on this testimony, the Bankruptcy
Judge determined that the property’s drop in
value was supported by evidence. See id.

Appraisal, as stated above, valued
the Property at $32,180,000.
25. On September 12, 2011, the
Bankruptcy Court issued its
Memorandum and Order on
Valuation and Ruled in favor of
GACC, accepting the Crisler
Appraisal over the Weibel Appraisal.
Doc. 1-6 at 285-290. Thus, the Bankruptcy
Judge has determined that the property is
worth $4,233,000.
The Bankruptcy Judge rejected Weibel’s
evaluation primarily for three reasons:
1. His comparables are unconvincing
. . ., and the idea that thirty-six acres
of partially developed land is worth
four times the value of fifty-eight
acres of fully developed land is
inconceivable.

More stipulated facts deal with
occurrences after the valuation hearing:
26. The Debtor has not filed an
Amended Plan utilizing the Court's
valuation of the Property.

2. He assumes the market will pay
the full cost of infrastructure, but
experience to date demonstrates
otherwise. The preexisting Phase I
lots have not sold, and when they do
sell, they will sell for a fair market
value, regardless of how much the
infrastructure may have cost.

27. On September 26, 2011, the
Debtor filed a Motion to Permit
Interlocutory Appeal and a Notice of
Appeal in the Bankruptcy Court with
respect to the September 12, 2011,
Memorandum and Order on
Valuation.

3. His assumptions as to the condo
tracts are unsupported by the current
infrastructure and zoning. Parcel D
is already platted for 10 single family
homes, not a high-rise condominium
building of 185 units. Parcel C is not
platted for any particular use and its
infrastructure is only partially
complete.

28. The Bankruptcy Court has
transmitted the Motion to Permit
Interlocutory Appeal to the United
States District Court for Southern
District of Georgia.
29. The Motion to Permit
Interlocutory Appeal has not been
ruled upon by the United States

Doc. 1-6 at 132-33. The Bankruptcy Judge
recognized that the current real estate market
5

District Court for the Southern
District of Georgia.

362(d)(3)(A). See id. at 292-93. GACC
successfully demonstrated a lack of equity in
the property; Brampton Plantation owed
$29,000,000 or more to GACC, and the
property was worth only $4,233,000. See id.
at 294. Because of the utter lack of equity in
the property, the Bankruptcy Judge
concluded that Brampton Plantation failed to
show that it could reorganize within a
reasonable time. See id.

[30]. GACC has paid all accrued
ad valorem taxes through 2011 in the
amount of$1,43 1,500.25.
[31]. Dean F. Morehouse,
principal of the Debtor entity, is a
guarantor of the debt, and has
contributed $13,158,466.44 in loans
or equity to the Debtor.

Brampton Plantation appealed the
valuation Order and the Bankruptcy Court’s
Order granting relief from the automatic
stay. See Doc. 1. The Court consolidated
this case with Brampton Plantation’s earlier
interlocutory appeal. See Doc. 8; see also
Brampton Plantation, LLC. v. German Am.
Capital Corp., No. 4:11-cv-270 (S.D. Ga.
Oct. 26, 2011).

Doc. 1-6 at 285-290.
On December 6, 2011, the Bankruptcy
Judge granted GACC’s motion for relief
from stay, finding that GACC was entitled
to relief under 11 U.S.C. § 362(d)(3) and 11
U.S.C. § 362(d)(2). See Doc. 1-6 at 291,
295-96.
Applying § 362(d)(3), the Bankruptcy
Judge found no evidence that Brampton
Plantation was making monthly payments at
least equal to the accruing non-default rate.
See id. at 292. The Bankruptcy Judge also
determined that Brampton Plantation had
not filed a reorganization plan with a
reasonable possibility of being confirmed
within a reasonable time. See id. Brampton
Plantation did file a plan that was based on
its expert’s evaluation of the property, an
evaluation which the Bankruptcy Judge
rejected. See id. Brampton Plantation did
not seek to amend its plan to conform to the
value adopted by the Bankruptcy Judge. See
id. Brampton Plantation does not now seek
to amend that plan.

III. STANDARDS OF REVIEW

“In reviewing the decision of a
bankruptcy court to grant a motion for relief
from stay under § 362(d)(1), this Court is
required to apply an abuse of discretion
standard.” In re Watford, 159 B.R. 597, 600
(M.D. Ga. 1993).
The Court reviews the Bankruptcy
Judge’s determination of value for clear
error. See Smith v. Am. Motor Inns of Fla.,
Inc., 538 F.2d 1090, 1092 (5th Cir. 1976).
“A finding is ‘clearly erroneous' when
although there is evidence to support it, the
reviewing court on the entire evidence is left
with a definite and firm conviction that a
mistake has been committed.” United States
v. Ore. State Medical Soc., 343 U.S. 326,
339 (1952) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)).

The Bankruptcy Judge further found
that, even if Brampton Plantation had
attempted to amend its plan, GACC was
entitled to relief under § 362(d)(2) and §
6

The Bankruptcy Judge reviewed reports
and heard testimony from both Crisler and
Weibel in this case and chose to credit
Crisler’s testimony. The Court:

the judgment, order, or decree of a
bankruptcy judge, for approval of a
supersedeas bond, or for other relief pending
appeal.” F ED. R. B ANKR. P. 8005. The
motion must first be filed before the
Bankruptcy Judge. See id. A party may
make this same motion to the District Court,
but that party must first show why relief was
not obtained from the Bankruptcy Judge.

generally do[es] not disturb the
bankruptcy court's credibility
determinations . . . because the
bankruptcy court is best able to
assess the credibility and evidentiary
content of the testimony of the
witnesses before it . . . . In other
contexts, [the Eleventh Circuit] ha[s]
stated that [it] would not disturb a
district judge's credibility finding
unless a witness's testimony is
unbelievable on its face.

See id.
The Federal Rules of Bankruptcy
Procedure also contemplate “emergency
motions.” Such motions “shall be
accompanied by an affidavit setting forth the
nature of the emergency.” F ED. R. B ANKR.
P. 8011(d). “Prior to filing the motion, the
movant shall make every practicable effort
to notify opposing counsel in time for
counsel to respond to the motion.” Id.

In re O’Lone, 405 F. App’x 413, 414 (11th
Cir. 2010) (internal citations omitted); see
also In re Englander, 95 F.3d 1028, 1030

Brampton Plantation has made a
sufficient showing of why this relief was not
obtained from the Bankruptcy Judge. The
Bankruptcy Judge, considering the same
arguments that Brampton Plantation
currently presents here, denied Brampton’s
motion for a stay pending interlocutory
appeal. See Doc. 1-6 at 172-73, 212-14,
279-83.

(11th Cir. 1996) (stating that a district court
must “give due regard to the bankruptcy
court's opportunity to judge the credibility of
the witnesses”).
The Court reviews the Bankruptcy
Court’s determinations of law de novo. See
In re Holloway, 81 F.3d 1062, 1065 (11th
Cir. 1996).
IV. ANALYSIS

Although it has not submitted an
affidavit setting forth the nature of the
emergency, Brampton Farm attached a copy
of the notice for the foreclosure sale. See
Doc. 6 at 65. The notice sufficiently
informs the Court of the nature of the
emergency. Cf. In re Zahn Farms, 206 B.R.
643, 645 (2d Cir. 1997) (disparaging lack of
affidavit and indicating that motion itself
was insufficient because it merely
“suggest[ed] that at some unspecified point

Brampton Plantation appeals the
decision of the Bankruptcy Judge granting
GACC’s motion for relief from the
automatic stay. See Doc. 1. Brampton
Plantation also seeks to stay a foreclosure
sale of Brampton Plantation’s real property
on March 7, 2012. See Doc. 6.
A. Procedural Propriety of the Motion
The Federal Rules of Bankruptcy
Procedure permit “[a] motion for a stay of
7

in the future a foreclosure sale and a sale of
personalty [would] occur”). Therefore, the
Court will consider the merits of Brampton
Plantation’s appeal and motion
contemporaneously.

“Ordinarily the first factor is the most
important. A finding that the movant
demonstrates a probable likelihood of
success on the merits on appeal requires that
[this Court] determine that the [Bankruptcy
Court] was clearly erroneous.” Garcia-Mir,
781 F.2d at 1453. However, a sufficiently
persuasive showing on the other three
factors will justify granting the motion to
stay upon a showing of a “substantial case
on the merits.” See id.

B. Merits of the Appeal and the
Motion to Stay
“The grant of an emergency motion to
stay the trial court's mandate is . . . an
exceptional response granted only upon a
showing of four factors.” Garcia-Mir v.
Meese, 781 F.2d 1450, 1453 (11th Cir.
1986).

“[W]ith respect to questions of fact, the
movant usually fails to satisfy the first
element.” In re Tex. Equipment Co., Inc.,
283 B.R. 222, 227 (Bankr. N.D. Tex. 2002).
“Real estate appraising is anything but an
exact science, and the variables affecting the
value of the unique property here under
consideration produce a relatively broad
range between the high and low limits of
clear error.” In re TK-USA, Inc., 1999 WL
684141, at *2 (5th Cir. Aug. 11, 1999).

For a debtor to obtain a stay pending
appeal, the debtor must show that:
(1) there is a likelihood of success on
the merits; (2) there will be
irreparable harm to the debtor if no
stay is granted; (3) there is a lack of
substantial harm to the creditor if
there is a stay; and (4) the relief
requested is not contrary to the
public interest.

Brampton Plantation harbors sanguine
expectations about its chances of success on
the merits. Brampton Plantation identifies
numerous perceived errors in Crisler’ s
appraisal.

Piedmont Assocs. v. Cigna Prop. & Cas. Ins.
Co., 132 B.R. 75, 76 (N.D. Ga. 1991).
“[D]ue regard shall be given to the
opportunity of the bankruptcy court to judge
the credibility of the witnesses.” F ED. R.
B ANKR. P. 8013. This Court may not make
independent factual findings; “[i]f the
bankruptcy court is silent or ambiguous as to
an outcome determinative factual question,
the case must be remanded to the
bankruptcy court for the necessary factual
findings.” In re JLJ Inc., 988 F.2d 1112,
1116 (11th Cir. 1993).

First, Brampton Plantation contends that
the appraisal was “based upon a 13 year
sellout or absorption period and the
implementation of a discounted cash flow
analysis” over the period. See Doc. 3 at 1011. Brampton Plantation believes that this
period was too long and erroneously
assumed the sale of individual lots. See id.
Second, Brampton Plantation takes issue
with Crisler’s adoption of a $67,000 value
per lot as opposed to Weibel’s $110,000 per
lot. See id. at 11-12.

1. Likelihood of Success

8

Third, Brampton Plantation bemoans
Crisler’s abandonment of the cost approach
to valuation; Brampton Plantation believes
that any evaluation of the property should
have accounted for the $43,000,000 that
Brampton Plantation invested on it. See id.
at 3.

million, can be worth barely 13% of that
number of that number, no matter how
disastrous the real estate market collapse.”).
Finally, Brampton Plantation identifies
BB&T’s proof of claim in excess of
$28,000,000, the unique nature of the
property, the current improvement of the
real estate market conditions in and around
Savannah, and the tax evaluation of 243
platted lots owned by Brampton Plantation
at $38,897,000 as evidence of the
misevaluation of the property. See id. at 1011.

Fourth, Brampton Plantation claims that
the Bankruptcy Judge committed an error of
law by failing to take into account the
Amended Approved Master Plan which
called for a called for 371 high-rise
condominium units. See id. at 11-12.
Brampton Plantation takes umbrage with the
Bankruptcy Judge’s recognition of only ten
platted lots on the same site. See id. at 13.

GACC asserts that the Bankruptcy
Judge’s determination of value was wellfounded upon the evidence before that court.
See Doc. 11 at 5.

Brampton Plantation points to other facts
that it believes show clear error in the
valuation of the property. For example,
Brampton Plantation finds it inconceivable
that a property purchased in 2003 for greater
than $7,000,000, together with an additional
purchase of an adjacent tract of land for
approximately $1,000,000 and investments
approaching $35,000,000, could hold a
value of $4,233,000 at present. See Doc. 6
at 10. Brampton Plantation further avers
that no reputable bank would extend so
much capital for land with such minute
value. See id. Brampton Plantation also
believes the current languid state of the real
estate market to be no excuse for Crisler’s
unjustifiably somber evaluation. See id.

Giving due regard to the Bankruptcy
Judge’s opportunity to weigh the appraisers’
credibility, the Court finds no clear error.
The Bankruptcy Judge properly rejected
Weibel’s evaluation of the Phase I lots. The
Bankruptcy Judge accounted for Crisler’s
lower average price per lot in Phase I by
examining the two appraisers’ comparables.
See Doc. 1-6 at 130.
The Bankruptcy Judge disregarded
Weibel’s inclusion of Telfair Plantation in
Jasper County, South Carolina, as a
comparable. See id. The Bankruptcy Judge
determined that Weibel made no adjustment
for Telfair Plantation’s average lot size,
which exceeded that of the property in this
case by more than six times. See id. The
two appraiser’s average lot values became
“very close” after this exclusion. See id.
Brampton Plantation does not dispute the
Bankruptcy Judge’s understanding of the
comparable average lot sizes. Thus, the

Brampton Plantation points to the
Bankruptcy Judge’s exposition of his own
doubt concerning the evaluation. See id. at
11; see also Doc. 1-6 at 133 (“I truly
question how property subdivided, with
infrastructure in place at a total cost of $33
9

Court cannot say that the Bankruptcy Judge
clearly erred in considering the geographic
attributes of the property in this case.

Given the value of the property, the
Court cannot say that the Bankruptcy Judge
abused his discretion in granting GACC’s
motion for relief from stay. The United
States code provides:

The Bankruptcy Judge noted that while
“Crisler’ s thirteen-year window for
projected lot sales is so long a period as to
be clearly speculative,” the need for such an
analysis was due to “the nature of the
current real estate environment.” See id. at
132.

(d) On request of a party in interest
and after notice and a hearing, the
court shall grant relief from the stay .
. . , such as by terminating,
annulling, modifying, or
conditioning such stay . . .

Brampton Plantation claims that the
Bankruptcy Judge committed an error of law
by failing “to recognize the approved master
plan.” The Bankruptcy Judge looked at the
history of the Phase I lots and the current
state of the property in deciding to credit
Crisler’s evaluation and to discount the
approved master plan. See id. at 133
(identifying lack of sales of Phase I lots and
current, non-condominium plotting of
Parcels C and D). This was a factual, not
legal, determination.

(2) with respect to a stay of an
act against property under
subsection (a) of this section, if-(A) the debtor does not have
an equity in such property;
and
(B) such property is not
necessary to an effective
reorganization;
(3) with respect to a stay of
an act against single asset real
estate under subsection (a), by a
creditor whose claim is secured
by an interest in such real estate,
unless, not later than the date that
is 90 days after the entry of the
order for relief (or such later date
as the court may determine for
cause by order entered within
that 90-day period) or 30 days
after the court determines that the
debtor is subject to this
paragraph, whichever is later--

The Bankruptcy Judge also reasonably
disregarded Brampton Plantation’s
investment costs in determining that the
Phase I lots “will sell for a fair market value,
regardless of how much the infrastructure
may have cost.” See id. The Court simply
cannot say with a definite and firm
conviction that a clear mistake has been
committed.
Because the Bankruptcy Court
reasonably considered the history and state
of the property, the methodology of the two
appraisers’ evaluations, and current real
estate market conditions in deciding to credit
Crisler’s evaluation, the Bankruptcy Judge
did not clearly err.

(A) the debtor has filed a
plan of reorganization that
has a reasonable possibility

10

of being confirmed within a
reasonable time; or

Foreclosure will cause irreparable harm
to Brampton Plantation. See Plachter v.
United States, 1992 U.S. Dist. LEXIS
20147, at *4 (S.D. Fla. 1992) (“Appellants
will suffer irreparable harm absent the
issuance of the stay since the IRS has a lien
on Appellants’ homestead property upon
which it can foreclose.”). Thus, this factor
weighs in favor of granting the stay.

(B) the debtor has
commenced monthly
payments . . . .
11 U.S.C. § 362(d)(3).
Brampton Plantation did not present
evidence of monthly payments to the
Bankruptcy Judge. Furthermore, the
Bankruptcy Judge properly determined that
Brampton Plantation’s plan had no chance
of being confirmed because it advanced a
property value rejected by the Bankruptcy
Judge. GACC carried its burden of showing
no equity in the property, and Brampton
Plantation failed to show that the property
“is essential for an effective reorganization
that is in prospect.” United Sav. Ass’n of
Tex. v. Timbers of Inwood Forest Assocs.,
Ltd., 484 U.S. 365, 376 (1988). Therefore,
the Bankruptcy Judge did not abuse his
discretion in granting GACC the relief it
sought.

3. Lack of Substantial Harm to the
Creditor
Brampton Plantation avers that no
substantial harm will visit the Creditor in
this case, as GACC purchased BB&T’s debt
with full knowledge of the bankruptcy
proceedings. See Doc. 6 at 15. GACC
received a discount due to the possibility of
protracted litigation. See id. Should
Brampton Plantation fail in its appeal,
GACC will still have its lien and the ability
to foreclose. See id. If Brampton Plantation
is successful, then Brampton Plantation will
be able to pay GACC, as an over-secured
creditor, the full amount of its claim. See id.

Accordingly, the Court AFFIRMS the
decision of the Magistrate Judge.

In denying Brampton Plantation’s
motion for stay pending interlocutory
appeal, the Bankruptcy Judge found that
GACC had purchased BB&T’s position in
this case by purchasing BB&T’s debt. See
Doc. 1-6 at 282. Not only does the
continuation of this case render GACC
unable to foreclose on its interest, GACC
has already paid $1,400,000 in taxes on the
property because Brampton Plantation has
no ability to do so. See id. Taxes on the
property, taxes which GACC must pay,
continue to accrue. See id. Brampton does
not dispute these findings. Thus, GACC
suffers substantial harm if the foreclose is

2. Irreparable Harm to the Debtor
Even if the Court had not decided to
Bankruptcy
affirm
the
Judge
contemporaneously with considering
Brampton Plantation’s motion for a stay, the
Court would not have granted the motion to
stay. The Court continues on to the other
three factors.
Brampton Plantation claims it will suffer
irreparable harm if no stay is granted
because the property will be sold at
foreclosure on March 7, 2012. See Doc. 6 at
13.
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stayed. This factor also weighs in favor of
GACC.

This 5th day of March 2012.

4. Not Contrary to the Public
Interest
The Bankruptcy Judge correctly
discerned that the public interest may best
be served through speedy and efficient
resolution of cases such as this. See id.; see
also In re Brumilk, 132 B.R. 495, 499 (M.D.
Ga. 1991). This last factor also weighs
against a stay.

,/ He;. fr• 4a1
iura

B. AVANT EDENFIELO,
UNiTED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

5. Brampton Plantation is Not
Entitled to a Stay
The first and most important factor
weighs heavily against Brampton Plantation.
Brampton Plantation cannot even show a
prove “a substantial case on the merits.”
Consideration of the other factors also
suggests that Brampton Plantations motion
should be denied.
Because the Court has decided this
appeal against Brampton Plantation and
because an analysis of the factors indicates
that a stay is improper in any event, the
Court DENIES Brampton Plantation’s
motion to stay.
V. CONCLUSION

Brampton Plantations “Emergency
Motion for Stay of Bankruptcy Court’s
Valuation Order and Order Lifting
Automatic Stay Pending Appeal and
Request for Emergency Hearing Prior to
March 7, 2012,” see Doc. 6, is DENIED.
The decision of the Bankruptcy Judge is
AFFIRMED.

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