[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 15, 2004
No. 03-12246 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 03-80076-CV-KLR
and 02-33876 BKC-SH
IN RE : STA TE S TRE ET H OUS ES, IN C.,
Debtor,
_________________________________________________
STA TE S TRE ET H OUS ES, IN C.,
Plaintiff- Appe llant.
versus
NEW YOR K ST ATE URB AN D EVE LOP MEN T CO RP.,
LAR RY S UTT ON, S TAT E ST REE T AS SOC IATE S, LP .,
Defendants-Ap pellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 15, 2004)
Before AN DERS ON, W ILSON and RON EY, Circuit Judges.
PER CURIAM:
State Street Houses, Inc. (“State Street”) appeals a Southern District of Florida
order affirming a decision of the bankruptcy court dismissing a Chapter 11 petition as
having been filed in bad faith. The facts and rationale for the d istrict court’s decision
are fully set forth in its order. We affirm for the reasons therein set forth.
The only point that nee ds com ment is an argum ent that tw o cases p revious ly
decided by this Court are not controlling because they have been modified by
subsequent legislation.
State Street, the debtor, is a New York Corporation and legal title holder of
Kennedy Plaza A partmen ts in Utica, New York, which is mortgaged to the appellees.
The district court held that the bankruptcy court correctly determined that the evidence
established the factors set forth f or a bad faith filing in In Re Phoenix Piccadilly, Ltd.,
849 F.2d 1393, 1394 (11th Cir. 1988) : (1) the d ebtor ha s only on e asset, the p roperty
at issue; (2) the debtor has few unsecured creditors whos e claims ar e relatively s mall
compared to the claims of the secured creditors; (3) the debtor has few employees;
(4) the prop erty is sub ject to a for eclosure action as a result of arrearages on the debt;
(5) the debtor’s financial problems essentially are a dispute between the debtor and the
secured creditors which can be re solved in the pending state court action; and (6) the
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timing of the de btor’s filin g eviden ces an inte nt to delay or frustr ate the legitim ate
efforts of the debtor’s secured creditors to enforce their rights. 849 F.2d at 1394-95.
See also In Re Albany Partners, Ltd., 749 F.2d 670, 674 (11th Cir. 1984). We find no
error in the district court’s decision. While the factors set forth in Phoen ix Piccad illy
are non-exhaustiv e and no t to be rigid ly applied , the district c ourt did not err in
following the guidelines set forth in Phoen ix Piccad illy and Albany Partners.
State Street argues, however, that the bad faith standard established in Phoen ix
Piccadilly and Albany Partners has been legislatively overruled by the Bankruptcy
Reform Act of 1994, which revised Sections 101 and 362(d) of the Bankruptcy Code
regarding single asset real estate cases. State Street finds support for this argu ment in
a few cases from the Bankruptcy Court of the Midd le District o f Florid a. In Re
Jackson ville Riverfront Development, Ltd., 215 B.R. 239, 243 (Bankr. M.D. Fla. 1997)
(“The application of the Phoen ix Piccad illy factors to the case at hand would no doubt
justify a finding of bad faith filing. The Court finds, however, that the law of Phoen ix
Piccad illy is no longer applicable in light of the Bankruptcy Reform Act of 1994, Pub.
L. No 103-294.”). A later case cited with approval the following quote from In Re
Jackson ville, “The application of the Phoenix Piccadilly factors to a single asset real
estate case produces a result that directly conflicts with Congressional intent.” In Re
Villamont-Oxford Associates Limited Partnership, 230 B.R. 457, 463 (Bankr. M.D.
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Fla. 1998). But in a later decision from the same court, faced with the argument that
“the considerations in Phoen ix Piccad illy are no longer applicable to assist in the
determination,” the court held that “[a] review of the development of ‘bad faith’ as
cause for dismissal leads quickly to the conclusion that § 362(d)(3) does not preempt
this body of law.” In Re Star Trust, 237 B.R. 827, 833 (Bankr. M.D. Fla. 1999). The
Star Trust case cited the throug hly reasoned case of In Re Midway Inv., Ltd., 187 B.R.
382, 388 (B ankr. S .D. Fla. 1995) (concluding that “the Bankruptcy Reform Act of 1994
does not limit the Phoen ix Piccad illy line of cases” in single asset cases).
In our judgment, the district court properly followed the line of cases holding that
the Phoen ix Piccad illy factors are appropriate guidelines for consideration when
evaluating whether a Chapter 11 petition in a single as set real estate case wa s filed in
bad faith. We therefore, in order to settle the dispute found in prior bankruptcy court
cases, hold that the guid elines set fo rth by this Court in In Re Phoenix Piccadilly, Ltd.,
849 F.2d 1393 (11th Cir. 1988) and In Re Albany Partners, Ltd., 749 F .2d 670 (11th
Cir. 1984) have not been modified by the Bankruptcy Reform Act of 1994.
The other argument made by appellants that the “Bankruptcy Court’s factual
findings, upon which it based its finding that Appellant’s Chapter 11 case should be
dismissed, were clearly erroneous, in that they purported to resolve disputed factual
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issues on the basis of disputed affidavits” is due to be rejected without discussion under
our Ru le 36-1. See 11th Cir. R. 36-1.
AFFIRMED.
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