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Posted by Jonathan Brand on April 17th, 2014 in Bankruptcy Sales, Business Bankruptcy, Chapter 11, Chapter 7 Trustee, 363 Sales, bankruptcy litigation, Chapter 11, Credit Bidding, Fisker, Free Lance-Star, litigation, Philadelphia Newspapers, Radlax
On April 14, 2014, the Bankruptcy Court for the Eastern District of Virginia issued an opinion limiting the credit bid of a party asserting that it held senior secured position in all assets of the debtors. In re The Free Lance-Star Publishing Co. of Fredericksburg, VA, et al., Case No. 14-30315-KRH (Bankr. E.D.Va. April 14, 2014). The Free Lance-Star opinion coupled with the Bankruptcy Court for the District of Delaware’s opinion in In re Fisker Automotive, Inc. et al., Case No. 13-13087-KG (Bankr. D.Del. January 17, 2014) should be viewed as instructive for chapter 11 debtors, creditor committees, and aggressive lenders seeking to employ a loan-to-own strategy through a quick section 363 sale process.
In 2012, the Supreme Court in Radlax Gateway Hotel, LLC v. Amalgamated Bank, 132 S.Ct. 2065 (2012) clarified that the holder of a senior secured debt may credit bid in a chapter 11 plan auction. However, Free Lance-Star and Fisker demonstrate footnote 14 from In re Philadelphia Newspapers survives. Footnote 14 of Philadelphia Newspapers provides, in relevant part, “A court may deny a lender the right to credit bid 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. See, e.g., 3 Collier on Bankruptcy 363.09 (“the Court might [deny credit bidding] if permitting the lienholder to bid would chill the bidding process.”).” In re Philadelphia Newspapers, 599 F.3d 298, 316 fn. 14 (3d Cir. 2010)(emphasis added).
While Fisker is an opinion limited to the facts of the case, the arguments raised by the Committee may be instructive – in the right situations – to frustrate, limit or deny a secured creditor’s attempt to credit bid. In Fisker, the debtor sought to sell the debtor’s assets through a private sale in connection with the secured party providing a $75 million credit bid. The debtor and committee presented a set of stipulations related to, among other issues, the committee’s motion to limit the secured creditor’s right to credit bid. The stipulations served as the factual basis for the court’s decision to limit the secured creditor’s credit bid. Therein, the competing bidder provided that it would not participate in an auction if the secured creditor was allowed to bid more than $25 million, or the purchase price of the DOE loan. As a result of the unresolved issues as to the validity of the debt buyer’s lien, and no bidding would take place unless the credit bid was capped, the court found ‘cause’ under section 363(k). The debt buyer’s bid was capped at $25 million. The debt buyer’s attempt to appeal the court’s decision were futile. As a result, a public auction went forward and the competing bidder purchased the debtor’s assets for $149.2 million. The unsecured creditors went from receiving approximately $500,000 under the debt buyer’s original credit bid, to potentially receiving approximately $35 million under a proposed settlement post-auction sale.
Fisker’s result and reasoning may be clear, however, the manner in which the court determined the amount to limit the credit bid is open to discussion. It must be assumed that the stipulations drove the court’s decision. This gives rise to a different issue: If the facts justify limiting a secured party’s right to credit bid, how should a court determine the appropriate amount of the credit bid?
The Free Lance-Star case may provide an answer. In Free Lance-Star, the debtor was a family-owned publishing, newspaper, radio and communications company. After securing a $50 million loan from Branch Banking and Trust (BB&T), the company fell on hard times. The loan was secured by certain assets of the Debtor. However, it was not secured by the debtor’s “tower assets” associated with the debtor’s radio broadcasting operations.
Eventually, BB&T sold its loan to Sandton Capital Partners (“Sandton”) in late June 2013. Sandton wanted to push the debtor through a chapter 11 case and sell substantially all the assets to a related entity of Sandton, DSP Acquisition LLC (“DSP”). DSP took certain actions pre-petition which put the scope of DSP’s security interest at issue, and lead to the debtor seeking to limit DSP’s credit bid under §363(k). The debtor, similar to Fisker, sought to limit DSP’s credit bid on the grounds that the validity and scope of DSP’s lien was at issue, DSP engaged in inequitable conduct, and limiting the credit bid would foster a robust bidding process.
At the combined evidentiary hearing on the debtors’ motion to limit credit bidding and cross-motions for summary judgment filed in an adversary proceeding seeking a determination as to the extent, and validity of DSP’s lien, the court determined DSP acted improperly and ‘cause’ existed to limit DSP’s credit bid. The court asked for testimony from DSP as to how much Sandton paid for the BB&T loan. No such testimony was provided. Typically, a debt buyer considers this information confidential. It was only known in Fisker because the debt buyer purchased a Department of Energy loan at a public auction a month prior to the filing of the Fisker case. The court, having determined that DSP acted improperly and did not have a valid perfected security interest in all of the debtors’ assets, found ‘cause’ pursuant to section 363(k) to limit the debt buyer’s credit bid.
Without any evidence being offered by DSP, the court requested that the debtors’ expert witness provide testimony on the best procedure for fashioning a competitive auction sale and credit bid price. Here, the debtor’s expert eliminated the unencumbered assets (as determined by the court) and applied a market analysis to develop an appropriate cap for the credit bid. The court accepted this approach and limited DSP’s credit bid of approximately $38 million to $13.9 million. DSP has filed an appeal.
Depending on the outcome of the appeal, employing a market analysis in connection with determining what amount a credit bid should be limited in order to generate a competitive environment for an auction is a novel, creative approach. This approach may lay the ground work for other courts to employ such a valuation method to reduce a credit bid where the facts justify limiting a secured party’s right to credit bid. No matter the outcome of DSP’s appeal, Fisker and Free Lance-Star demonstrate that debtors and committees have grounds to challenge a credit bid, especially where the validity of a secured party’s lien is questioned. Holders of secured debt, whether debt buyers or the loan originators, should evaluate their lien rights and develop options in advance of a chapter 11 filing when using a credit bid in a loan-to-own strategy in a section 363 sale process.
America is still a magnet to people from all over the world. People come to America both legally and illegally. Chicagoland has one of the broadest immigrant and first-generation populations in America. Chicago is also a magnet for many corporations with international headquarters. Many corporations and individuals find their way to Chicago from Mexico, China, Puerto Rico, Ukraine, and Poland, just to mention a few. Unfortunately, some fall on hard financial times. The individual or company then confronts a few difficult questions. Does a bankruptcy case need to be filed? Where can the case be filed? What assets, if any, are protected from creditors? These questions lead to another important question, can a non-U.S. Citizen file bankruptcy in the United States? Bankruptcy, and the rights and protections provided for in the Bankruptcy Code, are a part of a citizen’s Constitutional rights. Article I, Section 8, Clause 4 of the Constitution of the United States provides “The Congress shall have Power To . . . establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . .”
Fortunately, unauthorized immigrants and legal non-U.S. Citizen residents can access this important Constitutional right. According to section 109 of the Bankruptcy Code, “only a person that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debtor under this title.” A debtor is not defined by their immigration or citizenship status. Despite the clarity of this section of the Bankruptcy Code, this area of Bankruptcy law is difficult to fully comprehend. You will need to consult a bankruptcy attorney to fully understand the impact a bankruptcy filing will have on your assets and liabilities. If you live in Chicago, but do not have a green card or worker’s visa, you can still be eligible for bankruptcy protection in Chicago.
Many non-U.S. Citizens can take advantage of Chapter 15 to the Bankruptcy Code. Chapter 15 assists debtors with assets and liabilities in multiple countries to file a main bankruptcy case in one country (e.g., the country of their residence) and then initiate ancillary proceedings in other countries where the debtor has assets. Chapter 15 of the Bankruptcy Code and the European Union’s Regulation on Insolvency are based in large part on the Model Law on Cross-Border Insolvency issued by United Nations Commission on International Trade Law (UNICTRAL). Many countries around the world have endorsed or entered laws or regulations identical to, or substantially similar to the Model Law. If you are a citizen of one of the countries that has adopted or endorsed the UNICTRAL’s Model Law, you will have an easier time identifying and forcing your creditors to recognize and accept your international bankruptcy filing.
On January 15, 2014, the Seventh Circuit Court of Appeals held that a party, who is not a creditor and did not elect to bid at an auction sale, does not have standing to contest the approval of the sale. In re New Energy Corp., Case No. 13-2501 (Seventh Cir. January 15, 2014). New Energy Corp. (“Debtor”) operated an ethanol plant in South Bend, Indiana. After filing chapter 11 under the Bankruptcy Code, the Debtor proposed to sell most of its assets through a public auction. In order to post a bid and participate in the auction, a potential purchaser was required to post a bond of $250,000. The auction was held on January 31, 2013 and the winning bid of $2.5 million came from a joint venture of Maynards Industries (1991) Inc. and Biditup Auctions Worldwide, Inc. The Debtor, along with the U.S. Trustee’s Office, on behalf of the Debtor’s creditors, and the Department of Energy (the largest single creditor), asked the bankruptcy court to confirm the sale.
Natural Chem Holdings, (“Natural Chem”), was not a creditor and did not post the bond per the Debtor’s bid procedures. Natural Chem opted to not post a bond because, under the terms of the auction, if it had been the high bidder and not come up with at least $3 million as soon as the sale was approved, the bond would have been forfeited as partial compensation for the creditors’ losses from delay and the need to re-run the auction. Natural Chem opposed confirmation of the sale, as it wanted to lease the plant for a year with an option to buy it for $4 million or more. Natural Chem’s proposal was incompatible with the cash-up-front structure of the proposed auction.
Natural Chem asserted the joint venture amounted to collusion between bidders that spoiled the true nature of the auction sale process. The bankruptcy court overruled Natural Chem’s objection. Natural Chem did not seek a stay in the bankruptcy court, so the sale closed. On appeal to the district court, Natural Chem argued, pursuant to section 363(n) of the Bankruptcy Code, that “the sale price was controlled by an agreement among potential bidders at a sale.”
This is a serious allegation. Section 363(n) provides that there must be an agreement, among potential bidders, that controlled the price at bidding. Boyer v. Gildea, 475 B.R. 657, 662 (N.D. Ind. 2012). If collusion is found a sale may be avoided, or the Debtor (or party brining the motion) may recover consequential damages, costs, attorneys’ fees and punitive damages. 11 U.S.C. §363(n). Also, the parties found liable for collusion could also be criminally prosecuted under certain provisions of title 18 of the U.S. Code. Id.
The district court affirmed the bankruptcy court, and provided that only the trustee can assert an objection to an auction sale premised upon section 363(n). Section 363(n) specifically states that a “trustee” has the power to void a §363(b) sale. Natural Chem then filed an appeal to the Seventh Circuit.
The Seventh Circuit upheld the bankruptcy court’s determination. Here, Natural Chem did not preserve its right to object. Further, it confused why collusion among bidders is forbidden. Judge Easterbrook provides, “collusion is a form of monopsony that depresses the price realized at auctions.” Collusion by two bidders would have depressed the price at auction, and made Natural Chem’s offer more attractive – assuming it posted a bond. Simply, a reduction in the high bid would have harmed the Debtor’s creditors, not Natural Chem. This is the trustee (or potentially a creditors’ committee) would be correct party to protest a collusive sale.
Even if Natural Chem had standing to assert collusion under section 363(n), the agreement, or joint venture, between the bidders weighed against a finding of collusion. As with In re Edwards, 228 B.R. 552 (Bankr. E.D. Pa. 1998), the motivation of the collaborating parties is not always to control the price, but rather, can be an attempt to obtain a favorable settlement agreement. In this regard, the Seventh Circuit noted that “joint ventures have the potential to improve productivity as well as the potential to affect prices. . . .”
In short, Natural Chem chose to not play by the auction’s rules. That was its right – but, because it did not bid, it also was not harmed by the outcome. New Energy at p. 3. In order to preserve objections to an auction process, a party must bid, or otherwise be a creditor with standing to object to the proposed sale. While some courts take an expansive view as to the type of parties that can bring an action under §363(n) of the Bankruptcy Code, the Seventh Circuit did not endorse such a perspective. “[T]he trustee rather than the bidder is the right party to protest collusive sales.” Id. at 4. Natural Chem’s proposal that the Seventh Circuit disregard the plain reading, “runs smack into the Supreme Court’s insistence that judges implement the Bankruptcy Code as written, rather than make changes that they see as improvements.” Id. (citing RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S.Ct. 2065 (2012).
Who is the Judicial Conference of the United States? It is a group of judges and other policy members who help shape how the courts run in our country. You may not have been aware of the Conference until today, but one of its recent decisions will affect thousands of bankruptcy filers each year.
Right now, the filing fee owed to the courts for filing a Chapter 7 bankruptcy petition is $299. The Chapter 13 filing fee is $274. There are also fees for certain actions taken during a bankruptcy – scheduling additional creditors ($26); filing an adversary proceeding ($250); filing an appeal ($250); and a creditor filing a Motion for Relief from the Automatic Stay ($150).
As of November 1, these fees are all set to rise. Chapter 7 and Chapter 13 fees will go up by $6, and the other actions will increase as well. These fees will allow the courts to balance their own budgets and handle the large number of bankruptcy cases filed each year.
With the costs of bankruptcy set to rise, now is a good time for both bankruptcy filers and for creditors to discuss how these news laws will affect them. For more information on bankruptcy and its filing fees, call Lakelaw at 1-800-LAKELAW or (262) 694-7300 in Wisconsin.
Now that we have explored the characteristics of a Single Asset Real Estate debtor in bankruptcy (see the First and Second blawgs in this series), it is time to look at the advantages of filing a chapter 11 case for a Single Asset Real Estate debtor.
One significant benefit of a Single Asset Real Estate entity filing chapter 11 is the automatic stay. The Bankruptcy Code provides that all foreclosure and collection activity must stop when a debtor files bankruptcy. If your company is facing an imminent Motion to Appoint a Receiver or a Foreclosure Sale in a state court case, filing chapter 11 will temporarily stop the state court action from moving forward.
The automatic stay will also provide the Single Asset Real Estate debtor some flexibility to develop cash if the property has tenants and is producing cash flow or rental income. If there is sufficient cash flow, a Single Asset Real Estate Debtor will be more likely to develop cash when the value of the loan is worth less than the value of the property.
While the automatic stay is beneficial for many debtors, the automatic stay has a limited shelf-life in a Single Asset Real Estate case. The automatic stay is limited to a 90-day period in Single Asset Real Estate case. At the conclusion of the 90-day period, the Single Asset Real Estate debtor must propose a plan of reorganization or begin to tender monthly payments due to the lender(s) of the debtor.
Lakelaw understands how to plan so this deadline can work in favor your chapter 11 case. The key to success is pre-bankruptcy planning. Through planning prior to filing for bankruptcy, Lakelaw can prepare for the difficulties presented by the limited application of the automatic stay.
Despite the abbreviated period for the application of the automatic stay, a Single Asset Real Estate case still has benefits. Generally, with proper planning, a Single Asset Real Estate debtor may be able to successfully cram down a lender. A cram down, under the Bankruptcy Code, allows a debtor to modify the monthly payments (and the amount of principal) due to a lender under loan. If a Single Asset Real Estate debtor can propose a feasible chapter 11 plan of reorganization, then it is more than likely that the entity can:
- Reduce the monthly payments which may have caused the entity problems prior to filing bankruptcy; and
- Allow the debtor (or its investors) to enjoy any appreciation in the value of the property after the chapter 11 plan is confirmed.
To be clear, while there are some risk in filing a Single Asset Real Estate case; with the right counsel, strategy and planning, there are many rewards which may be realized by an entity (or its investors).
Lakelaw appreciates and understands the complexities of the Bankruptcy process. We can help you or your company successfully maneuver through the bankruptcy process. With over 35 years of experience in evaluating Single Asset Real Estate cases, Lakelaw can identify what is the best option for your company. Lakelaw serves clients with financial restructuring needs throughout Illinois and Wisconsin.
A Single Asset Real Estate case usually involves a commercial building, apartment complex, or even vacant land. Generally, a Single Asset Real Estate case concerns a piece of property, or a project, owned by an an entity (a limited partnership, or more commonly now, a limited liability company). The entity’s sole purpose is to operate the property with funds generated by the property.
The most important creditor in a Single Asset Real Estate case is the entity’s mortgage lender. In some deals, the entity has secured financing from second-tier or mezzanine lenders. The Singe Asset Real Estate entity may also owe debts for taxes, utilities, or property management fees.
Under the Bankruptcy Code, a Single Asset Real Estate case has the following three characteristics:
- a single piece of real property or project (excluding residential property with less than four units);
- which generates substantially all of the income for the debtor (who is not a family farmer); and
- the company (or debtor) operates no substantial business other than operating the property or project.
A Single Asset Real Estate case is not limited to small projects. It can include large commercial properties. Even a large shopping center worth millions of dollars could be Single Asset Real Estate case. If you are the member or owner of a Single Asset Real Estate entity, there are benefits to filing a chapter 11 case. However, you have a more difficult road than a typical debtor in chapter 11. Our third and final blog in this series will explore the benefits and difficulties associated with a Single Asset Real Estate case.
We at Lakelaw know the details of Chapter 11. David Leibowitz taught the course on Real Estate Bankruptcy Law to graduate law students at John Marshall Law School. He was recommended for the job by former Bankruptcy Judge Ronald Barliant as a result of his work before the Bankruptcy Court. Jonathan Brand has had exposure to real estate cases not only at Lakelaw, but also during his tenure as a law clerk with two different bankruptcy courts. Lakelaw is available to answer any of your concerns related to Single Asset Real Estate cases or your other bankruptcy needs.
Clients ask, what is a Single Asset Real Estate bankruptcy case? If you or your company owns a single building or piece of land, cannot pay the lender and decide to file bankruptcy, then you probably have a “Single Asset Real Estate” case. Special rules apply if you are thinking about filing bankruptcy under Chapter 11. Lakelaw knows the rules related to Single Asset Real Estate cases and regularly represents people and businesses facing this situation.
A Single Asset Real Estate case can work for a property owner even in these troubled times. But you have to understand the rules, parameters and guidelines if you want a Single Asset Real Estate case to work for you. Chapter 11 can help you save your property. However, Congress amended the Bankruptcy Code to make it easier for banks to foreclose on your property. They convinced Congress that a company held just to own one parcel of real estate had no real reason to survive. Congress bought this argument – hook, line and sinker. So, Single Asset Real Estate cases are challenging, but not necessarily dead on arrival.
We at Lakelaw know the details of Chapter 11. David Leibowitz taught the course on Real Estate Bankruptcy Law to graduate law students at John Marshall Law School. He was recommended for the job by former Bankruptcy Judge Ronald Barliant as a result of his work before the Bankruptcy Court. Jonathan Brand has had exposure to real estate cases not only at Lakelaw, but also during his tenure as a law clerk with two different bankruptcy courts.
There are many ways that a Single Asset Real Estate case can fail. But if you know the rules of the road, you can take advantage of the benefits associated with filing a Single Asset Real Estate case and have your best chance of success. Let Lakelaw navigate your Single Asset Real Estate case to a road towards recovery.
Banks may care about what you say on the financial statement in your loan application. When you apply for a loan, the bank asked you about your assets and liabilities. If you told the bank you have less than you actually own, this may not be a problem. Some financial statements create problems. Here are some common problems in financial statements:
- You claim to be the owner of something you really don’t own
- You claim to own something outright when you really own it with your spouse
- You claim to own something in joint tenancy when you really own it as tenants in common
- You overstate the value of your personal property
- You overstate how much you have been earning.
If the bank or another lender justifiably relies on something you put in a financial statement, you could be in trouble if you knew your statements were material and not true when you made them. A bank might seek to bar dischargeability of your debt even if you do file a bankruptcy case. Sometimes a bank might try to bar your discharge altogether. A bank may threaten to prosecute you for bank fraud.
Banks today are under severe stresss. If you plan to file a bankruptcy case, you should consider how a bank might react to your filing. Tell your bankruptcy lawyer everything you told your bank when you took out your loan. It will help your lawyer advise you and help you to be ready for any claim a bank or other creditor might make against you during the course of your bankruptcy case.
For more information, check Bankruptcy Code section 523(a).
For more information about discharge in bankruptcy, click here
Call Lakelaw now at 1 866 LAKELAW (1 866 525-5359).
My client called and was frantic. “The bank took all the money from my account – I can’t make payroll and my checks are bouncing. Can they do that?
This is called “set-off”. And yes, the bank can do that.
Here’s the idea. If you have money in the bank, it is money that the bank owes you. But suppose you also owe money to the same bank. This typically happens to businesses which have loans with a bank and naturally maintain their checking account with the bank. So the debt you owe the bank – say a business loan – may be offset by a debt that the bank owes you – your money in the bank.
If you are in default with your bank under your loan agreement, even if you simply haven’t abided by various covenants or agreements in your loan agreement with the bank, the bank has the right to enforce its agreement with you.
For example, the bank has the right to set off the money in your checking account against the debt you owe the bank. This can be mighty inconvenient. Your employees won’t get paid and your checks will bounce. The bank also would have the right to enforce its security agreements with you – for example collect accounts receivable directly from your customers or even sell your assets at auction.
Chapter 11 of the bankruptcy code is your strongest response to these actions.
You’ll need a plan. You’ll need financing to operate while you are in reorganization. And you’ll need good legal counsel – like Lakelaw – to represent you in your chapter 11 case.
If your business can recover, you owe it to yourself to try. Otherwise, your business and life work will face liquidation and a rapid demise.
Many small businesses face bankruptcy today. Banks have cut off credit. Sales have declined dramatically. So many small businesses are closing. People frequently ask me: “Do I have to file a personal bankruptcy if my business is bankrupt?” All too frequently, the answer is yes.
In most cases, business debt to a bank is supported by the owner’s personal guaranty to the bank. This means that the owner will personally be responsible to the bank for any shortfall on liquidation of the bankrupt corporation or bankrupt limited liability company. In addition, business credit cards are almost always the personal liability of the individual shareholder of a corporation or member of a limited liability company. Frequently, credit card debt of a corporation is significant.
In addition, key suppliers may have required personal guarantees of the owner as a condition to extending credit to a new business. So if the business fails, the owner may be left holding the bag as well. The Small Business Administration often requires corporate borrowers to give a junior mortgage to their homes in order to secure a new loan.
Finally, creditors may sue the owner of a corporation even if there is no legal basis. They hope there will be no defense and that you will just consent to entry of a judgment against you. So when your corporation or limited liability company fails and faces bankruptcy, be sure to get independent advice as to your own financial situation. One saving grace – if your business fails and you are facing bankruptcy as a result, you may not have to worry about the “means test” and chapter 13 if your debt is “predominantly” business debt. In such cases, the means test does not apply and you are eligible for relief under chapter 7.
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