Inforuptcy Blog Archives July 2015

Business Bankruptcy Snapshot: Relativity Fashion, LLC

Declarationof Dr. Brian G. Kushner Pursuant to Rule 1007-2 of the Local Bankruptcy Rules for the Southern District of New York in Support of Chapter 11 Bankruptcy Petitions and First Day Pleadingsfiled by Craig A. Wolfe on behalf of Relativity Fashion, LLC. (Wolfe, Craig) (Entered: 07/30/2015)

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Understanding Credit Bidding in Bankruptcy Sales

Posted by Zev Shechtman, Esq., on July 25, 2015

Zev Shechtman, Esq.
Danning, Gill, Diamond & Kollitz, LLP
www.dgdk.com

INTRODUCTION
A creditor with a lien against property subject to a sale under the Bankruptcy Code generally is entitled to bid the value of its claim. This avenue for lenders to recover on their collateral may also be an opportunity for distressed asset investors. Looking for a market advantage, investors may seek to acquire loans and the associated liens with an eye toward foreclosure or the acquisition of the property outright through a section 363 sale. The credit bid is an attractive option to the purchaser who may have acquired the underlying loan rights at a steep discount. However, such a venture will not always be welcome by the trustee or debtor seeking to maximize the recovery from the sale of an estate asset.

THE STATUTE
11 U.S.C. § 363(k) provides as follows:

At a sale under subsection (b) of this section of property that is subject to a lien that secures an allowed claim, unless the court for cause orders otherwise the holder of such claim may bid at such sale, and, if the holder of such claim purchases such property, such holder may offset such claim against the purchase price of such property.

This provision warrants some unpacking. While the right to credit bid is an important right to creditors, this right is by no means absolute, as the bankruptcy court may “for cause” deny the right to credit bid.

THRESHOLD ISSUES
As a threshold matter, a party seeking to credit bid must have a valid secured claim. If the secured claim is subject to dispute at the time of the sale under section 363, the bankruptcy court may not allow the creditor to credit bid, or may allow the creditor to credit bid provisionally, requiring the creditor to pay in cash if the claim is reduced or the lien is invalidated.[1]

Another barrier to credit bidding is lien seniority. A junior lienholder may be barred from credit bidding where the collateral is so far underwater that the lien itself has no value.[2]

When such issues are overcome, there are yet other reasons, having more to do with the equities and the economics of the particular sale and case, that may constitute cause to deny the right to credit bid.

RadLAX
There is a line of cases in which the trustee or debtor-in-possession seeks to sell property without credit bidding. The most recent Supreme Court decision on the issue is RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065 (2012). The debtors in RadLAX purchased the Radisson Hotel at the Los Angeles International Airport in 2007. The debtors owed the bank $120 million when they filed for chapter 11 protection in 2009. The debtors proposed a chapter 11 plan which contemplated sale of the property, and which would require the bank to bid in cash. The bank objected. Turning to the “cramdown” provisions of section 1129(b), under which a debtor may confirm a plan over creditors’ objections, the Court determined that the denial of the right to credit bid was impermissible under the circumstances. Section 1129(b)(2)(A)(ii) provides:

For the purpose of this subsection, the condition that a plan be fair and equitable with respect to a class includes the following requirements:

    (A)With respect to a class of secured claims, the plan provides—…

        (ii) for the sale, subject to section 363…(k) of this title, of any property that is subject to the liens securing such claims, free and clear of such liens, with such liens to attach to the proceeds of such sale, and the treatment of such liens on proceeds under clause (i) or (iii) of this subparagraph.

The debtors argued that they need not satisfy 1129(b)(2)(A)(ii) because they satisfied 1129(b)(2)(A)(iii), which provides:

    (A)With respect to a class of secured claims, the plan provides—…

        (iii)for the realization by such holders of the indubitable equivalent of such claims.

The debtors reasoned that by paying the bank from sale proceeds, the debtors would be giving the bank the “indubitable equivalent” of its secured claim. The Court rejected this argument based on a basic canon of statutory interpretation—“that the specific governs the general.” Since (A)(ii) is specific to sales, it governs. In a footnote, the Court mentioned that that the bankruptcy court had found that there was no “cause” to deny credit bidding under section 363(k).[3]

“CAUSE” TO DENY THE RIGHT TO CREDIT BID
“Cause” to deny the right to credit bid is not defined in the Bankruptcy Code. Besides the circumstances concerning the validity or value of the lien addressed above, Courts have generally found “cause” to exist where denial is “in the interest of any policy advanced by the Code, such as to ensure the success of the reorganization or to foster a competitive bidding environment.”[4] A finding that a party has engaged in misconduct vis-à-vis the estate may be cause to deny the right to credit bid.[5] Beyond such examples, courts have found that the chilling of bidding can constitute cause.[6] The court in Fisker Automotive Holdings denied credit bidding because, under the circumstances, it determined that credit bidding would have made an auction essentially impossible.[7] These issues will be discussed at greater length in a future Inforuptcy blog post. It is sufficient for our purposes to conclude that, notwithstanding the generally accepted importance of the right to credit bid,[8] “cause” can be a fairly broad concept limiting, or eliminating, the right in many cases.

THE “FULL CREDIT BID”
As a final consideration in this overview, it must be noted that the concept of credit bidding is enshrined under nonbankruptcy law.[9] Under nonbankruptcy law, the “full credit bid” (that is an amount equal to the unpaid principal, interest and foreclosure expense) has the effect of extinguishing the creditor’s rights and remedies, including against guarantors and insurers. Thus, it should be exercised with caution.[10]

CONCLUSION
The credit bid in bankruptcy is a potentially powerful tool and valuable asset to creditors and distressed property investors. It must however be approached and exercised with knowledge of the potential pitfalls.

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[1] See, e.g., In re St. Croix Hotel Corp., 44 B.R. 277, 279 (Bankr. D.V.I. 1984).
[2] In re Valley Bldg. Supply, Inc., 39 B.R. 131, 133 (Bankr. D. Vt. 1984).
[3] RadLAX, 132 S. Ct. 2070 n. 3.
[4] In re Philadelphia Newspapers, LLC, 599 F.3d 298, 316 n. 14 (3d Cir. 2010), as amended (May 7, 2010).
[5] See e.g., In re Aloha Airlines, Inc., No. 08-00337, 2009 WL 1371950, at *8 (Bankr. D. Haw. May 14, 2009).
[6] See e.g., In re Antaeus Technical Servs., Inc., 345 B.R. 556, 564 (Bankr. W.D. Va. 2005).
[7] In re Fisker Auto. Holdings, Inc., 510 B.R. 55, 60 (Bankr. D. Del. 2014) leave to appeal denied, No. 14-CV-99, 2014 WL 546036 (D. Del. Feb. 7, 2014) and leave to appeal denied, No. 14-CV-99 (GMS), 2014 WL 576370 (D. Del. Feb. 12, 2014).
[8] In re The Free Lance-Star Publ'g Co. of Fredericksburg, VA, 512 B.R. 798, 804 (Bankr. E.D. Va.) appeal denied sub nom. DSP Acquisition, LLC v. Free Lance-Star Pub. Co. of Fredericksburg, VA, 512 B.R. 808 (E.D. Va. 2014).
[9] Cal. Civ. Code § 2924h(b) (“The present beneficiary of the deed of trust under foreclosure shall have the right to offset his or her bid or bids only to the extent of the total amount due the beneficiary including the trustee's fees and expenses.”).
[10] See In re Miller, 442 B.R. 621, 628 (Bankr. W.D. Mich.) aff'd, 459 B.R. 657 (B.A.P. 6th Cir. 2011) aff'd, 513 F. App'x 566 (6th Cir. 2013); In re Spillman Dev. Grp., Ltd., 401 B.R. 240, 253-54 (Bankr. W.D. Tex. 2009) subsequently aff'd, 710 F.3d 299 (5th Cir. 2013). 

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To use the only search tool to find bankruptcy asset sales across the country, you can sign up to our Maverick plan for $99 / month (cancel any time).

If you are a real estate investor interested in short sale leads from dismissed chapter 13 cases, you can sign up to our new reports plan for $49 / month (cancel any time).

If you prefer, you can also schedule a 15 minute web demo so you can see for yourself how to get started.

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You May Also Be Interested In:
The 363 Bankruptcy Sale Procedure – Broken Down and Simplified
Property of the Estate Under 11 U.S.C. § 541
The Automatic Stay
In Which District/Venue Should You Purchase the Asset?
Why U.S. Bankruptcy Acquisitions Make Good Sense For Foreign Investors
Overbid? What is that?
Is Your Bankruptcy Asset Purchase Lien Free? Why?
Buyer Beware! The Battle Between Sections 363(f) and 365(h) of the Bankruptcy Code
Stalking Horse Bidder – To Be or Not To Be
It Can Be Done: Case Studies of Successful Acquisitions Out of Bankruptcy by Foreign Investors
Why Every Buyer Should Always Seek 363(m) Protection in an Asset Purchase
When Purchasing Distressed Assets, Protect Yourself Against Possible Fraudulent Transfer Litigation
Strategies for Secured Creditors
Things to Remember when your Bankruptcy Sale includes Leases and Contracts
Three Elements For Foreign Investors
Sale of a Claim or Compromise of an Asset?
Dark Horse Bidding? Process. Valuation. Costs. Risks.
Carveouts in the Context of Bankruptcy Sales

Business Bankruptcy Snapshot: The Great Atlantic & Pacific Tea Company, Inc.

Declarationof Christopher W. McGarry Pursuant to Rule 1007-2 of the Local Bankruptcy Rules for the Southern District of New York(related document(s) 1) filed by Ray C Schrock on behalf of The Great Atlantic & Pacific Tea Company, Inc.. (Schrock, Ray) (Entered: 07/20/2015)

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Carveouts in the Context of Bankruptcy Sales

Posted by Zev Shechtman, Esq., on July 11, 2015

Zev Shechtman, Esq.
Danning, Gill, Diamond & Kollitz, LLP
www.dgdk.com

As a general rule, trustees do not sell underwater properties. If the property is fully encumbered by liens, there is no equity available to benefit the bankruptcy estate, and thus the trustee should not liquidate the property.[1] Like many good rules, this one has its exceptions. If selling the property will benefit the estate, and the lien holder consents to the sale, the property may be sold under 11 U.S.C. § 363. Enter the “carveout.” A carveout agreement, in this context, is one by which a lien holder subordinates its secured claim, thereby making it possible for the trustee to liquidate the asset.[2]

One prime example of this kind of carveout involves a secured claim holder whose lien is secured by overencumbered real property. Outside of bankruptcy, or if granted relief from the automatic stay pursuant to 11 U.S.C. § 362, such lien holder would seek to foreclose on the property. Instead of seeking relief from the automatic stay to then proceed with foreclosure under nonbankruptcy law, the lien holder negotiates a carveout agreement with the trustee thereby allowing the trustee to sell the property under 11 U.S.C. § 363, amounting to a shortsale of the property. The specific terms can be negotiated, but whether they involve payment of a sum certain to the estate or payment in full of administrative expenses with a dividend to unsecured creditors, the basic concept is that funds that would otherwise need to be paid to the secured creditor will instead be paid to the estate by virtue of the carveout agreement.

A challenge to such an arrangement may arise when the debtor claims an exemption in the proceeds of the sale. State exemption laws, incorporated in the Bankruptcy Code by 11 U.S.C. § 522, exempt from property of the estate certain property, including equity in real property, subject to dollar limitations.[3] Several courts have opined on whether the debtor’s exemption applies to funds generated from a lien holder’s carveout for the sale of property. The apparent majority of cases have ruled that the debtor’s exemption does not attach to such proceeds which inure to the estate by virtue of the secured lender’s carveout.[4] The secured lender, it is reasoned, can distribute the proceeds subject to its lien as it deems fit, including by transferring such carveout funds to the bankruptcy estate. In re Wilson, a Central District of California Bankruptcy Court case, appears to be an outlier, ruling that it makes no difference that the funds collected by the trustee amount to a “tip” from the secured lender—the proceeds of the sale constitute property subject to the debtor’s homestead exemption.[5] However, in light of the weight of cases contrary to Wilson, carveouts are sure to remain a fixture in bankruptcy estate liquidations, whether they are of the debtor’s homestead or of investment properties that would not be subject to the debtor’s exemption.

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[1] In re KVN Corp., Inc., 514 B.R. 1, 5 (B.A.P. 9th Cir. 2014) (“It is universally recognized… that the sale of a fully encumbered asset is generally prohibited.”)
[2] Carveouts are also common in the context of cash collateral and debtor in possession financing in chapter 11 cases. See generally Richard B. Levin, Almost All You Ever Wanted to Know About Carveout, 76 Am. Bankr. L.J. 445 (2002).
[3] In California, the applicable statute is Code of Civil Procedure § 704.730, and the dollar limit ranges from $75,000-$175,000 depending on age, whether the debtor is single or lives in the property with her family and disability, among other factors.
[4] See, In re Diener, No. 11-83085-MHM, 2015 WL 4086154 (Bankr. N.D. Ga. July 1, 2015) (collecting cases, and finding Law v. Siegel, 135 S.Ct. 1188 (2014) inapposite); see also In re Bunn-Rodemann, 491 B.R. 132 (Bankr. E.D. Cal. 2013).
[5] See, In re Wilson, 494 B.R. 502 (Bankr. C.D. Cal. 2013).

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To use the only search tool to find bankruptcy asset sales across the country, you can sign up to our Maverick plan for $99 / month (cancel any time).

If you are a real estate investor interested in short sale leads from dismissed chapter 13 cases, you can sign up to our new reports plan for $49 / month (cancel any time).

If you prefer, you can also schedule a 15 minute web demo so you can see for yourself how to get started.

Schedule a Demo

__________________________________

You May Also Be Interested In:
The 363 Bankruptcy Sale Procedure – Broken Down and Simplified
Property of the Estate Under 11 U.S.C. § 541
The Automatic Stay
In Which District/Venue Should You Purchase the Asset?
Why U.S. Bankruptcy Acquisitions Make Good Sense For Foreign Investors
Overbid? What is that?
Is Your Bankruptcy Asset Purchase Lien Free? Why?
Buyer Beware! The Battle Between Sections 363(f) and 365(h) of the Bankruptcy Code
Stalking Horse Bidder – To Be or Not To Be
It Can Be Done: Case Studies of Successful Acquisitions Out of Bankruptcy by Foreign Investors
Why Every Buyer Should Always Seek 363(m) Protection in an Asset Purchase
When Purchasing Distressed Assets, Protect Yourself Against Possible Fraudulent Transfer Litigation
Strategies for Secured Creditors
Things to Remember when your Bankruptcy Sale includes Leases and Contracts
Three Elements For Foreign Investors
Sale of a Claim or Compromise of an Asset?
Dark Horse Bidding? Process. Valuation. Costs. Risks.