A top New Canaan real estate agent who tried to use a reorganization bankruptcy to save about a dozen of her investment properties in Fairfield County, CT is close to losing her battle with her bankers. After three years of fighting upstream in Bridgeport, Conn. federal bankruptcy court, Judge Shiff ruled last month against Ruth Jones and ordered a forced liquidation auction on six of the properties including her luxury primary residence in New Canaan. The case shows how even local community banks are not willing to modify loans with long time customers who once had an established history of payment credit and earned these banks millions in fees.
The homes scheduled for a September 11th auction at the Bridgeport court house included her 7,500 square ft primary residence which is underwater and a water-front vacation home near Westerly, RI that she bought in 2006 with a $2 million loan. The auction also includes along two other million dollar homes once used for corporate rentals on Old Stamford Road in New Canaan and two smaller multi-family rentals. Recent appraisals show they are prime properties in good condition – homes vulture distressed investors or even banks with bidding credits would love to get their hands on.
In Jones’ case, actions by the judge and trustee show how one-sided a Fairfield County bankruptcy court can be when banks can afford to hire embedded lawyers too familiar with a judge and trustees who owe them favors for referral fees.
But Jones isn’t taking this laying down. In the last month she filed a grievance report with the State regarding the bank appointed Trustee, Richard Coan. It’s unclear how Coan, whose experience is in Chapter 7 bankruptcy with Hartford-based law firm Coan, Lewedon, Gulliver & Miltenberger, was chosen as a reorganization trustee. Legal filings show Judge Shiff appointed Coan in February 2011 after the banks wouldn’t come to the table to accept any of the modification plans submitted by Jones.
Judge Shiff also stripped Jones of control to manage payments from her debtor in possession account which has around $300,000 in it from income producing rentals tied to the bankruptcy. The Judge’s order also listed “unauthorized use of cash collateral” related to monies in a DIP account that Jones managed prior to the trustee appointment. Jones refutes there was any inappropriate use of bankruptcy funds because she says the money taken out was earned from another company’s tax return that is not in bankruptcy. Her bookkeeper explains she made an investment with the funds in hopes of earning money to help payoff her creditors; unfortunately that money was pooled into a court monitored DIP account. Jones also states she had advice from her lawyer to use the money this way but Judge Shiff apparently took a hard-line because he saw it as a use of dollars that wasn’t first approved by the court. It was another legal setback for Jones that shows how hard it’s been to run real estate deals when you are hamstrung by the cold view of an overcrowded bankruptcy court mired in cases of homeowners hoping to use bankruptcy as they struggle to recover from the financial crises.
How the DIP money has been handled is a big bone of contention with Jones. The court appointed trustee, Coan, has hundreds of thousand in DIP dollars that could be used to offer adequate payment protection for the half a dozen banks who hold Jones’ mortgages hostage. But since Coan took over, financial filings show, he didn’t use the adequate payment protection option to help Jones negotiate with her creditors. Nor has he answered questions why he won’t use it. In fact, Coan told me in an interview this week the banks thought he would just roll over and begin liquidating her homes when he took over 17 months ago. Coan said he recently submitted a plan designed by his law firm — not one of the three plans Jones had worked with an accountant to submit — but the banks had no interest in the modification terms and Jones didn‘t see any form of liquidation as a practical plan. As a result, Coan, the Trustee, took Jones negotiation legs out from under her and filed a liquidation plan that was approved by the court on July 18th.
Jones says there are also conflicts of interest between the Trustee and one of her creditors, USA Bank. The original attorney USA Bank hired, Jim Verrillo of Ziegler & Ziegler, pushed hard from the start to get these homes liquidated and find reason for a trustee to take over, according to Jones. A trustee his firm has a history of working with. The conflict is before Coan was ever appointed by the Judge, Jones had met with his partner Tim Miltenberger to discuss her case because she wanted to hire their firm to represent her. According to Jones, Miltenberger said he couldn’t take the case because the firm gets too much business for trustee referrals from Ziegler & Ziegler. When I asked Coan about this he said his partner was on vacation and he didn’t know if he’d met with Jones before. Coan also said the U.S. Department of Trustees is the governing body to appoint bankruptcy trustees but attorneys on the case can make a request for a specific local trustee. Coan who also hired an attorney from his firm to represent him in the bankruptcy has applied for repayments of around $70,000 in fees that would come out of Jones’ DIP account. Fees Jones is frustrated with because she feels they could have been used to pay some relief to her secured and unsecured creditors. Verrillo was eventually fired by the bank for ‘submitting bills that didn’t add up’ according to published reports on the failure of USA Bank.
The Trustee is also paying Jones’ bookkeeper, Elizabeth Santaus, weekly fees to pay bills associated to the rental properties under his care in bankruptcy. This is a function the Trustee could be doing on his own but isn‘t. Then Jones, through a management company she owns, gets $5,000 a month to manage the properties but has to clear all expenses through Coan. So far her bookkeeper says Coan has denied paying property tax on some of the New Canaan properties because he knows the debt will be wiped out in liquidation or passed on to a new buyer. Jones was originally getting $10,000 a month but her creditors went to Coan and demanded he cut the management fee. Coan explains technically the creditors have the right to request how the incoming cash collateral (rents) are used on the properties in a chapter eleven bankruptcy.
Coan’s hands off management of cash collateral has also led to some questionable mistakes made in court. One bank lender had Coan’s attorney show up in front of Judge Shiff and demand all the cash collateral in a rental property account. The previous month cash flow statement submitted by the bookkeeper showed $22,000 was in the account. But the Trustee didn’t check with Jones bookkeeper to learn if she had used funds that month to pay property taxes on the rental. So there was really only $5,000 in the account when the cash collateral request was made. The trustee’s attorney testified there was $22,000 in the account and Jones said her attorney, Peter Ressler, wasn’t allowed to show evidence to dispute it. She was held in contempt by Judge Shiff and ordered to come up with the extra funds to pay back to the cash collateral account.
Santous told me, “I thought that showed how detached the trustee is to what is happening monthly within the bankruptcy estate. What is he doing to earn his fees?”
Jones also has concerns about the actions from the bankruptcy judge who hasn’t allowed for Jones to move the case into chapter 7 which could stave off her primary home being auctioned. Court records show Judge Shiff said he thought the Chapter Eleven trustee could handle this case and it didn‘t need to move into chapter 7. Even Coan admitted these liquidation moves in a chapter eleven ,while not rare, is unusual. Unfortunately for Jones a legal process designed to reset the borrower and get them back paying is now being used as a quick fix to gut her liquid assets and get immediate cash for her secured creditors – the banks who pushed high risk loans on her during the last decade.
That’s not the only mishap Coan or the court made. After the judge ordered the six properties for auction last month Coan used an old list of creditors to mail out notice. An amended list of creditors had been filed with the court at least a year ago, which included unsecured creditors, but apparently the creditors mailing list he got from the court clerk wasn’t checked against all the filings. As a result of the legal mishap Jones could have some relief. There is a motion for stay filed by Jones attorney against the scheduled auction. All secured and unsecured creditors have to be notified about the disposal of assets. A hearing is scheduled to hear the Stay motion on August 28th.
Peter Ressler, Jones attorney, told me, “We determined the notice did not go to all the creditors and while Judge Shiff may not agree with the Stay we do believe he will be sensitive to the technical issues not followed.”
If Judge Shiff doesn’t grant the stay Ressler, with Hartford-based Groob, Ressler & Mulgueen, said he will ask the district to overrule the decision and grant a stay on Judge Shiff’s ruling while Jones continues to fight her case on appeal in district court. Steve Wright bankruptcy attorney for Harlow, Adams, & Friedman explained that in State court a stay would be automatically granted with an appeal filing but in Federal court it’s the opposite.
“Unless the district court is sure there is some financial protection for the creditors to not disadvantage them while the appeal is being litigated they also might not grant a stay,” says Wright. That financial protection usually comes in the form of the debtor, Jones, posting a supersedes bond (liquid assets or cash held in lieu), but her attorney Ressler thinks the rental income and money in the DIP account could act as that type of bond protection.
Jones had also recently filed for Judge Shiff to be removed from the case for bias. But bankruptcy attorneys who practice in Shiff’s court say that would be highly unlikely for a seasoned Judge like him to remove himself.
Too Many Banks, Too Many Loans
Jones, a self-made success with thirty years of real estate sales experience, began building up her rental investments during the real estate boom years of the last decade. She even got actively involved in the start-up of a new bank and pulled together about a million dollars through family and friends as a founding shareholder for a local lender called USA Bank. Liens filed in court against her homes show 1st and 2nd loans were readily handed out by the banks she’d been partners with for years but USA bank was the most aggressive about throwing money her way. Money calculated off bank ran appraisals that now put most of her homes underwater. Jones was a subject in an investigative story published by The Distress Debt Report and CTWatchdog.com last year after she came forward on the alleged fraud she saw at USA Bank run by Fred DeCaro Jr. and his son. Jones, who along with other USA Bank borrowers, was interviewed as a whistleblower by the FBI and the FDIC– after the bank was seized by the FDIC in 2010. That investigation into the bank’s board, their attorneys, and bank executives is still ongoing. Some USA Bank borrowers have been able to hold off foreclosure by the new the bank, Customers First, that picked up USA Bank loans for around 20 cents on the dollar, because of evidence presented in state courts (or arbitration) detailing miss-use of construction loan funds, false appraisals, or even the borrowers signature being forged on loan documents. But in federal bankruptcy court Jones says she hasn’t even been given the chance to have similar fraud claims heard or allowed to present witnesses.
As a result, liens by USA Bank filed in court make it seem that she got more cash than she really did for each home. That’s because USA Bank used an aggressive method of cross collateralization in her loans. Jones says she was unaware her primary residence at 75 Beacon Hill was used in a $1.4mn loan USA Bank did on another investment property of hers not in her personal bankruptcy. A property she’s alleged USA Bank committed fraud in.
“It’s apparent that USA Bank placed Ruth Jones into an “Adhesion Contract”. In other words, the bank placed Ruth Jones in a situation that gave the bank an extremely lopsided advantage if it ever came time to revisit the mortgages on these properties with potential modifications or foreclosure by placing mortgages on each property and then cross collateralizing them together with multiple mortgages,” says Steve Dibert president of MFI-Miami, a firm that audits mortgages for fraud for borrowers and their attorneys.
“It appears the bank wanted to have it both ways. They wanted the right to one mortgage on each property so if they foreclosed they would have a clear title if and when they sold the property post-foreclosure while at the same time being able to foreclose on the other properties in order to cure any of their losses. Doing a cross collateralization in this manner creates a priority issue for which mortgage has priority over the other. By doing the financing in this manner, the bank set Ruth Jones up to fail. In my opinion they took full advantage of her lack of knowledge of real estate investing and should have known that her business model had risks because of the volatility of the real estate market and volume of loans they were giving her,” says Dibert.
But Jones isn’t only fighting USA Bank. JP Morgan Chase, Bank of America, Greenwich Bank & Trust, Ridgefield Bank, Wachovia, and a private lender Devon Kay Capital are all holding secured claims against Jones in her chapter 11 proceeding. Her primary residence, a beautiful New Canaan mansion, was bought in the late 90’s with a loan by a local community bank called Ridgefield Bank. Her $1.5 million 1st loan was then changed to a $2 million loan in 2005 and based off an appraisal of $6 million she says Ridgefield did, they even gave her another $1.5 million home equity loan. Jones went into the financial crisis with $3.5 million in principal owed to Ridgefield Bank on her residence and the town of New Canaan appraised the home at $3.2 million in 2008. Since then large homes like Jones that need multi million loans aren’t selling so fast and local real estate agents interviewed for this story say she’d be lucky to sell for a current market value of $2 million based on the few comparable sales available.
Jones bookkeeper she says she paid on her Ridgefield home loan until she was advised to file chapter 11 in August 2009. After the bankruptcy filing Jones says her lender told her they wouldn’t negotiate a modification with her. So she stopped paying the mortgage while in bankruptcy — these are monies that would have been held in the DIP account now controlled by the Trustee. Bankruptcy attorney Steve Wright says, “That’s a risk of bankruptcy these days. Some banks don’t negotiate with borrowers because the modification terms would be made public in court filings.”
But why Ridgefield Bank, who did other real estate loans with her in the last decade and she referred business too, won’t come to the table and negotiate is still unanswered. Jones has written letters to their board after modification plans given to the bank’s attorney Mike Wrona, of Halloran & Sage LLP, fell on deaf ears.
“I have made attempts to negotiate with Ridgefield Bank’s counsel, Michael Wrona, on Multiple occasions, I have attached a copy of a written offer I sent to Atty. Wrona in February. I have not received any written response from Atty Wrona,” wrote Jones to Ridgefield’s chief credit officer Charles Balocca on April 19th 2011. “I am trying to make offers to gain approval of a workout plan by my creditors so I come out of bankruptcy: It has been a harrowing 18 months.”
Jones bookkeeper Santaus said in an interview this week, “I have worked these numbers for three years. The rental income could support her loans if there was some form of modification. It would also help if the Trustee worked to ensure her renters understood they still need to pay while in bankruptcy.” Financial worksheets filed in court show at the end of Q2 (May) the bankruptcy estate was earning near $30,000 in rental incomes but Santaus says they should be producing around $10,000 – $15,000 more than that and the Q2 worksheet shows around $40,000 of rents is more than 90 days over due.
Ridgefield Bank, through their attorney, would not comment for this story except to say they have followed all the legal proceedings correctly.
Legal proceedings is exactly what Ridgefield used instead of a little hometown care. They even got a court order to enter the house to do their appraisal after the auction was ordered instead of calling Jones to simply schedule a date. Emails seen by this reporter between the bank, Jones, and her attorney show the bank wouldn’t communicate with Jones when she called to get the number of people who would enter her home where she is a caregiver for two relatives with cancer and other immune-deficient diseases. Jones was trying to ensure there were enough gloves and masks for the bank’s appraisers. The emails show a frustrated Attorney Wrona claiming Jones said they’d have to come with a sheriff if they wanted to enter her home. Jones says Wrona misunderstood her and emails to Wrona show she wrote she was ready to open the home to them if they wore gloves and masks.
Even the Bank’s executive vice president chimed in about the tussle. Chuck Balocca wrote about Jones in an email seen by this reporter on July 23rd which he sent to Jones, her attorney, his attorney and the Trustee, “talk about twisting the truth but then nothing she does surprises me!!”
Ridgefield is apparently anticipating the auction of her home with hope of some short-term financial recovery side stepping the long-term financial benefits of getting interest payments off Jones for the next decade or so. Interest payment Jones keeps offering but no one at Ridgefield is interested in hearing.
Dibert, who Jones hired to audit some of her USA Bank loans says, “It looks like Ridgefield forgot Gordon Gecko’s first rule of investing. Don’t let emotions get in the way of making money.”
Dibert points out the $1.5 million second loan would move to an unsecured position and get wiped out if Jones was allowed to go to chapter seven — leaving only $2 million of secured principle they can collect from a sale. To top it off, with the bank getting the trustee to keep her in a chapter 11 the bank now has Jones’ estate paying the trustee to auction off her own home and avoids foreclosure cost.
“If comparable homes in New Canaan sold on the free market are only going for $2 million… what does the bank think they’ll get at auction?,” says Dibert. “It reads like they want to stick it to her.”
The bankruptcy trustee auctioning off six prime properties in one day has some New Canaan realtors worried about how that sets new market comparables for local home owners now trying to sell. Patrick McEvoy, a long time New Canaan realtor says, “The local market really loses when we have too many forced distressed home sales like this auction could produce. It doesn’t reflect what a free market would pay. The banks got plenty of bailout money from the taxpayer. It’s their turn to show the community they can work with borrowers like Jones who’s done millions in business with them and likely will continue to generate real estate sales in the future.”
But concerns about real estate recovery apparently aren’t the problem of a court appointed trustee. Coan has shown he thinks his job to get quick cash for the secured creditors. Jones was furious with Coan who went and spent near $17,000 out of the DIP account to pay for expensive ads listing each home in the coming auction — even after he knew an appeal and stay was filed. Ads began this Friday in three of Hearst CT Newspapers (Greenwich Time, CT Post, Stamford Advocate) and more have been pre-paid to run in the WSJ and New York Times. If the auction is put on hold it’s unclear if Coan will spend more of the DIP account to re-advertise a new auction date. He does get direction from the judge on where to advertise and has a fiduciary duty to creditors to print a legal auction notice in the local newspapers.
Jones now waits for the mercy of the court to stay the auction next month while she continues to do what she’s done so well for the last three decades – connect buyers and sellers. She still has her ability to earn outside of bankruptcy through selling homes via her real estate firm Ruth Jones Homes LLC.
“I get up and go to work to sell homes every day. I pray. I’m not giving up,” says Jones.
Ruth Jones Bankruptcy case in Connecticut federal court is: 09-51596. Legal filings can be found in PACER.
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