PER CURIAM:
Vantage Drilling Company ("Vantage") appeals three orders from the district court and two orders from the bankruptcy court. The orders were entered during the course of the Chapter 11 proceedings of twenty-one shipping companies. Their combined effect was to place certain shares of Vantage stock in custodia legis with the clerk of the court. Because we find that both courts below lacked subject-matter jurisdiction, we VACATE and REMAND.
In 2012, Vantage, an offshore drilling company, brought an action in Texas state court against Hsin-Chi Su, also known as Nobu Su, alleging breach of fiduciary duty, fraud, fraudulent inducement, negligent misrepresentation, and unjust enrichment (the "Vantage Litigation"). In its original petition, Vantage alleged that Su made material misrepresentations to induce Vantage to contract with companies controlled by Su for the acquisition of certain offshore drilling rigs and drillships. Vantage alleges that, in exchange, it issued approximately 100 million shares of Vantage stock to F3 Capital, an entity solely owned and wholly controlled by Su, and granted Su three seats on Vantage's board of directors, including a seat for himself. According to Vantage, the subsequent disclosure of Su's misrepresentations placed Vantage in severe financial duress, threatening its ability to obtain necessary financing
Su removed the Vantage Litigation pursuant to 28 U.S.C. § 1446 to the United States District Court for the Southern District of Texas, alleging diversity jurisdiction.
Meanwhile, in 2013, twenty-three foreign marine shipping companies, each owned directly or indirectly by Su, filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Texas.
The bankruptcy court held an evidentiary hearing on the motion to dismiss. At the hearing, Su offered to place approximately 25 million shares of Vantage stock held by F3 Capital into an escrow to be administered by the bankruptcy court to secure the shipping companies' compliance with court orders and to serve as collateral for post-petition borrowing or working capital. The bankruptcy court denied the motion to dismiss, except with respect to F Elephant Corporation and TMT USA Shipmanagement LLC. In its order (the "Dismissal Order"), the bankruptcy court ordered that the twenty-one remaining shipping companies (the "Debtors") "must cause non-estate property (the `Good Faith Property') with a fair market value of $40,750,000 to be provided to the Estates," and that, if the Good Faith Property was not provided in cash, then it "must include at least 25,000,000 shares of the common stock of" Vantage. The bankruptcy court provided that the Good Faith Property would be used to, among other things: (a) ensure compliance with court orders; (b) pay sanctions; (c) serve as collateral for working capital loans; and (d) satisfy any amounts arising under § 507(b) of the Bankruptcy Code.
Vantage responded in two ways. First, Vantage filed an application for a preliminary injunction with the district court in the Vantage Litigation, requesting that Su be enjoined from "transferring, selling, pledging or otherwise encumbering any of the Vantage stock ... obtained as a result of his fraud and breaches of fiduciary duty to [Vantage], including by placing the shares into escrow to serve as collateral in an unrelated bankruptcy recently initiated by twenty-three insolvent foreign companies that are wholly-owned and controlled by Su."
Second, Vantage also appeared as a "party in interest" before the bankruptcy court and opposed the Debtors' motion to approve the proposed escrow agreement. The bankruptcy court held a hearing on the Debtors' motion, at which it concluded that:
The bankruptcy court entered an order (the "Escrow Order") in which, among other things, it: (a) authorized the deposit of 25,107,142 shares of Vantage stock with the clerk of the court in custodia legis; (b) provided that the deposited shares of Vantage stock would be used for the same reasons enumerated in the Dismissal Order; (c) required F3 Capital to deposit an additional 900,000 shares of Vantage stock; (d) provided that F3 Capital would retain its voting rights in the deposited shares of Vantage stock; and (e) required F3 Capital to transfer to the Debtors "all of its interests in any chose of action arising against [Vantage], its officers, agents or directors." Vantage filed an interlocutory appeal of the Escrow Order with the United States District Court for the Southern District of Texas.
The district court withdrew the reference to the bankruptcy court and denied leave to appeal. It then set a hearing to reconsider, among other issues, Vantage's objections to the Escrow Order. Before the hearing, the Debtors filed an emergency motion in which they requested permission to borrow up to $20 million in post-petition financing (the "DIP Facility"), including up to $6 million on an interim basis pursuant to an attached term sheet. The district court approved in principle the emergency motion and entered an order (the "Interim DIP Order"), which authorized an initial loan of $6 million under the DIP Facility. The Interim DIP Order granted Macquarie Bank Limited (the "DIP Lender") a first priority lien and security interest in the deposited shares of Vantage stock. The Interim DIP Order further provided that the DIP Lender's interests in the deposited shares of Vantage stock "shall not be withdrawn, modified, abridged, compromised, stayed, reprioritized or otherwise affected in any matter by any subsequent order [of] the Bankruptcy Court ... in the Chapter 11 [actions] or that [the District Court] might enter in either the Chapter 11 [actions] or in [the Vantage Litigation]." It also provided that the DIP Lender had extended financing to the Debtors in good faith and was entitled to "the full protections of sections 363(m) and 364(e) of the Bankruptcy Code." It further ordered that "[i]f any or all of the provisions of [the Interim DIP Order] are hereafter reversed, modified, vacated or stayed, that action will not affect ... the validity and enforceability of any lien ... authorized or created hereby or pursuant to [the term sheet], including... the special provisions concerning [the deposited shares of Vantage stock]."
The next day, the district court entered an order (the "DIP Addendum"), in which it ordered F3 Capital to deposit an additional 4 million shares of Vantage stock (together with the 25,107,142 shares of Vantage stock originally deposited, the "Vantage Shares") with the clerk of the court to be held in custodia legis. The district court also entered another order (the "Order Affirming Escrow"), which provided that the Vantage Shares would "remain under the control" of the bankruptcy court. The district court then re-referred the action to the bankruptcy court. Vantage timely appealed these three district court orders to this Court.
After holding hearings, the bankruptcy court entered two orders (the "Final DIP Order" and the "Cash Collateral Order") over the objections of Vantage. The Final DIP Order approved the remaining $14 million in post-petition financing under the DIP Facility requested by the Debtors on terms substantially identical to those memorialized in the Interim DIP Order. Like the Interim DIP Order, the Final DIP Order granted the DIP Lender a first priority lien and security interest in the Vantage Shares. The Final DIP Order also provided that the "DIP Lender [was] extending financing to the [Debtors] in good faith and in express reliance upon the protections afforded by sections 363(m) and 364(e) of the Bankruptcy Code and the DIP Lender is entitled to the benefits of the provisions of sections 363(m) and 364(e) of the Bankruptcy Code."
Vantage timely appealed these two bankruptcy court orders. The bankruptcy court certified the appeal for direct review by this Court. This Court accepted that direct appeal
In reviewing the rulings of the bankruptcy court on direct appeal and the district court sitting in bankruptcy, we review findings of fact for clear error and conclusions of law de novo.
The Debtors assert that Vantage's appeal of all the orders is moot under 11 U.S.C. § 363(m) and 11 U.S.C. § 364(e). The Bankruptcy Code contains statutory mootness provisions in § 363(m) and § 364(e). Section 363(m) provides:
Section 364(e) provides:
As noted by the Ninth Circuit, § 364(e) was modeled after § 363(m).
We begin first with Vantage's assertion that the appeal is not moot under either § 363(m) or § 364(e) because § 363 and
We next turn to Vantage's argument that the appeal is not moot under either § 363(m) or § 364(e) because the DIP Lender did not act in "good faith."
The proponent of "good faith" bears the burden of proof.
The Bankruptcy Code does not explicitly define "good faith." In the context of § 363(m), we have defined the term in two ways. On the one hand, we have defined a "good faith purchaser" as "one who purchases the assets for value, in good faith, and without notice of adverse claims."
Before we turn to whether the DIP Lender had notice of an adverse claim, however, we must address a threshold argument. Essentially, the Debtors want us to discard one of the definitions of "good faith." The Debtors argue that knowledge of an adverse claim should not preclude a finding of "good faith" because this requirement would undermine the purposes of § 363(m) and § 364(e). We acknowledge that there is some power in this argument. The purpose of § 363(m)'s stay requirement "is in furtherance of the policy of not only affording finality to the judgment of the bankruptcy court, but particularly to give finality to those orders and judgments upon which third parties rely."
We turn our attention, then, to whether the DIP Lender had notice of an adverse claim. The Bankruptcy Code does not provide a definition of "adverse claim." But it defines "claim" broadly to include a right to payment or a right to equitable remedy.
Vantage argues that the district court and the bankruptcy court erred in entering the orders because they lacked subject-matter
Jurisdiction for bankruptcy cases is defined by 28 U.S.C. § 1334.
Because § 1334(b) defines jurisdiction conjunctively, "a district court has jurisdiction over the subject matter if it is at least related to the underlying bankruptcy."
Vantage first asserts that the district court and the bankruptcy court lacked jurisdiction over the Vantage Shares because they are not property of the Debtors or "property of the estate."
Although the Bankruptcy Code does not define "property of the debtor," the meaning of the term "property of the estate" is outlined in 11 U.S.C. § 541. Under § 541(a)(1), "property of the estate" includes "all legal or equitable interests of the debtor in property as of the commencement of the case."
But the Debtors assert that the Vantage Shares are "property of the estate" under § 541(a)(7) because they are "interest[s] in property that the estate acquire[d] after the commencement of the case." Specifically, the Debtors assert that they acquired an interest in the Vantage Shares after the Vantage Shares were deposited in custodia legis pursuant to the orders. Vantage asserts that the Vantage Shares are not property of the estate under § 541(a)(7) for several reasons.
Vantage contends that the Debtors never acquired an interest in the Vantage Shares. "Property interests are created and defined by state law," in this case Texas law.
We need not decide this question of state law, however. Even assuming arguendo that the Debtors acquired an interest, Vantage asserts that the Vantage Shares are not property of the estate under § 541(a)(7) because that provision is limited to property interests that are themselves traceable to "property of the estate" or generated in the normal course of the debtor's business. We agree. As we previously recognized in In re McLain,
The Debtors do not assert that they have an interest in the Vantage Shares that was created with or by other "property of the estate" or that arose in the normal course of business. But they assert that these tracing limitations apply to individual debtors in Chapter 7 or Chapter 11 bankruptcies, not to corporate debtors in Chapter 11 bankruptcies. For corporate debtors in Chapter 11 bankruptcies, the Debtors assert that § 541(a)(7) covers "[a]ny interest in property that the estate acquires after the commencement of the case."
Finally, Vantage points out that the Debtors cannot rely on the orders as the means by which the Vantage Shares became "property of the estate" because the bankruptcy court and the district court had no authority to issue the orders unless the Vantage Shares were already "property of the estate." The bankruptcy court and the district court could not manufacture in rem jurisdiction over the Vantage Shares by issuing orders purporting to vest the Debtors with a post-petition interest in the Vantage Shares.
For these reasons, we conclude that the Vantage Shares are not property of the
Vantage next asserts that the district court and bankruptcy court lacked jurisdiction to adjudicate Vantage's claim in the Vantage Litigation because it is not "related to" the Debtors' Chapter 11 proceedings. A matter is "related to" a bankruptcy proceeding if "the outcome of the proceeding could conceivably affect the estate being administered in bankruptcy."
Vantage asserts that the bankruptcy court and the district court lacked jurisdiction to interfere with its rights in the Vantage Shares, which are the subject of the Vantage Litigation, because the outcome of that proceeding could not conceivably affect the Debtors' estates. We agree. This Court has previously held that bankruptcy jurisdiction does not extend to state law actions between non-debtors over non-estate property.
However, even under Celotex's broad reading, there is no justifiable basis for exercising jurisdiction over the Vantage Litigation. The only discernable link between the Vantage Litigation and the Debtors' Chapter 11 proceedings is that F3 Capital and the Debtors' have a common owner. This is not enough. The resolution in the Vantage Litigation would not have had any effect on the bankruptcy. As a result, the bankruptcy court and the district court improperly interfered with the Vantage Litigation by ordering that the Vantage Shares be deposited in custodia legis with the clerk of the court; that no subsequent orders in the Vantage Litigation could impair the DIP Lender's interest in the Vantage Shares; that any
The Debtors maintain that the bankruptcy court and the district court had jurisdiction to enter the orders because the orders deal with core proceedings involving the administration of the estate, the acquisition of credit, and the use of property, including cash collateral.
But as explained above, not only was the Vantage Litigation not a core proceeding, it was not even a non-core proceeding because there is no "related to" jurisdiction in this case. Simply put, the Debtors confuse the argument by putting the matter of placement of jurisdiction (core versus non-core proceedings) before the matter of the existence of subject-matter jurisdiction.
The Debtors also assert that the orders did not interfere with or impair the Vantage Litigation or Vantage's claim to the Vantage Shares. They note that the bankruptcy court and the district court expressed no views on the collateral estoppel effect of their rulings in the Vantage Litigation. This argument fails to persuade because the orders authorized the imposition of liens on the Vantage Shares, subordinated Vantage's rights in the Vantage Shares to those of the DIP Lender, prevented the district court in the Vantage Litigation from impairing the DIP Lender's interest in the Vantage Shares, and held that the Vantage Shares were not subject to a constructive trust as a matter
For these reasons, we conclude that Vantage's claim in the Vantage Litigation was not "related to" the Debtors' Chapter 11 proceedings. Before the district court and the bankruptcy court exercised jurisdiction over the Vantage Shares, the outcome of the Vantage Litigation could not have had any conceivable effect on the Debtors' estate. In essence, the Debtors have again attempted to use the orders as "jurisdictional bootstrap[s]" by arguing that the Vantage Litigation is "related to" the Debtors' Chapter 11 proceedings because the orders have linked them.
We conclude that the appeals are not moot, that the Vantage Shares are not "property of the estate," and that the Vantage Litigation is not "related to" the bankruptcy proceedings. The district court and the bankruptcy court had no subject-matter jurisdiction to enter the orders. The orders of the district court and the bankruptcy court are VACATED and this case is REMANDED for proceedings consistent with this opinion. Accordingly, the Debtors' Motion to Dismiss Appeals is DENIED.