Buying barely enough unsecured claims to defeat confirmation of a plan is not reason in itself for barring a secured creditor from voting the purchased claims against confirmation of a chapter 11 plan, according to the Ninth Circuit.
In Figter Ltd. v. Teachers Ins. & Annuity Association of America (In re Figter), 118 F.3d 635, 639 (9th Cir. 1997), the Ninth Circuit ruled that a secured creditor was entitled to vote unsecured claims against confirmation of a chapter 11 plan when the lender had purchased all the claims in the class. In his June 4 opinion, Ninth Circuit Judge N. Randy Smith expanded Figter by ruling emphatically that a secured creditor is not in bad faith by purchasing just enough claims to defeat confirmation, thereby adversely affecting other creditors.
Owed about $4 million, the secured creditor spent $13,000 on advice of counsel to purchase just over half in number of the chapter 11 debtor’s unsecured claims. The purchased claims represented only 10% of the unsecured class in amount.
The lender’s counsel testified that the client made no attempt at purchasing all unsecured claims. The client’s motivation, the lawyer said, was to acquire a blocking position and do what was best for the lender.
Although the debtor had the required two-thirds vote in amount in the unsecured class to confirm the plan, the debtor was facing defeat because a majority in number of unsecured creditors were not voting in favor of the plan as required by Section 1126(c). The plan would pay unsecured creditors in full in a few months.
The debtor moved to “designate” the unsecured claims purchased by the lender under Section 1126(e), which provides that the court “may designate any entity whose acceptance or rejection of such plan was not in good faith . . . .” In substance, “designate” means to disallow voting.
The bankruptcy court designated the claims and later confirmed an amended version of the plan. Judge Smith said that the bankruptcy court based designation on just two facts: (1) the lender did not offer to purchase all unsecured claims, and (2) voting the purchased claims against the plan would give the lender an “unfair advantage” and would be “highly prejudicial” to other creditors.
The district court affirmed, but the Ninth Circuit reversed.
Judge Smith said that the Bankruptcy Code does not define “good faith” as used in Section 1126(e). Figter, he said, defined “bad faith” as an attempt to “secure some untoward advantage over other creditors for some ulterior purpose.” Judge Smith quoted Figter as holding that designation applies to creditors who were “‘not attempting to protect their own proper interests, but who were, instead, attempting to obtain some benefit to which they were not entitled.’”
According to Figter, “bad faith explicitly does not include ‘enlightened self-interest, even if it appears selfish to those who do not benefit from it,’” Judge Smith said. Therefore, purchasing claims to obtain a blocking provision and to protect a creditor’s own claim “does not demonstrate bad faith or an ulterior motive,” Figter held.
Purchasing all unsecured claims was only one factor prompting the Figter court to find good faith, Judge Smith said. He cited Second Circuit authority for the proposition that purchasing claims to block a plan is not bad faith in itself.
Judge Smith faulted the bankruptcy court for not analyzing the lender’s motivation and failing to identify an “ulterior motive.” Citing Figter, he said that self-interest and ulterior motive are not identical. Ulterior motive is attempting to obtain a benefit to which the creditor is not entitled, Judge Smith said, again citing Figter.
Examples of bad faith, according to Judge Smith, include purchasing a claim to block a lawsuit against the purchaser or buying claims to destroy a competitor’s business. “There must be some evidence beyond negative impact on other creditors,” Judge Smith said.
In sum, the bankruptcy court erred by making no findings about the lender’s motivation and by considering the effect on other creditors without evidence of bad faith.