ࡱ> *,%&'()M objbj== WWTldddd,e2fffffggg$9 YD,ggggg,~ff;~~~g 8ff~g~~wJ\  ff ނp`dr\ RB T0 A~ ~OVERVIEW Benefits of Reorganization Liquidation ! loss of value as a going concern Easier to collect accounts receivables than it would be under liquidation Social costs of liquidation  i.e., loss of jobs, ! wealth of society, etc. May ! payment to creditors over liquidation value When should business be liquidated rather than reorganized? When it has no going concern value or CX value < Liquidation value When negative cash flows cannot be corrected When positive cash flows are so small, investors would do better to sell and seek a better investment Example: + cash flow = $3,000 per year; assets could be sold today for $150,000 Obstacles to Reorganization Outside of Chapter 11 e.g., out of court workout State law rewards creditors who obtain a lien on debtor s assets Judicial lien ! seizure of assets, so that it can no longer be used for business Garnishment can cut off cash flow Secured creditors can seize tangible collateral Trade creditors may begin to require  cash on delivery A few dissenting creditors can prevent reorganization by resort to judicial remedy, thereby leaving fewer assets for debtor to turn the business around. Creditors will usually agree to workout only if (1) they believe immediate payment is not attainable (2) they believe workout may succeed (3) they believe they will receive more in a workout than in a liquidation and (4) they believe they will be treated fairly relative to other creditors. If these beliefs are shaken, the workout falls apart How Does Chapter 11 Overcome these Obstacles? Avoidable Preferences 547(b) permits the trustee/DIP to take back payments made under pressure and to avoid liens obtained within 90 days before Ch 11 filing Automatic Stay 362 -- prevents creditors from collecting prepetition debts, obtaining judicial liens, or taking debtors property Allows Dissenting Creditors to be Bound (CRAM DOWN) Sometimes the threat of Ch 11 alone will make creditors willing to deal Other Reasons Corp. May Need to Resort to Ch 11 Rather than Workout W/O Ch 11 Debtor may not be able to borrow funds; 364 permits loans at Admin. Exp. Or better status. Likewise, trade creditors may need similar assurances to continue delivering goods Debtor may need the benefit of 365 Executory contracts and unexpired leases to get out of bad contract or cure a default on a lease Debtor may need special tax law provisions available only in bankruptcy cases. Debtor may need to issue new securities that it couldnt issue outside Ch 11 (see 1125 (d) and 1145) Other Reasons Chapter 11 Gets Used Single Asset Case Mass Tort Case Large Single Claim Arrange a Sale on an Orderly Basis Exercise Special Powers Debtors Have (i.e., bust unions) Risks/Disadvantages to Creditors of CH 11 Risk of further loss debtor continues to lose $, Admin claims ! value of debtor, or Reorg fails and less $s available in liquidation than if liquidation was initial approach Delay in receiving payments may make it difficult for creditors to meet their own obligations No creditor consent needed to file CH 11, even if none of the creditors believes successful reorg is possible Debtor in Possession provisions leaves the estate in the hands of the mgmt that caused the debtors financial distress Appt of a Trustee is for cause only (i.e. fraud, dishonesty, incompetence, or gross mismanagement of the affairs) 1104(a), 1107(a) and 1108 Debtor can continue to lose $ as long as there is a reasonable likelihood debtor can be rehabilitated See 1112(b)(1) Plan can be confirmed over objection of creditors 1126(c) and 1129(b) Although a dissenting creditor must get at least as much value as it would get in a CH 7 as of the effective date of reorganization, the liquidation value may then be far less than it would have been if Corp. was liquidated initially If reorganized debtor again falls into distress, stock or securities given to creditor under the plan may lose their value. PITFALLS ! INSOLVENCY Problems with Sources of Corporate Credit Receivables financing  A line of credit secured by accounts receivables. Receivables lender sets up a lockbox bank account where the receivables of borrowers are sent. The lender applies a portion of the $s received against the debt, and issues new loans on the remaining portion of the eligible receivables (e.g., those not substantially past due.) Essentially, it works as a revolving line of credit. Problems: if the creditor decides to ! the line of credit available, it stops payments to the borrower until there are sufficient receivable to begin lending at the lower rate. I.e., if lending at 80% of the eligible receivables and decides to ! credit line to 70%, payments to borrower stop until the debt gets down to 70%, even if business hasn t declined If sales are declining then eligible receivables ! and funds available to borrower!, even if the decline is because the co doesn t have the $s to buy raw materials. Trade Credit  permits a window for payments of goods or services (usually 30 days from billing) as opposed to requiring cash on delivery. For most debtors, trade credit is essential. May be able to get by on COD, but not all creditors would accommodate. Problems: Why would vendors refuse to continue on a COD basis? (1) Dont want to sell on a forward basis when payments are consistently late. (2) Want to exercise leverage to force the vendor to pay down past debt, (3) May want to discourage similar behavior from other debtors make an example of the co. that doesnt pay its bills (4) Limited creditor capacity, (5) may want to force debtor into bankruptcy Foreclosed Lease When debtor defaults on a long term lease, the full amount due on the balance of the lease becomes due immediately. Cross-default terms on a lease means that if debtor defaults on one, he defaults on them all. ADMINISTRATION OF CHAPTER 11 The Players 1. Debtor in Possession 1107(a) or 1108 Presumption is that Debtor in Possession will continue to Operate Business Has almost all the rights of a trustee including right to operate the business: - right to enter into transactions in the ordinary course of business (OCB) - may use property of the estate (other than cash collateral) in OCB w/o consent of the ct. See 363(c) 2. U.S. Trustee Justice Dept Official responsible for overseeing admin of BR cases within a region (see 1102(a), 1104(b) and (d) and 28 USC 586) Appoints unsecured creditors committee & any other committees needed If judge orders a trustee, either appts one or oversees election of one if creditors request an election Monitors case to ensure debtor files reports and pays fees Monitors applications for attys fees and other professional fees Monitors progress of case including plans and disclosure statements filed Has standing to raise any issue, appear in ct and be heard on issue but may not file a plan of reorg Has standing to ask ct to appt trustee, and to move for dismissal of case or conversion to Ch 11 1104(a), 1112(b) Debtor or other party in interest can challenge the actions of U.S. Trustee See Rule 2020 3. Creditors Committees - See section 1102 and Rule 2007 Appointed by U.S. Trustee = A committee of unsecured creditors, usually consisting of those willing persons holding the 7 largest unsecured claims or members of the pre-petition committee elected during workout attempt Fiduciary duty to the unsecured creditors its represents No compensation Atty and other professionals may be hired w/ct approval and compensated by the estate as an admin. Exp. See 330(a), 503(b)(2) and 1103(a) Primary responsibilities include: - negotiate w/DIP over plan of reorg - right to consult w/DIP over mgmt of business 1103(c)1 - right to investigate debtor re: any matter relevant to case or formulation of a plan 1103(c)(2) - right to raise any issue, appear in ct and be heard on issue 1109(B) - right to seek appt of trustee to replace DIP 1103(c)(4) - may move for dismissal of case or conversion to CH 7 under 1112 - may move for an order limiting business or closing down operations under 1108 4. Secured Creditors Can demand adequate protection of their interest in the debtors property See 362(d)(1) - ensure debtor maintains property subject to the secured creditors lien - May block debtor from obtaining an order allowing debtor to use cash collateral and may seek relief from automatic stay for lack of adequate protection - Typically has strong bargaining power because if secured creditor does not accept plan, he ordinarily must be given his collateral or an indubitable equivalent or else cash payments = the lesser of the value of the debt or of the collateral - If debtor needs the collateral but cannot afford cash payments to secure creditor who objects, no plan can be confirmed. 1129(b)(2)(A) Generally (exceptions pg 75) an undersecured creditor will hold a secured claim equal to the value of the collateral and an unsecured claim for the rest of the debt. Secured creditor can add its reasonable attorneys fees and costs to the amount of the secured claim if the loan agreement so provides As a party in interest, has a right to raise issues, be heard in ct. COMMENCEMENT OF CH 11 WHO MAY FILE? 109(a)(b) & (d) Debtor must be a person with residence, domicile, or property in the U.S. Person is defined as an individual, partnership, or corporation 101(11) Corporation includes not only entities formally incorporated under state law, but also business trusts, and most companies of associations with corporate attributes includes ??, LLCs, LLPs,?? and labor groups Insolvency not required (policy to encourage filing before conditions get too bad; but cts have dismissed cases for lack of good faith where (1)Ch 11 used to gain tactical advantage in price fixing schemes and (2) where amount on appeal was not so large as to vitiate the debtors existence. INELIGIBLE: Insurance Co.s, banks, and like institutions; Limited Partnerships stockbrokers and commodity brokers cannot be debtors under Chapter 11. Railroads eligible under special provisions of CH 11? AUTHORIZATION OF THE FILING Voluntary petition may be filed only with consent of all general partners 303(b)(3) and Rule 1004 Local law determines who must authorize petition for Corp. or LLC generally rests with the Board depending on charter, may or may not require shareholder approval. WHERE TO FILE JURISDICTION, VENUE, AFFILIATE FILINGS Filed in Bankruptcy Ct. Per 301, Although District Cts have original and exclusive jurisdiction, every District has standing order that bankruptcy cases are handled by bankruptcy ct. 28 USC 1408 governs venue. Cases may be filed where debtor has: - domicile (read to refer to place of incorporation) - residence - principal place of business in the U.S. - principal assets in the U.S. for the 180 days immediately preceding the filing, or for a longer period of time than in any other district. OR - in which there is a pending CH 11 case involving the debtors affiliate, general partner, or partnership COMMENCEMENT OF A CASE REQUIRED DOCUMENTS A) Voluntary -- 301 Debtor files a petition under 301 and pays fee (filing fee governed by 28 USC 1930); the filing constitutes an order for relief No need to show insolvency (See 109) Must file with the petition, a list (521 Rule 1007(a)) of creditors w/addresses unless petition is accompanied by schedule of liabilities AND A separate list of creditors holding the 20 largest unsecured claims (excluding insiders) and the amount of their claims BR Rule 1007(d) WITHIN 15 days: Must file a detailed list of the debtors equity security holders BR Rule 1007(a)(3) Must file schedules of assets and liabilities, schedule of current income and expenditures, a schedule of executory contracts and unexpired leases, and a statement of financial affairs prepared as prescribed by Official Forms, 1007(b)(1) B) Involuntary 303?????? May be filed against a person who qualifies as a debtor under CH 11 (Except nonprofit or charitable corp. 303(a) or a family farmer Who may file? -- 303(b)(1) where there are at least 12 creditors, three or more creditors holding $10,775 unsecured claims against the debtor that are - noncontingent and - not in bona fide dispute Where there are fewer than 12 creditors, one or more may file if all above conditions are met. 303(b)(2) Debtor has a right to controvert 303(d) If the petition is not timely controverted, the court shall order relief against the debtor. Otherwise, after trial, the court shall order relief against the debtor only if - (1) the debtor is generally not paying debts as they become due unless such debts are the subject of a bona fide dispute; or - (2) within 120 days before the date of the filing of the petition, a custodian, other than a trustee, receiver, or agent appointed or authorized to take charge of less than substantially all of the property of the debtor for the purpose of enforcing a lien against such property, was appointed or took possession. 303(h) Two kinds of Insolvency: Equity financial condition in which one is unable to meet ones financial obligations as they mature in the ordinary course of business. Two aspects Liquidation debts exceed liquidation value. Going concern debts exceed going concern value of company. Balance Sheet debts simply greater than assets. This is the usual meaning of insolvency. 362 AUTOMATIC STAY 1. SCOPE OF STAY? Section 362(a) a) Binding on All Entities (persons, trusts, estates, governmental unit, U.S. Trustee) b) Effective Upon Filing of Petition (true for both voluntary and involuntary c) Stay does not preclude action in BR ct. Creditors and other parties may institute proceding in the bankruptcy ct itself concerning matters otherwise subject to the stay d) Effectiveness of stay not dependent on creditors notice of the filing 2. What is Stayed Section 362(a) All Activity against the debtor related to collection of claims that arose before commencement of the case 362(a)(1), (2), (6), (7), and (8) - cannot sue, continue suit, or enforce judgment on pre-petition claims - must discontinue all collection activity including phone calls, letters, etc. - cannot setoff debtors accounts in satisfaction of debtors obligations - cannot sue on claims resulting from pre-filing conduct even if the claim is not cognizable until after BR is filed In re Johns-Manville Corp. Activity against the property of the debtor -- 362(a)(5) prohibits any attempts to create, perfect, or enforce a lien against property of the debtor to secure a pre-petition claim Actions of a creditor to assert their claim against estate property outside of normal claim procedures 362(a)(2)(3) and (4). Applies to pre- and post- petition claims to prevent activity to remove property from the estate or to establish or enforce an interest in it. - cannot seize collateral or sell off collateral seized before bankruptcy was filed - cannot enforce a pre-petition judgment - Landlords cannot evict for pre-petition failure to pay or breaches - If suppliers are contractually bound before the filing, cannot escape the contract for fear of not being paid 3. WHAT IS NOT STAYED? Section 362 (b) Government regulatory action (e.g., violation of air pollution regulations) debtor must comply with applicable regs. govt can do anything but collect a $ judgment commencement or continuation of a criminal action; actions by creditor under nonbankruptcy law to perfect or consolidate rights against the debtor or the debtors estate (362(b)(3) such as maintaining, or perfection of claims recognized by - 546 and 547 4. Supplemental Injunctive Relief Under 105(a) Ct. may enter any order necessary or appropriate to carry out the provision of this title. What Basis Is There For A Stay Against 3rd Party? Generally guarantor/owner-operator, must file their own bankruptcy petition to receive the benefits of bankruptcy law BUT where the identity of the debtor and the third party are so interwoven that proceding against the 3rd party would ! property the debtor could otherwise make available to creditors as a whole the ct may grant injunctive relief under 105(a) if the ct finds: - Plaintiff is likely to succeed on its merits  successfully reorganize -  has shown that irreparable injury will result w/o such relief - Issuing the injunction will not substantially harm other interested parties - Public interest is best served by preserving the status quo until the merits can be fully considered. FTL, Inc. v. Crestar Bank 5. What Must Be Shown For Relief From Stay? Relief will be granted for cause 362(d)(1) (usually lack of good faith or inadequate protection ct has discretion) OR (1) Debtor does not have equity in the property and (2) the property is not necessary to an effective reorganization 362(d)(2) (or there is no prospect of a successful reorganization.) (pg 99) - equity generally = difference between the value of property and the encumberances upon it. - See 362(g) for burden of proof Creditor has burden to prove lack of equity debtor has burden on the rest Or, with regard to single asset real estate (single property from which debtor derives nearly all of its gross income) debtor fails to take one of two actions within 90 days of the order for relief either file a plan that has a reasonable possibility of being confirmed w/in a reasonable time or begin paying secured creditors a monthly payment equal to interest on the value of their liens 362(d)(3) applies to over and undersecured creditors (a) what is adequate protection? designed to protect the value of a partys property interest in the collateral (such as depreciation in value) if debtor had no equity in the secured property and it is not need for the reorg, ct may permit it to be seized 362(d) Alternatively, protection may be provided by making periodic payments to secured creditor = the depreciation, or giving sec. Creditor an addtl lien on other property 361 (1)(2) or (3) Lack of adequate protection is sufficient cause for ct to order relief from stay 362(d)(1) (b) rights of over/under-secured creditors (see 506) An undersecured creditor has a secured claim for the amount that is covered by the lien, and an unsecured claim for the remainder of the amount owed 506(a) Adequate protection for undersecured creditors does not include right to post-petition interest on the value of its lien (Timbers) An oversecured creditor may collect interest, up to the value of his security interest (c) what is necessary for effective reorganization? No chance of effective reorganization Little or no profit can reasonably be anticipated from intended use of property CONTROL OF THE REORGANIZATION PROCESS In general, unless the court orders otherwise, the trustee may enter into transactions, including the sale or lease of property of the estate, in the ordinary course of business, without notice or a hearing, and may use property of the estate in the ordinary course of business without notice or a hearing. 363(c)(1) Use Sale of Lease of the Property 1) What is in the ordinary course of business? Two tests: Horizontal what similar business in same industry does? Vertical what creditors reasonably expect of the debtor looks to what debtor has done in the past. 2) Exception to Ordinary Course of Business Rule Use of Cash Collateral (a) what is cash collateral? Includes cash, negotiable instruments, documents of title, securities, deposit accounts, and other cash equivalents in which both the debtors estate and a third party have an interest Also includes proceeds, profits, rents, offspring, and hotel or motel room revenues covered by a security interest under 552(b) ( i.e., an interest in property acquired by the estate/debtor after filing based on security agreement made prior to the filing.) (b) what is required to use cash collateral? The DIP may use, sell, or lease cash collateral, per 363 (c)(2) only if All entities having an interest in cash collateral consent DIP obtains ct authorization after notice and hearing OR - if time is of the essence, ct will act prompty to schedule hearing per needs of the debtor -if hearing is not consolidated w/ a hearing on adequate protection, ct will authorize use of cash collateral only if there is a reasonable probability that the DIP will prevail at the final hearing on Adequate Protection (363(c)(3)&(e) 3) What will be considered to assess adequate protection? Value to secured parties interest Risks to that value if property is used sold, or leased Whether adequate protection offered meets the indubitable equivalent standard 4) What Can Be Offered As Adequate Protection? A Cash payment or Periodic Cash payments = to the extent that the third ptys interest in the property has ! n 361(1) Additional or replacement lien 361(2) CANNOT satisfy adequate protection by granting an administrative expense 5) Failure of Adequate Protection Superpriority under 507(b)  if the DIP provided adequate protection and it turns out to be inadequate, the shortfall is treated as a super-priority claim and has priority even over administrative claims 364 OBTAINING CREDIT 1) What is Required for Each Kind of Postpetition Borrowing Unsecured Credit in ORDINARY COURSE OF BUSINESS -- DIP may procure unsecured credit in the ordinary course of business w/o notice and hearing allowable as an administrative expense 364(a), 503(b)(10 Unsecured Credit outside the ordinary course of business After Notice and Hearing, ct may approve as an Administrative Expense 364(b)(2) Priority or Security when debtor is unable to obtain credit w/o offering more than an administrative expense, the ct, after Notice and Hearing may authorize: - Super- superpriority ct may authorize a super-superpriority claim ahead of all administrative expenses and ahead of any superpriority administrative claims resulting from failure of adequate protection 364(c)(1) - lien on unencumbered property 364(c)(2) - junior lien on encumbered property 364(c)(3) Priming lien if DIP cannot obtain credit on any other basis, the ct after notice and hearing may approve new credit secured by granting a senior lien on property that is already encumbered. Adequate protection must be provided to the original lienholder, and the DIP bears the burden of proof on this issue 2) What is Cross-collateralization, and is it permitted? An arrangement whereby a lender is provided collateral to cover prepetition debt as well as post petition debt as an incentive to get the lender to lend Cross-collateralization is prohibited by many cts Other cts permit it where - the business would not survive without the financing offered - other credits is unavailable on reasonable terms] - the lender will not lend on other terms - the best interests of the general creditor body will be served. 3) What is the Mootness Rule? Absent a stay pending an appeal, the validity or a lien or priority granted under 364 is not affected by a reversal or modification on appeal. EXECUTORY CONTRACTS 365 1) Elements obligations on both side of a contract remain unperformed so material that if either party failed to perform, theyd be in breach 2) Examples: Executory -- Long term lease agreement, employment contract, collective bargaining agreement (even though its a contingent agreement), contract to purchase real property, mgmt Non-executory Mortgage (even though the lender has a duty not to foreclose), an option (only 1 pty has any obligation), Sports ticket (no obligation to go), Warranty (owner has a right, but no obligation), Leases 3) Assumption or Rejection An executory contract or unexpired lease may be assumed or rejected by the DIP with cts approval 365(a) at any time prior to confirmation W/o ct approval, acceptance/rejection are invalid Ct generally applies Business Judgment Rule and approves decision of DIP unless there is bad faith or gross abuse of discretion Nondebtor party may ask the ct to direct the DIP to make the election a/in a fixed period of time 365(d)(2) Must Assume or Reject in its entirety DIP may not assume the benefits but deny the duties If DIP rejects, then other pty can seek an unsecured claim for damages DIP may not assume contract or lease that was legally terminated prior to filing (Moody v. Amoco Oil co.) 4) Requirements for assumption To assume, DIP must comply with 365(b)(1) by -curing the default 365(b)(1)(A), - compensating for any loss caused by it (or provide adequate assurance of prompt redress) and 365(b)(1)(B) - giving the other party adequate assurance of future performance 365(b)(1)(C). Default if contract is assumed and theres a subsequent breach or debtor converts to Ch 7, this expense gets paid in full as an administrative claim, although trustee can argue mitigation Two types of default need not be cured - violation of an Ipso Facto clause (e.g., clause permitting termination of contract on the grounds of insolvency, declaration of bankruptcy, etc.) 365(b)(2) - payment of penalty fee or nonmonetary default 365(b)(2)(D) 5) Interim performance: Performance may be suspended on both sides pending trustees decision to assume or reject. Some contracts may involve continuing performance on the part of the non-debtor during time DIP considers whether to assume or reject. If debtor ultimately rejects the contract, the general rule is the other party is entitled to payment as an administrative expense for the reasonable value of any benefit received. - reasonable value may be less than the contracted rate - it is only payable to the extent the estate was enriched (i.e. if the estate retains goods but does not use them, lessor has no admin claim.) SPECIAL RULE NON-RESIDENTIAL LEASES - 365(d)(3) requires the estate to perform the debtors lease obligations at the full contract rate during the period before rejection even if debtor does not use the premises. - 365(d)(10) where commercial property is leased is concerned the DIP is given 60 days leeway before performance must begin (ct has discretion after notice and hearing to change this if equities dictate.) 6) Assignment AVOIDING POWERS FRAUDULENT TRANSFERS AND THE STRONG ARM CLAUSE The Trustee may avoid fraudulent transfers in the pre-petition period either by using nonbankruptcy fraudulent transfer law (permitted under 544(b)) or by employing 548 to show Debtor had interest in property Transfer of interest occurred w/in 1 year of filing Debtor was insolvent at the time or became insolvent as a result thereof; and Debtor received less than a reasonably equivalent value in exchange for transfer 1) Covers Actual and Constructive Fraud Provisions Actual -- Transfer made with actual intent to hinder, delay, or defraud Creditors 548(a)(1)(A) (more difficult to prove)OR Constructive -- Debtor received less than a reasonably equivalent value in exchange for such transfer or obligation; AND a) was or thereby became insolvent 548(a)(1)(B) OR b) was engaged in business with an unreasonably small amount of capital or c) intended to incur debts that would be impossible to pay OR d) any transfer of partnership property to a partner if the debtor was or thereby became insolvent - can be proven on summary judgment 2) Key Elements Insolvency -- 101(32) balance sheet insolvency assets assessed at fair valuation, not GAAP. - Test: What would creditors realize on assets - Value of goodwill would generally not be counted Reasonably equivalent value - VIEWED FROM THE PERSPECTIVE OF THE CREDITORS - goodwill doesnt get counted for fraudulent conveyances purposes - forbearance from suit `" value to creditors 548 has a 1 year limitation Per 548(d)(1) transfers are deemed to have occurred when they are perfected against bona fide purchasers If state law requires an interest to be perfected and the pty fails to do it, it is deemed to have occurred immediately before the filing. 548(d)(1) Example: Transfer was made 18 months before filing, but not perfected then transfer transfer falls w/in the one-year limitation. Problem 8-1 pg 362 Co gave Gruff home as gift in recognition of serviceCo can avoid it because theres no consideration (even though outside BR law, gifts are valid)Co sold a transferable patent to another Co at a price substantially less than they paid for it and substantially less than fair market valueCo can avoid it because it is below market value even if he had a legitimate business purpose for the sale originally (need quick cash, etc.) Designed to protect debtor who panicks.Bank foreclosed on property and received only 65% of market value at a sale that complied w/applicable lawCo canNOT avoid it Fair value is considered to be the value they could be expected to get for property sold in foreclosure. See BFP v RTCCo makes a free transfter to its corporately separate subsidiaryCo became a surety for personal loans made to principal and backed its commitment with liens on its property Cases: BFP v. RTC DIP seeks to avoid foreclosure sale as a fraudulent conveyance because home that was worth $725,000 sold for $433,000. Held: Not avoidable. Consideration received from a noncollusive sale conducted in conformance with applicable state law conclusively satisfies the Codes requirement of reasonably equivalent value. Not considering market value, but value of foreclosed property. Mellon Bank v. Unsecured Creditors Company seeking a loan pays bank $515,000 in commitment fees as a requisite to a loan that ultimately failed to close. Ct found banks commitment so conditional as to confer no actual value to Co. Held: conveyance avoidable. Ct deems good faith of the parties irrelevant as to whether value was conferred on debtor, but also rejects the notion that the debtor must realize a commercial value on the assets transferred (such that only successful investments can confer value.) Rather the ct finds the conveyance avoidable under the totality of circumstances test hear because the chance of receiving an economic benefit was so small that it did not correlate with the amount of value conferred. 544(b) allows the DIP to assert the rights on any unsecured creditor to avoid a fraudulent transfer under any nonbankruptcy law Typically one-year limit doesnt apply trustee may have six-ten years or longer Often SOL is tolled until fraudulent transfer is discovered or should have been discovered Requires the trustee to show that an actual unsecured creditor could have invoked the applicable law and voided the transfer pre-petition Trustee must satisfy the same conditions and is subject to the same defenses the state law would impose on the actual creditor If the trustee succeeds, the entire transfer is avoided even if it exceeds what actual creditor is owed (thus trustee could use the rights of a creditor with a $100 claim to void a million $ transfer even though creditor could have only gotten the $100. Any recovery is for the benefit of the entire estate, not just the creditor whose rights were used. UNPERFECTED TRANSFERS TRUSTEES STRONG ARM POWERS -- 544(a) 544(a) gives the trustee the powers of a hypothetical - judicial lienholder (1) - unsatisfied execution creditor and (2) - bonafide purchaser of real property (3) The idea here is that a lienholder who fails to publicize his interest in property by recording his interest can lose his interest under certain laws (UCC), because unrecorded interests are potentially prejudicial to third parties who may deal with the debtor in reliance on the appearance that no encumberance exists. Thus even where no 3rd party was mislead, or where the failure to record was inadvertent, the Code permits the Trustee to preclude the enforcement of the unrecorded interest. Trustees status as such is not dependent on the existence of an actual creditor or purchaser Trustees rights of avoidance are not affected by any knowledge that the trustee or any creditor may have ???????????????????????????????? PREFERENCES 547(b) 1) Elements party attacking a transfer as preferential has the burden of proving all of the following by a preponderance of the evidence Transfer of an interest in debtors property To or for the benefit of a creditor For or on account of an antecedent debt (If the debt arose before the payment was made, even if just a very short time, the debt is an antecedent debt. Issue of when debt arose determined under nonbankruptcy law. Made while the debtor was insolvent (liabilities exceeds assets at fair valuation -- presumption under 547(f) that debtor was insolvent during the 90 days prior to filing). Made on or w/in 90 days before the filing, or within one year if the creditor is an insider (insider defined in 101(31) That enables the creditor to receive more than the creditor would in a Ch 7 distribution had the transfer not been made 2) Timing of a transfer essential to determining if transfer falls within the avoidance period, if it was an antecedent debt, or if debtor was insolvent when transfer was made 547 treats the transfer as having occurred on the date it became effective between the parties under nonbankruptcy law. If perfection is required, the transfer will occur only on the date of perfection, unless perfection is completed w/in 10 days of the transfer perfection of real property is completed when a subsequent bona fide purchaser cannot acquire a superior title; perfection of all other property is complete as soon as an ordinary junior lienor cannot acquire superior rights, 547(e) Policy Discourages creditors from racing to the courthouse to dismember debtor during his slide into bankruptcy. Facilitates policy of equitable distribution among all the creditors. 3) 547(c) Exceptions to Avoidance The party invoking a 547(c) exception has the burden of proving all the elements of that exception per 547 (g) (1) A substantially contemporaneous exchange for new value (New value defined in 547(a)(2) to mean money, goods, services, or new credit, and can also include the release of property previously transferred by the debtor provided the original transfer is unavoidable. Leg history indicates Congress had payment by check in mind when it created the exceptions. Protections of contemporaneous exchange is consistent with policies underlying the avoidance of preferences. Where the transfer `" last minute attempts to thwart the order of distribution in bankruptcy but rather regular commercial transaction, the transferee s legitimate expectations under nonbankruptcy law outweighs the estates interest in disturbing the transfer. (2) Ordinary Course Payments 547(c)(2) excepts a claim from avoidance to the extent it satisfies 3 requirements Payment of debt incurred in the ordinary course of business Payment made in the ordinary course of business of both debtor and transferee Payment made in accordance with ordinary business terms (Exception limited to situations in which both the debt and its payment are routine involves inquiry into both the usual practices of the debtor and the normal practices and standards prevailing in the industry and locality. (3) purchase money security interest Security interest granted by the debtor to secure loan or credit used to acquire the collateral subject to the interest. Interest is unavoidable provided it was perfected w/in 20 days from date debtor received possession of the collateral 547(c)(3) merely extends the grace period for perfection (4) Net Result exception (4) Setoff Under 553 Although setoff between mutually indebted parties could satisfy all the element under 547(b), a setoff valid under nonbankruptcy law is generally upheld in bankruptcy under 553, unless The claim has been disallowed 553(a)(1) Creditor has acquired claim by transfer w/in 90 days of filing while debtor is insolvent, .. CASES U.S. Trustee v. First Jersey Securities Trustee sought to block appt. of counsel for DIP, where the debtor transferred restricted securities to its counsel in payment for pre-petition services on the eve of its filing, asserting that such was a preferential payment and thus counsel was not disinterested as it had an interest adverse to the estate. Counsel argues that to establish a voidable preference under 547(b)(2) Trustee would need to establish that not only must the debt be antecedent, it must be past due, which it claimed was not the case here. Held: transaction was a voidable preference. An antecedent debt owed by the debtor occurs when a right to payment arise (e.g., when the legal services were performed not when the payment was deemed due by the creditor. Moreover, 547(c) exception doesnot apply where payment to counsel had been at $150,000 for the past 5 months and then a final payment of $250,000 in the form of securities is made on the eve of bankruptcy. Barnhill v Johnson -- Held: In determining if a transfer was made in the 90 day preference period, a transfer made by check should be deemed to have occurred on the date the drawee bank honors it. CLAIMS 1) Definitions Claim The term claim is defined broadly under 101(5) as a: right to payment, whether or nor such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, secured, unsecured. A claim is unliquidated if is not fixed in amount and cannot be fixed arithmetically with know data exp a tort claim not yet adjudicated or settled. A claim is contingent if the debtors liability is conditional upon the happening of a future uncertain event ie, product warranty, or a surety guaranteeing the debt of a principal debtor. A claim is unmatured until the payment becomes due (e.g., payment due in 30 days, A claim is disputed if the debtor challenges the existence or extent of the liability Can include a contingent cause of action arising out of debtors conduct prepetion where a legal relationship arises between the debtor and the claimant prepetition, but where the cause of action has not accrued as of the time of the case exp asbestos Claims not limited in time although the must run against the estate includes post petition claims arising from the administration of the state or conduct of its business Includes claims against the debtors property 102(2) When it is determined that a claim will be recognized in a bankruptcy case it is deemed allowed. Creditor includes only holders of claims that arose at or before the order for relief 2) Asserting a Claim A creditor may file a claim pursuant to 501(a) Proof of a claim is simply a written statement setting forth a creditors claim. Rule 3001(a) It should conform with Official form and if it is based on a writing (such as a contract or judgment) the writing should be attached Rule 3001(a)& (c) If the creditor claims a security interest, proof of the security interest should also be attached Rule 3001(d) Proof of claim will be deemed filed if the claim is listed on the debtors schedule and is not listed as disputed, liquidated, or contingent 1111(a) and Rule 3003(b) However, if case converts to Ch 7, a proof of claim must be filed for the claim to be allowed. 3) Estimation of Contingent and Unliquidated Claims 502(c) 502(c) requires contingent or unliquidated claims, and claims arising from breach of contract, to be estimated where necessary to prevent undue delay in the administration of the estate. Estimation can be provisional for the purpose of fixing claimants voting rights where final determination is still possible, or final 4) Determining the Claim Under 502(a) a claim is deemed allowed unless a party in interest objects Allowance or disallowance of a claims is a core proceding within the bankruptcy judges jurisdiction. BR judge may hear, determine, and enter final orders on such proceedings For Claims other than personal injury and wrongful death claims, there is no right to a jury trial or even a full-fledged trial. Claims are allowed or disallowed by way of a motion procedure rather than as a separate action. Rule 3007 does not require more than 30 days notice, but cts will often extend to facilitate discovery. Personal injury or wrongful death claims are outside the BR cts core proceeding 5) Interest on Claims Post-petition interest will generally not accrue on an unsecured claim 502(b) Interest may be permitted in a liquidation where leftover funds would otherwise got to the stockholders Interest is payable on fully secured claims to the extent that the value of the collateral exceeds the secured debt 506(b) 506(a) splits an undersecured claim into two parts secured up to the value of the collateral and unsecured for the rest 6) Claim Classification and Priorities a) Generally All superpriority claims get paid first Thereafter, 507(a) lists nine priority claims in descending order They are followed by general unsecured claims Thereafter, low priority categories such as unmatured interest on unsecured claims (applicable only in liquidations where sufficient funds are available) Standards for plan confirmation require all 507 priority claims to be paid in full unless holders of the claims agree otherwise or the plan will not be confirmed Accordingly, main significance of 507(a) in CH 11 is in determining what a party would receive under CH 7 e.g., to ensure general unsecured receive at least as much as they would in liquidation Order of Distribution in Bankruptcy SECURED CLAIMS Fully secured debts --------------------secured claim --------------Paid in full plus interest and costs ( to extent of equity cushion) Partially secured debts ----------------secured portion -----------Paid in full to extent of collateral deficiency ------------------General unsecured claim ULTRAPRIORITY CLAIMS -364{c)(1) PRIORITY CLAIMS (1) Administrative Expenses incurred after the filing Ist rank- superpriority claims under 507(b) 2nd rank -other admin. expenses under 503 - actual and necessary costs of preserving the estate 503(b)(1)(A) - trustee compensation, fees for professional services, post-petition taxes due by the estate 503(b) ( admin. Expenses are not ranked, so if insufficient funds to cover then, funds are divided pro rata amongst all the admin. expenses (2) Ordinary course business expenses in gap period between filing and order for relief, in involuntary cases (3) Wages and salaries (limited)* - $4,300 limit on each claim - must have been earned w/in 90 days preceding filing of petition - to the extent employee claim exceeds the limit, it is a general unsecured claim (4) Employee benefits (limited)* - Not covered in class ( 5) Grain producers and fishermen -claims against processor or storehouse (limited)* (6) Deposits for consumer goods or services (limited)* (7) Alimony, maintenance, and support due to the spouse, ex-spouse, or child of the debtor (8) Various taxes (limited)* (9) Claims arising out of federal depository insurance *Most priority categories have limits. To the extent that a claim in the category exceeds the limit, the amount in excess of the limit is a general Unsecured claim. ** Excerpted from Bankruptcy and Debtor/Creditor: Examples & Explanation, Brian A. Blum Secured Claims SUBORDINATION 1) Consensual Subordination A senior claimant may agree to subordinate his claim to another (i.e., to induce the other to loan debtor $, where the loan would indirectly benefit the claimant.) 510(a) If one party subordinates to another, the other gets that partys allotment until hes paid in full. Why? Could subordinated to trade creditors to maintain good will Subordinate to debenchers Creditor may require insider attempting to reorganize to subordinate to get agreement by creditors 2) (510(b) deals w/claims re: securities purchase will not share equally with unsecured creditors. 3) Equitable Subordination 510(c) Ct has the power to subordinate a claim where equities dictate. Because it is meant to be an adjustment of rank to compensate for inequitable conduct, rather than a punishment, the claim is subordinated only to the extent necessarily to rectify the injustice. In addition to power to avoid Preferences and Fraudulent conveyances Mobile Steel case: ct established three conditions that must be met before ct will subordinate: Claimant must have engaged in some type of inequitable conduct Fraud, illegality, breach of fiduciary duties Undercapitalization Claimant uses debtor as a mere instrumentality or alter-ego The misconduct resulted in some injury to the creditors or conferred an unfair advantage on the claimant Equitable subordination not inconsistent with BR laws. Equitable subordination of non-mgmt creditor cts use 1 of 2 standards: egregious misconduct general rule is the creditor owes no duty to debtor, and creditors owe no duty to one another. However, when conduct is egregious (breach of fair play and good conscience; fraud, overreaching, spoliation to the detriment of others, moral turpitude whereby other creditors were deceived to their damage, the ct may subordinate fiduciary standard where creditors have an unusually close relationship and exercises a significant degree of control over debtor, ct may find a fiduciary duty, applied sparingly absent a finding the claimant controls the debtor, fiduciary duty will not be applied. - 3 types of control voting control, mgmt control, control through financial domination Can apply to secure as well as unsecure claims under 510(c)(2) ct may order that any lien be transferred to the estate. Why not just avoid? Because that may benefit a junior lienholder as opposed to creditors generally. Trustee takes the value of the lien for the benefit of the estate as a whole. Case: Pepper v. Litton Litton controlling shareholder and mgr sues his own co. for back salary and seeks to collect as a secured creditor. Trustee seeks to disallow because Littons conduct is what lead to BR. Ct. allows claim but subordinates it to achieve fairness. Proposition: Equitable subordination permissible to achieve fairness. Case: U.S. v. Noland: In the absence of any finding of inequitable conduct, BR ct subordinated Govts claim for a postpetition noncompensatory tax penalty which, under the code, was entitled to first priority as an administrative expense. His rationale was that the govt was not out any money, and there could be no punitive purpose served by collecting a penalty from a company that was being liquidate. Held: Reversed. Proposition: Ct may not equitably subordinate claims on a categorical basis in contravention of Congress scheme of priorities. Case: Smith v. Associates Commercial Corp. CLAIMS TRADING Definitions: Debenture Usually means unsecured bond Reasons people buy claims Right to pmt Right to vote - used for a hostile takeover - defeat plan of reorganization (defeat a competitor) - protect your secured interest where you might not otherwise be able to influence reorganization 3) Prohibitions on Claims Trading - insider prohibitions generally an insider (e.g. corporate president/trustee) cannot trade in corp/trust assets. If done, profits go to the estate. Under 502(j) insider can only get what he paid for it. What you do as fiduciary is supposed to be for the beneficiary. Improper purpose (i.e., to defeat bankruptcy) 1126(e) Case: Figter In a single asset case where secured creditor did not want plan to succeed because of concerns about the value of its collateral, it bough out the claims of unsecured creditors so it could vote to defeat the plan. Held: not a violation of 1126(e) because he was not an insider, and he was only seeking to protect his interest. EXCLUSIVITY 1121 Identifies who may file a plan Limits on filing Debtor has 120 day exclusivity in which to file 1121(b) Debtor has up to 180 days to obtain acceptance (if debtor files on day 120, it has 60 addtl days to get acceptance 1121(c) U.S. Trustee may not file a plan Policy Supporting Exclusivity Gives debtor time to determine going concern value Gives negotiating leverage to debtor/facilitates consensual workout - solves the holdout problem If you dont give exclusivity, gives debtor disincentive to file CH 11 before company is driven into the dirt Allows business to structure contracts Extending or Limiting Exclusivity for Cause 1121(d) Ct should look to effect change would have on negotiating process if negotiation process is going well, ct wont want to terminate When exclusivity is terminated, may get competing plans that are difficult to deal w/ -- forces ct to impose a plan rather that have one negotiated Because competing plans are usually filed only by sophisticated parties w/large interest who want liquidation after exclusivity ends, more likely to get plan where unsecured creditors get nothing If exclusivity is prolonged too long, may give too much advantage to debtor (Haines case where threat that creditor would bring a liquidation plan after termination ! DIP plan offering 60 on the $ rather that 10 on the $ they had been proposing. OVERVIEW OF CONFIRMATION PROCESS Basic Contents of a Plan 1123 MUST CONTAIN 1123(a) Must designate classes of claims 1122 defines Must identify classes of claims not impaired 1124 defines impaired. Must specify treatment of impaired classes Must provide same treatment to all claims w/in class (Corrollary if giving different treatment to certain claims, must put them in separate class) See 1122 Must provide adequate means for implementation MAY CONTAIN 1123 (b) Df Dfr Acceptance of a plan 1126(a) Holder of a claim may accept or reject plan unless 1126(f) class not impaired  conclusively presumed to have accepted 1126(g) class that gets nothing is deemed to reject Significance of Class assignment -- VOTING Voting is done by class Multiple claims ! Multiple votes 1126(c) To accept plan by class, plan must receive - 2/3 in amount of votes AND - at least of # of votes - Must have both otherwise the class does not accept - Only count those who actually vote - If no one in a class votes, the class does not accept! 1129 Requirements for a consensual plan 1129(a) Governs what requirements must be satisfied for a consensual plan voter approval is not enough (a)(8) Each class has accepted, except for classes that are unimpaired (a)(7) Impaired class each holder of a claim has accepted, or each holder will get as much as hed get under liquidation 1129(b) CRAMDOWN -- Requirements for confirming where 1 or more classes has not accepted If all of 1129(a) are satisfied except a(8) then ct shall confirm the plan as long as - the plan does not discriminate unfairly, AND - it is fair and equitable, with respect to each class of claims or interests that is impaired under, and has not accepted, the plan. hj CLASSIFICATION OF CLAIMS Confirmation Requirements 1129(a) requirements: Plan complies with Code Proponent complies w/ Code (e.g., solicitation 1126) Filed in good faith Prof. fees approved by court Officers & directors disclosed, in interests of creditors & public policy Reg. rate approval (only applies to entities whose rates must be approved i.e., utilities Impaired claims get at least liquidation value (best interests of creditors test) Each impaired class accepts; (or else, cramdown) Priority claims paid in full, in cash, on effective date; taxes paid in full, w/ interest w/in 6 years At least one impaired class accepts (assuming E at least one impaired class); this holds true even if E cramdown Liquidation not likely (feasibility fact intensive test) U.S. trustee fees get paid Retiree benefits continue 2. Major Classification Considerations. Classification esp. relevant to: 1129(a)(10) at least one impaired class must accept, even in cramdown. 1129(a)(8) each impaired class accepts in a voluntary plan; o/w, we go to cramdown Must treat each claimant w/i each class equally (1123(a)(4)) Important to note how you classify can impact whether you can confirm! 1129(a)(8) you are genly worse off being in your own class; however, if you are in your own class, your vote against the plan auto means ct must resort to cramdown. To give meaning to 1129(a)(10) there must be limits on how claimant can be classified. U.S. Truck. 1122 (w/1129(a)(10) does not require that all similar claims to be classed together; it merely says dissimilar claims cannot be classed together. Threshold question: what are similar claims? 1122 (b) admin convenience provision: plan may designate a sep class of claims consisting only of every unsecured claim that is < or reduced to an amt that the ct approves as reas and nec for admin convenience. 3. Classification Generally Claims w/in a class must be substantially similar 1122(a) - Majority interpretation Substantially similar claims may be put in other classes where the classification is for reasonable and bona fide purposes (e.g., business interest) - Minority view similar claims must be classified together Gerrymandering generally denied as being for improper purpose - e.g., In re Graystone - but may ????? 4. Specific Types of Claims or Interests Secured claims generally placed in separate class by themselves rationale: liens are generally in different property, or they are entitled to different priorities in the same property Priority Claims Classification of administrative expenses, involuntary case gap claims, and class 8 claims (i.e., unsecured prepetition tax claims) are excepted from classification because 1129 specifies their treatment under confirmation Administrative Convenience Class -- 1122(b) permits the plan to designate a separate class of small unsecured claims < a reasonable and necessary amount as deemed by the ct. These claims get paid in full in order to cutback on administrative expenses. Equity Interests Must be classified separately from creditors claims 1122(a) 1123 Sets Basic Plan Structure U.S. Truck look to debtors interests in detg classes. In re Bloomingdale look to protection of creditors interests in detg classes. 1129(a)(10) did not exist under the Act. Creditors interest perhaps best way to det. classification scenario. Diff. claims of same creditor might be placed in different classes; ( creditor might be voting in favor in one instance to protect interest in another class. Teamsters (U.S. Truck) - clearly looked to creditors interests in making decision. Greystone see Haines article. City of Ft. Worth, creditor, had contg interest in low-cost housing. Shadowgay asbestos mfr. in bankr. Unionized workforce. Var. claims, e.g. health benefits. Guar by Aetna. Aetna claims subrogated to claims of employees. Debtor classd claims in diff. class, treated them strikingly diff. Paid emp. claims in full. Unfair discrim? How diff. can you treat? If emps werent paid, theyd go on strike; ( was OK to treat emps. diff than ins. co. E now some growing spt. in case law that classification may be based on creditors interest. Greystone Bloomingdale Cases going other way U.S. Truck, Shadowgay were not single asset cases. Shadowgay had many diff. classes of creditors. Unsecured claims of var. sorts can be placed in diff. classes. Cred ints tend to be non-single asset cases. Impairment Hotel Assocs of Tucson: Under the Act, creditors never asked to be placed in a class w/ other creditors; however, under the Code, 1129(a)(8) made it important so that particular creditor could kill the plan and force liquidation or cramdown. 726 apply best interests test. Person paid in full in cash on effective date is impaired he (usu.) doesnt get interest. THIS SECTION NEEDS MORE WORK IMPAIRMENT OF CLAIMS Significance If a class is not impaired, the class and its members are deemed to have accepted. Defined A class is considered unimpaired if the plan does not alter the legal, equitable, or contractual rights of the holder of the claims Case: Hotel Associates of Tucson Plan gets confirmed over the objects of pty submitting a competing plan. Proponents of the competing plan say confirmed plan should not have been confirmed because no properly impaired class accepted it. Said the only party arguably impaired was paid in full 30 days late for the sole purpose of creating an impaired class so they could effect a cramdown debtor could have just as easily paid them on time. Held: the class was impaired under the code all that is required to impair is that the parties rights be altered. Proposition: As long as plan is proposed in good faith, the motivation of the plans proponents will not be questioned in determining whether a class is impaired. Even a favorable change will cause the class to be impaired df DETERMINING REORG VALUE The determination of the going concern or reorg value is central to the negotiation and confirmation of the plan Need to know the size of the pie being divided up If distributing stock have to be able to value it Have to be able to show that earnings will be able to sufficient to meet interest and dividend requirements and future payments required by plan Required as part of disclosure Need to know if theres something left for the stockholders 1. Valuation based on an estimate of future activity Sum of the value of its debt and its equities 2. Cost of Capital is a we DISCLOSURE STATEMENTS 1. Requirement Post Petition solicitation may not be conducted until a ct-approved written solicitation statement has been sent to the holder of claims whose votes are sought 1125(b) Requires a hearing May want to seek buy-in of U.S. Trustee and others re:stmt have to be careful, mark it draft, dont include copy of plan Failure to disclose could be fatal to the plan 1129(a)(2) Even if disclosure is approved, if there is material error, plan will not be confirmed have to begin process over 2. Disclosure must contain sufficient information to allow creditors to make an informed decision 1125(a)(1) 3. Contents not specified in code generally specified by case law to include Events leading to the filing Description of available assets and their value Anticipated future of the co Source of the info in the statement Present condition of debtor Scheduled claims Estimated return to creditors under ch 7 Accntg method used and names of accts who provide the financial info Debtors future mgmt The Ch 11 plan or summary thereof Estimated admin expense Collectibility of accts receivable Financial info relevant to creditors decision to accept or reject Info relative to risks Actual or project realizable value from recovery of preferential or otherwise voidable transfers Litigation likely to arise in nonBR context Tax attributes of the debtor Relationship of debtor w/affiliates 4. NonBR Securities Laws, Rules, and Regs Adequacy of information in disclosure statements consider w/o regard to securities laws, though the SEC may appear and be heard on the adequacy of the disclosure statement 1125(d) Safe harbor a person who in good faith and in compliance w/BR code solicits acceptances or rejections or who participates in securities matters in the plan is insulated from liability for violations of applicable securities requirements 1125(e) 5. Pre-petition solicitation No requirement for disclosure statement No safe harbor protection must comply w/SEC laws & Regs Case: Century Glove v. FAB FAB wanted to defeat Century Gloves plan and get its own plan approved instead, but couldnt get its plan on the table since exclusivity had been extended. CG gets its disclosure statement approved and sends out its plan. Thereafter, FAB contacts certain creditors to ask them that theyd be submitting a plan and urging them not to adopt CGs plan. Even sends their draft plan, w/o disclosures, upon request. BR ct found that FAB had violated 1125(b) disclosure requirements and had violated spirit or 1121(b) since FAB was apparently seeking approval of its plan. FAB appeals. Held: FAB s conduct `" solicitation  solicitation rules apply equally to acceptance and rejection, but where you have a plan & disclosure statement approved by the ct, 1125(b) does not limit communication between creditors. Ct says 1125(b) must be construed liberally so as not to limit negotiations of creditors. Other Propositions supported in Century Glove: Objecting to the accuracy of information is a confirmation issue ct will not determine such issues at disclosure hearing If pty in interest contests the accuracy of info disclosed, judge lets them right up their reasons, and it gets appended to debtors disclosure and attributed to the source judge doesnt pass on the accuracy of the info Assume: Exclusivity period has run out. Debtor submits new plan no disclosure stmt approved for that plan. Can they solicit votes? - that isnt decided in Century Glove. Although 1125(b) doesnt say you need a disclosure for each plan, but adequate information rqmt may be enough to require a new disclosure - if alternative plan is for liquidation, there may be enough info though since reorg plans generally contain a liquidation analysis - but creditors not likely to mess around. Consequence of ct finding a violation is the votes get designated under 1126(e) If debtor is seeking confirmation through fraud a # of pre- and post- confirmation remedies 1126(e) ct can designate (disregard) fraudulently obtained votes Ct can refuse to confirm plan because confirmation requirement 1129(a)(3) not met Ct can revoke confirmation of plan under 1144 w/in 6 months of confirmation Ct may rely on 105(a) as a remedy -- Sec. 105. Power of court The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. SOLICITING AND VOTING 1) See Generally above 2) Designation of Votes/Bad Faith 1126(e) After Notice & Hearing, the ct may designate (disregard) votes that were not made in good faith or not solicited in good faith or in compliance w/the code. What is Bad Faith? Case: Figter v. Teachers Teachers is the only secured creditor of Figter, and has opposed Figters reorg plan because it would turn Teachers collateral (apartments) into condos. Teachers fears if the plan fails, it wont be able to unload the collateral because the apts and condos will be mixed. Teachers claim is deemed unimpaired, so it cannot vote against the plan on the basis of its own claim. Accordingly, it seeks to buy up 21 of the 34 unsecured claims at face value so it can vote the plan down. Figter asks the ct to designate Teachers votes saying that the purchase was bad faith. In the alternative, they ask the ct treat Teachers claims as a single claim and limit it to one vote, rather than permitting Teachers to vote each claim separately. Held: The fact that a creditor purchased additional claims for the purpose of protecting his own existing claim `" bad faith or improper motive. Where each purchased claim arose out of separate transaction, each may be voted separately Easier to identify Bad Faith than Good Faith Bad faith where purpose is to destroy the enterprise to benefit competing interests Pure Malice i.e., strikes and blackmail - ulterior to the purpose of the BR code 3) Changing Votes Already Cast - Rule 3018(a) provides: For cause shown, the ct, after notice and hearing, may permit a creditor or equity security holder to change or withdraw an acceptance of rejection - 18 USC 3057 requires judge to report & US Attys to prosecute Case: Featherworks Debtor files a plan under which unsecured creditors would each receive a pro-rata share of $40,000. Heller votes no on the plan, and w/o his vote, the plan is unconfirmable because no impaired class accepted the plan, not counting insiders. After Heller receives a $25,000 payment from debtor, he seeks to change his vote. He explains that he had been prepared to vote for the plan until he took possession of debtors prepetition inventory and discovered it was inferior in quality. Allegedly, the debtors payment to Heller was paid to avoid litigation. Another creditor objects to the vote change. Held: A change in vote by debtors major unsecured creditor, coincidental w/the receipt of a substantial payment, over and above what other creditors are receiving, will not be allowed. The Code depends upon the self interest of the creditors to act as a barrier against abuse of BR laws. If any creditor receives some special consideration peculiar to him, his vote is no longer disinterested and unbiased and the Codes built-in controls are neutralized. VOTING Two Things Creditor Gets to do - vote - object to confirmation 1128 any party in interest may object CONFIRMATION REQUIREMENTS FOR CONSENSUAL PLANS 1) Procedural Rule 3017(a) after disclosure statement is filed, ct schedules hearing allowing at least 25 days notice -- plan, disclosure statement, and notice of hearing mailed to debtor, appt trustee or committee, SEC, and any pty in interest who requests - objections to the disclosure statement shall be filed and served on reqd parties Rule 3017(b) following hearing ct determines whether to prove 3017(c) on or before approval of disclosure stmt, ct shall fix the time frame for voting and may fix a date for hearing 3017(d) once the ct has approved disclosure statement, proponent must mail - plan - disclosure - notice of time for acceptance or rejection Amount of notice required governed by Rule 2002 - 20 days to accept or reject plan (Rule 2002(a)) - 25 days to object to confirmation (Rule 2002(b)) - Add 3 days if mailed (rule 9006) 2) Objection to Confirmation Objection is a pleading sets forth the provision not met, w/ attached memorandum of law Even if class is not impair, creditor may object - can say (a)(7) not satisfied not getting liquidation value 3) Standing may be a special rule in BR -- more than just someone aggrieved Creditor cannot specifically object to something in the plan that does not specifically affect them 4) Review of Confirmation Requirements Confirmation Requirements 1129(a) requirements: 1. Plan complies with Code 2. Proponent complies w/ Code (e.g., solicitation 1126) 3. Filed in good faith 4. Prof. fees approved by court 5. Officers & directors disclosed, in interests of creditors & public policy 6. Reg. rate approval (only applies to entities whose rates must be approved i.e., utilities 7. Impaired claims get at least liquidation value (best interests of creditors test) 8. Each impaired class accepts; (or else, cramdown) 9. Priority claims paid in full, in cash, on effective date; taxes paid in full, w/ interest w/in 6 years 10. At least one impaired class accepts (assuming E at least one impaired class); this holds true even if E cramdown 11. Liquidation not likely (feasibility fact intensive test) 12. U.S. trustee fees get paid 13. Retiree benefits continue 7- 11 are the Substantive Requirement more likely to be at issue In the absence of objection, some cts hold that judge has a duty to act to ensure justice - U.S. Trustee always has standing to raise an issue of equity and fairness, but generally only objects if their own fees arent provided for 5) Frequent Objections In Blue(Go through cases and list by Issue Raised under each 1129(a) rqrmt 1129(a) requirements: 1. Plan complies with Code - Timely and properly filed - Satisfies 1123 Requirements - proper classifications 2. Proponent complies w/ Code (e.g., solicitation 1126) - No solicitation of votes prior to approval of disclosure stmt - failure to comply w/technical aspects of the Code some cts will defeat plan on technical grounds Haines thinks thats too drastic 3. Filed in good faith 4. Prof. fees approved by court 5. Officers & directors disclosed, in interests of creditors & public policy 6. Reg. rate approval (only applies to entities whose rates must be approved i.e., utilities 7. Impaired claims get at least liquidation value (best interests of creditors test) 8. Each impaired class accepts; (or else, cramdown) 9. Priority claims paid in full, in cash, on effective date; taxes paid in full, w/ interest w/in 6 years of the date of the assessment (Includes Admin claims and Gap claims) As of effective date of the plan Term of art meaning w/interest must be sufficient (accounting for the risk) such that an investor who had to decide whether to take cash today or a cash payout would be indifferent - Most property taxes are secured they dont fall into this 10. At least one impaired class accepts (assuming E at least one impaired class); this holds true even if E cramdown 11. Liquidation not likely (feasibility fact intensive test) 12. U.S. trustee fees get paid 13. Retiree benefits continue 6) Minimum requirements for Consensual Confirmation 1129(a)(7) Best interest of creditors test creditor must get at least liquidation value - Determination of liquidation value must acct for expense/different treatment related to liquidation such as: - payment to trustee 326 - taxes, utilities, and other expenses until liquidation complete - Ch 7 provides for interest at legal rate from the date of the filing of the petition (726(a)(5)&(6) CH 11 doesnt CH 7 provision applies in CH 11 under the best interest test ???????? see notes 10/25/01 - If debtor is a partnership and partnership assets are insufficient and there is a solvent partner to go after, .. - 723 incorporated through the best interest test - Non-recourse claim in Ch 11 is w/recourse 1111(b); 1111(b) doesnt apply in Ch 7 Solution: May want to put them in separate class, though some cts won t permit - 1129(a)(11) Plan must be Feasible - Can debtor succeed  have they overstated their profits, have they understated their expenses, has debtor fixed the problems which ! BR - if DIP says, I ll reorganize and if I fail, I ll just liquidate no assurance of what creditors would get, cts will reject confirmation Case: Night Light Held: aaaa Ct found feasibility that debtor would get paid CRAMDOWN OF UNSECURED CLAIMS Lot of holes here problem interpreting notes -- ASK 1) Requirements 1129(b) -- Requires all elements of 1129(a) be satisfied except (a)(8), PLUS 2 addtl rqmts - plan does not discriminate unfairly AND - plan is fair & equitable w/re: to non-accepting classes (does not apply to non-accepting claimant in an accepting class) Keep in mind, must still have at least one impaired class accepting 1129(a)(10) Debtor must ask for cram down Ct shall confirm notwithstanding (a)(8) if - Plan does not unfairly discriminate only comes into play where there are claims of equal priority that are treated differently - Plan is Fair & Equitable w/respect to dissenting classes term of art for the Absolute Priority Rule 2) Fair & Equitable W/Regard to Secured Creditors partially defined by 1129(b)(2) For Secured Claims, creditor must i. retain lien and receive deferred cash payments = face value of amount of claim and at least the present value of their interest in the collateral - interest rate determined by rate charged by institutional lenders for similar commercial transactions, accounting for level of risk - value of collateral determined based on debtor use of property per 506(a) In Rash, value = replacement value because debtor planned to continue using it if debtor doesnt keep, value = foreclosure value ii. sale of collateral pursuant to 363(k); lien attaches to proceeds and creditor has right to credit-bid at sale creditors secured claim is deemed satisfied, and any additional amount owed is unsecured iii. indubitable equivalent no rqmt that it be cash 3) Fair & Equitable w/Regard to Unsecured Creditors Each Unsecured Creditor must receive property of a value equal to the amount of the allowed claim as of the effective date, or the holder of a junior claim or interest receives nothing ABSOLUTE PRIORITY RULE Application of the absolute priority rule will usually require a valuation of the company so that value of stock distributed can be determined Value of Stock = Going Concern Value of its assets  Present value of debts "# of Shares (see pg 798 for examples) Pecking Order under plan of a corporate debtor is generally - Administrative and other Priority Claims - Secured Claims - Unsecured Claims - debenture holders - stockholders Example: If the class of unsecured creditors rejects the plan, unless it receives 100% of its allowed claim, the stockholders, debentures, and any claims subordinated under 510 receive nothing. 4) 1111(b) Election of Undersecured Creditors The Two tests in 1129(b)(2)(A) Become significant when 1111(b) election made (otherwise the amt of claim & interest in collateral = same # - Creditor must receive cash = present value of claim & - = present value of interest in collateral Exp: Creditor Undersecured on $100,000 claim; collateral is only $80,000 assuming no 1111(b) election -- $80,000 secured claim and $20,000 unsecured PVoIiC still $80,000. But Recall Under 1111(b) If property securing a claim is to be retained by the debtor, a nonrecourse secured creditor may be treated as if it had recourse, and will have a deficiency claim against the estate to the extent that the value of the collateral is less than amount of the claim A secured creditor entitled to recourse, either as a result of 1111(b)(1) or because the holder had recourse under non-bankruptcy law, may forego its rights as a recourse creditor, and elect under 1111(b)(2) to have the entire claim treated as secured. A secured creditor making an 1111(b)(2) election is entitled under the plan to: (1) retain the lien (2) have the entire allowed amount of the debt secured by the lien even if the value of the collateral is less than the amount of the debt (3) receive on account of the claim - CASH = principal face amount of the claim - $100,000 - and = to present value of the interest in the collateral $80,000 Remember: Generally, every secured claim will be in its own class gov by 1122 which states that claims in each class must be substantially similar because claims secured by different collateral or different interests in the same collateral usually are not considered to be substantially similar. Exceptions: Mechanics liens and bondholders If the secured creditor makes an 1111(b)(2) election, the plan can be confirmed notwithstanding the objection of the creditor as long as the lien remained on the collateral to secure the entire $100,000 debt, the face amount of the payment made to the creditor under the plan = $100,000 and the present value of all payments (including the discount value of future payments = $80,000 SINGLE ASSET CASES, NEED FOR ACCEPTING IMPAIRED CLASS, GERRYMANDERING Although noting that similar claims may be placed in different classes, the ct in greystone found that there is on clear rule that emerges from otherwise muddled caselaw of 1122 claims classification: THOU SHALL NOT CLASSIFY SIMILAR CLAIMS DIFFERENTLY IN ORDER TO GERRYMANDER AN AFFIRMATIVE VOTE Theres a split on whether its permissible to separate an 1111(b) claim separate from general unsecured claims reasoning supporting seperation: A general unsecured claim exists in all chapters of the code, while a 1111(b) claim exists only as long as the case remains in CH11 once converted to CH 7, 1111(b)s recovery is limited to its collateral. Most circuits, however, reject this approach separate classification of deficiency claims not allowed. In single asset cases, prohibiting a debtor from separately classifying deficiency claims will effectively bar single asset debtors from utilizing the BR Codes Cramdown provisions; some Cts have deemed this appropriate because a cramdown that disadvantages debtors largest creditor. 9th Circuit adopts Greystone absent legitimate business or economic justification, separate classification is not permitted. UNFAIR DISCRIMINATION The requirement that a plan not unfairly discriminate against dissenting classes basically means that equal classes must receive roughly the same % of their claims. Equal classes can be given different kinds of consideration the key is that the value must be roughly the same. Exp. If the holders of claims in one class get 50% of their claims in cash on the effective date, and the holders of claims in an equal class get promissory notes with a present value equal to 50% of their notes, the plan will not be deemed to have discriminated unfairly. Four factors for fair discrimination (Judge London, p. 807): 1) reasonable basis for the discrimination; 2) whether the debtor can confirm plan w/o discrimination; 3) whether the discrimination was proposed in good faith; and 4) the treatment of the class discriminated against. Greate Bay Hotel & Casino Rebuttable presumption that a plan is unfairly discriminatory when there is: 1) a dissenting class 2) Another class of the same priority 3) A difference in the plans treatment of the two classes that results in either a) a materially lower % of recovery for the dissenting class or b) regardless of the %, an allocation of materially greater risk. But if theres a justifiable reason, such treatment may be ok. Differing treatment raises the unfair discrimination test. There must be a reason. Ex: Greater risk test applied in Greate Bay case (not unfair discrim) noteholders vs. trade creditors (noteholders had made conscious risk of long-term credit, give them somewhat greater risk). Case v. Los Angeles Lumber: Justice Douglas fair & equitable means abs. pri. rule among creditor classes. As rule ult. codified, abs. pri. rule takes care of unfair discrim. probm. Control of company was property! Reread Boyd. What was rule of Boyd? Is it sim to abs. pri. of Case v. L.A. Lumber? Under what conds. may stockholders retain something? Are those circums. an excn, or simply another aspect of same rule? NEW VALUE EXCEPTION The absolute priority rule provides that a dissenting class of unsecured creditors must be paid in full before any junior class can receive or retain any property under a reorganization plan, or the plan cannot be confirmed. 1129(b)(2)(B) Although Cts are split, 9th Circuit upholds a New Value Exception allowing security holders to retain an interest in a reorganized corp where they invest: New Capital In money or moneys worth that is A substantial contribution Reasonably equivalent to the interest received or retained and Necessary for a successful reorganization New value exception might more appropriately be considered a corollary to the absolute priority rule rather than an exception to it. Concept is, theyre not getting anything on account of their old interest rather theyre permitted to obtain a new interest by investing new $ into the enterprise. Sweat equity /management expertise unacceptable. They have no place in the asset col of the bal sheet of the new company.... and they cannot be exchanged in the marketplace for something of value to the creditors today. Case & Ahlers Even if all that is retained is control, the equity holders have retained something of value. Ahlers When an opportunity to contribute new funds is given exclusively to old equity holders under a plan adopted without consideration of alternatives, the equity holders have retained an interest on account of their prior interest. 203 N LaSalle NW Bank Worthington v. Ahlers. Farmers offered sweat equity. S.Ct. said no, cant be money or moneys worth. Promise of future services was intangible, inalienable, and prob. unenforceable. Additionally, if reorg fails, creditors no better off than before for having received the sweat equity of the farmers/ CONFIRMATION PROBLEMS, CREDITORS PLANS, SCHOLARLY DEBATE POSTCONFIRMATION ISSUES When does plan become effective? Ct must order confirmation of plan Plan automatically stayed for 10 days unless ct orders o/w R. 3020(e) Interested pty has 10 cal. Days to appeal BR R. 8002 - Under FRCP if less than 11 days, you dont incl weekend - Under BR R. 9006(a) excl weekends only if < 8 days Plan typically establishes effective date e.g., plan effective 30 days after ct enters order; ord. 30 days. - generally cant have immediate effective day because administration (check writing, etc.) takes time and per 1129(a)(12) admin claims must be paid in full on the effective date of confirmation If effective date is specified in plan, interested party seeking appeal will have to seek a stay pending appeal; once the eggs have been scrambled, appeal will be moot - to stay pending appeal, must 1st go to BR judge who just confirmed the plan BR Rule 8005 - Judge usually looks to whose rights will be irrevocably impaired if stay is granted or denied - Haines will typically grant stay unless it is totally frivolous Effect of Plan Confirmation -- 1141 1141(a) confirmed plan binds the - debtor, - any entity issuing securities under the plan, - any entity acquiring property under the plan, and - any creditor, equity security holder, or general partner in the debtor (The plan defines the new obligations as between the parties) Rights as against 3rd parties (i.e., bd members or guarantors, etc. are unaffected -- 524(e) 1141(b) & 1141(c) confirmation order vests all the property of the estate in the debtor free and clear of most claims and property interests. - Note that the estate that was created by 541 no longer exists post confirmation 1141(d) -- confirmation of a plan discharges the debtor from any debt that arose before the date of such confirmation, including damages for executory contracts, priority tax claims, and liability related to avoided transfers. - discharge is effective even if proof of claim has not been filed or allowed or if holder rejected plan - discharge is as to the debtor only claims against officers in their individual capacities, guarantors of loans, etc are not discharged 524(e) - discharges debts only does not affect right to injunction unless - contractual right to injunction is eliminated by rejection of an executory contract, or - enforcement is no longer possible, (e.g., avoiding power, sale of property, etc.) - liquidated damages were intended to be a substitute for performance under the contractual agreement, and claim for damages was included in the plan ? OPERATION of 524(a) Even if plan fails to specify that debts are discharged, 524 provides a discharge injunction Debtor can get contempt charges against anyone who tries to sue on pre-confirmation debts Limited Scope of Discharge under 1141 1) Has to be a claim that arose pre-confirmation Need to keep in mind when a claim arises to determine if debtor can be affected by it post-confirmation 2) Due Process Requirements must be met. Where debtor knows of a creditors claim, actual notice required As to any truly unknown claimants, debtor must provide constructive notice through publication Modification of Plan What are debtors options if after confirmation, he realizes projections were wrong? 1) Modification of existing plan Plan may be modified at any time before confirmation 1127(a) Plan proponent (not just anybody) may modify plan after confirmation but before substantial consummation. 1127(b) - Per 1101(2) Substantial consummation entails (a) Transfer of substantially all of property - `" all payments over the life of the plan-- must mean physical property of the estate (real property, stock etc.) otherwise (c) would be meaningless (b) Assumption by Debtor or successor of mgmt of the property (c) Commencement of distributions of payments under the plan 2) Filing a new Ch 11 Case Nothing in Code prevents this -- 1141 is similar to CH7 provision that does limit right to refile only 1141 contains no similar provision - 1127 Could be construed to prevent refilling where there are no changes circumstances - but where refiling is due to new debts, most cts will say no per se prohibition to refiling What are Creditors Remedies if Debtor Defaults? Can: Sue for debts owed automatic stay has terminated - Dont have to go back to bankr. Ct - obligations that were owed pre-petition have changed into obligations owed under the plan Plan may have built-in default -- generally ct has a problem with plans that write in liquidation provisions for purposes of 1129, but weve seen case where it was permitted because CH 7 provision permitted full payment of creditors Creditor can file an involuntary petition, go after preferences, etc. - generally, only reason creditor would go to bankr. ct. for remedy is if creditor is disadvantaged vis--vis other creditors try preferences 1st, only if preferences going out to others will he want to file BR 350. Closing/reopening of case. (a) After an estate is fully administered and the court has discharged the trustee, the court shall close the case. ? What does it mean to be fully administered? - nothing preventing debtor from closing case before plan payments have been completed. Except for retention by the BR ct of postconfirmation jurisdiction for the express limited purposes of ensuring transfer of property an satisfaction of liens, the ct retains jurisdiction only to the extent specifically set forth in the plan. Most plans specifically retain jurisdiction in BR ct for purposes of determining allowance of claims, admin disputes under plan, determining preferences and fraudulent transfers, etc (often times, claims allowance determined after confirmation) Motivation for closing case: 28 U.S.C. 1930 in chap 11 cases, fees paid on sliding scale as % of debtors disbursements each qtr. until debtor converted, dismissed, or closed. - in debtors interest to close case ASAP. - disbursements - plan payments - anything a debtor pays out (trade purchases) - can result in large bankr. fees to U.S. Trustee (b) A case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause. Creditors may cause case to be reopened if new asset drops out of woodwork routinely done If case reopened! resumption of quarterly fees Classification Rules: 1129(a) requirements: 1. Plan complies with Code (e.g., solicitation 1126) 2. Proponent complies with Code 3. Filed in good faith 4. Professional fees approved by court 5. 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