United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, Chief District Judge.
This matter comes before the Court on the Renewed Motion of Fidelity Bank for Appointment of Receiver and Request for Expedited Hearing (doc. 13). The Motion has been briefed and is now ripe for disposition.
The relevant facts appear largely undisputed. On December 9, 2011, defendants, Key Hotels of Brewton, LLC, and Anand Patel, entered into a Loan Agreement with plaintiff, Fidelity Bank, pursuant to which they borrowed the sum of $2, 010, 000 (the "Loan"). (Doc. 5, ¶ 7 & Exh. A.) The stated purpose of the Loan was to refinance existing debt, facilitate a partnership buyout, and cover closing costs and working capital for a Ramada Hotel located in Brewton, Alabama (the "Hotel"). Defendant Patel owned the Hotel, and defendant Key Hotels operated the Hotel. (Patel Aff. (doc. 21, Exh. A), ¶¶ 3-4.) As collateral for the Loan, Patel executed a Mortgage and Security Agreement in Fidelity's favor. (Doc. 5, Exh. D.) The Mortgage and Security Agreement provided that, in the event of a default on the Loan, Fidelity would be entitled to various remedies, including (i) taking possession of, managing and operating the Hotel; (ii) obtaining appointment of a receiver "to take possession of and protect the Mortgaged Property... and collect the rents, issues and profits as well as the fees, charges, accounts, or other payments for the use or occupancy of rooms;" (iii) initiating foreclosure proceedings; and (iv) causing a foreclosure sale of the property. (Id., ¶ C.2.) As additional collateral for the Loan, Patel and Key Hotels executed a Security Agreement granting Fidelity a security interest in certain personal property at the Hotel, including equipment, machinery, furniture, fixtures, inventory, and accounts receivable. (Doc. 5, Exh. C.)
Key Hotels and Patel defaulted under the Loan Agreement, beginning in or around October 2014. (Doc. 5, ¶ 12; doc. 21, ¶ 6.) Thanks to a chronically leaking roof that defendants attempted to patch without success throughout 2014, defendants shut down the Hotel in late December 2014 or early January 2015. (Patel Aff., ¶¶ 5-7.) The Hotel has remained closed since that date, and no rooms have been rented. (Id., ¶ 5.) In a site visit on January 21, 2015, a Fidelity representative documented widespread water damage to the Hotel, including discolored and moldy ceiling tiles and walls. (Ridgway Aff. (doc. 13, Exh. A), ¶ 3 & Exh. A.) At present, the Hotel premises are locked at all times, and there is no electricity running to the property. (Patel Aff., ¶ 14.) No business is being conducted on the Hotel premises, the property is generating no income, and the Hotel has no employees. (Id., ¶¶ 12-13.) Defendants have moved personal property (such as furniture and equipment) subject to Fidelity's security interest to dry areas of the Hotel to protect it from damage. (Id., ¶ 7.) Patel, the owner of the Hotel, maintains that he has "done everything reasonably possible to protect the Hotel and personal property inside" at this time. (Id., ¶ 15.)
None of the foregoing facts imply that Key Hotels and Patel have abandoned the Hotel property. To the contrary, defendants' evidence is that Patel is engaged in ongoing discussions/ negotiations with nonparty Hilton about a potential franchise agreement that would transform the Hotel into a Hampton Inn. (Patel Aff., ¶ 8.) Patel expects Hilton to decide whether to approve his franchise application later this month; however, he is optimistic that approval will happen because Patel's family "operates other hotels in the Hilton group" and enjoys "a good relationship with Hilton." (Id. ) Also pending at this time is Patel's application to nonparties Trustmark Bank and Farmers' Exchange Bank for a $4.6 million loan to pay off the Fidelity loan and perform extensive renovations to the Hotel as part of the reflagging process for the potential new Hampton Inn franchise agreement. (Id., ¶ 9.) Defendants expect the loan approval process to take approximately 30 days from Hilton's approval of the Hampton Inn franchise agreement for the Hotel. (Id. ) Of course, if the Hilton franchise bid is rejected, then defendants' ability to obtain funding to pay off the Fidelity loan and renovate the Hotel would likely be compromised, as well. Defendants' evidentiary submission offers no answer to the "what if" question concerning Hilton franchise approval, and no Plan B in the event such approval is denied.
In lieu of allowing the franchise/loan process to play out to its anticipated conclusion over the next several weeks, Fidelity now petitions this Court for appointment of a receiver on an expedited basis. Fidelity's position is that upon appointment of a receiver, Fidelity "expects to act in conjunction with the Receiver to promptly seek a Court ordered sale of the Hotel under 28 U.S.C. §§ 2001 and 2002." (Doc. 23, ¶ 6.) It does not appear that Fidelity is interested in having the receiver manage, operate, preserve, modify or oversee the Hotel premises in any meaningful respect. In fact, plaintiff does not identify any role for the proposed receiver other than working under the supervision of this Court to effectuate the prompt, orderly liquidation of the Hotel property.
"A district court's appointment of a receiver... is an extraordinary equitable remedy." United States v. Bradley, 644 F.3d 1213, 1310 (11th Cir. 2011) (citation and internal quotation marks omitted); see also Canada Life Assur. Co. v. LaPeter, 563 F.3d 837, 844 (9th Cir. 2009) ("Under federal law, appointing a receiver is an extraordinary equitable remedy, which should be applied with caution.") (citation and internal quotation marks omitted). Federal appellate courts have observed that this remedy "should be employed with the utmost caution and is justified only where there is a clear necessity to protect a party's interest in property, legal and less drastic equitable remedies are inadequate, and the benefits of receivership outweigh the burdens on the affected parties." Netsphere, Inc. v. Baron, 703 F.3d 296, 305 (5th Cir. 2012); see also Rosen v. Siegel, 106 F.3d 28, 34 (2nd Cir. 1997) ("[T]he appointment of a receiver is considered to be an extraordinary remedy, and... should be employed cautiously and granted only when clearly necessary to protect plaintiff's interests in the property.") (citations omitted); Skirvin v. Mesta, 141 F.2d 668, 673 (10th Cir. 1944) ("A court should be cautious and circumspect in the exertion of the [receivership] remedy because perversion or abuse may work great hardship.").
Case authorities make clear that "the district court has broad discretion in appointing a receiver, that it may consider a host of relevant factors, and that no one factor is dispositive." Canada Life, 563 F.3d at 845. "[A]lthough no precise formula exists for determining when a court should resort to appointing a receiver, several factors should be considered: (1) whether fraudulent activity has or will occur, (2) the validity of the claim, (3) the danger that property will be lost or diminished in value, (4) inadequacy of legal remedies, (5) availability of less severe equitable remedy, and (6) the probability that a receiver may do more harm than good." Clough Marketing Services, Inc. v. Main Line Corp., 2007 WL 496739, *2 (N.D.Ga. Feb. 13, 2007) (citations omitted); see also PNC Bank, N.A. v. Presbyterian Retirement Corp., 2014 WL 6065778, *5 (S.D. Ala. Nov. 13, 2014) (reciting similar non-exhaustive list of factors, as well as considerations like "the balance of harms as between the party seeking appointment of a receiver and those opposing it" and "the possibility of irreparable injury to plaintiff's interest in the property"). Of course, "[t]here is no rote checklist' of mandatory factors or criteria to be applied; rather, federal courts weigh all relevant considerations." Presbyterian Retirement, 2014 WL 6065778, at *5 (footnote omitted).
As grounds for its Renewed Motion for Appointment of Receiver, Fidelity relies heavily on the physical condition of the Hotel, suggesting that it has "deteriorated so as to become largely untenable" and that defendants are incapable of "increasing revenues to cover the operational expenses of the Hotel and undertake the now substantial capital outlay necessary to restore the property." (Doc. 13, ¶ 6.) Fidelity advocates that a receiver be appointed immediately because "the Hotel property continues to decline in value with each passing rainfall." (Doc. 23, ¶ 4.) In Fidelity's view, "[e]very time the rains fall, the building and its contents become less valuable." (Id., ¶ 8.) Fidelity also expresses concern that "there is no guarantee that just because the Hotel is locked'... there will be no vandalism or other damage to the property." (Id. )
On the particular facts and circumstances presented here, the Court is not persuaded that the extraordinary equitable remedy of appointment of a receiver is appropriate. To be sure, Fidelity appears to have a compelling (and uncontested) claim that Key Hotels and Patel are in default under the applicable loan documents. Plaintiff has not shown, however, that there is a clear necessity for appointment of a receiver to protect its interest in the Hotel, that less drastic remedies are unavailable or inadequate, or that the benefits of receivership would outweigh its burdens. The Court will address each of these considerations in turn.
First, there is no doubt that the Hotel is in poor physical condition. Its roof has leaked for many months, causing considerable mold and water damage inside the Hotel. There may or may not be some marginal, incremental damage to the Hotel each time it rains, given the inadequacy of the property's roof; however, this will be so even if a receiver is appointed. Fidelity does not suggest that a receiver would oversee roof repairs or would otherwise do anything to improve the property's physical condition. Nor does Fidelity contravene defendants' showing that Patel is acting as a responsible property owner who has taken reasonable precautions to protect the Hotel from further waste and deterioration by (i) closing the Hotel, (ii) locking the Hotel, (iii) cutting off electricity to the Hotel, (iv) moving personal property (furniture, equipment, and so on) to lower, dry areas in the Hotel to protect it, (v) maintaining insurance coverage on the Hotel and its contents for fire and casualty damage, and (vi) otherwise taking all reasonably available measures to safeguard the Hotel and its contents. While plaintiff is sharply critical of what it deems defendants' past conduct to "waste the Hotel" (doc. 23, ¶ 3), the request for appointment of a receiver looks forward, not backward. Fidelity does not show that Patel is not acting diligently or responsibly today, much less that a receiver would do anything differently than Patel to preserve the collateral. Simply stated, the facts before the Court do not support a conclusion that appointment of a receiver to manage and oversee the Hotel is necessary to safeguard and protect Fidelity's interest in such property.
Second, defendants make the point (to which Fidelity does not respond) that Fidelity has other, less drastic remedies available to it. In particular, defendants point out that Fidelity holds a valid mortgage as to the Hotel and a security interest in its contents, and that Fidelity is therefore entitled to "foreclose at any time it chooses." (Doc. 21, ¶ 22.) Defendant has not attempted to show that its foreclosure rights as mortgagee of the Hotel and secured party as to the contents would be inadequate to protect its ...