TIMOTHY A. BARNES, United States Bankruptcy Judge.
The limited issue before the court arises after the appeal of this court's Order Granting Motion of United Central Bank for Allowance of Secured Claim and Turnover of Collateral Proceeds [Dkt. No. 271] (the "
Together, the Motions sought resolution of competing claims against proceeds of the sale of the assets under 11 U.S.C. § 363(f) (the "
IDOR timely appealed both the IDOR Order and the UCB Order, and, on appeal, the District Court for the Northern District of Illinois (the "
In light of the District Court Opinions and upon a review of the parties' subsequent filings, the court considers here the extent and validity of the successor liability aspect of IDOR's claims (
The federal district courts have "original and exclusive jurisdiction" of all cases under title 11 of the United States Code, 11 U.S.C. § 101, et seq. (the "
A bankruptcy judge to whom a case has been referred may enter final judgment on any core proceeding arising under the Bankruptcy Code or arising in a case under the Bankruptcy Code. 28 U.S.C. § 157(b)(1). Matters arising under section 363 of the Bankruptcy Code are matters that may only arise in a bankruptcy case and, thus, the bankruptcy court is empowered to enter final orders with respect to the same. Directional Int'l, Ltd. v. Illinois Bell Tel. Co. (In re Pers. Comp. Network, Inc.), 97 B.R. 909, 912 (N.D. Ill. 1989). All parties have consented to this court's entry of a final order adjudicating the Motions and this court's jurisdiction and constitutional authority were not challenged on appeal.
On December 10, 2015, an order of remand from the District Court was entered
The court has reviewed and considered each of the forgoing and has taken into consideration any and all exhibits submitted in conjunction therewith. The court has also considered the arguments of the parties at the January 19, 2016 and May 19, 2016 hearings on the Motions, and has reviewed and considered the District Court Opinions.
Though these items do not constitute an exhaustive list of the filings in the above-captioned bankruptcy case, the court has taken judicial notice of the contents of the docket in this matter. See Levine v. Egidi, Case No. 93C188, 1993 WL 69146, at *2 (N.D. Ill. Mar. 8, 1993) (authorizing a bankruptcy court to take judicial notice of its own docket); In re Brent, 458 B.R. 444, 455 n.5 (Bankr. N.D. Ill. 2011) (Goldgar, J.) (recognizing same).
The full history of this matter prior to remand has been set forth in Elk Grove, Elk Grove I and Elk Grove II. The court assumes familiarity with those opinions and thus provides only the briefest of summaries here.
The matter before the court arises out of the Sale, under which the Trustee sold to the Purchaser substantially all the assets of the Debtors "free and clear of all liens, claims, encumbrances and interests." Order Approving Sale of Gas Stations, ¶ B (dated Nov. 13, 2013) [Dkt. No. 191] (the "
The Sale Order was not appealed and is final. After the entry of the Sale Order, however, the court was presented with the UCB Motion and IDOR Motion, each seeking to have all or a portion of the Proceeds remitted to them. The Motions renewed questions raised by way of objection to the Sale as to whether IDOR had an "interest" that is affected by a sale under section 363(f) of the Bankruptcy Code, and if so, whether and to what extent IDOR was entitled to adequate protection of that interest under section 363(e) of the Bankruptcy Code.
The court resolved those Motions in the Proceeds Opinion and the concurrent UCB Order and IDOR Order. The UCB Order and IDOR Order were subsequently appealed, however. On appeal, all but one aspect of the Proceeds Opinion, UCB Order and IDOR Order — discussed below — were affirmed.
The Proceeds Opinion was affirmed with respect to the quantification and allowance of both UCB's and IDOR's claims in the bankruptcy case. UCB was afforded an allowed, secured claim "in the total amount of $14,077,157.67, secured in the proceeds of the Sale." Id. at 600 (the "
In the Proceeds Opinion, this court found that the IDOR Claims were lower in priority to the UCB Claim, id. at 602-03, and that finding was expressly affirmed on appeal. Elk Grove II, 2015 WL 8481961, at *3. This court also found that the Sale, free and clear under section 363(f) of the Bankruptcy Code, extinguished the IDOR's Successor Liability Interest. Elk Grove, 510 B.R. at 598. That finding was not challenged on appeal. Elk Grove I, 541 B.R. at 676.
The District Court disagreed, however, with this court's conclusions regarding the value of the unsecured Successor Liability Interest. In the Proceeds Opinion, in considering each respective party's rights to the Proceeds, this court analyzed the relative priorities of the UCB Claim and the IDOR Claims, concluding that because the security interest of IDOR was junior in priority to that of UCB, the IDOR Claims were "out of the money" in their entirety. Elk Grove, 510 B.R. at 605.
The District Court affirmed that conclusion with respect to the secured portion of the IDOR Claims, Elk Grove II, 2015 WL 8481961 at *3 ("Nothing [ ] IDOR presents on appeal causes this Court to deviate from this well-reasoned analysis."), but remanded with respect to the value of the unsecured Successor Liability Interest.
Because of a less than precise use of terminology in the Proceeds Opinion, the question before this court is more difficult to ascertain than it should be.
In Elk Grove I, the District Court disagreed with this court's conclusion that the Successor Liability Interest was "out of the money." Elk Grove I, 541 B.R. at 681 ("IDOR was not `out of the money.'"). The
This is not what the court intended to hold, but the District Court is blameless for its interpretation. The fault for any confusion lies with this court. By utilizing a financial phrase not directly applicable to the facts before it, this court was unnecessarily imprecise. To be clear, this court's use of the phrase "out of the money" was intended to state a conclusion that there was no source of recovery for the IDOR Claim, and that as a result, there was no "decrease in the value of such entity's interest in such property." See, e.g., 11 U.S.C. § 361(1) & (2). Put another way, what the court intended to state was that there was no realizable value to the IDOR Claim, and thus no adequate protection was due.
What is clear is that there are two different concepts of value at play here. When the District Court states in Elk Grove I that the Successor Liability Interest had "value" and that was "not `out of the money'," the District Court appears to be concluding something other than realizable value. Any other interpretation would be nonsensical, as it would mean the District Court had already prejudged the matter that it has expressly remanded to this court to determine. After all, saying something has value does not mean that the value it has must be something other than zero. See, e.g., Glidden Co. v. FV Steel & Wire Co., 350 B.R. 96, 102 (E.D. Wis. 2006) ("if the court assigns to the claim a value greater than zero ....").
This reading of Elk Grove I is supported by the District Court's further statements in Elk Grove II, where it suggested that this court will need to address "two unanswered legal and factual issues," as follows:
Elk Grove II, 2015 WL 8481961, at *4.
Each of these questions is, in fact, a question of realization of value, something this court had intended to resolve in the Proceeds Opinion. That it did not illustrates the true problem with the Proceeds Opinion, not that this court had concluded that the Successor Liability Interest was valueless (had no realizable value), but that it did so in an imprecise and truncated manner. The Proceeds Opinion fell short in its analysis of this issue and the District Court was correct to ask for more.
For the purposes of this Memorandum Decision, in order to provide more clarity on what is being discussed, the court will use two separate and distinct terms to address these two different concepts. When discussing the value of the Successor Liability Interest without regard to recovery, the court will use the term "calculable value." When discussing that calculable value as viewed through the lens of recovery, the court will use the term "realizable value."
As noted above, in light of the direction in the District Court Opinions, this court requested supplemental briefing from the
In addressing issues on remand from the District Court, this court is bound by both the mandate rules and the "law of the case" doctrine. U.S. v. Durham, 630 Fed.Appx. 634, 635 (7th Cir.), cert. denied, ___ U.S. ___, 137 S.Ct. 321, 196 L.Ed.2d 234 (2016).
The mandate rule makes clear that a lower court must "comply with the express or implied rulings of the appellate court" on remand. Moore v. Anderson, 222 F.3d 280, 283 (7th Cir. 2000). It does not, however, limit the scope of the lower court's review of other matters. Creek v. Vill. of Westhaven, 144 F.3d 441, 445 (7th Cir. 1998) (citing Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939)).
That, instead, is limited by the "law of the case" doctrine, which holds that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988); In re S. Beach Sec., Inc., 376 B.R. 881, 888 (Bankr. N.D. Ill. 2007) (Goldgar, J.), aff'd, 421 B.R. 456 (N.D. Ill. 2009), aff'd, 606 F.3d 366 (7th Cir. 2010). Arguments raised before and rejected by an appellate court may not be taken up by the trial court on remand. Durham, 630 Fed.Appx. at 635 (citing to both principles in declining to rehear a previously rejected argument); Tucker v. United States, Case No. 09-CR-131, 2016 WL 6637957, at *7 (E.D. Wis. Nov. 9, 2016) ("Since the court of appeals has already addressed and rejected those issues ..., the law of the case bars him from raising these issues again.").
One issue that does not appear to be within the scope of this court's determination on remand, either by way of the mandate rule, the "law of the case" doctrine, or the fact that none of the parties has directly challenged the issue,
In the Proceeds Opinion, this court did not address the parties' applicable burdens. That issue was also not addressed on appeal in the District Court Opinions, but bears consideration here.
Section 363 states, in pertinent part, that "[i]n any hearing under this section — (1) the trustee has the burden of proof on the issue of adequate protection; and (2) the entity asserting an interest in property has the burden of proof on the issue of the validity, priority, or extent of such interest." 11 U.S.C. § 363(p).
The first part of section 363(p)(1) has already been established, and IDOR has already been afforded the adequate protection that is due. As noted above, the Sale Order provided adequate protection to objecting all parties whose liens, claims, encumbrances, or interests were affected by the Sale by providing for "all liens, claims, encumbrances and interests to attach to the proceeds." Sale Order, ¶ B. This provision of adequate protection is exactly what was contemplated by Congress in such matters, when it stated that "[m]ost often, adequate protection in connection with a sale free and clear of other interests will be to have those interests attach to the proceeds of the sale." H.R. Rep. No. 595, 95th Cong., 1st Sess. 345 (1977), S. Rep. No. 95-989, 95th Cong., 2d Sess. 56 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 6302; see also 3 Collier on Bankruptcy ¶ 363.06[9] at pp. 363-58 (16th ed. 2013). Courts who have considered this have concurred that by attaching the interests to the proceeds in this manner, the bankruptcy court has provided adequate protection. Wilmington Trust, N.A. v. Boh Park Highlands NV, L.P. (In re Nov. 2005 Land Inv'rs, LLC), 636 Fed. Appx. 723, 726 (9th Cir. 2016); Contrarian Funds LLC v. Aretex LLC (In re WestPoint Stevens, Inc.), 600 F.3d 231, 257 (2d Cir. 2010) (finding that such was "squarely within the letter and purpose" of adequate protection). As much as the attachment of interests to the Proceeds provided adequate protection to IDOR, it also provided adequate protection to UCB and to the other parties that were consenting to the Sale, which also removed their interests from the Debtors' assets along with IDOR's interests.
As previously noted, the Sale Order was not appealed and is final. The Sale Order afforded IDOR adequate protection by its express terms in accordance with the case law and legislative history governing section 363(e). Thus, the Trustee's burden under section 363(p)(1) has long since been satisfied and this is no longer a question of adequate protection.
What remains is the issue of the validity, priority, or extent of the interests in question as they relate to the Proceeds. This is not a determination of adequate protection in and of itself, but, as is contemplated in section 363(p)(2), is something that must be determined appurtenant
As noted above, the court in the Proceeds Opinion has already determined the amounts and validity of the UCB Claim and IDOR Claims, and that determination was not disturbed on appeal. The court has also already determined that UCB's liens are senior in priority to IDOR's liens. Again, that determination was not affected by the appeal.
The extent and validity of the Successor Liability Interest is a burden that falls squarely on IDOR under section 363(p)(2). As to the priority in the Proceeds of the Successor Liability Interest as against the UCB Claim, each of IDOR and Hanmi Bank bear that burden equally as each is an "entity asserting an interest" under section 363(p)(2). Consistent with that shared burden and for the reasons clearly stated by the Supreme Court regarding litigation in civil matters in bankruptcy, that burden is by the preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).
In the Proceeds Opinion, this court concluded that "IDOR has valid liens in the amount of $1,387,418.93 as against the proceeds of the Sale. Otherwise, the IDOR claims are unsecured." Elk Grove, 510 B.R. at 601. The court did not specify the amount of the IDOR Claims which was unsecured or the amount relating to transfer liability.
Under the Bulk Sales Acts, successor liability is limited to the reasonable value of the property transferred. See Illinois Income Tax Act, 35 ILCS 5/902(d) ("the reasonable value of the property acquired"); Retailers' Occupation Tax Act, 35 ILCS 120/5j ("the reasonable value of such property").
IDOR and Hanmi Bank differ on whether in determining reasonable value this court should take into consideration the existence and amount of the UCB's liens.
None of the parties has has cited case law on point, and the court has been unable to independently discover any such law. Given, however, the way this court has formulated the issue (intrinsic value versus realizable value), the court finds that IDOR's is the better position. As the value of UCB's liens will be considered in determining realizable value, to consider it here would be double-counting. As a result, the court adopts IDOR's calculations, and finds that IDOR has met its burden to show that the calculable value of the Successor Liability Interest is $1,535,589.04.
A determination of the realizable value of the Successor Liability Interest is
There are, of course, any number of possibilities as to what might have happened to the Debtors and their assets had the bankruptcy and bankruptcy sale not taken place. The Debtors might have returned to profitability and paid the IDOR Claims. In turn, the Debtors might have liquidated without any bulk transfers. UCB might have repossessed and foreclosed under state law. Higher priority liens might have arisen. The possibilities become more and more attenuated. That has not stopped the parties from arguing several of them.
The court understands the question to be much simpler, that is: What would IDOR's recovery be if the bankruptcy Sale had taken place, but section 363(f) had not been invoked without the invocation of section 363(f) to extinguish IDOR's interest? This is, in fact, what the District Court asked. Elk Grove II, 2015 WL 8481961, at *4
In that regard, the District Court hypothesized a sale as follows:
Elk Grove I, 541 B.R. at 680.
This is helpful, but it critically assumes that the sale proceeds would pay in full the secured creditor bank's superior claim or, perhaps, the secured creditor bank consented to its lien being stripped without adequate protection. The former is not applicable on the facts here and the latter is pure speculation.
Having not considered UCB's liens in determining the calculable value of the Successor Liability Interest, the court must consider them here. To assume them away, as IDOR would have the court do, would be to presume a recovery for IDOR that is completely different from the facts
That is not to say that the court cannot permit a certain degree of speculation in this regard. That is, after all, something bankruptcy courts do all the time in valuing contingent and unliquidated claims. See, e.g., 11 U.S.C. § 502(c)(1). As has been stated, a bankruptcy court "has broad discretion when estimating the value of an unliquidated claim." Ryan v. Loui (In re Corey), 892 F.2d 829, 834 (9th Cir. 1989) (citing to Addison v. Langston (In re Brints Cotton Mktg., Inc.), 737 F.2d 1338, 1341 (5th Cir. 1984); Bittner v. Borne Chem. Co., 691 F.2d 134, 136 (3d Cir. 1982)). The District Court itself made that clear when it stated that it "can reverse a bankruptcy court's decision on the method for ascertaining the value of claims only when it is so fundamentally wrong that no reasonable person could agree with it." Beatrice Co. v. Rusty Jones, Inc., 153 B.R. 535, 536 (N.D. Ill. 1993) (citing to Libby v. Illinois High School Ass'n, 921 F.2d 96 (7th Cir. 1990)). In this case, if the court could not entertain speculation to a degree, it could not perform the calculation in the matter requested by the District Court. But the District Court discarded the parties' pure speculation, and this court must do the same. Elk Grove I, 541 B.R. at 681 (discarding "anecdotal commentary and speculation").
The only reasonable way to consider IDOR's recovery had its interest not been extinguished is likewise to presume that UCB's liens were not extinguished. Using the District Court's formulation, that results in the following hypothetical calculation:
Continuing to follow the District Court's analysis, in this case, the Purchaser would have remitted the withheld $1,881,648.60 to UCB and not, despite IDOR's demand, to IDOR because UCB held a superior claim to the Proceeds While IDOR would still have recourse, so would UCB. The Bulk Sales Acts would empower IDOR to hold the Purchaser personally liable up to the value of the assets purchased and recover the unpaid taxes from the Purchaser's personal assets (worth $5,229,475.27).
IDOR's right, however, would continue to be subordinate to UCB's liens, which would remain in the assets purchased. After receipt of the entire purchase price, UCB would still be owed $8,847,682.40 ($14,077,157.67 minus the $5,229,475.27 paid). UCB's liens would still exceed the value of the assets by $3,618,207.13.
As such, the court is forced to conclude that IDOR has failed to carry the burden placed on it by section 363(p)(2). Utilizing the District Court's methodology, it is clear that the IDOR Claims, including the Successor Liability Interest, have no realizable value.
By concluding the foregoing, it becomes unnecessary for the court to analyze the sources of recovery for the Successor Liability Interest, what the District Court described as the "the mechanics of awarding [] IDOR `adequate protection' under Section 363(e)." Elk Grove II, 2015 WL 8481961, at *4.
Several observations are nonetheless worth making in this regard.
First, as has been noted above, this is not a question of awarding IDOR adequate
Second, by accepting the Sale Order's retention of interests as adequate protection, IDOR removed from consideration other potential forms of adequate protection that this court might have otherwise considered. See, e.g., 11 U.S.C. § 361. The Sale Order afforded IDOR with the adequate protection to which it acceded, an undivided interest in the Proceeds. While IDOR is clearly asking that the Proceeds be divided in its favor, in determining how the competing interests in the Proceeds are to be prioritized, nothing authorizes the court to step outside the confines of the Bankruptcy Code, which contains an express system under which the priority of claims are determined. That system, in fact, has mechanisms under which unsecured claims might step ahead of secured ones, see, e.g., 11 U.S.C. §§ 506(c), 510(c)(1), but IDOR has made no attempt to invoke those mechanisms here. IDOR cannot argue that, having received an undivided interest in the Proceeds as adequate protection, it may then demand those Proceeds over other competing interests because it is entitled to adequate protection. Adequate protection does not apply iteratively. Once a party has received adequate protection (as IDOR has here), what remains must be determined under the confines of the rest of the Bankruptcy Code.
IDOR was not required to accept this form of adequate protection. Section 363 itself expressly includes the ability to prohibit a sale when adequate protection is owed. 11 U.S.C. § 363(e). Parties are free to argue for that remedy, and the court would expect them to do so if proposed adequate protection appeared insufficient. Further, a party might argue that it could only be adequately protected by a sale being conducted without the protections of 363(f).
IDOR in fact argued that the motion to approve the Sale should be denied unless specific language protecting its interests was included in the Sale Order. See Limited Objection to Motion To Approve Sale of Gas Stations, ¶ 8 and p. 3 [Dkt. No. 173]. IDOR was apparently concerned about the effect of Hoornstra v. United States, 969 F.2d 530 (7th Cir. 1992). Id. at ¶ 7. That was a case where the IRS had sought moneys held in escrow under the Bulk Sales Acts, and the Seventh Circuit had concluded that the specific escrow language favored IDOR.
IDOR sought language protecting it from Hoornstra disputes here and was denied. In so doing, this court stated "my concern is in listening to your proposed language ... [that] it may give you more than what you are asking for. In other words, it may bootstrap you into the very claim you are trying to assert." Tr. 25, Oct. 29, 2013. Instead, the court made clear that all it was required to do was ensure that "the funds be held and that interests be preserved." Id. That exchange made very clear that the validity, priority and
Nothing in the Sale Order ensured IDOR a recovery on the preserved interests in the Proceeds. They must still be weighed against the priorities of all parties whose interests were also preserved; in this case, the priority of the UCB liens that were also attached to the Proceeds. By arguing that the court must permit IDOR a recovery on the preserved interests above that afforded UCB, IDOR attempts to use sections 361 and 363(e) to afford the IDOR Claims a step up in priority. In so doing, IDOR both ignores the clear division between adequate protection under section 363(p)(1) and claim priority set forth in section 363(p)(2) and argues again for the adequate protection it has already received. IDOR also ignores the plain language of Elk Grove II, where the District Court stated that "[n]othing this Court decided, however, disrupts the priority scheme laid out by Section 507 of the Bankruptcy Code. This Court did not elevate the priority of any claim [ ] IDOR may have had under 11 U.S.C. § 507(a)(8)." Elk Grove II, 2015 WL 8481961, at *3.
Had Congress wanted to upset the Bankruptcy Code priority schemes in this respect, it could have done so. But nothing in sections 361 or 363(e) has that effect. Had the court found realizable value for the Successor Liability Interest outside of bankruptcy, the court would nonetheless be forced to conclude that, under the facts of this case, IDOR has identified no bankruptcy source of recovery for the same.
For the foregoing reasons, the court concludes that the remaining aspects of the IDOR Motion not resolved by the court's earlier rulings and affirmed on appeal must be denied. In accord, all the remaining aspects of the UCB Motion not resolved by the court's earlier rulings and affirmed on appeal are, therefore, granted and the Trustee is authorized to pay the remaining Proceeds to Hanmi. Separate orders to that effect will be issued concurrent with this Memorandum Decision.
This matter coming before the court on the Motion of United Central Bank for Allowance of Secured Claim and Turnover of Collateral Proceeds [Dkt. No. 205] (the "
NOW, THEREFORE, IT IS HEREBY ORDERED:
For the reasons set forth in the Memorandum Decision, all the remaining aspects of the UCB Motion not resolved by the court's earlier rulings and affirmed on appeal are GRANTED and the Trustee is authorized to pay the remaining Proceeds to Hanmi Bank.
This matter coming before the court on the Cross Motion of Illinois Department of Revenue for Partial Turnover of Proceeds of Sales [Dkt. No. 233] (the "
NOW, THEREFORE, IT IS HEREBY ORDERED:
For the reasons set forth in the Memorandum Decision, all the remaining aspects of the IDOR Motion not resolved by the court's earlier rulings and affirmed on appeal are DENIED.
