In re AFCO Enters., Inc., 35 B.R. 512 (Bankr.D.Utah)
PUBLISHED
For a ten-month period prior to bank's foreclosure of the property, chapter 11 trustee operated debtor's principal asset, a resort. Trustee sought to recover his expenses of operating the resort under 11 U.S.C. § 506(c), and bank, which then owned the property by virtue of a foreclosure sale, objected, arguing that trustee's expenses were only allowed under § 506(c) when there is equity in the property. The court rejected bank's position, concluding that § 506(c) may apply in the absence of equity in the property. The court identified the elements of § 506(c) applicability as: (1) the costs and expenses sought must be reasonable and necessary; (2) they must have been incurred in preserving or disposing of the property; and (3) recovery is limited to the benefit that was provided to the secured lienholder. The court rejected bank's argument that a decrease in the property's assessed value establishes that no benefit was provided by trustee's operation of the business, finding that interpretation to be "too narrow." Based on the testimony of expert witnesses, the court found that trustee's operation of the resort preserved the property itself, as well as its value as a going concern, and that the benefit conferred was equal to trustee's claimed expenses. Pursuant to § 506(c), trustee was entitled to recover those expenses from the property, but trustee's claim was inferior to bank's superpriority lien for advancing operating expenses during the bankruptcy.