HomeMy WebLinkAboutBUCO, WILLIAM H V
he'filed
he
TOWN OF NORTH ANDOVER i,;OtjCe
C!
MASSACHUSETTS in the Office of the Town
Clerk. ----
BOARD
BOARD OF APPEALS
Petition of: * Petition # 48 - 87
*
William & Pamela Buco * DECISION
Lots 42 - 49 Saville St.
*
*
The Board of Appeals held a public hearing on March 10, 1987 on the application of
William and Pamela Buco requesting a variance from the requirements of Section 7,
Paragraph 7.3 and Table 2 of the Zoning ByLaws so as to permit relief from side
setback requirement of 30' to 20' . The following members were present and voting:
Frank Serio, Jr. , Chairman, Alfred Frizelle, Vice-chairman, William Sullivan,
Walter Soule and Raymond Vivenzio.
The hearing was advertised in the North Andover Citizen on February 19 and February
26, 1987 and all abutters were notified by regular mail.
The petitioner was represented by a representative of Coolidge Construction Co. who
stated that after they began constructing a dwelling for the petitioners they dis-
covered that a proposed room would be ten(10) feet beyond the side setback.
Upon a motion made by Mr. Sullivan and seconded by Mr. Vivenzio to grant the variance,
the vote was as follows: In favor, Mr. Sullivan and Mr. Vivenzio, opposed, Mr.
Frizelle, Mr. Soule and Mr. Serio. The motion did not carry and the variance is
DENIED.
The Board finds that the petitioner did not present sufficient evidence to show
that there was a hardship as set forth in Section 10, Paragraph 10.4 of the Zoning
ByLaw.
Dated this 19th day of March 1987
BOARD OF APPEALS
,-
Frank Serio, Jr.
Chairman
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J Mt 3a;�.
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Amy ap;�^�i 1 be filed
TOWN OF NORTH ANDOVER i r the
MASSACHUSET S Notice
c:at�
of
in the Office of the Town
SOARD OF APPEALS Clerk.
NOTICE OF DECISION
William & Pamela Buco
357 Raleigh Tavern Lane
87
North Andover, MA 01845 Date , , March 11, 19. .
Petition No.. . . 48-87. . . . . . . . . . . . .
Date of HBaring. . . . . . . .March. .1. .0,. .1987
Petition of . . . . . . . .William & Pamela Buco
Premises affected . . . , . Lots 42 49 Saville St.
Referring to the above petition for a variation from the requirements of the
Pa agraph. 7,3, .and.Table 2 of. the .Zoning BxLaw. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
no as to permit . . .sel e . .from. s.;de .serba.0 Af .34' . to. .20.. . . . . . . . . . . . . ...
. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . : : . . . . . . . . . . . . . . . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . ., . .
After a public hearing given an the above date, the Board of Appeals voted to . . . DENY. . . the
. .. variance. as .requested. . . . . . . . . AMIMM
. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Motion made by Mr. Sullivan and seconded by Mr. Vivenzio to GRANT the variance, vote
was in favor: Mr. Sullivan and Mr. Vivenzio, opposed Mr. Frizelle, Mr. Soule and Mr.
Serio. VARIANCE WAS DENIED
Motion did not carry. Signed
FraniC Brio. Jr. , Chairman
Alfred Frizelle, Vice-chairman.
William Sullivan
. . Walter. Soule.. . . . . . . . . . . . . . . . . . .
.Raymond,.Vlyenzio . . . . . . . . . .. . . .
Board of APpeate
Received by Town Clerk: WhQV'E 611Gc.•
I EB
TOWN OF NORTH ANDOVER, MASSACHUSETTS
BOARD OF APPEALS
APPLICATIONFOR RELIEF FROM THE REQUIREMENTS •OF THE ZONING ORDINANCE
Applicant� 1LJ � � U Addres
-- T to
1 . . Application is hereby made:
a.) For a variance from the requirements 'of Section Paragraph7•-3
and Table __of the Zoning By Laws .
b) For a- Special Permit under Section Paragraph of the ,Zoning
By Laws . --
c ) As a Party Aggrieved, for review of a decision made by the
Building Inspector or other authority.
. 2 . a ) Premises affected are land- and buildings ) numbered
— - ------- _-------Street . - -
b) Premises affected are property with frontage on the `North ( )
South ( ) East {V west ( ) s-ide of 54 Ile 5J'
Street , and known as No. Street .
c ) Pxemises affected are in Zoning District-, and the premises
affected have an area of ------square feet and frontage of
�S.i.�eet .
3. Ownership
a ) Name and address of owner- ( if joint ownership, give all names ) :
Date of Purchase _--�-Previous Owner l A//,�eylr
b) If applicant is not owner, check his/her interest in the premises
__Prospective. Purchaser Lesee other (explain)
4 Size of proposed bui.lding:' Qq� front,• l feet dee
" .Heights _stories ;_ p'' Meet . I P�'
a)' Approximate date of erections-5,orj�,<_ 15�-,7
b) Occupancy or use of each floor :
c )' Type of construction:
5 . Size of existing building: feet front; Meet deep;
Height__ stories; -feet .
a ) Approximate ,date of erection: - -, veh/I
b) Occupancy or use of each floor :
c) Type of, construction: �Vd P -�
\J6. Has there been a previous appeal , under zoning, on these premises?
If so, ween?__
'+ v 7 ' Description of relief sought on 'this petition
_reeLe�� JrP
1GFt114_ Z22 01 -Se L&_a.LL(, CdryP 1 i @n T -f 2-o r ,
8. Deed recorded in the Registry of Deeds .in Book ,:.? Page
Land Court Certificate No. Book Page
' The principal points upon which I base my application are as follows; `
(mfist be stated in detail ) ;
� ,rc�ne� 4 T / to Sy SPT.6cu/�
UI rc°ST.; %r c n .- oY
oT r vv�[lJr1�c
cz
Jl agree to pay the filing fee , advertising in newspaper , and incidental
expenses*
5ign-zEure of`PetItIo er s
Everyapplication f
pp or action. by the Board shall be rade on a form approved .
; . . by the Board . These forms shall be furnished by the Clerk .upon request.
. Any communication purporting to bean application shall. be treated as mere
notice of intention to seek relief until such time •as it is . made on the .
officiaL application form. All information called for by the form shall
be furnished by the applicant in the manner �hereinvprescribed .
Every application shall be submitted with a list' of '•"Parties In Interest" •
which list shall include .the petitioner, ;abutters , owners of land directly
opposite on any public or private street or way, and abutters to the
abutters ;within ' three hundred feet ( 300 ' ) of the property line of the '
. petitioner as they appear on the most recent applicable tax list,
notwithstanding that the land of any such owner is located in another city. '..
ity
•
or town, the Planning Board of the city or town, . and the Planning Board
every abutting city or town.
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s• *Every. application shall be submitted with an application charge cost in
the amount of $.25 . 00. In addition, the petitioner shall be responsible
for any and all costs involved in bringing the petition before the, Board. .r''
Such,. costs shall include mailing and publication, but are not necessarily, *y
limited to these.
Every application shall be submitted with a plan of land approved ''by the f
Board. , No petition will be brought before the Board unless said plan has
been submitted. Copies of the Board ' s requirements regarding plans are,
;.r attached hereto or are available. from the - Board of ,Appeals upon request.
�;. LIST OF PARTIES IN INTEREST
Name Address
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(use additional sheets if ' necessary)
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---- --- ---- - ----
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Oversized Maps on file with the Town
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ASOIAN & TULLY P.C.
ATTORNEYS AT LAW
12 ESSEX STREET
POST OFFICE BOX 39
ANDOVER, MASSACHUSETTS 01610
RICHARD G.AS OIAN ANDOVER f508/473-9100
MARK E.TULLY BOSTON (617) 9420932
ROBERT W. LAVOIE TELEFAX (508) 470-0618
AARON A.GI LMAN
ARTHUR J. McCABE, 11
ROBERT J.HUNDERTMARK
ANTHONY DELYANI October 16, 1991
NICHOLAS FORGIONE
PHILIP 0. POSNER
JOSEPH H. MURPHY
JAMES H. KRUMSIEK
Clerk
United States Bankruptcy Court
1101 Federal Office Building y
10 Causeway Street
Boston, Massachusetts 02222
Re: William S. Buco
Chapter 11
Case No . 91-17001-CJK
Dear Sir/Madam:
Enclosed for filing please find the Motion of Andover
Savings Bank For Relief From the Automatic Stay and For
Authority to Foreclose On Real Property, with Exhibits A-J
attached, a Memorandum in support of said Motion, a proposed
Order on the Motion of Andover Savings Bank For Relief From the
Automatic Stay, and a Certificate of Service regarding the
same. Also enclosed is the $60.00 filing fee.
Should you have any questions or concerns on any of the
above, please do not hesitate to contact me.
Very truly yours,
ASOIAN & TULLY P.C.
6J mes H. 4.),Krumsiek
JHK/kb
Enclosures
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tUNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
EASTERN DIVISION
IN RE )
CHAPTER 11
WILLIAM S. BUCO CASE NUMBER 91-17001-CJK
Debtor )
MOTION OF ANDOVER SAVINGS BANK
FOR RELIEF FROM THE AUTOMATIC STAY AND
FOR AUTHORITY TO FORECLOSE ON REAL PROPERTY
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.1 To the Honorable Carol J. Kenner, Bankruptcy Judge:
NOW COMES Andover Savings Bank by its attorney, Mark E.
Tully of the firm Asoian & Tully P.C. , 12 Essex Street, Andover,
` Massachusetts, and hereby moves this Court for the entry of an
I Order granting relief from the automatic stay of Section 362 of
# the Bankruptcy Code and for authority to foreclose on certain
{ real property of the Debtor known and numbered as 531-537
{
Chickering Road, North Andover, Essex County, Massachusetts for
{ the following reasons:
{ 1 . This Court has jurisdiction over this proceeding
pursuant to 28 U.S.C. , Section 1334(b) and this is a core
proceeding which the Court may hear and determine pursuant to 28 `
U.S.C. , Section 157(b) (2) (G) .
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2. Andover Savings Bank is a banking corporation duly{
organized under the laws of the Commonwealth of Massachusetts
with a principal place of business located at 61 Main Street, +
Andover, Essex County, Massachusetts (hereinafter referred to as
{
"Bank") .
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3 . William S. Buco is an individual with a principal
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address located at 465 Chestnut Street, North Andover, Essex
County, Massachusetts (hereinafter referred to as "Debtor") .
4 . On or about August 13, 1991, the Debtor filed a '
voluntary petition for relief under Chapter 11 of Title 11 of
{1 United States Code which invoked the automatic stay of §362.
5 . On or about July 28, 1987, the Debtor and Augustine T.
Walsh executed an Adjustable Rate Note in the original principal
amount of Six Hundred Thousand ($600,000.00) Dollars payable to
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i Bank. Said Note was secured by a Mortgage on the property
located at 531-537 Chickering Road, North Andover, Essex County,
Massachusetts duly filed as Document No. 43663 with the Essex
North District of the Land Court. Said property was owned by
the Debtor and Augustine Walsh as tenants in common. Said Note
and Mortgage are attached hereto collectively as Exhibit "A" .
6. In order to induce the Bank to loan the sum of One ',
Hundred Thousand ($100,000.00) Dollars to Buy N Fly, Inc. on
November 9, 1988, the Debtor executed an Unlimited Personal
Guaranty of all the then existing or thereafter arising ',
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obligations of Buy N Fly, Inc. owed to the Bank. A copy of the;
Promissory Note of Buy N Fly, Inc, and said Guaranty are'
attached hereto collectively as Exhibit "B" . l`
7. In order to induce the Bank to loan Fifty Thousand
($50, 000 .00) Dollars to Buy N Fly III, Inc. on November 9 , 1988,
the Debtor executed an Unlimited Personal Guaranty of all the!
then existing or thereafter arising obligations of Buy N Fly
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III, Inc. owed to the Bank. A copy of the Promissory Note of
'I Buy N Fly, III, Inc. and said Guaranty are attached hereto
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collectively as Exhibit "Cu .
8 . In order to induce the Bank to loan Fifty Thousand .
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j ($50, 000 .00) Dollars to Buy N Fly IV, Inc. on November 9, 1988, `
! the Debtor executed an Unlimited Personal Guaranty of all the
then existing or thereafter arising obligations of Buy N Fly IV,
Inc. owed to the Bank. A copy of the Promissory Note of Buy N
31 Fly IV, Inc. and said Guaranty are attached hereto collectively
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3 as Exhibit "D" .
9 . In order to induce Bank to loan One Hundred Thousand
1 ($100, 000.00) Dollars to Quic Pic, Inc. on November 9, 1988, the
Debtor executed an Unlimited Personal Guaranty of all of the
then existing or thereafter arising obligations of Quic Pic,
Inc. owed to the Bank. A copy of the Promissory Note of Quic
Pic, Inc. and said Guaranty are attached hereto as Exhibit "E" .
10. As security for the aforesaid Notes and Guarantees,
the Debtor and Augustine T. Walsh, granted the Bank a Mortgage
on the property located at 531-537 Chickering Road, North
Andover, Essex County, Massachusetts in the original principal ,,
amount of Three Hundred Thousand ($300,000. 00) Dollars on '.
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November 9, 1988. Said Mortgage was duly filed as Document No. ))!
46183 with the Essex North District of the Land Court. A copyl
of said Mortgage is attached hereto as Exhibit "F" .
11. On or about July 18, 1989, the Debtor and Augustine T.
Walsh executed a Promissory Note in the original principal ;
amount of Two Hundred Thousand ($200, 000. 00) Dollars payable to !
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the Bank. Said Note was secured by a Mortgage on the property
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located at 531-537 Chickering Road, North Andover, Essex County,
Massachusetts which was duly filed as Document No. 47312 with
the Essex North District of the Land Court. A copy of said Note
1 and Mortgage are attached hereto collectively as Exhibit "G" .
!; 12. On or about July 18, 19894r the Bank filed a
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Subordination Agreement which subordinated the Three Hundred
Thousand ($300,000.00) Dollar Mortgage executed by the Debtor
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and Augustine Walsh (Exhibit "F") to the Two Hundred Thousand
!! ($200,000. 00) Dollar Mortgage (Exhibit "G") executed by the
it Debtor and Augustine Walsh. Said Subordination Agreement was
filed as Document No. 47317 with the Essex North District of the
Land Court. Said Subordination Agreement is attached hereto as
3 Exhibit "H" .
13 . On February 26, 1990, Augustine Walsh transferred a
one fourth (1/4) interest in said property to Margaret and
Andrew Buco, husband and wife, as joint tenants. Said transfer .
was subject to all encumbrances- of record and was filed as '.
Document No. 10866 with the Essex North District of the Land
Court .
1
14 . On July 26, 1990, Augustine Walsh transferred all of
his remaining right, title and interest to said property to
William Buco, which transfer was filed on July 12, 1991 as
Document No. 50782 with the Essex North District of the Land
Court.
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15. Currently therefore, the Debtor is the record holder
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of a three fourths (3/4) interest in the property located at
531-537 Chickering Road, said property being fully subject to
I the aforesaid encumbrances in favor of Andover Savings Bank.
t 16 . As indicated by the Municipal Lien Certificate
attached hereto as Exhibit "I" , said property, as of July 19,
1991, had unpaid real estate taxes in the amount of Eight
Thousand Nine Hundred Thirty-One and 84/100 ($8,931.84) Dollars
plus interest and charges, . a sewer lien in the amount of Two
Thousand Two Hundred Nineteen and 90/100 ($2,219 .90) Dollars, a
water lien in the amount of Three Thousand Two and 05/100
($3, 002. 05) Dollars, and unpaid water rates and charges in the
�j amount of One Thousand Eight Hundred Eighty-Six and 40/100
f+ ($1, 886 .40) Dollars.
{ 17. Said property is also subject to an unpaid sewer lien
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recorded in Book 2291, Page 5 by the Town of North Andover in
the amount of Three Hundred Forty-One and 25/100 ($341.25)
Dollars and is further subject to an unpaid water lien also .
recorded by the Town of North Andover recorded in Book 2291,!
Page 34 in the Essex North Registry of Deeds.
18. In addition to the aforesaid encumbrances, as of July;
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15, 1991 the property located at 531-537 Chickering Road is ;
subject to a Mortgage granted to Albert H. Notini & Sons, Inc.
in the original principal amount of Two Hundred Eighty-Eight
Thousand Four Hundred One and 12/100 ($288,401.12) Dollars dated;
July 25, 1990, which was filed as Document No. 49189 with the `
Essex North District of the Land Court.
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19. As of October 4, 1991, the Debtor owed to the Bank
under the aforesaid Notes both individually and as guarantor,
the aggregate amount of Nine Hundred Sixty-Nine Thousand Nine
Hundred Fourteen and 84/100 ($969,914 .84) Dollars. Said sum
represents the total of the following:
Loan Number Borrower Payoff as of 10/4/91 Per Diem
39-2692Quic Pic, Inc. $ 52,432. 72 $ 12. 55
i 39-2693 Buy N Fly, Inc. $ 77, 136 .41 $ 17. 19
j 39-2694 Buy N Fly III, Inc. $ 35,965 . 81 $ 8 . 11
39-2695 Buy N Fly IV, Inc. $ 38, 661.92 $ 8 .59
39-3217 William Buco and
Augustine Walsh $153,729 .59 $ 33 .76
33 96-301618 William Buco and
Augustine Walsh $611,988.39 $152. 60
TOTALS: $969,914 . 84 $232.80
4
Interest continues to accrue at the aggregate rate of Two
Hundred Thirty'-Two and 80/100 ($232.80) Dollars per day, and the
Debtor is obligated to Bank for all continuing costs and
reasonable attorney's fees as allowed under the applicable Notes
and Mortgages.
20. As of October 30, 1990, the property securing the
Debtor ' s obligations to Bank locatd at '531-537 Chickering Road,
North Andover had an estimated fair market value of Nine Hundred `
Ninety-Five Thousand ($995,000.00) Dollars as evidenced by the
appraisal attached hereto as Exhibit "J" .
21. The Debtor's Petition indicates an estimated fair
market value of Six Hundred Fifty Thousand ($650,000.00) Dollars
such that using either valuation given the total amount of
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encumbrances on the property, the Debtor lacks any equity in thel
property.
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22. As a result of the continuing defaults of the Debtor
y� and the ongoing depreciation of the property, Andover Savings
Bank lacks adequate protection with regard to its collateral.
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23 . Additionally, as a result of the foregoing the Debtor
j lacks any equity in the property and said property is not
necessary for an effective reorganization as there is no
reasonable possibility of a successful reorganization within a
reasonable amount of time as required by United Savings
( Association of Texas v Timbers of Inwood Forest Associates
Limited, 484 U.S. 365 (1988) .
WHEREFORE, Andover Savings Bank prays for the entry of the
following orders :
I . A determination that as of October 4, 1991, the Debtor `
owed in the aggregate the sum of Nine Hundred
Sixty-Nine Thousand Nine Hundred Fourteen and 84/100
($969,914 .84) Dollars to Andover Savings Bank plus ;
III; continuing interest, costs and reasonable attorney' s
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fees as allowed under the applicable Notes and
Mortgages.
II . That Andover Savings Bank be granted relief from the
Automatic Stay and authorized to foreclose on the real ,
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property located at 531-537 Chickering Road, North
Andover, Essex County, Massachusetts, pursuant to thel
terms and conditions of its Mortgages.
III . In the alternative that the Debtor be ordered to make
adequate protection payments to Andover Savings Bank.
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IV. For such other and further relief as this Court deems
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just and proper.
ANDOVER SAVINGS BANK
By its Attorneys,
v�
Mark E. Tully
ASOIAN & TULLY P.C.
i, 12 Essex Street
P.O. Box 39
Andover, Massachusetts 01810
13 (508) 475-9100
BBO #03378
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5599P
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
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In Re: ) CHAPTER 11
CASE NO. 91-17001-CJK
WILLIAM S. BUCO, )
Debtor )
}
Due to the extreme volume of paper contained in Exhibits
A-J, they shall be furnished solely upon request.
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Ja es H. Krumsiek
A OZAN & TULLY P.C.
Essex Street
.0. Bog 39
Andover, Massachusetts 01810
(508) 475-9100
BMA #04143
5693P
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UNI
i TED STATES BANKRUPTCY COURT
fi DISTRICT OF MASSACHUSETTS
;,. EASTERN DIVISION
In Re: ) CHAPTER 11 N s Z rn�
WILLIAM S. BUCO, ) CASE NO. 91-17001-4E:JKX,"�r—<
Debtor
m
ORDER ON MOTION OF ANDOVER SAVINGS BANK FOR RELIEF
FROM THE AUTOMATIC STAY AND FOR AUTHORITY TO FORECLOSE
ON REAL PROPERTY
Upon the motion of Andover Savings Bank for relief from the
automatic stay and for authority to foreclose on real property,
after due notice, no objections having been filed, and for due
Icause shown, it is hereby;
ORDERED, that as of October 4, 1991, Andover Savings Bank
was due the sum of Nine Hundred Sixty Nine Thousand Nine Hundred
Fourteen and 84/100 ($969,914.84) Dollars with regard to its
mortgages on the property located at 531-537 Chickering Road,
North Andover, Essex County, Massachusetts, exclusive of
additional costs, interest and reasonable attorney's fees; and
ORDERED, that Andover Savings Bank is hereby granted relief;
from the automatic stay and authorized to foreclose on its ;;
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collateral, more particularly the property located at 531-537 !
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Chickering Road, North Andover, Essex County, Massachusetts; and
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fORDERED, that Andover Savings Bank is authorized to avail
itself of any and all rights and remedies available to it under
its applicable Notes and Mortgages, including the collection of
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any rents with respect to said properties.
j Dated:
Carol J. Kenner, Bankruptcy Judge
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
EASTERN DIVISION
IN RE• )
II ) CHAPTER 11
ii William S. BuCO, ) CASE NO. 91-17001-CJK
1� )
Debtor )
MEMORANDUM IN SUPPORT OF MOTION OF ANDOVER SAVINGS
BANK FOR RELIEF FROM THE AUTOMATIC STAY AND FOR
j AUTHORITY TO FORECLOSE ON REAL PROPERTY
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NOW COMES Andover Savings Bank, a secured creditor in the
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above-referenced bankruptcy proceeding, by its attorney, Mark E.
Tully, and respectfully submits the following Memorandum of Law .
in support of its Motion for Relief From the Automatic Stay and
For Authority to Foreclose.
Andover Savings Bank restates and incorporates by
reference, all pleadings, papers or other documents filed in
this proceeding, either with this Court or the United States
Trustees Office.
STATEMENT OF THE FACTS
On July 28, 1987, William S. Buco (hereinafter referred to
as "Debtor") and Augustine T. Walsh executed an Adjustable Rate
Note in the original principal amount of Six Hundred Thousand
($600,000. 00) Dollars payable to Andover Savings Bank. Said
Note was secured by a first mortgage on the property located at
531-537 Chickering Road, North Andover, Essex County, )
Massachusetts .
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In order to induce the Bank to loan the sum of Three
Hundred Thousand ($300,000.00) Dollars to certain corporations
l controlled by the Debtor, on November 9, 1988, the Debtor
IIf executed unlimited personal guarantees of all the then existing
'i or thereafter arising obligations of Buy N Fly, Inc. , Buy N Fly
III, Inc. , Buy N Fly IV, Inc. and Quic Pic, Inc. Said
Guarantees were secured by a second mortgage on the property
located at 531-537 Chickering Road, North Andover, Essex County,
Massachusetts in the original principal amount of Three Hundred
Thousand ($300, 000. 00) Dollars.
!� On July 18, 1989, the Debtor and Augustine T. Walsh
executed a Promissory Note in the original principal amount of
Two Hundred Thousand ($200,000.00) Dollars payable to Andover
r Savings Bank secured by a third mortgage on the property located
at 531-537 Chickering Road, North Andover, Essex County,
j Massachusetts. Also on July 18, 19890 the Bank filed a
Subordination Agreement which subordinated the Three Hundred
Thousand ($3000000.00) Dollar mortgage executed by the Debtor on '
l November 9, 1988 to the Two Hundred Thousand ($200,000.00) ;
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Dollar executed by the Debtor on July 18, 1989 .
Therefore, currently, Andover Savings Bank is the holder of
three (3) separate mortgages on the property located at 531-537
Chickering Road, North Andover, Essex County, Massachusetts in �
the aggregate original principal amount of One Million One
Hundred Thousand ($1, 100,000.00) Dollars.
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As a result of numerous defaults under the aforesaid
�i mortgages, Andover Savings Bank commenced foreclosure
i' proceedings with regard to the property located at 531-537
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Chickering Road, North Andover, Massachusetts. A public auction .'
of said
property was advertised and scheduled to be held on
j August 14, 1991 at 11:00 a.m.
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On August 13 , 1991, the Debtor filed a Voluntary Petition
for Relief under Chapter 11 of Title 11 of the United States
( Code which invoked the automatic stay of Section 362, forcing
j cancellation of the scheduled sale.
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i' Andover Savings Bank has filed herewith a Motion for Relief
From the Automatic Stay and For Authority to Foreclose on Real
{ Property in relation to the
property located at 531-537
Chickering Road, North Andover, Essex County, Massachusetts.
i� ARGUMENT
I . CAUSE EXISTS FOR RELIEF FROM THE AUTOMATIC STAY
PURSUANT TO SECTION 362(d) (2) OF THE BANKRUPTCY CODE.
Pursuant to Section 362(d) (2) , the automatic stay with
respect to acts against property shall be terminated, annulled
or modified if:
(a) The Debtor does not have any equity in such property; `
and
(b) Such property is not necessary to an effective
reorganization.
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If there is a finding that both of these criteria are met,
the operative word "shall" in §362(d) obligates the Bankruptcy
Court to grant relief to the party seeking such relief. Collier
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1 Bankruptcy Manual Section 362 06 (Third Edition)
Andover Savings Bank is the holder of three (3) separate
mortgages on the property located at 531-537 Chickering Road, '
North Andover, Essex County, Massachusetts . The aggregate
amount of debts secured by these mortgages to Andover Savings
Bank is, as of October 4, 1991, the sum of Nine Hundred Sixty-
Nine Thousand Nine Hundred Fourteen and 84/100 ($969,914 .84)
Dollars with continuing interest on these mortgages accruing at
the aggregate rate of Two Hundred Thirty-Two and 80/100
j ($232. 80) Dollars per day. In addition, the property is further
encumbered by a fourth mortgage in the original principal amount
of
of Two Hundred Eighty-Eight Thousand Four Hundred One and 12/100
{
($288,401. 12) Dollars and also by municipal liens in excess of ,
1i Eleven Thousand ($11,000.00) Dollars as of July, 1991.
i�
jj "Equity" has been defined as the difference between the ,
property value and the total amount of liens against it. =
Stewart v. Gurley, 745 F. 2d 1194, 11 C.B.C. 2d 435 (9th Cir. ';
1984) . The Debtor has listed the market value of this property1i
at Six Hundred Fifty Thousand ($650,000 .00) Dollars on Schedule ;
A to the Debtor 's Petition. Additionally, an appraisal
performed for Andover Savings Bank in October of 1990 found that #
the value of the property was Nine Hundred Ninety-Five Thousand '
1
1
-4- i
C 1
is
:j
($995, 000.00) Dollars. Therefore, given the amount of liens
i
against the property compared to either market value, it is
apparent Debtor lacks any equity in the property.
While the burden as to lack of Debtor's equity in the
property is upon Andover Savings Bank, the burden as to all
ti
1 other issues, including the necessity of the property for an
j
effective reorganization is upon the Debtor. 11 U.S.C. Section
( 362(8) (2) •
'i
For Debtor to meet its burden under §362(d) (2) (B) , a
;i
demonstration that the property is necessary for an effective
reorganization requires "not merely a showing, that if there is
conceivably to be an effective reorganization, this property
11
11 will be needed for it; but that the property is essential for an
j
effective reorganization that is in Prospect (emphasis in
I
original) . United Savings Association of Texas v. Timbers of
Inwood Forest Associates Limited, 484 U.S. 365, 376 ' (1988) .
Therefore, there must be a reasonable possibility of a
successful reorganization within a reasonable amount of time.
Id.
The property located at 531-537 Chickering Road is not
necessary for the Debtor's reorganization. There is in excess
of One Million Two Hundred Seventy Thousand ($1, 270,000.00)
Dollars owed on the property which has a market value betweent
$650 , 000 . 00 and $995, 000. 00. Using either valuation, Debtorf
will not be able to service debt such that a feasible plan of
reorganization could be proposed utilizing this property.
-5-
i
Debtor' s petition and schedules reflect that Debtor' s total
monthly gross income is Thirteen Thousand One Hundred Sixty-Sia
and 67/100
3, ($13, 166 . 67) Dollars with monthly expenses
;I
aggregating Five Thousand Six Hundred Forty-Two ($5, 642.00)
ij Dollars, which apparently does not include debt service to any
mortgagees other than the holder of the mortgage on Debtor' s
residence. In sum, Debtor 's net income available to pay real
estate taxes, insure the properties and service debt to Andover
Savings Bank and other secured creditors other than the
mortgagee of Debtor' s residence is Seven Thousand Five Hundred
j( Twenty-four and 67/100 ($7, 524 . 67) Dollars.
!� Given Debtor' s cash flow, there are insufficient amounts
I available to retain this property such that it is not necessary
for an effective reorganization, and in fact hinders Debtor' s
prospects for successfully reorganizing. In Re: L&M
Properties Inc... 102 B.R. 481 (B.Ct. E.D.Va 1989) (In order for
the Court to determine that there can be an effective
f
I reorganization of the Debtor ' s business, the Debtor must show '
the Court that the operation of the business would generate
sufficient income to pay debt service) .
It therefore does not appear that any effective ;
reorganization can be accomplished utilizing this property, and
even if it is conceivable that a reorganization could occur, iti
is not possible within a reasonable amount of time as required
under the ruling of Timbers, supra.
i
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i
I
For the foregoing reasons, Andover Savings Bank states that .
the criteria required in Section 362(d) (2) are present and that .
relief from stay is warranted as to the real property located at
P Y
531-537 Chickering Road, North Andover, Essex County,
Massachusetts .
i
if
; j
i
ii
ANDOVER SAVINGS BANK
By its Attorneys,
1
j Mark E. Tully
ASOIAN & TULLY P.C.
12 Essex Street
P.O. Bos 39
Andover, Massachusetts 01810
(508) 475-9100
ji BBO #03378
!' 5655P
i
t
11
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1
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;
I
• UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
In Re: ) CHAPTER 7
} CASE NO. 91-17001-CJK
WILLIAM S. BUCO, )
Debtor )
}
CERTIFICATE OF SERVICE ,
I. James H. Krumsiek, do hereby certify that on the
i day of October, 1991, I served a copy of the within Motion of
Andover Savings Bank For Relief From The Automatic Stay And For
i
Authority To Foreclose On Real Property, a Memorandum of Law in
i
j support of the same and the proposed Order upon the following
parties in interest:
Jason Rosenberg, Esquire,
Rosenberg & Kitaeff
Willows Professional Park
805 Turnpike Street, Suite 201
North Andover, Massachusetts 01845
i Office of the United States Trustee
I c/o Geraldine Brotherton
Federal Office Building
10 Causeway Street
Boston, Massachusetts 02222
District Director of Internal Revenue
Attention: Chief, Special Procedures Staff
P.O. Box 9106
Boston, Massachusetts 02203
The Commonwealth of Massachusetts
Department of Revenue
Legal Bureau-Bankruptcy Unit
215 First Street
P.O. Bog 7021
Cambridge, Massachusetts 02147
i
i
i
i
A.H. Notini & Sons
P.O. Boz 299
Lowell, Massachusetts 01853
Town Clerk
Town of North Andover
120 Main Street
North Andover, Massachusetts 01845
i
j�I
11 `
oJaes . Krumsiek
& TULLY P.G.
x Streetx 39
Andover, Massachusetts 01810
(508) 475-9100
BMA #04143
i
5692P
i
r
i
i
-2-
ASoIAN & TULLY P.C.
ATTORNEYS AT LAW
12 ESSEX STREET
POST OFFICE BOX 39
ANDOVER, MASSACHUSETTS 01810
RICHARD G.ASOIAN ANDOVER tbObl 475-9100
MARK E.TULLY BOSTON 16171 942.0932
ROBERT W.LAVOIE TELEFAX 1506) 4700618
AARON A.OILMAN
ARTHUR J.MCCASE. 11
ROBERT J. HUNDERTMARK
ANTHONY DELYANI October 21/ 1991
NICHOLAS FORGIONE
PHILIP B. POSNER
JOSEPH H.MURPHY .
JAMES H.KRUMSIEK `y
Clerk
United States Bankruptcy Court ?►
Thomas P. O'Neill Federal Building ^A s,
10 Causeway Street ,,;'"
Boston, MA 02222ac
��
x
RE: William S. Buco - Case No. 91-17001-CJK 4+
Dear Sir/Madam:
Enclosed for filing please find a Certificate of Service
regarding the above-entitled matter. Notice of the time for
filing objections has been duly given to the parties of interest
listed on the certificate of service.
Should you have questions or concerns on any of the above
please do not hesitate to contact me.
Very Truly Yours/
James H. Krumsiek
JJK/mg
Enclosure
2022K
UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
In Re: ) CHAPTER 11
CASE NO. 91-17001-CJK
WILLIAM S. BUCO, )
Debtor )
CERTIFICATE OF SERVICE
I, James H. Krumsiek, do hereby certify that on the
day of October, 1991, I served a copy of the attached Notice of
Objection Deadline upon the following parties in interest:
Jason Rosenberg, Esquire,
Rosenberg & Kitaeff
Willows Professional Park
805 Turnpike Street, Suite 201
North Andover, Massachusetts 01845
Office of the United States Trustee
c/o Geraldine Brotherton
Federal Office Building
10 Causeway Street
Boston, Massachusetts 02222
District Director of Internal Revenue
Attention: Chief, Special Procedures Staff
P.O. Bog 9106
Boston, Massachusetts 02203
The Commonwealth of Massachusetts
Department of Revenue
Legal Bureau-Bankruptcy Unit
215 First Street
P.O. Box 7021
Cambridge, Massachusetts 02147
A.H. Notini & Sons
P.O. Box 299
Lowell, Massachusetts 01853
Town Clerk
Town of North Andover
120 Main Street
North Andover, Massachusetts 01845
James H. Krumsiek
ASOIAN & TULLY P.C.
12 Essex Street
P.O. Box 39
Andover, Massachusetts 01810
(508) 475-9100
BMA #04143
5707P
-2-
United -States Bankruptcy Court
District of Massachusetts
Thomas P. O'Neill Federal Building
10 Causeway Street
Boston, Massachusetts 02222
Mark E. Tully
Asoian & Tully P.C.
12 Essex Street
P.O. Box 39
,Andover, MA 01810
-------------------------------------------------------
Bankruptcy Case No. 91-17001
Judge: Carol J. Kenner
Chapter Number: 11
In re: William S. Buco
Debtor(s)
-------------------------------------------------------
NOTICE
The Court will rule upon the following:
Motion By Creditor Andover Savings Bank To Lift Stay &
for Authority to Foreclose on Real Property. (Property
known as 531-537 Chickering Road, N. Andover, Mass. ) Cls.
Exhibits A-J.
Any OBJECTIONS must be filed by 10/30/91 at 4:00 P.M. If no objection
is timely filed, the Court may rule on the motion without a
hearing. If an objection is timely filed, the Court will
schedule a PRELIMINARY HEARING.
Date: 10/17/91 ROBERT L. BINGHAM
Clerk, U. S. Bankruptcy Court
BY: Gladys Kramer
Deputy Clerk
•
UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
IN RE: ) IN REORGANIZATION PROCEEDZUGg-im
UNDER CHAPTER 11
WILLIAM S. BUCO, ) CASE NO. 91-17001-CJK
Debtor. ) Cr-r-
.�/
OBJECTION OF DEBTOR TO MOTION OF ANDOVER SAVINGS BANK
FOR RELIEF FROM AUTOMATIC STAY AND FOR
AUTHORITY TO FORECLOSE ON REAL PROPERTY
William S. Buco ( "the Debtor" ) , by and through his
attorneys, hereby objects to the Motion of Andover Savings Bank
for Relief From the Automatic Stay and for Authority to
Foreclose on Real Property.
In support of this Objection, the Debtor responds as follows:
1 . The Debtor admits the allegations contained in
paragraphs 1, 3, 4, 51 61 71 81 9, 10, il, 12, 13, 14, and 15.
2. The Debtor is without information sufficient to form a
belief as to the truth or accuracy of the allegations contained
in paragraph 2.
3 . The Debtor admits the allegations contained in
paragraphs 16 and 17 to the extent that the subject property is
encumbered by unpaid real estate taxes, a sewer lien, a water
lien, unpaid water rates and charges, unpaid sewer lien and an
unpaid water lien. The Debtor reserves the right to verify the
dollar figures for the amounts in question relative to the taxes
and liens referenced in paragraphs 16 and 17 .
4 . The Debtor admits the allegations contained in
paragraph 19 to the extent that the Debtor owes to the Bank
certain funds under various Notes and as guarantor of certain
Notes. The Debtor reserves the right to verify the dollar
figure for the amounts of money allegedly owed Andover Savings
Bank ( "the Bank" ) .
5. The Debtor denies the allegations contained in
paragraph 18. It is the Debtor's opinion that the Albert H.
Notini & Sons, Inc. ( "Notini" ) mortgage is in excess of the fair
market value of the property. The Debtor proposes to put forth
a Plan of Reorganization which includes a "cram down" provision
which would create secured and unsecured balances owed to Notini
with respect to the subject real estate mortgage.
r
-2-
6. The Debtor denies the allegations contained in
paragraph 20. The Debtor disputes the estimated fair market
value of $995,000 . 00 attributed to the property by the Bank.
The Debtor further states that the appraisal relied upon by the
Bank is one ( 1) year old.
7. The Debtor admits the allegations contained in
Paragraph 21 that, in his Chapter 11 Schedules and Statements
filed with the Court, the Debtor listed the fair market value of
the property as $650,000. 00. The Debtor futher admits that the
Debtor lacks equity in this property.
8. The Debtor denies the allegations contained in
paragraph 22.
9. The Debtor admits the allegations contained in
paragraph 23 to the extent that the Debtor lacks any equity in
the property. The Debtor denies the remaining allegations
contained in paragraph 23.
10. The Debtor denies any allegations not specifically
admitted herein.
In further support of this Objection to the Motion by
Andover Savings Bank, the Debtor states the following:
1. The Debtor objects to the Bank' s request for relief
from stay, relative to the property, in that the Debtor filed a
Petition for Relief under Chapter 11 of the Bankruptcy Code on
August 13, 1991. The Bank subsequently filed its Motion for
Relief approximately sixty (60) days after the filing of the
Petition. Currently, the Debtor is in the process of discussing
a variety of possibilities for reorganization of his business.
Pursuant to these discussions, the Debtor has determined that
the operation of his business will generate sufficient income to
pay debt service on the property. The property which is the
subject of the Bank's Motion for Relief from Stay is income
producing property. The property contains seven (7 ) commercial
units and one residential unit. The Debtor proposes to put
forth a Plan of Reorganization which will include a "cram down"
provision which would create secured and unsecured balances owed
to the Bank with respect to the subject real estate mortgage.
The Bank, by prematurely filing this Motion, in effect,
precludes the Debtor an opportunity to propose his Plan within a
reasonable time period.
2 . The Debtor further states that he has offered to make
payments to the Bank in the amount of $4, 170.66 a month, plus
$$58. 00 to be applied to the real estate taxes on the property
for a total of $5, 128.66. In addition, the Debtor has offered
to pay the Bank $10,257.32 which represents two monthly mortgage
payments. The Debtor will continue to make monthly payments in
the amount of $5, 128 .66. Presently, the Debtor is uncertain as
to whether or not this offer is acceptable to the Bank.
-3-
WHEREFORE, William S. Buco respectfully requests that this
Court deny the Motion of Andover Savings Bank for Relief From
the Automatic Stay and For Authority to Foreclose on Real
Property and for such other relief as this Court deems just.
Respectfully submitted,
William S. Buco
By His Attorneys
ROSENBERG & KITAEFF
lo- 33 9/
Date Jaso osenberg (bma#01654)
805 Turnpike Street, Suite 91
N. Andover, MA 01845
Telephone: (508) 683-2479
t .
Anitei ostates�R=& qdq fdourt
�Bistrirt of Mazzac4uw tz
IN RE: .7. .BIlGO CASE NO. :
NOTICE OF HRARING
Re: Hearing on Motion for Relief by Ayc%sae min Jr
To:
.g54V s
�v. .p ,1
YOU ARE RESPONSIBLE FOR:
1. notifying all parties •sho have responded to the above mo Lon
that. the hearing will be held at Q/U0d a.m. on
, 1991, before the Honorable Carol J. Renner, United
States Bankruptcy Court, Courtroom #41 10 Causeway Street,
Boston, Massachusetts.
AND
3. filing your certificate of service with respect to such
notice FORTHWITH.
If you fail to file timely a certificate of service, the Court
may deny your motion without a hearing.
By:
�( ) 56 -6071
Date of Issuance: f W Ir
ANY REQUEST FORA CONTINUANCE !KIST BE AADS BY 11RITTEN )MrXON:
LOCAL ROM 35.
UNLESS THIS NOTICE INDICATES" OTHERWISE, THE HEARING SHAM BW
NOff-
EVIDEMIARY. LOCAL RULE 26.
UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
}
In Re: ) CHAPTER 11
CASE NO. 91-17001-CJK
WILLIAM S. BUCO, )
Debtor )
i CERTIFICATE OF SERVICE
�1
I, James H. Krumsiek,. do hereby certify that on the 4th day
of November, 19911 I served a copy of the attached Notice of
i
Hearing upon the following parties in interest:
E Jason Rosenberg, Esquire,
Rosenberg & Kitaeff
Willows Professional Park
805 Turnpike Street, Suite 201
North Andover, Massachusetts 01845
ii Office of the United States Trustee
f� c/o Geraldine Brotherton
Federal Office Building
�E 10 Causeway Street
I Boston, Massachusetts 02222
I District Director of Internal Revenue
Attention: Chief, Special Procedures Staff
P.O. Box 9106
Boston, Massachusetts 02203
The Commonwealth of Massachusetts
Department of Revenue
Legal Bureau-Bankruptcy Unit
215 First Street
P.O. Box 7021
Cambridge, Massachusetts 02147 ,�Q
f �CD
two znr--,
co �
i
1
I
A.H. Notini & Sons
P.O. Box 299
J Lowell, Massachusetts 01853
I� Town Clerk
Town of North Andover
j 120 Main Street
North Andover, Massachusetts 01845
n
1 /s/ James H. Krumsiek
James H. Krumsiek
fASOIAN & TULLY P.C.
12 Essex Street
P.O. Box 39
i�
Andover, Massachusetts 01810
(508) 475-9100
I. BMA #04143
5707P
i
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