Bond Safeguard Insurance Company v. LR Buffalo Creek, LLC et al

Filing 111

ORDER that the Clerk's entries of default as to Blue Mist Farms, LLC; Bridge Pointe at Jekyll Sound, LLC; Clarks Hill Lake, LLC; Coastline Properties LLC; Laird Bayou, LLC; Laird Point, LLC; Point Peter, LLLP; Roaring River LLC, f/k/a Greyrock a t Lake Lure; LLC Southern HOA Management, LLC; and Villages at Norris Lake, LLC, are hereby STRICKEN from the record and shall have no force or effect. FURTHER ORDERED that, consistent with 11 USC 362(a) this action is automatically STAYED as of 10/ 30/08 with respect to defts Blue Mist Farms LLC; Bridge Pointe at Jekyll Sound, LLC; Clarks Hill Lake, LLC; Coastline Properties LLC; Laird Bayou, LLC; Laird Point, LLC; Point Peter, LLLP; Roaring River LLC, f/k/a Greyrock at Lake Lure, LLC; Southern HOA Management, LLC; Villages at Norris Lake, LLC,; LR Buffalo Creek, LLC; Land Resource, LLC, f/k/a Land Resource Companies, LLC; Land Resource Group Inc.; Land Resource Group of North Carolina LLC; Land Resource Orchards, LLC; Land Resource Satilla River, LLC; Land Resource Watts Bar, LLC; LR Baytree Landing, LLC; LR Riversea, LLC; Land Resource Meigs County, LLC; LRC Holdings LLC; and Land Resource Round Mountain, LLC.. Signed by District Judge Lacy Thornburg on 2/2/09. (pdf)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION CIVIL NO. 1:08CV434

BOND SAFEGUARD INSURANCE COMPANY,

) ) ) Plaintiff, ) ) V s. ) ) LR BUFFALO CREEK, LLC; LAND ) RESOURCE, LLC, f/k/a Land ) Resource Companies, LLC; LAND ) RESOURCE GROUP, INC.; JAMES ) ROBERT WARD; MICHAEL FLASKEY;) ROBERT VACKO; JASON BEAIRD; ) REALAN INVESTMENT PARTNERS, ) LLLP; DPB SOLUTIONS, LLC; ) WEEKS-GREY ROCK, LLC; EURAM ) GREY ROCK ASSOCIATES, L.P.; ) DANIEL D. DINUR; BARRINGTON ) BRANCH; BLUE MIST FARMS, LLC; ) BRIDGE POINTE AT JEKYLL SOUND, ) LLC; CLARKS HILL LAKE, LLC; ) COASTLINE PROPERTIES, LLC; ) ROARING RIVER, LLC, f/k/a Greyrock ) at Lake Lure, LLC; LAIRD BAYOU, ) LLC; LAIRD POINT, LLC; LAND ) RESOURCE GROUP OF NORTH ) CAROLINA, LLC; LAND RESOURCE ) ORCHARDS, LLC; LAND RESOURCE ) SATILLA RIVER, LLC; LAND ) RESOURCE WATTS BAR, LLC; ) LR BAYTREE LANDING, LLC; LR ) RIVERSEA, LLC; POINT PETER, )

ORDER

2 LLLP; VILLAGES AT NORRIS LAKE, ) LLC; LAND RESOURCE MEIGS ) COUNTY, LLC; LRC HOLDINGS, LLC; ) LAND RESOURCE ROUND ) MOUNTAIN, LLC; SOUTHERN HOA ) MANAGEMENT, LLC; WACHOVIA ) BANK, N.A.; and KEYBANK, N.A., ) ) Defendants. ) )

THIS MATTER is before the Court on the issue of default as to certain Defendants. The instant lawsuit arises from numerous disputes over a subdivision called "Grey Rock at Lake Lure," located in Rutherford County, North Carolina. Complaint, filed September 12, 2008, at 7. The pertinent procedural history is as follows. Plaintiff's initial complaint, filed in September 2008, named the following 34 Defendants: · · · · · · · · · · · LR Buffalo Creek, LLC Land Resource, LLC, f/k/a Land Resource Companies, LLC Land Resource Group, Inc. James Robert Ward Robert Vacko Michael Flaskey Jason Beaird Realan Investment Partners, LLLP DPB Solutions, LLC Weeks-Grey Rock, LLC Euram Grey Rock Associates, LP

3 · · · · · · · · · · · · · · · · · · · · · · · Daniel D. Dinur Barrington H. Branch Blue Mist Farms, LLC Bridge Point at Jekyll Sound, LLC Clarks Hill Lake, LLC Coastline Properties, LLC Roaring River, LLC, f/k/a Greyrock at Lake Lure, LLC Laird Bayou, LLC Laird Point, LLC Land Resource Group of North Carolina, LLC Land Resource Orchards, LLC Land Resource Satilla River, LLC Land Resource Watts Bar, LLC LR Baytree Landing, LLC LR Riversea, LLC Point Peter, LLLP Villages at Norris Lake, LLC Land Resource Meigs County, LLC LRC Holdings, LLC Land Resource Round Mountain, LLC Southern HOA Management, LLC Wachovia Bank, N.A. Keybank, N.A.

Id. at 2-6. According to the record, all Defendants were served with a copy of the complaint and summons except for James Robert Ward. Certificates of Service, filed September 26, 2008, and October 2, 2008. On October 24, 2008, Plaintiff moved for entry of default and default judgment as to the following 10 Defendants (hereinafter, the "Defaulting Defendants"), on the basis that these Defendants had failed to move, plead, or otherwise respond to the summons:

4 · · · · · · · · · · Blue Mist Farms, LLC Bridge Point at Jekyll Sound, LLC Clarks Hill Lake, LLC Coastline Properties, LLC Laird Bayou, LLC Laird Point, LLC Point Peter, LLLP Roaring River, LLC, f/k/a Greyrock at Lake Lure, LLC Southern HOA Management, LLC Villages at Norris Lake, LLC

Motions for Entry of Default and Default Judgment, filed October 24, 2008. Apparently because of Plaintiff's failure to submit proposed default orders, the Clerk did not enter default until October 30, 2008, four days after Plaintiff's motions were filed. Entries of Default, filed October 30, 2008; Order, filed October 29, 2008, at 1 n.1 (explaining the reason for the Clerk's four day delay). In November 2008, a suggestion of bankruptcy was filed with the Court, explaining that the Defaulting Defendants had filed for voluntary Chapter 11 bankruptcy protection in the Middle District of Florida on October 30, 2008. Suggestion of Bankruptcy, filed November 21, 2008, at 1. The same bankruptcy filing also pertained to the following 12 Defendants, who had not previously been subject to default in this Court: · · LR Buffalo Creek, LLC Land Resource, LLC, f/k/a Land Resource Companies, LLC

5 · · · · · · · · · · Land Resource Group, Inc. Land Resource Group of North Carolina, LLC Land Resource Orchards, LLC Land Resource Satilla River, LLC Land Resource Watts Bar, LLC LR Baytree Landing, LLC LR Riversea, LLC Land Resource Meigs County, LLC LRC Holdings, LLC Land Resource Round Mountain, LLC

Id. at 1-2. These 12 Defendants, together with the Defaulting Defendants (hereinafter, collectively, the "Bankrupt Defendants"), noticed the Court that all matters against them were automatically stayed as of October 30, 2008, pursuant to 11 U.S.C. § 362. Id. at 2. It is well-settled that "[w]hen litigation is pending against the debtor at the time a bankruptcy case is commenced, the litigation is stayed automatically." 3 Collier on Bankruptcy ¶ 362.03[3], at 362-15 (Law rence P. King et al. eds., 15th ed., rev. 2005); see 11 U.S.C. § 362(a) (providing that a bankruptcy petition operates as an automatic stay of "the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor"). Furthermore, "if the nonbankruptcy court continues the action or enters a judgment

6 notwithstanding the imposition of the automatic stay, the action or judgment should be considered ineffective against the debtor." Id. In this case, the Defaulting Defendants' bankruptcy petition was filed on the same date that the Clerk entered default against these Defendants ­ October 30, 2008. Therefore, in an abundance of caution, in order to avoid a violation of the automatic stay, the undersigned will strike these entries of default. Furthermore, the Court will consider this action stayed as of October 30, 2008, as against the 22 Bankrupt Defendants.1 11 U.S.C. § 362(a). The remaining 12 Defendants (the "Non-Bankrupt Defendants"), who are not subject to the stay, are as follows: · · · · · James Robert Ward Robert Vacko Michael Flaskey Jason Beaird Realan Investment Partners, LLLP

Thus, Plaintiff's amended complaint, filed October 30, 2008, which purports to name all 34 Defendants, in fact pertains only to the NonBankrupt Defendants. Amended Complaint, filed October 30, 2008. Although the Court, at the time the amended complaint was filed, issued new summonses pertaining to the 22 Bankrupt Defendants, such are null and void, as these Defendants are not currently subject to service of process. 11 U.S.C. § 362(a) (staying, inter alia, "the issuance or employment of process" against the debtor); see Summons, filed October 31, 2008.

1

7 · · · · · · · DPB Solutions, LLC Weeks-Grey Rock, LLC Euram Grey Rock Associates, LP Daniel D. Dinur Barrington H. Branch Wachovia Bank, N.A. Keybank, N.A.

Several of these parties have filed substantive motions to dismiss, which the Court has under advisement. Motion to Dismiss by Realan Investment Partners, LLLP; DPB Solutions, LLC; Weeks-Grey Rock, LLC; Euram Grey Rock, LLC; Daniel D. Dinur, and Barrington H. Branch, filed November 10, 2008; Motion to Dismiss by Wachovia Bank, N.A. and Keybank, N.A., filed December 8, 2008.2 These motions remain unaffected by the instant order. IT IS, THEREFORE, ORDERED that the Clerk's entries of default as to Defendants Blue Mist Farms, LLC; Bridge Pointe at Jekyll Sound, LLC; Clarks Hill Lake, LLC; Coastline Properties, LLC; Laird Bayou, LLC; Laird Point, LLC; Point Peter, LLLP; Roaring River, LLC, f/k/a Greyrock at Lake
2

Also, on December 1, 2008, Defendants James Robert Ward, Michael Flaskey, Robert Vacko, and Jason Beaird filed a document styled "Motion to Dismiss and Answer." Pursuant to the Court's Local Rules, "[m]otions to dismiss contained in answers to complaints . . . are considered by the Court to be preserved. A party wishing to have decided any preserved motion shall file a separate motion and supporting brief." L.Civ.R. 7.1(C)(1).

8 Lure, LLC; Southern HOA Management, LLC; and Villages at Norris Lake, LLC, are hereby STRICKEN from the record and shall have no force or effect. IT IS FURTHER ORDERED that, consistent with 11 U.S.C. § 362(a), this action is automatically STAYED as of October 30, 2008, with respect to Defendants Blue Mist Farms, LLC; Bridge Point at Jekyll Sound, LLC; Clarks Hill Lake, LLC; Coastline Properties, LLC; Laird Bayou, LLC; Laird Point, LLC; Point Peter, LLLP; Roaring River, LLC, f/k/a Greyrock at Lake Lure, LLC; Southern HOA Management, LLC; Villages at Norris Lake, LLC; LR Buffalo Creek, LLC; Land Resource, LLC, f/k/a Land Resource Companies, LLC; Land Resource Group, Inc.; Land Resource Group of North Carolina, LLC; Land Resource Orchards, LLC; Land Resource Satilla River, LLC; Land Resource Watts Bar, LLC; LR Baytree Landing, LLC; LR Riversea, LLC; Land Resource Meigs County, LLC; LRC Holdings, LLC; and Land Resource Round Mountain, LLC.
Signed: February 2, 2009