MARY KAY VYSKOCIL, UNITED STATES BANKRUPTCY JUDGE.
On June 12, 2017 (the "
Faced with competing demands from the Petitioning Creditors and various holders of Notes that are junior to the A-1 and A-2 Notes (collectively, the "
Before the trial, the Petitioning Creditors moved for partial summary judgment seeking a ruling that they hold unsecured claims against Taberna, making them eligible to be petitioning creditors under section 303(b) of the Bankruptcy Code (the "
Pursuant to an indenture dated December 23, 2005 (the "
SOF, Exh. A at 1-3 (emphasis added). The Secured Parties are defined to include the Noteholders. See id. at 1, 44. In addition, Section 5.5 of the Indenture provides that if an event of default has occurred and is continuing while the Notes are outstanding, "the Trustee shall retain the Collateral securing the Notes intact, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral securing the Notes in accordance with the Priority of Payments," unless the Trustee determines that the anticipated proceeds of a sale or liquidation of the Collateral would be sufficient to discharge in full various outstanding amounts due in accordance with the Indenture or if a specified percentage of a supermajority of Noteholders direct the sale and liquidation of the Collateral. See id. §§ 5.5(a)(i), (ii).
In August 2009, an event of default occurred under the Indenture, and the indenture trustee (the "
Section 303 of the Bankruptcy Code governs the commencement of involuntary bankruptcy cases. Pursuant to section 303(b)(1), an involuntary case may be commenced
11 U.S.C. § 303(b)(1). Thus, in order to commence an involuntary case against Taberna, the Petitioning Creditors must hold claims that aggregate $15,775 in unsecured amount. See 11 U.S.C. § 303(b); see also CC Britain Equities, LLC v. Allen-Main Assocs. Ltd. P'ship (In re Allen-Main Assocs. Ltd. P'ship), 223 B.R. 59, 61 (2d Cir. BAP 1998).
In their Motion, the Petitioning Creditors seek a ruling that they collectively hold unsecured claims against Taberna totaling at least $15,775. It is undisputed that, as set forth in the Granting Clauses of the Indenture, quoted above, all of the Notes are secured by a single lien granted to the Trustee for the benefit of all Noteholders. Thus, the Petitioning Creditors hold secured debt. Notwithstanding this, the Petitioning Creditors advance two alternative arguments as to why they nonetheless are entitled to judgment as a matter of law that they hold unsecured claims against Taberna. The first argument is that Petitioning Creditors may waive their beneficiary rights to the Collateral and
The Petitioning Creditors' other argument, referred to as the "common lien argument" by the parties, is that because the Notes are secured by a single lien on common collateral, the Court need only compare the aggregate outstanding amount owing on all of the Notes to the value of the Collateral to determine the secured status of the Petitioning Creditors. See Mtn. ¶¶ 22-26. Thus, the Petitioning Creditors argue that the Court must conclude that the Notes are undersecured because, as of the Petition Date, the amount owing on all of the Notes exceeded the total value of the Collateral. See Mtn. ¶¶ 23, 26. The Objecting Parties contend that this argument fails for a number of reasons. First, according to the Objecting Parties, if there is only one lien, there can only be one claim, and the Trustee, as the holder of the lien, holds that claim. See Opp. ¶ 46. The Objecting Parties also argue
Summary judgment under Rule 56 may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of showing that the undisputed facts entitle it to judgment as a matter of law. See Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). A party is not entitled to summary judgment if it "fails to ... establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thus, the Court must ask whether "the record, taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In considering a motion for summary
The Petitioning Creditors acknowledge that the Indenture provides for one lien, granted to the Trustee for the collective benefit of all Noteholders, and that the A-1 and A-2 Notes they hold (together with all other Notes) are secured by the Collateral. See Mtn. ¶ 23; Hr'g Tr. 22:8-10. Nevertheless, they contend that because, at the time they filed the Involuntary Petition, they executed waivers foregoing their rights to benefit from the Collateral up to the aggregate amount of $15,777 with respect to their holdings of A-2 Notes, they now hold a deficiency claim in that amount and thereby satisfy the eligibility requirement of section 303(b)(1) that they hold an unsecured claim. See Mtn. ¶¶ 19-21. Immediately before filing the Involuntary Petition, each Petitioning Creditor executed a (nearly identical) Partial Waiver of Petitioning Creditor (each, a "
The Petitioning Creditors cite a number of cases to support their argument that, as a general matter, secured creditors may waive a portion of their security interest in order to qualify as unsecured creditors, eligible to file an involuntary petition. However, none of the cases cited by the Petitioning Creditors support their argument that where, as here, a lien is held in trust by a third party for the collective benefit of multiple parties, a secured creditor may waive its security interest and, by operation of such waiver, be deemed to hold an unsecured claim that it otherwise would not hold; i.e. a deficiency claim.
The first case the Petitioning Creditors rely on pre-dates the Bankruptcy Code. See In re Automatic Typewriter & Service Co., 271 F. 1 (2d Cir. 1921). The issue before the Court in that case was whether an involuntary petition commenced under the Bankruptcy Act must be dismissed because, prior to filing the involuntary petition, the sole petitioning creditor obtained a warrant of attachment against the alleged debtor and procured a levy upon its property. See id. at 2-3. Thus, the Court was called upon to determine whether a petitioning creditor that had "received and has not surrendered a preferential payment because of its levying the attachment... therefore is disqualified and estopped from maintaining this petition." Id. at 2. The Automatic Typewriter case is distinguishable and ultimately not relevant to the issue framed by the Petitioning Creditors' Motion. Automatic Typewriter concerned a creditor that specifically had moved to vacate its warrant of attachment against the alleged debtor's property prior to filing the involuntary petition. The issue before the court ultimately turned on whether the fact that the warrant of attachment had not yet been vacated by a
The Petitioning Creditors also rely on a more recent case that involved an involuntary petition filed by three subcontractors holding mechanics' liens against a debtor that had defaulted under a construction loan. See In re East-West Assocs., 106 B.R. 767, 771 (S.D.N.Y. 1989). After the case was commenced, a lender sought relief from the automatic stay and then moved to dismiss the involuntary case on a number of grounds, including that the petitioning creditors, as holders of secured claims, did not meet the eligibility requirement under section 303(b) insofar as they did not hold an unsecured claim against the debtor. See id. at 769-770. The bankruptcy court issued an order granting the lender's motion to dismiss the involuntary case unless the petitioning creditors made monthly adequate protection payments to the lender, and the lender appealed. See id. On appeal, the court noted that the petitioning creditors had "released $5,000 each of their unsecured
Finally, the Petitioning Creditors cite CC Britain Equities, L.L.C. v. Allen-Main Assocs. Ltd. P'ship (In re Allen-Main Assocs. Ltd. P'ship), 223 B.R. 59 (2d Cir. BAP 1998), in which the Court held that nothing in the Code prohibits a fully secured creditor from filing an involuntary petition, if such secured creditor joined other eligible unsecured creditors holding the requisite aggregate amount of claims. See id. at 61. The Court also noted that "[u]nder the appropriate circumstances, it is also possible for a fully secured creditor to waive all or part of its claim to become
As the Petitioning Creditors acknowledge, none of the cases cited by the Petitioning Creditors support the argument that a secured creditor may waive a security interest held by a third party — in trust for the benefit of multiple parties — in order to create an unsecured claim and thereby become eligible to file an involuntary petition. See Hr'g Tr. 26:12-14. Nonetheless, the Petitioning Creditors contend that waiving a right to benefit from a security interest is no different from waiving a lien for purposes of relinquishing a security interest in order to become eligible under section 303(b) of the Bankruptcy Code. On the facts before it in this case, the Court disagrees. The distinction is particularly relevant here, where the contract giving rise to the security interest and claims at issue — the Indenture — contains express restrictions on actions that may be taken with respect to the security interest and the underlying Collateral. See, e.g. SOF, Exh. A § 10.9 (setting forth the circumstances under which the Collateral may be released). The Objecting Parties assert that these contractual restrictions were put in place in order to protect the other Noteholders for whose collective benefit the security interest was conveyed. See Opp. ¶ 11 ("This bargained-for protection of more junior noteholders is, in part, a trade-off for standing behind more senior noteholders."). In response, the Petitioning Creditors assert that section 303(b) simply was not drafted to deal with secured bond indenture arrangements where a third party, such as an indenture trustee, holds one lien for the collective benefit of a group of creditors. See Hr'g Tr. 23:14-14, 118:18-20. The Court does not agree. Section 303(b)(1) expressly provides that an involuntary case may be commenced by either a holder of a claim "or an indenture trustee respecting such holder." 11 U.S.C. § 303(b)(1).
For these reasons, the Court finds that the Petitioning Creditors have failed to demonstrate that, under the present circumstances and based on the record before the Court, there is no genuine issue of material fact and that they are entitled to a judgment as a matter of law that the execution of the Partial Waivers makes the Petitioning Creditors holders of unsecured claims with respect to the Class A-2 Notes. Because the Court has determined that the Petitioning Creditors are not, at this stage of the case, entitled to a judgment as a matter of law that the Partial Waivers give rise to unsecured claims under the Indenture, the Court need not reach the issue of whether the Petitioning Creditors may assert such unsecured claims against Taberna, or whether such claims are limited to the Collateral.
The Petitioning Creditors' alternative argument is that because, under the Indenture, only one lien is granted to the Trustee for the collective benefit of all Noteholders,
In support of their argument, the Petitioning Creditors rely on a bankruptcy court decision by then Chief Judge Lifland, who was called upon to construe an indenture in order to determine whether certain creditors were entitled to post-petition interest on their claims against a liquidating debtor. See First Fidelity Bank, N.A. v. Midlantic Nat'l Bank (In re Ionosphere Clubs), 134 B.R. 528 (Bankr. S.D.N.Y. 1991). The indenture at issue in Ionosphere provided for the issuance of three series of secured certificates (i.e. first priority series, second priority series and third priority series) and designated individual trustees for each series of certificates (i.e. a first series trustee, a second series trustee and a third series trustee). See In re Ionosphere Clubs, 134 B.R. at 529. To secure repayment of all three series of the certificates, the debtor granted a single lien on a designated pool of assets to the collateral trustee. See id. While the debtor's chapter 11 case was pending, the debtor, the series trustees and the collateral trustee entered into an agreement providing for stay relief and the debtor's turnover of all collateral to the collateral trustee. See id. at 530. After the collateral had been turned over to the collateral trustee, the collateral trustee received conflicting instructions from the series trustees with respect to the distribution of the collateral among the various series of certificate holders. See id. As a result, the collateral trustee sought a determination from the bankruptcy court, based on an interpretation of the indenture, as to whether the first series certificateholders held an oversecured claim, thereby entitling them to post-petition interest under Code section 506(b). See id. at 531-32.
At the outset of his analysis, Judge Lifland noted that the "touchstone" of each decision on allowance of interest in bankruptcy is a balance of equities among various creditors, or as between creditors and the debtor. See id. at 531 (citing Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 165, 67 S.Ct. 237, 91 S.Ct. 162 (1946)). In this regard, Judge Lifland noted that "[i]n order to decide whether a claim exists ... for post-petition interest, it must be determined whether, under § 506(b), the three series hold three separate secured claims or are co-owners of one secured claim. Put another way, this Court must determine whether the First Series is the sole owner of an oversecured claim of $187,934,000 or is simply a part owner of an undersecured claim of
Id. Thus, the Court ruled that the indenture provided for one secured claim against the debtor, and that the claim, based on a comparison of the value of the collateral to the aggregate principal amount owing on all three series of certificates, was undersecured. See id. Consequently, the Court held that first series certificate holders were not entitled to post-petition interest payments from the concededly insufficient pool of collateral securing all three series of certificates. See id.
This Court finds Judge Lifland's rationale in Ionosphere inapplicable here in that it was based in large part on a balancing of equities between creditors who held competing claims to a single pool of collateral that was insufficient to satisfy the certificateholders' claims. No such balancing of equities is appropriate in the context of determining whether the Petitioning Creditors hold claims that are unsecured for purposes of section 303(b). Rather, the secured status of the Petitioning Creditors' claims for purposes of determining whether they meet the eligibility requirements of section 303(b) of the Bankruptcy Code must be determined based on a review of the Indenture and related evidence, including without limitation, evidence pertaining to the value of the Collateral.
Even if the Court were to apply the analysis employed in Ionosphere, it would not necessarily follow that the Petitioning Creditors hold unsecured claims making them eligible to file an involuntary petition. Under Ionosphere, for purposes of determining the secured status of the claim holder, if only one lien is granted under an indenture, there can only be one claim for section 506(b) purposes. The fundamental flaw in the Petitioning Creditors' argument on this point is that the Petitioning Creditors have not carried their burden to demonstrate that they are the holders of the single claim flowing from the single lien, held for the benefit of all Noteholders, under the Indenture. For example, the Granting Clauses of the Indenture strongly suggest that the Trustee (and not the Petitioning Creditors) would be the holder of such claim, for the benefit of all Noteholders, including both the Petitioning Creditors and the Junior Noteholders.
Accordingly, the Court finds that in advancing the single lien argument, the Petitioning Creditors have failed to establish that there are no material issues of fact outstanding and that they are entitled to judgment as a matter of law that they hold undersecured claims against Taberna.
For the reasons set forth above, viewing the evidence (here, including most specifically