CARL E. STEWART, Chief Judge:
This matter involves an appeal from a bankruptcy judge's interlocutory order and judgment. The bankruptcy court ruled on cross-motions for partial summary judgment in favor of Appellee First Guaranty Bank ("FGB") that the Multiple Indebtedness Mortgage that FGB recorded is valid, and that the property underlying that mortgage, the Deluxe Motel, secures both the loan FGB made to Debtor-Appellant Hari Aum LLC ("Hari Aum") and the loan FGB made to a second entity, Mississippi Hospitality Services LLC. We now AFFIRM.
In 2005, Hari Aum, a limited liability company ("LLC") that one Suresh Bhula ("Bhula") wholly owned, borrowed $1.8 million from FGB to finance the purchase of the Deluxe Motel in Slidell, Louisiana. As the 100% shareholder, sole officer, and managing member of Hari Aum, Bhula signed both a promissory note and a Multiple Indebtedness Mortgage ("MIM"), dated January 27, 2005, on Hari Aum's behalf to evidence and secure the $1.8 million loan. Also on January 27, Hari Aum, through Bhula, signed a commercial security agreement giving FGB a security interest in all equipment, furniture, fixtures, and an assignment of rents and leases in the Deluxe Motel property. The MIM was properly recorded in St. Tammany Parish, Louisiana on February 1, 2005.
The pertinent sections of the MIM are as follows:
(italicized emphases added).
(italicized emphases added).
Thus, the notable features of the MIM's definition of "Indebtedness" are: 1) the MIM secures present and future loans between Hari Aum and FGB; 2) the obligation broadly contemplates and includes the debts of third parties, whether Hari Aum is the principal obligor or obligated on a "joint and several" basis with others; and 3) the maximum amount of the Indebtedness secured is limited to $50 million. The MIM also states that Hari Aum pledged the Deluxe Motel as security for Hari Aum's "Indebtedness" between itself and FGB. Notably, only Hari Aum and FGB are parties to this MIM. Additionally, the MIM provides the mechanisms for cancellation of the instrument in the provision entitled, "Duration of Mortgage."
Bhula and FGB continued their relationship in 2006, when Bhula obtained a commitment letter from FGB, dated May 31, 2006, by which FGB agreed to finance the purchase of a hotel in Hattiesburg, Mississippi through a new entity that was not yet formed. Thereafter, Bhula formed a second LLC, Mississippi Hospitality Services, LLC ("MHS"), of which Bhula was also the 100% shareholder, sole officer, and managing member. The loan between FGB and MHS was for $4.9 million, and was secured by a deed of trust that was properly recorded in Forrest County, Mississippi on June 19, 2006. MHS also entered into a commercial security agreement with FGB, dated June 16, 2006, which gave FGB a security interest in all inventory, equipment, general intangibles, consumer goods and fixtures, and an assignment of rents and leases for the Hattiesburg property. The commitment letter specifically states that the Deluxe Motel and the 160-unit hotel in Hattiesburg were to serve as collateral for FGB's loan to MHS. The pertinent documents that Bhula executed in 2006 in connection with the
Also on May 31, 2006, the U.S. Small Business Administration ("SBA") advanced a Disaster Loan in the amount of $735,000 to Hari Aum to repair roof damage associated with Hurricane Katrina. Hari Aum, through Bhula, signed a note and multiple indebtedness mortgage in favor of the SBA on June 13, 2006, and this mortgage was recorded in St. Tammany Parish, Louisiana on July 10, 2006. Pursuant to this filing, Hari Aum granted the SBA a second mortgage interest on the Deluxe Motel.
On April 21, 2009, FGB refinanced both Hari Aum's $1.8 million loan and MHS's $4.9 million loan. Bhula signed new promissory notes on behalf of each of the LLCs, as well as a commercial guaranty personally obligating Bhula on Hari Aum's loan. Also on April 21, Bhula executed two other documents: 1) A Limited Liability Company Resolution to Borrow/Grant Collateral ("Resolution"), on behalf of Hari Aum; and 2) Hari Aum's Acknowledgment of Existing Multiple Indebtedness Mortgage ("Acknowledgment"). In addition to the 2005 MIM, the Resolution, the Acknowledgment, and the 2009 MHS promissory note are the central documents to our resolution of this appeal.
The Resolution broadly authorizes Bhula to pledge Hari Aum's real property as security for any future indebtedness. The company grants Bhula the authority to enter into transactions concerning the company's real estate, including the pledging of collateral to secure debt between Hari Aum and FGB. The Resolution states, in pertinent part:
(italicized emphases added).
The Acknowledgment indicates that Hari Aum's 2005 MIM "shall secure any and all of [MHS's] and [Hari Aum's] present and future indebtedness in favor of [FGB]," and that Hari Aum and MHS will be jointly and severally liable for all indebtedness, including the MIM and MHS's promissory note with FGB. The Acknowledgment identifies MHS as the "Borrower," Hari Aum as the "Grantor," and FGB as the "Lender." The Acknowledgment provides, in relevant part, as follows:
(italicized emphases added).
The MHS promissory note that Bhula executed on April 21, 2009 with FGB identifies,
Both Hari Aum and MHS subsequently defaulted on making their respective loan payments. On August 12, 2010, Hari Aum filed a Chapter 11 petition for reorganization. Through the bankruptcy adversary proceeding, the parties sought the court's determination of whether the Deluxe Motel serves as security for only the loan between Hari Aum and FGB or also for the loan between MHS and FGB. Hari Aum asserted that the MIM does not secure the MHS loan, while FGB argued to the contrary. The SBA also filed an unopposed motion to intervene in the proceeding, which the bankruptcy court granted. The SBA essentially agreed with Hari Aum that the MIM does not secure the MHS loan.
On July 12, 2011, the bankruptcy court issued its Memorandum Opinion, concluding that: 1) the MIM allowed FGB to secure future loans without recording further documents associated with those loans; 2) Bhula was authorized to pledge Hari Aum's property to secure MHS's debt by virtue of the Resolution; and 3) the MIM, MHS's 2009 promissory note, and the Acknowledgment together effectuated a cross-collateralization whereby Hari Aum granted FGB a security interest in Hari Aum's Deluxe Motel to secure FGB's loan to MHS.
Hari Aum filed for leave to appeal the bankruptcy court's interlocutory judgment in the district court. While the motion was pending, the bankruptcy court, sua sponte, certified its judgment for direct appeal to this court, pursuant to 28 U.S.C. § 158(d)(2)(A)(i) and (iii). We subsequently granted leave to appeal.
"When directly reviewing an order of the bankruptcy court, we apply the same standard of review that would have been used by the district court. Findings of fact are reviewed for clear error, and conclusions of law are reviewed de novo." In re Halo Wireless, Inc., 684 F.3d 581, 586 (5th Cir.2012) (citations omitted).
As the express language of the 2005 MIM indicates, the instrument was executed pursuant to Article 3298 of the Louisiana Civil Code ("Article 3298"). La. C.C. art. 3298. As an issue of first impression, we are called upon to interpret Article 3298, which no published Louisiana case has yet to interpret or apply even though the provision has been in effect since January 1, 1992.
Article 3298, entitled, "Mortgage May Secure Future Obligations," provides, in relevant part, as follows:
La. C.C. art. 3298(A)-(C).
The 1991 Revision Comments ("Comments") further explain the purpose of Article 3298 and mortgages enacted pursuant to the provision:
La. C.C. art. 3298, Revision Comments (a)-(d) (1991) (internal citations omitted).
Mortgages issued pursuant to Article 3298 are known as "multiple indebtedness mortgages," "future advance mortgages," or "equity line mortgages" (collectively,
The Louisiana Supreme Court has described the collateral mortgage as not a "pure" mortgage but the "result of judicial recognition that one can pledge a note secured by a mortgage and use this pledge to secure yet another debt." First Guar. Bank v. Alford, 366 So.2d 1299, 1302 (La. 1978). Further, "[a] collateral mortgage indirectly secures a debt via a pledge." Id. It "consists of at least three documents, and takes several steps to complete":
Id.
Given the relationship between MIMs and collateral mortgages, secondary sources have discussed the similarities and differences between collateral mortgages and MIMs in order to illustrate the features of MIMs. The bankruptcy court relied on a law review article that, inter alia, compares MIMs to collateral mortgages. See David S. Willenzik, Future Advance Priority Rights of Louisiana Collateral Mortgages: Legislative Revisions, New Rules, and a Modern Alternative, 55 La. L.Rev. 1 (1994). We and the Louisiana Supreme Court have cited this article previously for other purposes. See Keenan v. Donaldson, Lufkin & Jenrette, Inc., 529 F.3d 569, 575 (5th Cir.2008); Whitney Nat'l Bank v. Rockwell, 661 So.2d 1325, 1330 (La.1995).
In distilling Article 3298, Willenzik describes MIMs as follows:
Id. at 50-51 (citation omitted).
Accordingly, Willenzik identifies several essential features of MIMs that are relevant for our purposes. First, "[a] multiple indebtedness mortgage agreement must always be granted in favor of a specifically named and designated mortgagee." Id. at 52 (citations omitted). Second, "[a] multiple indebtedness mortgage agreement ... provides that the mortgage itself is being granted directly to secure the on-going present and future indebtedness of the borrower in favor of the specified mortgagee," and thus, there is no reference to a specific pledge agreement.
In KeyBank, the district court also noted several characteristics of mortgages made pursuant to Article 3298:
823 F.Supp.2d at 405 (citing La. C.C. art. 3298(C)). The court further observed, "Article 3298 declares a policy demanding recognition of a mortgage at its date of recordation, regardless of when the obligation is actually incurred." Id. at 408.
A principle of central importance to mortgages under Louisiana law is the public records doctrine, which is captured in Articles 1839 and 3338 of the Louisiana Civil Code.
Article 1839, "Transfer of Immovable Property,"
We first address the validity of the 2005 MIM before turning to the question of whether the subsequent agreements that Hari Aum, FGB, and MHS executed reflect an effective cross-collateralization of the Deluxe Motel, as the 2005 MIM's collateral, for MHS's loan.
Hari Aum's challenge to the validity of the 2005 MIM is intertwined with its challenge of the bankruptcy court's conclusion that Hari Aum agreed to secure MHS's loan from FGB. Hari Aum points out that the MIM "addresses only present and future debt obligations owed by Hari Aum to FGB. None of the language contained in this document directly and/or by reference identifies any third party loan obligations, specifically the debt of Mississippi Hospitality." Accordingly, Hari Aum argues that, for FGB to have a mortgage on Hari Aum's property to secure MHS's debt, "there must be a document existing evidencing such debt obligation." Hari Aum invokes several other provisions of the Civil Code to argue essentially that FGB's failure to amend the MIM properly to include MHS's debt or to publicly record a mortgage whereby the MIM specifically secures MHS's debt renders the purported cross-collateralization ineffective. Hari Aum contends that, by finding that only the recorded MIM was necessary and that no additional, recorded documents were necessary to evidence the transactions here, the bankruptcy court erred by concluding that Article 3298 "trumps" the public records doctrine. Additionally, Hari Aum suggests that the 2009 refinancing of FGB's loan to Hari Aum effectively extinguished the original MIM such that FGB would have needed to record a new MIM or record amendments to the prior MIM in order for it to be valid. Accordingly, any purported amendments to the MIM are ineffective, at the least.
FGB argues that the 2005 MIM is valid and thus secures Hari Aum's indebtedness to FGB up to the stated amount of $50 million. FGB further asserts that no additional documents were necessary to secure any future loans that Hari Aum incurred up to this maximum amount. FGB therefore argues that Hari Aum's subsequent agreements to be jointly and severally liable for MHS's loan and to pledge the MIM as collateral for the MHS loan fall within the MIM's broad definition of "Indebtedness." According to FGB, the 2005 MIM is thus valid in full — including as to MHS's debt — as of the mortgage's original recordation date.
The bankruptcy court concluded that the 2005 MIM between Hari Aum and FGB sufficiently secured Hari Aum's future indebtedness to FGB up to $50 million and thus, that no additional, publicly-recorded documents were necessary to evidence Hari Aum's indebtedness that did not exceed this amount. We agree with the bankruptcy court. The 2005 MIM satisfies all of the relevant, enumerated requirements under the Louisiana Civil Code for the creation of a valid MIM: 1) it is granted in favor a specific mortgagee, FGB; 2) it expressly provides that it secures Hari Aum's present and future indebtedness to that mortgagee; 3) its definition of "Indebtedness" includes both present and future debt; 4) it provides a specific, maximum indebtedness amount of $50 million; 5) it references Article 3298
Further, both the statutory guidance and secondary sources indicate that, once the MIM is recorded in the public registry, it has effect as to third parties and secures any types of obligations described in the MIM. Thus, Hari Aum's argument that the bankruptcy court erred by ignoring the public records doctrine to conclude that Article 3298 "trumps" the doctrine is unavailing. To the contrary, the plain language of and Comments to Article 3298 indicate that Article 3298 incorporates the public records doctrine, insofar as it requires MIMs to be publicly recorded in order to affect third parties. La. C.C. art. 3298(B) ("[T]he mortgage has effect ... as to third persons from the time the contract of mortgage is filed for registry."); id., Revision Comment (d). Accordingly, there appears to be no tension in acknowledging the validity of the 2005 MIM under Article 3298 in light of the public records doctrine, as Hari Aum argues.
Moreover, Article 3298 makes clear that MIMs will not be invalidated or canceled even if there is no underlying obligation outstanding at a given time, until the parties affirmatively cancel the mortgage.
Here, there was no increase in the maximum indebtedness of the 2005 MIM — in excess of $50 million — when Hari Aum assumed MHS's debt; thus, further recordation was not necessary. For example, in KeyBank, the bank made certain amendments and modifications to the subject MIM and relevant promissory notes through consolidation, which did not increase the amount of secured indebtedness beyond the maximum aggregate principal stated in the earliest original mortgage. Id. at 410-11. The KeyBank court thus held that these amendments and modifications did not preclude the bank from using the recordation date of the original mortgage to establish its security interest in the
With respect to the MIM's cousin, the collateral mortgage, the Louisiana Supreme Court also has acknowledged that the collateral mortgage endures even if the underlying obligation is paid. Alford, 366 So.2d at 1302. The Alford court stated: "A collateral mortgage note may be pledged to secure future obligations. In that event full payment of a given obligation will not extinguish the collateral mortgage note and accompanying mortgage. (And in such cases the collateral mortgage will have a ranking from the initial pledge.)" Id. (citing La. C.C. art. 3158); see also In re Charrier, 167 F.3d 229, 234 (5th Cir.1999) ("[The] language [of the collateral mortgage, which] ... specifically authorized future advances .... together with the Charriers' failure to retrieve the collateral mortgage note or seek its cancellation after paying off the original debt ..., and their repeated willingness to accept new loans based on the purported pledge of the 1979 collateral mortgage package, are clear indicators of the Charriers' intent to secure future indebtednesses with that collateral.").
Accordingly, we conclude that the 2005 MIM here was effective to secure Hari Aum's future indebtedness up to $50 million. Moreover, the 2009 refinancings did not invalidate the 2005 MIM or require further recordation, since they did not increase the amount of secured indebtedness to more than $50 million. See La. R.S. 9:5390(B); KeyBank, 823 F.Supp.2d at 410-11.
The resolution of this question — whether the 2005 MIM is valid — is a threshold consideration for determining whether the subsequent agreements between Hari Aum, FGB, and MHS bring MHS's loan within the ambit of the MIM. If valid, the MIM secures Hari Aum's future indebtedness to FGB up to $50 million, whether Hari Aum is the principal obligor for a debt or jointly and severally liable for the debt. Thus, the question becomes whether the 2009 Resolution and the 2009 Acknowledgment effectively demonstrate that the Deluxe Motel, as the underlying collateral for the MIM, secures MHS's loan, where Hari Aum agreed to be held jointly and severally liable for MHS's loan and where Hari Aum pledged the MIM as collateral for FGB's loan to MHS.
Related to the issue of the effectiveness of the cross-collateralization is the threshold question of whether Bhula, as the sole member of Hari Aum, had the authority to pledge Hari Aum's collateral to secure MHS's debt.
Under Louisiana statutory law, a managing member of an LLC may act as "a mandatary [or agent] of the limited liability company for all matters in the ordinary course of its business other than the alienation, lease, or encumbrance of its immovables." La. R.S. 12:1317(A). Thus, unless otherwise provided in the LLC's articles of organization or a written operating agreement, "a majority vote of the members shall be required to approve [inter alia]... [t]he alienation, lease, or encumbrance
Hari Aum contends that there was no valid, written resolution authorizing Bhula to pledge Hari Aum's 2005 MIM to secure MHS's loan, while FGB asserts that the Resolution here validly conferred this authority on Bhula. We conclude, as the bankruptcy court did, that Bhula had the authority to pledge the MIM based on the relevant law, and also based on common sense. Bhula is the sole managing member of Hari Aum, and he signed both the Resolution and the Acknowledgment expressly on behalf of Hari Aum. The Resolution granted Bhula the authority to "pledge ... or otherwise encumber and deliver to [FGB] ... all of [Hari Aum's] real (immovable) property ... as security for ... any other or further indebtedness of [Hari Aum] to [FGB]." As the Resolution comported with the requirements of the law — approval by a majority of the LLC's members of a manager's pledge of the company's real property — this document is determinative of this threshold issue. Hari Aum points to no persuasive authority that leads us to conclude to the contrary.
As the Comments to Article 3298 state, "a mortgage may secure existing obligations; obligations contemporaneously incurred with the execution of the mortgage or specific identifiable or particular and limited future obligations; or general and indefinite future obligations; or any combination of them. The matter is one of contract, not law...." La. C.C. art. 3298, Revision Comment (b) (emphasis added). Further, contracts have the effect of law between the parties and courts enforce them according to the true intent of the parties. La. C.C. arts.1983, 2045. "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." La. C.C. art. 2046.
At the heart of this appeal, from Hari Aum's perspective, is the apparent tension between Article 3298 and the public records doctrine. Hari Aum argues that the Acknowledgment is the type of document for which Louisiana law requires recordation. Therefore, because the Acknowledgment was not recorded, it is invalid. Relatedly, Hari Aum contends that, for the cross-collateralization to be effective, FGB needed to publicly record an amendment to the MIM that specifically evidences the inclusion of MHS's loan. Hari Aum also maintains that the Acknowledgment is vague and ambiguous and, thus, it must be construed against the drafter, i.e., FGB. Hari Aum further argues that FGB fails to prove the creation of a surety or guarantor relationship between Hari Aum and MHS regarding MHS's loan from FGB.
FGB argues that the Acknowledgment demonstrates that Hari Aum expressly and unambiguously agreed to be jointly and severally liable for MHS's debt and clearly pledged the MIM to secure MHS's debt. FGB further asserts that no additional documents were necessary to evidence Hari Aum's assumption of this debt. FGB suggests that Hari Aum's agreement to assume MHS's debt is a relatively straightforward exercise in contractual interpretation and that the relevant documents are unambiguous.
We agree with the bankruptcy court's conclusion regarding the effect of the loan documents that Hari Aum, MHS, and FGB executed, i.e., that they effectuated a cross-collateralization whereby Hari Aum's Deluxe Motel, as the underlying collateral
Bhula signed the Acknowledgment on behalf of Hari Aum, and the Acknowledgment expressly and unambiguously reflects Hari Aum's intent to be personally liable for MHS's loan from FGB:
See La. C.C. art. 1796 ("A solidary obligation arises from a clear expression of the parties' intent or from the law."); see also Kaplan v. Univ. Lake Corp., 381 So.2d 385, 391 (La.1979) ("It is well settled that the promise to pay the debt of another must be express and in writing."). As Hari Aum is personally liable for MHS's loan from FGB and the 2005 MIM contemplates future indebtedness between Hari Aum and FGB, MHS's loan thus falls within the MIM's broad definition of Hari Aum's "Indebtedness" to FGB.
Further, the Resolution, the Acknowledgment, and MHS's 2009 promissory note clearly illustrate Hari Aum's agreement to pledge the MIM to secure MHS's loan. La. C.C. art. 3133 (defining a pledge as "a contract by which one debtor gives something to his creditor as a security for his debt"); id. art. 3141 ("A person may give a pledge, not only for his own debt, but for that of another also."). The Resolution grants Bhula the authority to pledge Hari Aum's real property as security for any future indebtedness. In the Acknowledgment, Hari Aum then pledges the MIM as security for MHS's loan from FGB, stating that Hari Aum "grant[s] the security interest provided herein [the MIM] to secure payment of [MHS's] Indebtedness in favor of [FGB]." As we have noted, Hari Aum (through Bhula) signed the Acknowledgment, which is the principal document evidencing this pledge. Finally, MHS's 2009 promissory note identifies Hari Aum's 2005 MIM as one of the forms of collateral securing the note. These documents together illustrate the clear intent of the parties. See La. C.C. art. 2046.
Moreover, our discussion regarding the applicability of the public records doctrine to MIMs elucidates the issues here too. Just as the amendments to the mortgages and promissory notes in KeyBank did not require recordation, neither the Acknowledgment nor the 2009 MHS promissory note here required recordation, as long as these alterations did not exceed the total indebtedness permitted under the pre-existing 2005 MIM, which they did not. See La. R.S. 9:5390(B); KeyBank, 823 F.Supp.2d at 410-11. Indeed, it would be counter-intuitive to require that the Acknowledgment be recorded, as a mere pledge of an existing, unaltered mortgage, while amendments to a mortgage would not need to be recorded. As the Comments to Article 3298 clearly state, "Once
Hari Aum's arguments that additional documents needed to be recorded are red herrings. There is no new mortgage here. Moreover, based on the structure of MIMs under the Civil Code and related statutes, the bankruptcy court is correct that "[m]any, if not all, of the [Hari Aum's] arguments are inapplicable if the MIM is compared to and recognized to be an improvement of, the collateral mortgage/pledge agreement previously used by banks and other lenders in Louisiana." As Hari Aum validly agreed to be jointly and severally liable for MHS's loan and to secure MHS's loan with the MIM, that loan simply constitutes part of Hari Aum's future "Indebtedness" that the 2005 MIM contemplates. As a result, the MIM and, thus, the Deluxe Motel, secures MHS's loan from FGB.
For the foregoing reasons, we AFFIRM the bankruptcy court in all respects and REMAND for further proceedings.