KIRSCHER, Bankruptcy Judge.
This appeal gives us an opportunity to expound on our decision in Jonas v. Farmer Bros. Co. (In re Comark), 145 B.R. 47, 49 (9th Cir. BAP 1992), to conclude that master repurchase agreements, or "repos," which provide language that "the parties intend that all transactions hereunder be sales and purchases and not loans," and which include annexes that do not alter the effect of these terms, are true sales and not secured transactions.
Appellants
SunCal was formed to develop real estate projects throughout California as part of a joint venture that began in the late 1990's between SCC Acquisitions, Inc. and the Lehman Entities. From 2005 to 2007, LCPI and/or Lehman ALI made a series of loans to SunCal ("SunCal Loans") pursuant to "Loan Agreements" totaling approximately $2 billion.
SunCal defaulted on the loans. The many SunCal debtors filed voluntary chapter 11 petitions on November 6 and November 17, 2008; involuntary petitions were filed against the remaining SunCal debtors in November 2008. The bankruptcy court entered orders for relief for the involuntary debtors in January 2009. The chapter 11 estates of all of the SunCal debtors are being jointly administered pursuant
In the meantime, on November 18, 2008, the Lehman Entities submitted a letter (the "November 18, 2008 Letter") to Fenway, c/o Hudson Castle Group, Inc., and JPMorgan Chase Bank, N.A. ("JPMorgan" individually, collectively "Fenway/JPMorgan"), informing them that certain borrowers, guarantors and pledgors of the SunCal Loans had filed bankruptcy and that involuntary filings had been filed by creditors against other borrowers and guarantors under the SunCal Loans. The November 18, 2008 Letter further informed Fenway/JPMorgan that SunCal had filed for relief from the automatic stay in the Lehman bankruptcy case in the Southern District of New York, 08-13555. It concludes: "The purpose of this letter is to give you notice of the filings affecting the [SunCal] Debtors and to let you know that we will keep you advised as we proceed on behalf of the lenders under the SunCal Loans in these cases and any other cases that may be filed." Attached to the November 18, 2008 Letter are Exhibits A and B that respectively identify the SunCal Loans and the SunCal debtors.
The Master Repurchase Agreement ("MRA"),
After the November 18, 2008 Letter from the Lehman Entities to Fenway/JPMorgan, Deutsche Bank issued a Notice, dated November 19, 2008, to JPMorgan and Fenway Funding, of a commercial promissory note default. Additional correspondence was issued from JPMorgan to Fenway and Deutsche Bank in February 2009 demanding that Fenway and Deutsche Bank take all necessary steps to collect proceeds from any SunCal foreclosures under the MRA and commercial promissory notes, given its knowledge that Lehman was pursuing motions in the SunCal bankruptcies in California. Counsel for JPMorgan sent a similar letter in February 2009 to Irena Goldstein ("Goldstein"), a bankruptcy attorney and counsel for Fenway, requesting information as to what steps were being taken to protect Fenway's obligations in the transaction. Deutsche Bank in February 2009 sent a letter to JPMorgan stating that it was not taking any action as collateral agent or administrator, but noted that Lehman had, in the November 18, 2008 Letter, detailed actions it would take on the SunCal Loans, of which a copy was provided to Fenway.
On April 15, 2009, counsel for the Lehman Entities responded to SunCal's inquiry and disclosed that several of the SunCal Loans had been sold by LCPI to Fenway (among others) via repos prior to SunCal's bankruptcy and that some parties may claim interests in the repo loans. Notably, Lehman's counsel did not respond to SunCal's letter until after SunCal had propounded a third-party subpoena on JPMorgan, who SunCal believed was the transferee of the some of the SunCal Loans.
SunCal learned on April 28, 2009, through documents produced by JPMorgan, that on August 22, 2008, Fenway as "Buyer" and LCPI as "Seller," entered into the MRA that transferred seven SunCal Loans to Fenway.
Thirteen proofs of claim (the "Disputed Claims") relating to the seven SunCal Loans sold to Fenway (the "Sold Loans"), which total approximately $1.6 billion, are the subject of this appeal. Below is a chart reflecting each of the Sold Loans, which Lehman entity filed the related Disputed Claim, and which Lehman entity was the original agent in the underlying Loan Agreement:
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Original Agent
Sold Loan Disputed Claim Filed By on Loan Agreement
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SunCal Communities I Loan LCPI LCPI
("SunCal I Loan")
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Ritter Ranch Loan ("Ritter LCPI LCPI
Loan")
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PSV Loan Lehman ALI Lehman ALI
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Delta Coves Loan Lehman ALI Lehman ALI
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Marblehead/Heartland Loan Lehman ALI Lehman ALI
("Marblehead Loan")
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Oak Valley Loan OVC Lehman ALI
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Northlake Loan Northlake Lehman ALI
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According to the terms of the MRA:
The MRA also states that "the parties intend that all Transactions hereunder be sales and purchases and not loans" (emphasis added).
As for the Loan Agreements related to the Sold Loans, the PSV Loan, Delta Coves Loan, Marblehead Loan, Oak Valley Loan, and Northlake Loan identify the "Lenders" as "Lehman ALI and such other Lenders who may . . . become Lenders hereunder pursuant to this Agreement." These five loans identify the "Agent" as "Lehman ALI and its successors and assigns." Sections 8.2.4 and 9.1 of these loans grant agency rights to Lehman ALI:
Section 10.2 of these five loans binds any successors and assigns to the terms and provisions of the Loan Agreements.
The Ritter Loan and the SunCal I Loan contain similar agency provisions but identify LCPI as the "Syndication Agent" and "Administrative Agent." Section 9.1 of the Ritter Loan and Section 8.1 of the SunCal I Loan grant irrevocable agency rights to LCPI, and allow LCPI:
Sections 10.6 and 9.6, respectively, bind any successors and assigns to the terms and provisions of the Loan Agreements.
On May 29, 2009, SunCal filed an objection seeking to strike the Disputed Claims ("Motion to Strike") on the basis that they were improperly filed and invalid because the Lehman Entities were neither "creditors" nor a "creditor's authorized agent" as required by Rule 3001(b). Specifically, SunCal contended that because LCPI had sold all of its rights, title, and interests in the Sold Loans to Fenway via
In response, the Lehman Entities argued that: (1) they were permitted to file the Disputed Claims as owners of the Sold Loans because the MRA constituted a transfer for security rather than a true sale; and (2) they could file the Disputed Claims as "authorized agents" of Fenway pursuant to the Loan Agreements. Specifically, the Lehman Entities contended that LCPI's agency rights in the HIC Annex—which were granted for the limited purpose of perfecting security interests under the UCC—created a different type of agency than under the Loan Agreements, and the HIC Annex did not limit, alter, or terminate LCPI's agency rights created by the Loan Agreements as SunCal contended. As a result, the Lehman Entities's agency obligations under the Loan Agreements continued to be in effect.
To rebut SunCal's evidence, Lehman offered the Loan Agreements, the MRA, a declaration from secured transactions expert Professor Jeanne Schroeder ("Schroeder"),
As for the Lehman Entities's agency authority, Goldstein stated:
The bankruptcy court held a hearing on SunCal's Motion to Strike on June 30, 2009. It expressed concern that the Lehman Entities had failed to disclose in the Disputed Claims that the repo occurred, suggesting that they were perhaps being "purposely vague" to avoid a determination that the MRA constituted a sale, as the document clearly stated. The Lehman Entities responded that they believed they owned the Sold Loans since the MRA constituted a transfer for security, and an evidentiary hearing would allow them to
About half-way through the hearing, the bankruptcy court announced its ruling on the "sale versus loan" issue. In applying New York contract law, the bankruptcy court found that the MRA was unambiguous on its face; the parties intended it to be treated as a sale. Hence, no reason existed to consider any extrinsic evidence:
The hearing proceeded, focusing on the remaining issue of whether the Lehman Entities could file the Disputed Claims as authorized agent for Fenway. The bankruptcy court observed that the Lehman Entities would have to show they had express authorization to file the Disputed Claim for Fenway, and that the authority existed as of the filing date of March 27, 2009. It determined that Goldstein's declaration did not establish the requisite authority. While Goldstein stated that Fenway considered the Lehman Entities to be its agent and that Fenway never terminated the agency relationship, she did not establish that Fenway expressly granted, prior to March 27, 2009, Lehman authority to file the Disputed Claims. The bankruptcy court also noted that considering the amount of money at stake—$1.6 billion—it seemed odd that Fenway did not have counsel appearing to say that "as of March 27th, we absolutely authorized Lehman to act for us." After extensive argument on the agency issue, the court decided that an evidentiary hearing was required on the matter. The continued agency hearing was set for November 5, 2009.
On October 2, 2009, the bankruptcy court entered an order (the "Sale Order") and its findings and conclusions consistent with its June 30 oral ruling. The court concluded that the MRA's language was clear as to the objective intent of the parties: they intended the transfer of the Sold
The parties conducted discovery and filed supplemental briefing prior to the November 5 agency hearing. Goldstein filed a second declaration on July 9, 2009; SunCal deposed her on July 17. In her second declaration, Goldstein stated that the Loan Agreements expressly authorized the Lehman Entities to pursue Fenway's rights and remedies available at law or in equity against the borrower, and to act for Fenway in all matters in connection with litigation, foreclosure, or other similar actions. Goldstein also stated that the November 18, 2008 Letter from Lehman to Fenway/JPMorgan, apprised Fenway of SunCal's bankruptcy and "confirmed [Lehman's] authority to act as agent for Fenway in connection with those proceedings." Specifically, according to Goldstein, the November 18, 2008 Letter confirmed that "Lehman was continuing to act as authorized agent under the SunCal Loan Agreements in connection with those proceedings and was actively pursuing all avenues of recovery." Goldstein further declared that conversations with Lehman representatives subsequent to the November 18, 2008 Letter, but prior to Lehman's filing of the Disputed Claims, led her to understand that "Lehman, as Fenway's authorized agent, would take whatever action it deemed necessary or appropriate to protect Fenway's interests in the [Sold Loans]," which included "fil[ing] proofs of claim." Finally, Goldstein stated that at all times relevant to the SunCal bankruptcy, the Lehman Entities were expressly authorized to act as agents on behalf of Fenway's interests under the Loan Agreements.
SunCal disputed Goldstein's testimony. First, SunCal contended that Fenway could not have intended to be bound by the Loan Agreements' agency provisions because Fenway admittedly never saw the Loan Agreements until June 2009, which was months after the Disputed Claims were filed, and because it never signed any document agreeing to be bound by them. SunCal also rejected the November 18, 2008 Letter as evidence of express authority by Fenway because it said nothing about Lehman acting "as agent for Fenway," a point which Goldstein admitted at deposition. As for the "conversations" between Goldstein and Lehman's counsel, which occurred in February 2009, that "confirmed" their agency, Goldstein admitted at deposition that the word "agent" never came up but only that Lehman's counsel was "actively pursuing" Fenway's interests in the Sold Loans. Further, SunCal argued that Goldstein's subjective understanding that Lehman, as Fenway's authorized agent, would take whatever action necessary to protect Fenway's interests, including filing proofs of claim (which Fenway never saw nor signed), was insufficient for an "express" agency. Finally, SunCal pointed out that even on June 17, 2009, the day before her deposition and months after the Disputed Claims were filed, Goldstein admitted in an email to Lehman's counsel that she did not even know "who" Fenway's supposed agents were: "With respect to my declaration—is Lehman ALI the agent for all of the loans or is LCPI also an agent?"
The bankruptcy court orally ruled in favor of the Lehman Entities on the agency issue on November 5, 2009. Generally, no material facts were in dispute. The court noted that it carefully reviewed the exhibits, documents, Goldstein's deposition testimony, various declarations, cases cited by the parties, the bankruptcy rules, and New York agency law. First, it determined that the documentary authority for the Lehman Entities to act on behalf of
After considering all of the evidence relating to acts and conversations that took place prior to March 27, 2009, the bankruptcy court held that sufficient evidence existed to establish that at the time the Disputed Claims were filed, Fenway had expressly authorized the Lehman Entities to act on its behalf. The court also noted:
On December 21, 2009, the bankruptcy court entered an order (the "Agency Order") in accordance with its November 5 oral ruling. On January 28, 2010, it entered the related finding and conclusions. The parties timely appealed.
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 157(b)(2)(B) and 1334. We have jurisdiction under 28 U.S.C. § 158.
1. Did the bankruptcy court err when it determined that the MRA constituted a sale and not a secured loan?
2. Did the bankruptcy court err when it determined that Fenway's express authorization for the Lehman Entities to act on its behalf in the SunCal bankruptcies necessarily included authorization for the Lehman Entities to file the Disputed Claims as Fenway's "authorized agent?"
We review factual findings for clear error. Clear Channel Outdoor, Inc. v. Knupfer (In re PW, LLC), 391 B.R. 25, 32 (9th Cir. BAP 2008). A finding is clearly erroneous if it is illogical, implausible, or without support in the record. United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir.2009) (en banc). If two views of the evidence are possible, the trial judge's choice between them cannot be clearly erroneous. Anderson v. City of Bessemer, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). "A finding that one person is another's agent is generally reviewed as a question of fact, governed by the clearly erroneous standard. . . . The nature and extent of the agent's authority and whether apparent authority existed are also questions of fact." Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1295 (9th Cir.1982).
We review de novo the bankruptcy court's conclusions of law and its interpretation of statutes and rules. Clear Channel, 391 B.R. at 32. Whether the MRA constituted a sale or a loan is a mixed question of law and fact where the legal issues predominate, which we review de novo. Mathews v. Chevron Corp., 362 F.3d 1172, 1180 (9th Cir.2004). Likewise, whether a contract is ambiguous is a matter of law reviewed de novo. United States v. 1.377 Acres of Land, 352 F.3d 1259, 1264 (9th Cir.2003) (interpretation of language of a contract is a question of law reviewed on a de novo basis with no deference accorded to the decision of the trial court); Commercial Paper Holders v. Hine (In re Beverly Hills Bancorp), 649 F.2d 1329, 1334 (9th Cir.1981) (same).
The Lehman Entities contend that in its determination of whether the MRA constituted a sale or a loan, the bankruptcy court failed to consider the "objective intent of the parties" as evidenced by "the terms of the transaction as well as extrinsic evidence of intent, such as the books and records of the parties, accounting practices, regulatory treatment of the transactions and trade custom and usage," quoting Comark, 145 B.R. at 53 (citing Bevill, Bresler & Schulman Asset Mgmt. Corp v. Army Moral Support Fund (In re Bevill, Bresler & Schulman Asset Mgmt. Corp.), 67 B.R. 557 (D.N.J.1986) (applying New York law and concluding that the
The MRA and Annexes thereto are the controlling documents at issue. Under New York law, which governs here, the objective intention of the contracting parties controls a court's interpretation of their contract. American Home, 388 B.R. at 90-91 (applying New York law). See Breed v. Ins. Co. of N. Am., 46 N.Y.2d 351, 413 N.Y.S.2d 352, 385 N.E.2d 1280 (1978) ("It is axiomatic that a contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language employed.") (citation omitted).
A contract must be construed as a whole. Isolated words and phrases are not necessarily determinative of the meaning of the contract. This result follows even if the meaning of the particular isolated words and phrases is not subject to differing interpretations. Bevill I, 67 B.R. at 586. "Where the intention of the parties is clearly and unambiguously set forth in the agreement, effect must be given to the parties' intent as revealed in the language used without regard to extrinsic evidence." Id.
"[I]f a contract is clear, a court will not look beyond the four corners of the document for evidence of meaning." American Home, 388 B.R. at 90 (citing John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458 (2d Cir.1994)). Courts have applied this rule when interpreting repos. See Granite Partners, L.P. v. Bear, Stearns & Co., Inc., 17 F.Supp.2d 275, 300 (S.D.N.Y.1998); American Home, 388 B.R. at 91; In re CRIIMI MAE, Inc., 251 B.R. 796, 801 (Bankr.D.Md.2000).
Determining whether a repo is a sale or loan is not a novel issue. A Panel addressed it in Comark in 1992. Notably, the repos at issue there did not involve a written, explicit statement that the parties intended the transactions to be a purchase and sale and not a loan. Comark, 145 B.R. at 53. Therefore, intent was questionably ambiguous and the Panel had to consider the terms of the repo as well as extrinsic evidence. Id. Ultimately, the Panel concluded that the transactions were "securities transactions"—i.e., sales. Id. at 54.
In a recent case involving LBHI and LCPI, the Delaware bankruptcy court (applying New York Law) examined the terms and operative provisions of the MRA at issue. It considered, and rejected, the provision in the MRA that the Lehman Entities contend negates the parties' intent:
American Home, 388 B.R. at 91. See also CRIIMI MAE, 251 B.R. at 802 (statement that the parties intended the repo to be a sale was not vitiated or made equivocal by the savings provision set forth in the second part of the paragraph should the repo be deemed a loan). This conclusion is also supported by Schroeder, Lehman's own expert witness. See Jeanne L. Schroeder, A Repo Opera: How Criimi Mae Got Repos Backwards, 76 Am. Bankr.L.J. 565, 594 (2002). Ultimately, the American Home court determined that the MRA was "unambiguous" and concluded that the transaction at issue was a sale and not a loan because: (1) the parties stated their
In analyzing the repo agreements at issue in Bevill I, the bankruptcy court noted that while they contained isolated terms like "buyer" and "seller," and stated that the buyer could freely rehypothecate the "purchased securities," it also noted that the repos contained terms generally found in secured loan transactions. 67 B.R. at 587-90. As a result, the repos were ambiguous and thus extrinsic evidence was necessary. Id. at 590. After considering books and records, expert testimony, regulatory treatment, and trade custom and usage, the bankruptcy court concluded that "[t]he unequivocal language of purchase and sale in the repo and reverse repo agreements at issue . . . is strong prima facie evidence that the parties intended the transactions to be treated accordingly." Id. at 597. "[T]he mere presence of secured loan characteristics in repo. . . agreements is not enough to negate the parties' voluntary decision to structure the transactions as purchases and sales." Id. at 598. Thus, even after considering extrinsic evidence, the Bevill I court still came back to the expressed "sale" language in the repo agreements to ultimately conclude that the parties intended them to be sales. Notably, what distinguishes Bevill I from the instant case is that the repo agreements there lacked the explicit statement that "the parties intend that all Transactions hereunder be sales and purchases and not loans." Bevill I, which was decided in 1986, prompted the BMA to add the explicit "intent" statement in the MRA in 1987. See n. 19 of Brief for BMA [SIFMA] as Amicus Curiae Supporting Defendant, CRIIMI MAE, Inc. v. Citicorp Securities, Inc., Adv. No. 98-1637 (Bankr. D.Md. Feb. 24, 1999) (attached as appendix A to this Opinion, reprinted from http://www.sifma.net/story.asp?id=1239) ("CRIIMI MAE/Citicorp").
The Southern District of New York also addressed this "sale versus loan" issue in Granite Partners. The MRA at issue there was identical to that here. The court spent a considerable amount of time discussing Bevill I, but concluded that the MRA before it differed from those in Bevill I in one important respect—the agreements at issue affirmatively stated the parties' intent to treat the transactions as a sale—i.e., "the parties intend that all Transactions hereunder be sales and purchases and not loans." 17 F.Supp.2d at 301-02. As a result, the Granite Partners court held that the MRA constituted a sale. It also set forth in a footnote the other operative provisions the court believed conformed to this stated intention: "Buyer and Seller," "Purchase Date and Purchase Price," "Purchased Securities," "Repurchase Date" and, most telling, the parties agreed that title to the Purchased Securities passed to the Buyer, who was permitted to engage in repos with the Purchased Securities or otherwise transfer or hypothecate them. Id. at 302 n. 13.
The only case somewhat helpful to Lehman is CRIIMI MAE. There, the bankruptcy court found the parties' explicit statement of intent persuasive, but reasoned that the contract labels of "sale" and "purchase" did not mandate a finding that the MRA actually conveyed absolute transfer of the securities. 251 B.R. at 802. After carefully considering various portions of the MRA, the bankruptcy court concluded that it was ambiguous for several reasons, including: (1) Seller was entitled to retain income earned on the purportedly
Here, the bankruptcy court determined that the MRA was unambiguous on its face; the parties clearly intended the transfer of the Sold Loans to be a sale and not a transfer for security. The court focused on the parties' statement of intent in the MRA: "the parties intend that all Transactions hereunder be sales and purchases and not loans." It also found other operative provisions of the MRA to be of importance: that LCPI held, was authorized to sell, and was selling "[a]ll of [its] interests in the Purchased Securities" to Fenway.
The Lehman Entities argue "strong indicia" exists that the transfer of the Sold Loans under the MRA was a transfer for security and not a sale. First, if LCPI defaulted under the MRA, Fenway's rights were limited to: selling the Sold Loans in a commercially reasonable manner pursuant to § 9-610 of the UCC; to apply all sale proceeds against LCPI's obligations to pay the repurchase price and price differential; and to turn over any surplus to LCPI. Lehman contends that such procedures are more like a security interest as opposed to a sale. We agree with Bevill I, which rejected this same argument and concluded:
67 B.R. at 588 (citations omitted).
Next, the Lehman Entities contend that the MRA was a loan because, unlike a typical repo, Fenway had to transfer back to LCPI identical securities rather than equivalent ones. Schroeder testified that transferring back identical securities was impossible here since mortgage loans are unique, thus the MRA was a transfer for security. Moreover, Lehman contends that because the MRA only permitted LCPI, not Fenway, to substitute securities, this limits the "seeming absolute transfer" associated with a sale, citing CRIIMI MAE, 251 B.R. at 804. We disagree with Lehman and agree with the reasoning set forth in Bevill I, which rejected these arguments and held that such terms did not convert a repo into a loan. 67 B.R. at 588 ("Even assuming that the agreements require the return of identical securities, it is unclear why the [] Committee believes this fact distinguishes . . . repo transactions as secured loans."). Likewise, we agree with Granite Partners which explicitly rejected Schroeder's contention
The Lehman Entities further assert that despite the MRA using terms like "sale" and "repurchase," the MRA grants rights to LCPI that are inconsistent with a sale. For example, the MRA allows LCPI to collect all principal, interest, and other distributions paid on the Sold Loans "to the full extent it would be so entitled if the Securities had not been sold." If this were a true sale, argues Lehman, Fenway would keep all funds. While the Lehman Entities want to downplay the MRA's explicit terms of "sale" and "purchase," and contend that LCPI's right to collect all principal, interest, and other distributions paid on the Sold Loans is inconsistent with a sale, this operative provision's deliberate use of the word "sold" in the same sentence Lehman says supports a transfer for security undermines their argument.
Finally, the Lehman Entities contend that because the MRA is a "hold-in-custody" ("HIC") repo, Fenway did not take possession of the Sold Loans, which therefore points to a secured transaction rather than a sale. The Panel rejected this same argument in Comark and determined that simply because a buyer in HIC repo transactions does not take possession of the securities does not mean that the transactions were not sales. 145 B.R. at 53. Again, Schroeder in her article states:
76 Am. Bankr.L.J. at 599.
In examining the four corners of the MRA, we construe it to be unambiguous and conclude that the Lehman Entities and Fenway intended the transaction to be a sale. First, the parties explicitly stated that they "intend that all Transactions hereunder be sales and purchases and not loans." The courts in Granite Partners and American Home found this language highly persuasive in determining the parties' intent. We further agree with Granite Partners and American Home that many of the MRA's terms and operative provisions conform to the parties' intent that MRA's be treated as sales, such as: "Buyer" and "Seller," "Purchase Date" and "Purchase Price," "Purchased Securities," "Repurchase Date" and "Repurchase Price," and that "[a]ll of Seller's interest in the Purchased Securities shall pass to Buyer on the Purchase Date." Even the court in Bevill I, after considering a great deal of extrinsic evidence, considered the MRA's purchase and sale language "unequivocal" despite its other traditional secured transaction language, and concluded
Therefore, since we have concluded that the MRA was unambiguous on its face for the reasons stated above, the bankruptcy court was not required to look beyond the four corners of the MRA to determine the parties' intent. American Home, 388 B.R. at 90. Accordingly, we see no error here.
However, even if we considered the MRA ambiguous, and we reviewed the extrinsic evidence in this case, we would still conclude that the MRA was a sale. The Lehman Entities contend that they treat repos as loans in their books and records, which is reflected in their SEC Form 10-Q's. We see no evidence in the record to support this. Even if true, Comark reasoned that accounting practices do not transform repos into loans. Jonas v. Farmer Bros. Co. (In re Comark), 124 B.R. 806, 815 (Bankr.C.D.Cal.1991) aff'd 145 B.R. 47 (9th Cir. BAP 1992).
The Lehman Entities further assert that the Financial Accounting Standards Board's "Statement of Financial Accounting Standards No. 140" also supports their view that repo participants generally treat them as loans, unless a true sale opinion letter is involved, which did not happen here. While Comark may preclude this argument, we have found more relevant authorities that espouse a different view. For example, SIFMA (f/k/a/ the BMA), the publisher of the MRA, states in the "Guidance Notes" to the 1996 version of the MRA (used here) that it will continue to provide "explicit language" that MRA's are to be characterized as "purchases and sales." In addition, SIFMA frequently files amicus briefs in MRA characterization cases to ensure that courts honor the parties' explicit intent to treat them as sales and not secured loans. The following are some rather compelling statements made by SIFMA in its brief filed in CRIIMI MAE/Citicorp:
Finally, the Lehman Entities contend that Goldstein's testimony established that while Fenway did purchase interests in the Sold Loans pursuant to the MRA, Lehman did not relinquish all right, title, and interest in the Sold Loans. Goldstein did make this statement, however, she also stated in a letter to counsel for SunCal dated May 12, 2009, that "[u]nder the [MRA], LCPI sold its interests in certain loans and securities to [Fenway]."
SunCal contends that under Rule 3001(b) an agent must have "express" authority to file a proof of claim on behalf of a creditor; a general authority for an agent to act on a principal's behalf in a bankruptcy is not sufficient. Therefore, according to SunCal, the bankruptcy court erred when it determined that only a general grant of authority to act on a creditor's behalf in a bankruptcy, rather than an express authority to file a proof of claim, was sufficient to authorize the Lehman Entities to file the Disputed Claims for Fenway. SunCal further contends that no evidence exists, either orally or in writing, that Fenway expressly authorized the Lehman Entities to file the Disputed Claims on its behalf prior to March 27, 2009, yet the bankruptcy court found otherwise.
Under Rule 3001(b), "a proof of claim shall be executed by the creditor or the creditor's authorized agent. . . ." Additionally, any entity seeking to represent more than one creditor in a chapter 11 case must file a verified statement setting forth the names and addresses of the creditors, the nature and amount of the claims, and the relevant facts and circumstances surrounding the employment of the agent. Rule 2019(a); In re Elec. Theatre Rests. Corp., 57 B.R. 147, 148-49 (Bankr. N.D.Ohio 1986); In re North Bay Gen. Hosp. Inc., 404 B.R. 443, 452 (Bankr. S.D.Tex.2009). "The consequences of a purported agent's failure to comply with Bankruptcy Rule 2019 are largely a matter for the bankruptcy court's discretion." North Bay, 404 B.R. at 453 (citing In re Mandalay Shores Coop. Hous. Ass'n, Inc., 63 B.R. 842, 853 (N.D.Ill.1986)). The Lehman Entities concede that they failed to comply with Rule 2019. However, they eventually filed the required disclosures on September 22, 2009, prior to entry of the Agency Order on December 21, 2009, which the bankruptcy court deemed sufficient.
"An agency relationship is typically established by `written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal's account.'" Hyosung Am., Inc. v. Sumagh Textile Co., 934 F.Supp. 570, 575 (S.D.N.Y.1996), rev'd in part on other grounds, 137 F.3d 75 (2d Cir.1998). "The elements of an agency relationship are: (1) `a manifestation by the principal that the agent shall act for him,' (2) `acceptance of the undertaking' by the agent, and (3) `an understanding between
Section 1.01 of the Restatement (Third) of Agency is consistent with § 1 of the Restatement (Second) of Agency except § 1.01 introduces "assent" and replaces "consent." See Restatement (Third) of Agency § 1.01 (2006) ("Restatement") ("Agency is the fiduciary relationship that arises when one person . . . manifests assent to another person . . . that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act."). Comment. d of § 1.01 clarifies that the use of "assent" is to "emphasize that unexpressed reservations or limitations harbored by the principal do not restrict the principal's expression of consent to the agent."
The Lehman Entities in the November 18, 2008 Letter informed Fenway that "we will keep you advised as we proceed on behalf of the lenders under the SunCal Loans. . . ." "A person manifests assent or intention through written or spoken words or other conduct." Restatement § 1.03. "As between the agent and the principal, an unexplained failure to object may also in appropriate circumstances constitute a manifestation of assent or intention." Id. at cmt. e. "An agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal's manifestations to the agent, that the principal wishes the agent to so act." Restatement § 2.01.
"As commonly used, the term `express authority' often means actual authority that a principal has stated in very specific or detailed language." Id. at cmt. b. If the principal's manifestation indicates that the agent act, the agent may take the necessary steps to accomplish the principal's objective. Restatement § 2.02 cmt. d. "A principal's manifestation of assent to an agency relationship may be informal, implicit, and nonspecific." Restatement § 1.01 cmt. d. The agent must consider the language or conduct of the principal. Id. at cmt. f. Agency may be created at least by estoppel or by ratification (prior to a temporal limit, i.e., a claims bar date). See Restatement §§ 2.05, 4.01, 4.03 and 4.05.
While no Ninth Circuit authority exists on the specific issue raised by Lehman, some courts have held that only when an agent has express authorization may he file a proof of claim on behalf of another. Sheftelman v. Standard Metals Corp. (In re Standard Metals Corp.), 817 F.2d 625, 631 (10th Cir.1987), vacated on other grounds, 839 F.2d 1383 (10th Cir.1987); In re Ionosphere Clubs, Inc., 101 B.R. 844, 852 (Bankr.S.D.N.Y.1989) ("Only when an agent has express authorization may he file a claim on behalf of another."); North Bay, 404 B.R. at 459 (same); Gulf States Exploration Co. v. Manville Forest Prods. Corp. (In re Manville Forest Prods. Corp.), 89 B.R. 358, 376 (Bankr.S.D.N.Y. 1988) (each individual claimant must file a proof of claim or expressly authorize an agent to do so on its behalf).
The bankruptcy court agreed with SunCal that if any authority existed for
Goldstein admitted that the word "agency" or "proof of claim" never came up in her February 2009 conversations with Lehman's counsel. However, she did testify that those conversations confirmed that Lehman was pursuing Fenway's interests in the SunCal bankruptcy case, and that Lehman was taking all actions necessary to recover on the Sold Loans, which she, as a bankruptcy attorney, understood to include filing proofs of claim.
Based on Goldstein's unrefuted testimony, the bankruptcy court found that Fenway had expressly authorized the Lehman Entities to act on its behalf, which necessarily included authorization to file the Disputed Claims. The court reasoned that it was possible for Fenway to give express authority to file the Disputed Claims without actually saying the words: "and you may file a proof a claim."
Rule 3001(b) provides that an authorized agent may file a proof of claim. The Rule does not specify that the agent must be expressly authorized to file a claim, which under the Restatement would require "very specific or detailed language." See Restatement § 2.01. cmt. b. Common-law agency and the Restatement allow agency to be manifested by conduct, silence, estoppel or ratification.
The November 18, 2008 Letter from Lehman to Fenway specifically stated that Lehman would act on the lenders' or assigns' behalf, connoting an agency relationship. See Restatement § 1.01 cmt. g. Fenway did nothing to refute, qualify or terminate Lehman's agency actions on the lenders' behalf. In fact, Fenway, through Goldstein by means of an email dated May 12, 2009, to SunCal's attorney, affirmed that Fenway did not object to Lehman's enforcement of the lenders' rights under the Sold Loans. We note that this subsequent ratification did occur after the claims' bar date, which may limit its temporal effectiveness. However, certainly Fenway never instructed the Lehman Entities not to act on the lenders' behalf in the SunCal bankruptcy. Through Fenway's oral discussions between Goldstein and Lehman's counsel in February 2009, and through the numerous November 2008 letters that were exchanged between Deutsche Bank, JPMorgan, Fenway and Goldstein, and through Fenway's (or any other lenders') failure to qualify, condition or refute Lehman's agency activities on behalf of the lenders, Fenway manifested by its conduct that the Lehman Entities should act on its behalf. Therefore, the Lehman Entities were authorized to act for the lenders and, in this instance, as explained below, to file proofs of claim as the lenders' authorized agents.
The Lehman Entities had the burden of proving an agency relationship existed. North Bay, 404 B.R. at 461. Even though the Panel does not conclude, as we discuss
Accordingly, the question is, under Rule 3001(b) does a principal's authorization to its agent to pursue the principal's interests in a debtor's bankruptcy necessarily include authorization for the agent to file a proof of claim on the principal's behalf, or must the principal expressly authorize the agent "to file a proof of claim?" The requirements of Rule 3001(b) is a question of law we review de novo.
Virtually all of the cases SunCal relies upon have one common denominator—the purported authorized agent failed to prove that even a general principal-agent relationship existed, much less any authority to file a proof of claim. As a result, the courts in those cases concluded that no express authorization existed for the purported agent to file a proof of claim.
In Ionosphere Clubs, the consumers union ("CU") filed a motion to compel debtor, Eastern Airlines and its affiliate club, Ionosphere, to adopt a travel refund procedure. 101 B.R. at 846. CU asserted that it filed the motion on behalf of all 100,000-plus ticketholders who would be compensated through the program. Id. at 851-52. However, contrary to CU's assertions, its compliance under Rule 2019 was in question. CU had filed specific authorization from just eight individuals, which only accounted for $6,000 and three of the refund claims, yet CU contemplated that the refunds could exceed $20 million. The bankruptcy court found that CU's evidence of authorization by the ticketholders did not meet Rule 2019's requirements in that (1) not all ticketholder claimants had given their express authorization to CU; and (2) even where authorization was given, only three individuals had specified the amount of their claims. The court then went on to state: "If CU purports to act as agent on behalf of ticketholders, it needs to show that this general agency relationship is consensual in nature." Id. at 852. Based on the lack of evidence, the bankruptcy court concluded that CU failed to show it had the power to act on behalf of the eight ticketholders, much less over 100,000 of them. Id. at 853.
The same is true for North Bay—the case upon which SunCal rests its argument. The unsecured creditors agent ("UCA") filed a proof of claim in debtor's second bankruptcy case on behalf of unsecured creditors from debtor's prior case. The UCA asserted that his authority to file the proof of claim on behalf of the unsecured creditors in the second case stemmed from the plan in debtor's prior bankruptcy. 404 B.R. at 452. The plan language allowed the UCA to "pursue and enforce the rights of the Class 6 Creditors under the Plan under the Bankruptcy Code and other applicable laws." Id. at 459. The bankruptcy court found this language, which is similar to that in the Loan Agreements, too general to constitute "express authorization" that the UCA could file proofs of claim on their behalf in the second case. Id. at 459-60. No other evidence, written or oral, existed that any of the old unsecured creditors had authorized the UCA to file proofs of claim on their behalf in the second case. Therefore, with only an old plan from debtor's prior case before it as evidence of the UCA's
In Standard Metals, the issue before the Tenth Circuit was whether Rule 3001 allows class proofs of claim. 817 F.2d at 631. The Tenth Circuit concluded that it does not. The Ninth Circuit has subsequently held that it does. See Birting Fisheries, Inc. v. Lane (In re Birting Fisheries, Inc.), 92 F.3d 939 (9th Cir.1996). In any event, the Tenth Circuit rejected the class representative's contention that his representative status of the bond purchasers in another civil proceeding provided authorization for him to represent the bond purchasers in the proof of claim. Standard Metals, 817 F.2d at 631. Again, an actual principal-agent relationship was lacking. Likewise, Manville Forest involved class claims and whether the purported agent could file the proof of claim and subsequently inform the creditor of the fact. Manville Forest is simply not on point.
In considering SunCal's arguments and the cases and Restatement discussed above, we conclude that Rule 3001(b) does not require a principal to expressly authorize its agent "to file a proof of claim" on its behalf. Rather, a principal's authorization for the agent to act on its behalf in a debtor's bankruptcy case necessarily includes authorization to file a proof of claim; the principal need not expressly state to the agent: "you may file a proof of claim."
We agree that the bankruptcy court did not clearly err when it found that Goldstein's February 2009 conversations with Lehman's counsel established an actual principal-agent relationship between the Lehman Entities and Fenway. Such a conclusion is further supported by the November 18, 2008 Letter and the numerous conversations and February correspondence between the parties involved in the MRA and related transactions. Unlike Ionosphere, North Bay, and Standard Metals, a manifestation from Fenway existed that the Lehman Entities were to act on its behalf in the SunCal case, and the Lehman Entities accepted the undertaking. Hyosung, 934 F.Supp. at 575. Therefore, we see no legal or factual error here by the bankruptcy court.
The express authorization requirement SunCal asks us to impose on creditors is burdensome and impractical. Such a standard of express authorization would require all creditors, including those unfamiliar with bankruptcy matters, to tell their agents: "and you may file a proof of claim on my behalf." Under SunCal's theory, creditors who failed to utter the "magic" words would be unduly prejudiced. Such a result defies common sense.
Based on the foregoing reasons, we AFFIRM the Sale Order and AFFIRM the Agency Order.
The Panel raised this issue at oral argument. Afterwards, SunCal filed a letter pursuant to FRAP 28(j) providing the Panel with citations to additional cases determining repos as sales and not loans and cases discussing agency issues. SunCal, in its letter, raised an argument that Goldstein did not have authority to authorize another person to file proofs of claim. Lehman, in a supplemental response, pointed out that SunCal's argument concerning Goldstein's authority was not argued in the briefs before the bankruptcy court or this Panel and therefore had been waived. We agree that this argument was waived on appeal. See e.g., Pokorny v. Quixtar, 601 F.3d 987, 994 (9th Cir.2010) (rejecting argument first raised at oral argument and in FRAP 28(j) letter).
Lehman also included in its response a supplemental notice of additional citations and filed a supplemental transcript from a New York hearing. Lehman then filed a third supplemental filing referencing a decision from the Bankruptcy Appellate Panel for the Eighth Circuit, dated January 14, 2011. The Panel will consider such supplemental filings as it deems appropriate.
On October 8, 2009, Lehman filed a Motion for Clarification asking the bankruptcy court to clarify that its definition of "Sold Loans" did not include the Revolver loans. SunCal opposed, arguing that the Sale Order clearly included the Revolver loans.
SunCal asserts on appeal, and Lehman confirms, that the bankruptcy court has not yet ruled on Lehman's Motion for Clarification, and thus it is not properly before us on appeal. In reviewing the record, we agree, and therefore we do not reach any decision on this issue.
This hearing at which the alleged disavowment took place was after the Agency Order had been entered on December 21, 2009. In reviewing the docket, this issue was never raised before the bankruptcy court via a Fed. R.Civ.P. 60(b) motion, or some other form of relief. Therefore, SunCal raises this issue for the first time on appeal. As such, we will not consider it, particularly since this issue is a question of fact better reserved for the fact finder. Franchise Tax Bd. v. Roberts (In re Roberts), 175 B.R. 339, 345 (9th Cir. BAP 1994).
