Avoidance and Recovery
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Avoidance and Recovery
Avoidance and Recovery
One of the fundamental functions of any bankruptcy proceeding is the establishment of an amount and priority for each creditorâs claim against the debtor. A short, 5-page decisionÂ issued late last month by the Nebraska Bankruptcy Court in two related Chapter 11 cases (Biovance and Julien) serves as a reminder that although creditors are not permitted a âdouble recoveryâ on their claims, they are nevertheless permitted to assert the full value of their claims until those claims are paid in full.
Can a senior secured lender require, through an inter-creditor agreement, that a junior lender relinquish the juniorâs rights under the Bankruptcy Code vis ĂĄ vis a common debtor?
Though the practice is a common one, the answer to this question is not clear-cut.Â Bankruptcy Courts addressing this issue have come down on both sides, some holding âyea,â and others ânay.âÂ Late last year, the Massachusetts Bankruptcy Court sided with the ânaysâ in In re SW Boston Hotel Venture, LLC,Â 460 B.R. 38 (Bankr. D. Mass. 2011).
The decision (available here) acknowledges and cites case law on either side of the issue.Â It further highlights the reality that lenders employing the protective practice of an inter-creditor agreement as a âhedgeâ against the debtorâs potential future bankruptcy may not be as well-protected as they might otherwise believe.
In light of this uncertainty, do lenders have other means of protection?Â One suggested (but, as yet, untested) method is to take the senior lenderâs bankruptcy-related protections out of the agreement, and provide instead that in the event of the debtorâs filing, the juniorâs claim will be automatically assigned to the senior creditor, re-vesting in the junior creditor once the seniorâs claim has been paid in full.
Chapter 11 practice â like so many other professional service specialties â is regrettably jargon-laden.Â Businesses that need to get their financial affairs in order âenter restructuring.âÂ Those that must re-negotiate their debt obligations attempt to âde-leverage.âÂ And those facing resistance in doing so seek the aid of Bankruptcy Courts in âcramming downâ their plans over creditor opposition.
Likewise, the Bankruptcy Code â and, consequently, Bankruptcy Courts â employ what can seem an entirely separate vocabulary for describing the means by which a successful âcram-downâ is achieved.Â One such means involves providing the secured creditor with something which equals the value of its secured claim: If the secured creditor holds a security interest in the debtorâs apple, for example, the debtor may simply give the creditor the apple â or may even attempt to replace the creditorâs interest in the apple with a similarÂ interest in the debtorâs orange (provided, of course, that the orange is worth as much as the original apple).
The concept of replacing something of value belonging to a secured creditor with something else of equivalent value is known in âbankruptcy-eseâ as providing the creditor with the âindubitable equivalentâ of its claim â and it is a concept employed perhaps most frequently in cases involving real estate assets (though âindubitable equivalenceâ is not limited to interests in real estate).Â For this reason, plans employing this concept in the real estate context are sometimes referred to as âdirt for debtâ plans.
A recent bankruptcy decision out of Georgiaâs Northern District issued earlier this year illustrates the challenges of âdirt for debtâ reorganizations based on the concept of âindubitable equivalence.â
Green Hobson Riddle, Jr., a Georgia businessman, farmer, and real estate investor, sought protection in Chapter 11 after economic difficulties left him embroiled in litigation and unable to service his obligations.
Mr. Riddleâs proposed plan of reorganization, initially opposed by a number of his creditors, went through five iterations until only one objecting creditor â Northside Bank â remained.Â Northside Bank held a first-priority secured claim worth approximately $907,000 secured by approximately 36 acres of real property generally referred to as the âHighway 411/Dodd Blvd Property,â and a second-priority claim secured by a condominium unit generally referred to as the âHeritage Square Property.âÂ It also held a judgment lien recorded against Mr. Riddle in Floyd County, Georgia.
A key feature of Mr. Riddleâs plan involved freeing up the Heritage Square Property in order refinance one of his companies, thereby generating additional payments for his creditors.Â To do this, Mr. Riddle proposed to give Northside Bank his Highway 411/Dodd Blvd Property as the âindubitable equivalent,â and in satisfaction, of all of Northsideâs claims.
Northside Bank objected to this treatment, respectfully disagreeing with Mr. Riddleâs idea of âindubitable equivalence.âÂ Bankruptcy Judge Paul Bonapfel took evidence on the issue and â in a brief, 9-page decision â found that Mr. Riddle had the better end of the argument.
Judge Bonapfelâs decision highlights several key features of âindubitable equivalentâ plans:
–Â Â Â Â Â Â Â Â The importance of valuation.Â The real challenge of an âindubitable equivalenceâ plan is not its vocabulary.Â It is valuing the property which will be given to the creditor so as to demonstrate that value is âtoo evident to be doubted.âÂ As anyone familiar with valuation work is aware, this is far more easily said than done.Â Valuation becomes especially important where the debtor is proposing to give the creditor something less than all of the collateral securing the creditorâs claim, as Mr. Riddle did in his case.Â In such circumstances, the valuation must be very conservative â a consideration Judge Bonapfel and other courts recognized.
–Â Â Â Â Â Â Â The importance of evidentiary standards.Â Closely related to the idea of being âtoo evident to be doubtedâ is the question of what evidentiary standards apply to the valuation.Â Some courts have held that because the propertyâs value must be âtoo evident to be doubted,â the evidence of value must be âclear and convincingâ (the civil equivalent of âbeyond a reasonable doubtâ).Â More recent cases, however, weigh the âpreponderance of evidenceâ (i.e., does the evidence indicate something more than a 50% probability that the property is worth what itâs claimed to be?).Â As one court (confusingly) put it: âThe level of proof to show âindubitablyâ is not raised merely by the use of the word âindubitable.ââÂ Rather than require more or better evidence, many courts seem to focus instead on the conservative nature of the valuation and its assumptions.
–Â Â Â Â Â Â Â The importance of a legitimate reorganization purpose.Â Again, where a creditor is receiving something less than the entirety of its collateral as the âindubitable equivalentâ of its claim, it is up to the debtor to show that such treatment is for the good of all the creditors â and not merely to disadvantage the creditor in question.Â Judge Bonapfel put this issue front and center when he noted, in Mr. Riddleâs case:
In re Riddle, 444 B.R. 681, 686 (Bankr. N.D. Ga. 2011).
When a retailerÂ becomes insolvent, suppliers or vendors who have recently provided goods on credit typicallyÂ have the ability toÂ assert “reclamation” rights for the return of those goods.Â Retailers may respond to theseÂ rights by seeking the protection the federal bankruptcy laws – and, in particular, the automatic stay.
When a retailer files for bankruptcy while holding goods which are subject to creditors’ “reclamation” rights, what should “reclamation” creditors do?
The Bankruptcy Code itself provides some protection for “reclamation” creditors by providing such creditors additional time in which to assert their claims, and by affording administrative priority for a certain portionÂ for such claims even when they are not formally asserted.
But is merely asserting a reclamation claim under the Bankruptcy Code sufficient to protect a supplier once a retailer is in bankruptcy?Â A recent appellate decision from Virginia’s Eastern District serves as a reminder that merely speaking up about a reclamation claim isn’t enough.
When Circuit City sought bankruptcy protection in 2009, Paramount Home Entertainment was stuck with the tab for more than $11 million in goods.Â Though it didn’t object to blanket liens on Circuit City’s merchandise which came with the retailer’s debtor-in-possession financing, and stood by quietly while Circuit City laterÂ liquidated its merchandise througÂ a going-out-of-business sale, Paramount did file a timely reclamation demand as required by the Bankruptcy Code.Â It also complied with what it understood to be the Bankruptcy Court’s orders regarding administrative procedures for processing its reclamation claims in Circuit City’s case.Â It was therefore unpleasantly surprised when Circuit City objected to Paramount’s reclamation claim – and when the Bankruptcy Court sustained that objection – on the grounds that Paramount hadn’t done enough to establish or preserve its reclamation rights.
Paramount appealed the Bankruptcy Court’s ruling, claiming that it complied with what it understood to have been the Bankruptcy Court’s administrative procedures for processing reclamation claims.Â Â Paramount argued that to have done more (i.e., to have sought relief from the automatic stay to take back its goods or commenced litigation to preserve its rights to the proceeds of such goods) would have disrupted Circuit City’s bankruptcy case.
In affirming the Bankruptcy Court, US District Judge James Spencer held that the Bankruptcy Code, while protecting a creditor’s reclamation rights, doesn’t impose them on the debtor.Â Instead, a reclaiming creditor must take further steps consistent with the Bankruptcy Code and state law to preserve the remedies which reclamation claims afford.Â Merely asserting a reclamation claim under the Bankruptcy Code – or under a Bankruptcy Court’s administrative procedure – isn’t enough:
Let the seller beware.
Most insolvency practitioners are familiar with the fighting which often ensues when creditors jockey for position over a troubled firm’s capital structure.Â From Kansas, a recentÂ decision issued in February highlights the standards which apply to claims that a senior creditor’s claim ought to be “subordinated” to those of more junior creditors or equity-holders.
QuVIS, Inc. (“QuVIS”),Â a provider of digital motion imaging technology solutions in a number of industries, found itself the target of an involuntary Chapter 7 filing in 2oo9.Â The company converted its case to one under Chapter 11 and thereafter sought to reorganize its affairs.
QuVIS â debt was structured in an unusual way.Â When presented with some growth opportunities in the early 2000’s, the company issued secured notes under a credit agreement that capped its lending at $30,000,000.Â âInvestorsâ acquired these notes for cash and received a security interest, evidenced by a UCC-1 recorded in 2002.Â One of QuVIS’ “investors” was Seacoast Capital Partners II, L.P. (“Seacoast”), a Small Business Investment Company (âSBICâ) licensed by the United States Small Business Administration.Â Between 2005 and 2007, Seacoast lent approximately $4.25 million through a series of three separate promissory notes issued by QuVIS.Â In 2006, and consistent with the purposes of the Small Business Investment Act of 1958, under which licensed SBICs are expected to provide management support to the small business ventures in which they invest, Seacoast’s Managing Director, Eben S. Moulton (âMoultonâ), was designated as an outside director to QuVIS’ board.
In 2007, it came to Seacoast’s attention that, despite its belief to the contrary, a UCC-1 had never been filed on Seacoast’s behalf regarding its loans to QuVIS.Â Nor had the earlier (and now lapsed) UCC-1 filed regarding QuVIS’ other “investors” ever been modified to reflect Seacoast’s participation in the company’s loan structure.Â Seacoast immediately filed a UCC-1 on its own behalf in order to protect its position.Â Some time after QuVIS found itself in Chapter 11 in 2009, the Committee of Unsecured Creditors (and other, less alertÂ “investors”) sought to subordinate Seacoast’s position.
The Committee’s argument was based exclusively onÂ 11 U.S.C. Â§ 510(c), which provides, in pertinent part:
“Equitable” subordination is based on the idea of “inequitable” conduct –Â such asÂ fraud, illegality, or breach of fiduciary duties.Â Where an “insider” or a fiduciary of the debtor is the target of a subordination claim, however, the party seeking subordination need only show some unfair conduct, and a degree of culpability, on the part of the insider.
Seacoast sought summary judgment denying the subordination claim.Â In granting Seacoast’s request, Judge Nugent of the Kansas Bankruptcy Court distinguishedÂ Seacoast’sÂ Managing DirectorÂ from Seacoast, finding that though Moulton was indeed an “insider,” Seacoast was not.Â Â Therefore, Seacoast’s claim was not subject to subordination for any “unfair conduct” which might be attributable to Moulton.Â To that end, Judge Nugent also appeared to go to some lengths to demostrate that Mr. Moulton’s conduct was not in any way “unfair” or detrimental to the interests of other creditors.
Subordination claims are highly fact-specific.Â With this in mind, the facts of the QuVIS decisionÂ afford instructive reading for lenders whose lending arrangements may entitle them to designate one of the debtor’s directors.