In re Besler

6 Citing cases

  1. In re Shriver

    33 B.R. 176 (Bankr. N.D. Ohio 1983)   Cited 31 times
    Valuing collateral for purposes of motion for relief from stay by considering use of collateral as home, dairy farm, and feeder cattle farm

    The court must find, however, that both conditions under § 362(d)(2) exist; one, under § 362(d)(2)(A), there must be a showing that the debtor has no equity in the property and, two, pursuant to § 362(d)(2)(B), there must be a showing that the property is not necessary to an effective reorganization. First National Bank v. L.H. and A. Realty, Inc., 24 B.R. 81 (Bkrtcy.D.Vt. 1982); Besler v. Northwest Production Credit Association (In re Besler), 19 B.R. 879, 9 B.C.D. 404 (Bkrtcy.D.S.D. 1982); La Jolla Mortgage Fund v. Rancho El Cajon Associates, supra. The issue arises, in determining the question of the debtor's equity in the property under § 362(d)(2)(A), whether all the encumbrances on the subject property are to be considered or whether the interest of non-joining junior lien creditors should be ignored. Compare Harleysville National Bank and Trust Co. v. Kaufman (In re Kaufman), 24 B.R. 498 (Bkrtcy.E.D.Pa. 1982); La Jolla Mortgage Fund v. Rancho El Cajon Associates, supra; and North East Federal Savings and Loan Association v. Mikole Developers (In re Mikole Developers, Inc.), 14 B.R. 524 (Bkrtcy.E.D.Pa. 1981) (all encumbrances considered) with Central Florida Production Credit Association v. Spring Garden Foiliage, Inc. (In re Spring Garden Foliage, Inc.) 15 B.R. 140 (Bkrtcy.M.D.Fla. 1981) (junior encumbrances unimportant if debtor has equity cushion over senior encumbrances).

  2. In re Sky Valley, Inc.

    100 B.R. 107 (Bankr. N.D. Ga. 1988)   Cited 6 times
    Finding that the debtor satisfied § 364(d) where debtor approached four lenders

    But see, In re Alyucan Interstate Corp., 12 B.R. 803 (Bankr.D.Utah 1981), wherein the court found an equity cushion may be part of the bargained-for consideration and thus, could not constitute adequate protection. The case of In re Besler, 19 B.R. 879 (Bankr.D. S.D.1982), a replacement lien was held to be adequate protection. Additionally, individual methods of providing protection may be combined to produce sufficiently adequate protection.

  3. In re Padgett

    74 B.R. 65 (Bankr. S.D. Ohio 1987)   Cited 5 times

    In furtherance of the stated sanction, we find the evidence to be that movant will be fully indemnified by the State of Ohio as to any losses which it suffers on mortgage obligations derived by assignment from Home State Savings. Specifically, in the present case, debtor is entitled to have the evidence assumed to be that movant will be indemnified on a foreclosure for any loss it may suffer on the first mortgage on "The Walnut Farms Property", as well as on the subordinate mortgage held by movant by assignment from Home State Savings, on both "The Farm Property" and "The Walnut Farms Property". As we shall see in a moment, this view of the evidence is significant particularly with respect to "The Farm Property", for we hold that movant is, with respect to the subordinate mortgage derived from Home State Savings, adequately protected by any State promise of indemnification. See, In re Besler, 19 B.R. 879, 884 (Bankr.S.D. 1982), where a substitute lien by a party other than the debtor was held to provide adequate protection to a mortgagee. A right to indemnification by a governmental unit provides adequate protection at least as effectively as does a lien on private property.

  4. In re Sheehan

    38 B.R. 859 (Bankr. D.S.D. 1984)   Cited 34 times

    In any hearing on the use of cash collateral, the burden of proof on the issue of adequate protection is on the debtor. Id. at (e); In re Besler, 19 B.R. 879 (Bkrtcy.D.S.D. 1982). Section 361 of the Bankruptcy Code prescribes three methods that may be used to provide adequate protection when it is required under the Bankruptcy Code. See 11 U.S.C. § 361. Subsection 361(1) contemplates periodic cash payments to the extent that an entity's interest in property decreases in value as it is utilized by the bankruptcy estate.

  5. In re Clemmons

    37 B.R. 712 (Bankr. W.D. Mo. 1984)   Cited 6 times

    Section 362(d) of the Code. Matter of Terra Mar Associates, 3 B.R. 462 (Bkrtcy.Conn. 1980); In re Besler, 19 B.R. 879 (Bkrtcy.S.D. 1982). The long history of this case shows that debtors have not generated sufficient funds to pay their secured debt.

  6. In re Richmond Ready-Mix Corp.

    37 B.R. 456 (Bankr. E.D. Va. 1984)

    as well as acquiring new customers even in the off-season suggests that when the projected upswing in ready-mix concrete demand occurs in the spring that the debtor in the instant matter may share favorably in the increased business and that rehabilitation is likely or at least at the present moment there is not an absence of reasonable likelihood of rehabilitation. See In re Besler, 19 B.R. 879 (Bkrtcy.D.S.D.1982) (no dismissal where debtor demonstrates reasonable likelihood of reorganization).         Finally, an additional basis for denying the motion for conversion by the creditors' committee is that they have failed to carry their burden of proof.