Case Doc 310 Filed 08/20/18 Page 1 of 9. UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MARYLAND Greenbelt Division. Chapter 11 Debtor.

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1 Case Doc 310 Filed 08/20/18 Page 1 of 9 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MARYLAND Greenbelt Division In re: THE CONDOMINIUM ASSOCIATION OF THE LYNNHILL CONDOMINIUM, Case No Chapter 11 Debtor. 1 DEBTOR S MOTION FOR APPROVAL OF SETTLEMENT WITH POTOMAC ELECTRIC POWER COMPANY AND FOR RELATED RELIEF The Condominium Association of the Lynnhill Condominium (the Debtor ), as debtor and debtor-in-possession and pursuant to section 105 of the U.S. Bankruptcy Code 2 and Rule 9019 of the Federal Rules of Bankruptcy Procedures (the Bankruptcy Rules ), 3 respectfully requests approval of the settlement agreement, attached to this Motion as Exhibit A (the Settlement Agreement ), with Potomac Electric Power Company ( PEPCO ) and the related relief described below. Preliminary Statement The Settlement Agreement provides that PEPCO will have a $651, allowed secured claim (the Settlement Sum ) in exchange for, among other things, mutual releases and an assignment of $250, of the Settlement Sum from PEPCO to the Association (the Association Settlement Sum ). 4 The Court should approve the settlement because it will avoid 1 The Debtor s federal identification number is U.S.C (2012) (the Bankruptcy Code ). 3 Unless otherwise indicated, section references are to the Bankruptcy Code and Rule references are to the Federal Rules of Bankruptcy Procedure. 4 The Debtor in turn will transfer $4, of the Association Settlement Sum or such other funds that are available to the Debtor to Mr. Greg Singleton, counsel for many of the Property s former residents, for post-confirmation services performed on behalf of the former residents in negotiating the Settlement Agreement v5

2 Case Doc 310 Filed 08/20/18 Page 2 of 9 unnecessary litigation over PEPCO s claims against the Debtor that were secured by the Property (defined below), as well as the Debtor s claims against PEPCO arising from the termination of utility services at the Property on October 26, In further support of this Motion, the Debtor states as follows: 5 Jurisdiction 1. This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before this Court pursuant to 28 U.S.C Background 2. The Debtor is an unincorporated condominium association that managed the real estate, amenities and improvements located at 3103 and 3107 Good Hope Avenue, Temple Hills, Maryland (the Property ). The Property consisted of 219 units, a parking lot and common areas. 3. On January 10, 2018 (the Petition Date ), the Debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. 4. General information about the Debtor, its assets and liabilities, and the events leading to this bankruptcy case are detailed in the Declaration of Stanley Briscoe in Support of First Day Motions. See Doc On March 1, 2018, the Court entered an order confirming the Second Amended Joint Chapter 11 Plan of (I) the Condominium Association of the Lynnhill Condominium, and (II) AHH16 Development, LLC, Dated as of February 26, 2018 (the Plan ) and approving the free and clear sale of the Property to Dragone. The sale of the Property to Dragone closed on or about March 15, Pursuant to section 5.8 of the Plan, the Debtor established and funded an escrow 5 Pursuant to Local Rule , in lieu of submitting a memorandum in support of this Motion, the Debtor will rely solely on the grounds and authorities set forth in this Motion v5

3 Case Doc 310 Filed 08/20/18 Page 3 of 9 in the amount of $651, (the PEPCO Escrow ) on account of the PEPCO Claim (as defined below). 6. Pursuant to section 8.2 of the Plan, the Debtor has ninety (90) days after entry of the order confirming the Plan, i.e., May 30, 2018, to object to the PEPCO Claim (the Objection Deadline ). The Court has extended the Objection Deadline through and including September 28, 2018 [Doc. 294]. 7. The Debtor s management and professionals and Mr. Greg Singleton, counsel to many of the former residents of the Property, engaged with PEPCO s representatives regarding a resolution of the PEPCO Claim, which ultimately resulted in the Settlement Agreement. The Parties Claims 8. On the Petition Date, the Debtor filed its Statement of Financial Affairs and Schedules of Assets and Liabilities [Doc. 23], including the Global Notes and Statement of Limitations, Methodology and Disclaimers Regarding Debtor s Schedules of Assets and Liabilities and Statement of Financial Affairs (the Global Notes ). In the Global Notes, the Debtor indicated that the Debtor may have claims against PEPCO arising from the termination of utility services at the Property on October 25, The Global Notes also provided that the Debtor reserved all of its rights with respect to causes of action it may have against PEPCO (the Debtor Claims ). The Plan also expressly preserved all of the Debtor s causes of action against PEPCO. See Plan Prior to the Petition Date, the Debtor and PEPCO were parties to litigation in the Circuit Court for Prince George s County, Maryland styled Potomac Electric Power Company v. Lynnhill Condominium, Case Nos. CAL and CAL (the State Court Actions ), which resulted in the court entering judgments against the Debtor in the amount of v5

4 Case Doc 310 Filed 08/20/18 Page 4 of 9 $326, and $286, as of May 25, On February 1, 2018, PEPCO filed its proof of claim in this case, which was designated Claim No. 2-2 by the Clerk of the Court (the PEPCO Claim ), 6 asserting a secured claim against the Debtor in the amount of $651, comprised of $613, on account of the judgments entered in the State Court Actions and $38, in post-judgment interest accrued between May 25, 2017 and January 9, The Settlement Agreement PEPCO and the Debtor have agreed to fully resolve and settle any and all disputes between them regarding the Claim and any and all claims that the Debtor and PEPCO have or may have against each other relating to the Property. The Settlement Agreement provides for the allowance of the PEPCO Claim, with $250, of the claim assigned to the Debtor as consideration for the Debtor s and the Former Residents (as defined in the Plan) release of their respective claims against PEPCO. The material provisions of the Settlement Agreement include: Allowed Secured Claim. The PEPCO Claim will be allowed as a secured claim in the amount of 651,770.20, and PEPCO will be deemed to have waived all other claims against the Debtor and the Property. Claim Assignment. Upon entry of the Settlement Order, PEPCO shall be deemed to assign $250, of the PEPCO Claim to the Debtor as consideration for the Debtor s and the Former Residents release of their respective claims against PEPCO, and the Debtor and the Former Residents will be deemed to have waived all claims against PEPCO. Settlement Payment. The Debtor will pay, from the PEPCO Escrow, $401, of the Settlement Sum to PEPCO (the PEPCO Settlement Sum ) and $250, of the Settlement Sum to the Debtor (the Debtor Settlement Sum ) within three business days after the Settlement Order becomes a Final Order. The Debtor will 6 To the extent Claim 2-1 has not already been disallowed as amended and superseded by Claim 2-2, upon court approval, the Settlement Agreement applies to Claim 2-1, Claim 2-2 and any other claims filed by PEPCO in this chapter 11 case. 7 The PEPCO Claim breaks down as follows: Case No.: CAL : $304, (judgment principal: $286,974.42; accrued interest: $18,004.70); and Case No.: CAL : $346, (judgment principal: $326,317.98; accrued interest: $20,473.10). 8 Capitalized terms used in this section but not otherwise defined have the meaning ascribed to them in the Settlement Agreement v5

5 Case Doc 310 Filed 08/20/18 Page 5 of 9 pay $4, to Mr. Singleton from the Debtor Settlement Sum or such other funds that are available to the Debtor. Releases. To the fullest extent provided by law, the Debtor and all Former Residents on one hand and PEPCO on the other hand are giving mutual releases for any and all current or future claims relating to the Property or this bankruptcy case. Limited Indemnification. After payment of the PEPCO Settlement Sum and the Debtor Settlement Sum, the Debtor will provide a limited indemnification to PEPCO for claims by any Former Resident arising from or related to the acts or omissions that gave rise to the Debtor s Claims. The Debtor s indemnification obligations will be limited to (and under no circumstances exceed the amount of) the Debtor Settlement Sum and will automatically expire on the final Distribution Date under the Plan. Relief Requested 11. Pursuant to section 105(a) of the Bankruptcy Code and Rule 9019 of the Bankruptcy Rules, the Debtor respectfully requests entry of an order, substantially in the form annexed hereto as Exhibit B, approving the settlement with PEPCO. The Debtor submits that the settlement is fair, reasonable, a prudent exercise of the Debtor s business judgment, and in the best interests of all Former Residents, the Debtor and its estate. 12. The Debtor also requests that it be authorized to (i) pay the PEPCO Settlement Sum to PEPCO from the PEPCO Escrow per the terms of the Settlement Agreement; (ii) distribute $4, from the Debtor s Settlement Sum or such other funds that are available to the Debtor to Mr. Singleton for negotiating (post-confirmation) the Settlement Agreement on behalf of the Former Residents that he represents; and (iii) distribute the remaining amounts from the Debtor s Settlement Sum in accordance with the Plan, including payment of ongoing expenses incurred by the Debtor. 9 9 In the interest of full disclosure, the Debtor will pay US Trustee fees once (not twice) on the claim (and related funds) effectively transferred by PEPCO to the Debtors. This will occur when the funds from the PEPCO assignment are used to make distributions under the Plan v5

6 Case Doc 310 Filed 08/20/18 Page 6 of 9 Basis for Relief Requested 13. Section 105(a) codifies the bankruptcy courts historical equitable powers and authorizes the entry of any order, process or judgment that is necessary or appropriate to carry out the provisions of the Bankruptcy Code. See United States v. Energy Resource Co., 495 U.S. 545, 549 (1990) (stating that the statutory directive of section 105(a) is consistent with the traditional understanding that bankruptcy courts, as courts of equity, have broad authority to modify creditor-debtor relationships ) Bankruptcy Rule 9019 provides, in relevant part [o]n motion... and after notice and a hearing, the court may approve a compromise or settlement, and furthers the general preference for settlements in bankruptcy cases. See In re Bond, 16 F.3d 408, 1994 WL at *3 (4th Cir. 1994) ( To minimize litigation and expedite the administration of a bankruptcy estate, [c]ompromises are favored in bankruptcy. (quoting 9 Collier on Bankruptcy [1] (15th ed.1993))). Approving a compromise is within the discretion of the Court and is warranted where the settlement is reasonable and fair in light of the particular circumstances of the case. See Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, (1968). The settlement need not be the best that could have been achieved, but need only fall within the reasonable range of litigation possibilities, In re Penn Central Transp. Co., 596 F.2d 1102, 1114 (3d Cir. 1979), and not below the lowest point in the range of reasonableness. U.S. ex rel. Rahman v. Oncology Associates, P.C., 269 B.R. 139, (D. Md. 2001), aff d, 10 Section 363(b)(1) of the Bankruptcy Code also provides, in relevant part, that [t]he trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate. 11 U.S.C. 363(b)(1). To approve the use of property outside the ordinary course of business, a Bankruptcy Court must find from the evidence presented before [it] at the hearing a good business reason to grant such an application. In re Lionel Corp., 722 F.2d 1063, (2d Cir. 1983); In re Borders Grp., Inc., 453 B.R. 477, 482 (Bankr. S.D.N.Y. 2011) ( [A] debtor often satisfies the business judgment standard if the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company. ) (quoting In re Integrated Res., Inc., 147 B.R. 650, 656 (Bankr. S.D.N.Y. 1992)); In re MF Glob. Ltd., 535 B.R. 596, 605 (Bankr. S.D.N.Y. 2015) ( The business judgment of a trustee is entitled to great deference. ) v5

7 Case Doc 310 Filed 08/20/18 Page 7 of WL (4th Cir. 2003) (quoting Cosoff v. Rodman (In re W.T. Grant Co.), 699 F.2d 599, 608 (2d Cir. 1983), cert. denied, 464 U.S. 822 (1983)). 15. Courts may give weight to the informed judgments of the... debtor-in-possession and their counsel that a compromise is fair and equitable, and consider the competency and experience of counsel who support the compromise. Drexel Burnham Lambert Grp., 134 B.R. at 505 (internal citations omitted); see also In re Purofied Down Prods. Corp., 150 B.R. 519, 522 (S.D.N.Y. 1993); accord In re Ashford Hotels Ltd., 226 B.R. 797, 802 (Bankr. S.D.N.Y. 1998) ( Significantly, that test does not contemplate that [the court] substitute [its] judgement for the Trustee s, but only that [the court] test his choice for reasonableness. If the Trustee chooses one of two reasonable choices, [the court] must approve that choice, even if, all things being equal, [the court] would have selected the other. (internal citations omitted)). 16. Courts have considered the following standards or factors in determining whether to grant a motion to approve a compromise or settlement under Rule 9019 of the Bankruptcy Rules: (i) the probability of success in the litigation; (ii) the difficulties in collection; (iii) the complexity of the litigation, and the expense, inconvenience, and delay necessarily attending it; and (iv) the paramount interest of the creditors and a proper deference to their reasonable views. See, e.g., In re Drexel Burnham Lambert Group, Inc., 134 B.R. 499, (Bankr. S.D.N.Y. 1991); In re U.S. Airways Group, Inc., 2002 WL at *1 (Bankr. E.D. Va. 2002). 17. The Settlement Agreement satisfies the foregoing factors. The settlement is the product of extensive negotiation between the Debtor and PEPCO and represents a fair and reasonable resolution of the Claim. The amounts asserted in the PEPCO Claim are based on the judgments in the State Court Actions. Further, given the potential for significant legal fees and expenses associated with prosecuting the Debtor s Claims, including discovery, motion practice, v5

8 Case Doc 310 Filed 08/20/18 Page 8 of 9 and (if necessary) trial, the circumstances weigh heavily in favor of a prompt resolution of the Debtor s Claims. 18. Any recoveries on account of the Debtor s Claims would be offset by legal fees and expenses that the Debtor would incur in prosecuting the Debtor s Claims and could decrease the proceeds available under the Plan if those costs were to exceed the recoveries. Additionally, such litigation would likely delay the full administration of the Debtor s estate. Finally, the Settlement Agreement s indemnification provision was required by PEPCO in exchange for the Debtor s Settlement Sum. The indemnification, however, is limited both in amount and duration, and thus, will not negatively impact recoveries under the Plan. Given these considerations, the Debtor submits that the PEPCO Settlement Sum of $401, and the Debtor s Settlement Sum of $250, are a fair, reasonable and prudent exercise of the Debtor s business judgment. 19. The settlement also substantially benefits the Former Residents. The roughly $245,000 that will be effectively transferred by PEPCO to the Debtor will provide the Debtor with additional funds to pay its creditors. This will enable the Debtor to use fewer dollars (whether from the Debtor s Sale Proceeds or the Net Sale Proceeds, as defined in the Plan) to pay its creditors, which in turn results in more funds available for distribution to the Former Residents. Thus, the settlement represents substantial consideration to not only the Debtor, but also the Former Residents. 20. The Debtor also submits that the distribution to Mr. Singleton is warranted. In connection with the post-confirmation negotiation of the Settlement Agreement, Mr. Singleton secured individual releases from multiple Former Residents, which substantially lowers the risk that the Debtor will be required to indemnify PEPCO under the Settlement Agreement and ultimately increases the recoveries for all Former Residents. As such, the Debtor believes that the v5

9 Case Doc 310 Filed 08/20/18 Page 9 of 9 proposed $4, payment to Mr. Singleton from the Debtor s Settlement Sum or the Debtor s other available funds is a prudent exercise of the Debtor s business judgment. Conclusion 21. WHEREFORE, the Debtor respectfully requests that the Court (i) grant the Motion, (ii) enter an order, substantially in the form attached to this Motion as Exhibit B, approving the settlement between the Debtor and PEPCO, and (iii) grant such other and further relief as the Court deems just and proper. Dated: August 20, 2018 Respectfully submitted, /s/ Patrick Potter Patrick J. Potter (Bar No ) Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC Tel (202) Fax (202) patrick.potter@pillsburylaw.com Dania Slim (Bar No ) 324 Royal Palm Way, Suite 220 Palm Beach, FL Tel (202) Fax (202) dania.slim@pillsburylaw.com Jason S. Sharp (admitted pro hac vice) 2 Houston Center 909 Fannin, Suite 2000 Houston, TX Tel (713) Fax (713) jason.sharp@pillsburylaw.com Counsel for the Debtor v5

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19 Case Doc Filed 08/20/18 Page 2 of 13 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MARYLAND Greenbelt Division In re: THE CONDOMINIUM ASSOCIATION OF THE LYNNHILL CONDOMINIUM, Debtor. 1 Case No Chapter 11 ORDER APPROVING SETTLEMENT WITH POTOMAC ELECTRIC POWER COMPANY AND GRANTING RELATED RELIEF Upon the Debtor s motion for entry of an order approving the settlement agreement, attached to this Order as Exhibit 1 (the Settlement Agreement ), with Potomac Electric Power Company ( PEPCO ); 2 and the Court having reviewed the Motion and finding that (a) it has jurisdiction over the matters raised in the Motion pursuant to 28 U.S.C. 157 and 1334; (b) this is a core proceeding pursuant to 28 U.S.C. 157(b)(2); (c) adequate notice of the Motion was given under the circumstances and that no other or further notice is necessary; (d) the settlement 1 The Debtor s federal identification number is Unless otherwise indicated, capitalized terms used but not defined in this Order have the meaning given such terms in the Motion v5

20 Case Doc Filed 08/20/18 Page 3 of 13 substantially benefits, and represents substantial consideration to, the Debtor and the Former Residents because it will provide the Debtor with additional funds to pay its creditors, which in turn results in more funds available for distribution to the Former Residents; and (e) the legal and factual bases set forth in the Motion and on the record establish just cause for the relief granted herein, and it appearing that the relief requested is in the best interest of the Debtor s estate, creditors and other parties-in-interest; and after due deliberation, and good and sufficient cause appearing therefor, IT IS HEREBY ORDERED THAT: 1. The Motion is granted. 2. Pursuant to section 105(a) of the Bankruptcy Code and Bankruptcy Rule 9019(a), the Settlement Agreement is approved and the Debtor is authorized to perform under the Settlement Agreement. 3. The releases set forth in the Settlement Agreement are approved and binding on the terms set forth therein. 4. The Debtor is authorized to pay the PEPCO Settlement Sum of $401, to PEPCO from the PEPCO Escrow per the terms of the Settlement Agreement. 5. The remaining funds in the PEPCO Escrow are automatically transferred and assigned to the Debtor to be used and distributed in accordance with the Plan, including payment of ongoing expenses incurred by the Debtor. 6. The Debtor is authorized to distribute $4, to Mr. Greg Singleton from the Debtor s Settlement Sum or such other funds that are available to the Debtor. 7. The Debtor is authorized to distribute any remaining amounts from the Debtor s Settlement Sum in accordance with the Plan and applicable law v5

21 Case Doc Filed 08/20/18 Page 4 of The Debtor shall be required to pay once (not twice) U.S. Trustee fees required by law when the Debtor distributes the proceeds of the settlement. 9. All liens, claims, encumbrances and interests of any kind held by PEPCO against the Sale Proceeds, the Net Sale Proceeds, the Debtor s Sale Proceeds or the Fractional Sale Proceeds each as defined in the Plan are hereby released and discharged. 10. The Debtor is authorized to take any other steps necessary or appropriate to carry out the terms of this Order and the Settlement Agreement. 11. The terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 12. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation, interpretation, or enforcement of this Order. cc: Patrick J. Potter Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC Dania Slim Pillsbury Winthrop Shaw Pittman LLP 324 Royal Palm Way, Suite 220 Palm Beach, FL Jason S. Sharp Pillsbury Winthrop Shaw Pittman LLP 2 Houston Center 909 Fannin, Suite 2000 Houston, TX William C. Johnson, Jr L Street NW, Suite 750 Washington, DC Joseph B. Hoffman Kelley Drye & Warren LLP 3050 K Street, NW, Suite 400 Washington, DC v5

22 Case Doc Filed 08/20/18 Page 5 of 13 Jeanne M. Crouse Office of the United States Trustee 6305 Ivy Lane, Suite 600 Greenbelt, MD Brian E. Hoffman Assistant General Counsel Pepco Holdings LLC 701 Ninth Street, NW Washington, DC Gregory R. Singleton, Esq Allentown Road Camp Springs, MD All Parties on the Matrix END OF ORDER v5

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31 Case Doc Filed 08/20/18 Page 1 of 2 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MARYLAND Greenbelt Division In re: THE CONDOMINIUM ASSOCIATION OF THE LYNNHILL CONDOMINIUM, Debtor. 1 Case No Chapter 11 NOTICE OF DEBTOR S MOTION FOR APPROVAL OF SETTLEMENT WITH POTOMAC ELECTRIC POWER COMPANY AND FOR RELATED RELIEF On August 20, 2018, the Condominium Association of the Lynnhill Condominium filed the Debtor s Motion for Approval of Settlement with Potomac Electric Power Company and for Related Relief (the Motion ). Your rights may be affected. You should read these papers carefully and discuss them with your attorney, if you have one in this bankruptcy case. (If you do not have an attorney, you may wish to consult one.) If you do not want the Court to grant the relief requested in the Motion, or if you want the Court to consider your views on the Motion then: On or before September 10, 2018 at 4:00 p.m. (EST), you or your attorney must file with the Court a written objection to the Motion with the Clerk of the Bankruptcy Court, 6500 Cherrywood Lane, Greenbelt, MD You may append affidavits and documents in support of your objection. If you or your attorney mail your objection to the Court for filing, you must mail it early enough so the Court will receive it on or before the date stated above. You or your attorney must also mail a copy of your objection to: (a) counsel to the Debtor, Pillsbury Winthrop Shaw Pittman LLP, 1200 Seventeenth Street NW, Washington, DC (Attn: Patrick Potter, patrick.potter@pillsburylaw.com) and 324 Royal Palm Way, Suite 220, Palm Beach, FL (Attn: Dania Slim, dania.slim@pillsburylaw.com); and (b) the Office of the U.S. Trustee for Region 4, 6305 Ivy Lane, Suite 600, Greenbelt, MD (Attn: Jeanne M. Crouse, Esq., jeanne.m.crouse@usdoj.gov). 1 The Debtor s federal identification number is v1

32 Case Doc Filed 08/20/18 Page 2 of 2 If you or your attorney do not take these steps, the Court may decide that you do not oppose the relief sought in the Motion and may enter an order granting relief. The Court may grant the relief requested in the Motion without a hearing if the objection filed states inadequate grounds for denial of the relief sought in the Motion. Dated: August 20, 2018 Respectfully submitted, Pillsbury Winthrop Shaw Pittman LLP /s/ Patrick J. Potter Patrick J. Potter (Bar No ) 1200 Seventeenth Street, NW Washington, DC Tel (202) Fax (202) patrick.potter@pillsburylaw.com Dania Slim (Bar No ) 324 Royal Palm Way, Suite 220 Palm Beach, FL Tel (202) Fax (202) dania.slim@pillsburylaw.com Jason S. Sharp (admitted pro hac vice) 2 Houston Center 909 Fannin, Suite 2000 Houston, TX Tel (713) Fax (713) jason.sharp@pillsburylaw.com Counsel for the Debtor v1