Senior Transeastern Lenders v. Official Committee of Unsecured Creditors ( 2012 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 15, 2012
No. 11-11071
________________________ JOHN LEY
CLERK
D.C. Docket Nos. 0:10-cv-62035-ASG; 0:08-bkc-10928-JKO
In Re: TOUSA, INC., et al.,
Debtors.
__________________________________________________________________
SENIOR TRANSEASTERN LENDERS,
llllllllllllllllllllllllllllllllllllllllDefendant- Appellee,
CITCORP NORTH AMERICA, INC.,
CERTAIN FIRST LIEN TERM LENDERS,
lllllllllllllllllllllllllllllllllllllllllIntervenors - Appellees,
versus
OFFICIAL COMMITTEE OF UNSECURED CREDITORS,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 15, 2012)
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
PRYOR, Circuit Judge:
This bankruptcy appeal involves a transfer of liens by subsidiaries of
TOUSA, Inc., to secure the payment of a debt owed only by their parent, TOUSA.
On July 31, 2007, TOUSA paid a settlement of $421 million to the Senior
Transeastern Lenders with loan proceeds from the New Lenders secured primarily
by the assets of several subsidiaries of TOUSA. Six months later, TOUSA and the
Conveying Subsidiaries filed for bankruptcy. In an adversary proceeding filed by
the Committee of Unsecured Creditors of TOUSA, the bankruptcy court avoided
the liens as a fraudulent transfer because the Conveying Subsidiaries did not
receive reasonably equivalent value; ordered the Transeastern Lenders to disgorge
$403 million of the loan proceeds because the transfer of the liens was for the
benefit of the Transeastern Lenders; and awarded damages to the Conveying
Subsidiaries. The Transeastern Lenders and the New Lenders, as intervenors,
appealed. The district court quashed the judgment as to the Transeastern Lenders
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and stayed the appeal of the New Lenders. This appeal by the Committee of
Unsecured Creditors presents two issues: (1) whether the bankruptcy court clearly
erred when it found that the Conveying Subsidiaries did not receive reasonably
equivalent value in exchange for the liens to secure loans used to pay a debt owed
only by TOUSA, 11 U.S.C. §548; and (2) whether the Transeastern Lenders were
entities “for whose benefit” the Conveying Subsidiaries transferred the liens, 11
U.S.C. § 550(a)(1). We hold that the bankruptcy court did not clearly err when it
found that the Conveying Subsidiaries did not receive reasonably equivalent value
for the liens and that the bankruptcy court correctly ruled that the Transeastern
Lenders were entities “for whose benefit” the liens were transferred. We reverse
the judgment of the district court, affirm the liability findings of the bankruptcy
court, and remand for further proceedings consistent with this opinion.
I. BACKGROUND
We divide our summary of the events that led to this appeal into three parts.
We first recount the uncontested facts that underlie this appeal. We then review
the findings of fact and conclusions of law of the bankruptcy court. Finally, we
review the decision of the district court.
A. Factual Background
As of 2006, TOUSA, Inc., was the thirteenth largest homebuilding
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enterprise in the country, with operations in Florida, Texas, the mid-Atlantic
states, and the western United States. The company had grown rapidly, chiefly by
acquiring independent homebuilders that became subsidiaries of TOUSA. These
subsidiaries owned most of the assets of the enterprise and generated virtually all
of its revenue.
To finance its growth, TOUSA borrowed a lot. TOUSA issued more than
$1 billion of public bonds. That debt was unsecured, but was guaranteed by the
Conveying Subsidiaries. TOUSA also borrowed funds under a revolving line of
credit agreement administered by Citicorp North America, Inc. The Conveying
Subsidiaries and TOUSA were jointly and severally liable for repayment of the
revolving loan, which was secured by liens on the assets of the companies. Both
the bond debt and revolving loan agreements provided that an adverse judgment
for more than $10 million against TOUSA or any of its subsidiaries or a
bankruptcy filing by TOUSA or any of its subsidiaries would constitute an event
of default, which would permit the bondholders and Citicorp to declare all
outstanding amounts of debt due immediately. As of July 31, 2007, TOUSA had
approximately $1.061 billion of principal outstanding on its bond debt and $224
million outstanding on its revolving loan.
In June 2005, TOUSA entered a joint venture with Falcone/Ritchie LLC to
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acquire homebuilding assets owned by Transeastern Properties, Inc., in Florida.
TOUSA incurred more debt, this time from the Transeastern Lenders, to fund the
Transeastern Joint Venture, but none of the Conveying Subsidiaries became an
obligor or guarantor of the Transeastern debt.
The downturn in the housing market soon threatened the Transeastern Joint
Venture. By October 4, 2006, the joint venture had defaulted on several
obligations. At the end of that month, the Transeastern Lenders alleged defaults
and demanded payment from TOUSA. In December 2006, the Transeastern
Lenders sued TOUSA, and in January 2007, the Transeastern Lenders alleged that
TOUSA was responsible for damages of over $2 billion.
On July 31, 2007, TOUSA executed settlements with its partner in the joint
venture and the Transeastern Lenders. The settlements required TOUSA to pay
more than $421 million to the Transeastern Lenders. To finance the settlements,
TOUSA and some of its subsidiaries incurred new debt. Citicorp North America,
Inc. agreed to syndicate two new term loans to TOUSA and the Conveying
Subsidiaries: a $200 million loan from the First Lien Lenders, to be secured by
first-priority liens on the assets of the Conveying Subsidiaries and TOUSA; and a
$300 million loan from the Second Lien Lenders, to be secured by second-priority
liens. Both loan agreements with these New Lenders required that the funds be
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used to pay the $421 million settlement with the Transeastern Lenders. TOUSA
also amended its revolving credit agreement with Citicorp.
The transaction was executed in several parts. First, Citicorp transferred
$476,418,784.40 to Universal Land Title, Inc., a wholly-owned subsidiary of
TOUSA that was not one of the Conveying Subsidiaries. Universal Land Title
then sent a wire transfer of $426,383,828.08 to CIT, the administrative agent for
the Transeastern Lenders. CIT disbursed the proceeds of that transfer on July 31
and August 1, 2007. The Transeastern Lenders received $421,015,089.15 and the
remaining funds were dispersed to third parties to cover professional, advisory,
and other fees.
B. Bankruptcy Court Proceedings
Six months later, TOUSA and the Conveying Subsidiaries filed petitions for
bankruptcy under Chapter 11. The Committee of Unsecured Creditors of TOUSA,
on behalf of the estate of TOUSA, later filed an adversary proceeding against the
New Lenders and the Transeastern Lenders to avoid as a fraudulent transfer, see
11 U.S.C. § 548(a)(1)(B), the transfer of the liens to the New Lenders and to
recover the value of the liens from the Transeastern Lenders, see 11 U.S.C. §
550(a)(1). The Committee alleged that the transfer of the liens by the
Conveying Subsidiaries to the New Lenders was a fraudulent transfer under
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section 548(a)(1)(B) because the Conveying Subsidiaries were insolvent when the
transfer occurred, were made insolvent by the transfer, had unreasonably small
capital, or were unable to pay their debts when due; and the Conveying
Subsidiaries did not receive reasonably equivalent value in exchange for their
transfer. See 11 U.S.C. § 548(a)(1)(B). The Committee demanded that the
bankruptcy court avoid the liens and order the Transeastern Lenders, as the entities
“for whose benefit” the transfer was made, 11 U.S.C. § 550(a)(1), to disgorge the
proceeds of the loans.
The Transeastern Lenders and New Lenders responded that the transfer of
the liens was not fraudulent because the Conveying Subsidiaries had received
reasonably equivalent value in exchange for their liens. The Transeastern Lenders
and New Lenders highlighted numerous purported benefits of the transaction, but
the crucial source of alleged value for the Conveying Subsidiaries was the
economic benefit of avoiding default and bankruptcy. The Transeastern Lenders
and New Lenders contended that the Transeastern Lenders were likely to secure a
judgment against TOUSA, which would have constituted an event of default on
more than $1 billion of debt that the Conveying Subsidiaries had guaranteed. The
default would have likely forced TOUSA and the Conveying Subsidiaries into
bankruptcy. The transaction staved off this event and gave TOUSA and the
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Conveying Subsidiaries an opportunity to continue as an enterprise and possibly
become profitable again. The Transeastern Lenders and New Lenders contended
that this opportunity was reasonably equivalent in value to the obligations the
Conveying Subsidiaries incurred. The Transeastern Lenders and New Lenders
also argued that the Conveying Subsidiaries received numerous other benefits,
including a higher debt ceiling on the revolving loan, new tax benefits, the
elimination of adverse business effects from the Transeastern litigation, and the
opportunity to retain access to various centralized services provided by TOUSA
such as cash management, purchasing, and payroll administration. The
Transeastern Lenders argued alternatively that, if the transfer of liens was
fraudulent, they could not be liable as entities for whose benefit the transfer was
made because they were subsequent transferees of the loan proceeds from
TOUSA, not entities that benefitted immediately from the transfer. See 11 U.S.C.
§ 550(a)(1).
After a 13-day trial, during which the bankruptcy court heard extensive fact
and expert testimony and admitted over 1800 exhibits, the bankruptcy court issued
its findings of fact and conclusions of law. See Official Committee of Unsecured
Creditors of Tousa, Inc., v. Citicorp North America, Inc., (In re TOUSA, Inc.), 422
B.R. 783 (Bankr. S.D. Fla. 2009). The bankruptcy court found that the Conveying
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Subsidiaries were unable to pay their debts when due, had unreasonably small
capital, and were insolvent before and after the transaction; that the Conveying
Subsidiaries did not receive value reasonably equivalent to the $403 million of
obligations they incurred; and that the Transeastern Lenders were entities for
whose benefit the Conveying Subsidiaries granted liens to the New Lenders.
The bankruptcy court credited expert opinion testimony that the Conveying
Subsidiaries were insolvent both before and after the transaction of July 31, 2007.
Experts in real estate value, public accounting, and insolvency examined the
financial records of TOUSA and the Conveying Subsidiaries and concluded that
the liabilities of each of the Conveying Subsidiaries exceeded the fair value of
their assets before the transaction. The bankruptcy court found that the Conveying
Subsidiaries became even more deeply insolvent after incurring additional debt
through the transaction. The bankruptcy court also credited expert opinion
testimony that, after the transaction, the Conveying Subsidiaries had unreasonably
small capital and were unable to pay their debts as they came due.
The bankruptcy court then assessed whether the Conveying Subsidiaries
received reasonably equivalent value from the transaction. The bankruptcy court
first noted that “value” is defined in section 548 as being “property” or
“satisfaction or securing of a present or antecedent debt of the debtor.” 11 U.S.C.
9
§§ 548(a)(1)(B)(i), (d)(2)(A). The bankruptcy court determined that “the
Conveying Subsidiaries could not receive ‘property’ unless they obtained some
kind of enforceable entitlement to some tangible or intangible article.” In re
TOUSA, 422 B.R. at 868 n.55. Under this definition of “value,” the bankruptcy
court found that, because the Conveying Subsidiaries did not receive any property,
they did not receive reasonably equivalent value.
The bankruptcy court also issued alternative findings in which it assessed
the value the Conveying Subsidiaries received under the broadest definition of
“value” proposed by the Transeastern Lenders and New Lenders. The bankruptcy
court found that, even if all the benefits highlighted by the Transeastern Lenders
and New Lenders were legally cognizable, their value “considered . . . as a whole,
. . . f[e]ll[] well short of ‘reasonably equivalent’ value.” Id. at 869. The
bankruptcy court determined the value the Conveying Subsidiaries lost in the
transaction and compared that value with the value of the benefits they received.
The bankruptcy court determined that the tax benefits, property, and services that
the Transeastern Lenders and New Lenders proffered did not provide reasonably
equivalent value to the Conveying Subsidiaries. The bankruptcy court also found
that the transaction could not have provided substantial value predicated on the
opportunity to avoid bankruptcy because the filing of bankruptcy became
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“inevitable.” Id. at 846. The bankruptcy court credited the expert opinion
testimony of an accountant who had calculated that the Conveying Subsidiaries
had incurred $403 million of obligations when they granted liens to help secure
$500 million of loans from the New Lenders.
The bankruptcy court found that the alleged benefits of the transaction were
insubstantial. The Transeastern Lenders and New Lenders alleged that one of the
Conveying Subsidiaries received control of property from the Transeastern
venture, but the bankruptcy court found that the property was worth only $28
million and was burdened with $32 million in liabilities in accounts payable and
customer deposits. The bankruptcy court refused to credit the property as value.
The bankruptcy court also rejected the argument of the Transeastern Lenders and
New Lenders that the Conveying Subsidiaries received valuable tax benefits from
the transaction. The Transeastern Lenders and New Lenders argued that losses on
the Transeastern venture could reduce past and future tax liability, but the
bankruptcy court found that the Conveying Subsidiaries received no benefits
because the benefits would accrue to TOUSA, not the Conveying Subsidiaries,
and all of the substantial loss-generating events that ostensibly arose from the
transaction would have accrued without the transaction. The Transeastern Lenders
and New Lenders argued that the Transeastern litigation had negative effects on
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the day-to-day business operations of the Conveying Subsidiaries and that the July
31 transaction conferred an indirect benefit on the Conveying Subsidiaries by
eliminating those effects, but the bankruptcy court found that those arguments
were unsupported by the evidence. The bankruptcy court also found that the
purported benefits of continued access to TOUSA corporate services, such as
purchasing and payroll administration, were not received by the Conveying
Subsidiaries in exchange for their liens because the Conveying Subsidiaries
enjoyed all of these benefits before the transaction and continued to enjoy the
corporate services even after TOUSA filed for bankruptcy. The bankruptcy court
rejected the arguments of the Transeastern Lenders and New Lenders that the
Conveying Subsidiaries obtained value because the transaction allowed the
Conveying Subsidiaries access to an enhanced revolving credit facility. The
Transeastern Lenders and New Lenders asserted that, when TOUSA acquired
assets from the Transeastern Joint Venture, the borrowing limit on the revolving
loan increased, but the bankruptcy court found that there was no evidence that the
Conveying Subsidiaries had any need for a higher borrowing limit on the
revolving loan.
The bankruptcy court found that an earlier bankruptcy for TOUSA would
not have seriously harmed the Conveying Subsidiaries. Two experts testified that
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a TOUSA bankruptcy would not necessarily have caused the Conveying
Subsidiaries to declare bankruptcy because they held 95 percent of the assets of
the TOUSA enterprise, which they could have used to obtain new financing. The
bankruptcy court credited this testimony and found that Conveying Subsidiaries
would not have been forced into bankruptcy by a TOUSA bankruptcy. The
bankruptcy court also found that the Conveying Subsidiaries could have operated
as independent entities without the services provided by TOUSA.
The bankruptcy court found that “even assuming that all of the TOUSA
entities would have spiraled immediately into bankruptcy without the July 31
Transaction, the Transaction was still the more harmful option.” Id. at 847. The
bankruptcy court found that bankruptcy for the Conveying Subsidiaries was
“inevitable” if TOUSA executed the transaction, id. at 846, so the transaction
could not have conferred value by giving the Conveying Subsidiaries an
opportunity to avoid bankruptcy. The bankruptcy court found that the
management and controlling shareholders at TOUSA decided to risk hundreds of
millions of dollars of their creditors’ money despite the impending disaster the
company faced.
These findings by the bankruptcy court were supported by public data and
internal analyses and communications from TOUSA insiders that showed that the
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transaction would almost certainly fail to keep TOUSA and the Conveying
Subsidiaries out of bankruptcy. By the end of 2006, it was clear that TOUSA was
liable to the Transeastern Lenders for defaults on the joint venture, but the extent
of that liability and whether TOUSA could pay back its creditors and, if so, how
quickly, were still in doubt. Internal documents revealed that TOUSA insiders
realized that the liability of the company to the Transeastern Lenders could force
TOUSA into bankruptcy. Lehman Brothers prepared a bankruptcy waterfall
analysis for TOUSA in February 2007. David Kaplan, a senior financial advisor
to the CEO of TOUSA, suggested in early 2007 that the company needed a Chief
Restructuring Officer. On April 15, 2007, Larry Young, an advisor to TOUSA
from AlixPartners LLP, wrote to Stephen Wagman, the CFO of TOUSA, “[W]hy
rush to restructure in a down market with a bad set of terms just to file in 3
months. If we need to file due to the lenders/shareholder issues, then lets [sic] do
it now and save ourselves about $50 million in transaction cost!” Wagman agreed
with the assessment. On May 1, 2007, Kaplan sent Tony Mon, the CEO of
TOUSA, a financial analysis of TOUSA that acknowledged the declining housing
markets and stated, “[A]lthough we can agree to pay Creditors in full and with
interest if payments are postponed, we cannot afford to pay them cash up front.”
Mon and Wagman both argued that TOUSA should pay part of the
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settlement with an infusion of equity to avoid taking on more debt. Both were
concerned that increased debt from the settlement could severely constrain the
company. Notes on a Mon’s draft presentation to the Board warned, “[W]e must
build in the capacity in this model so that when the market does turn, we have
access to capital to build/sell product. If we can’t do this, we are toast.” In April
of 2007, Mon sent information to a financial advisor of the controlling
shareholders stating that the settlement would leave TOUSA with excessive debt;
that post-settlement TOUSA would have limited access to the capital it would
need to grow its business; and that the ability of TOUSA to escape from under its
debt could be inhibited by significant risks including further deterioration in the
housing market, falling land and home values, and further weakening in credit
markets. Wagman likewise urged the controlling shareholders to consider a
settlement that would include little or no new debt for TOUSA.
Despite the obvious risks posed by taking on more debt during a housing
market decline, the controlling shareholders of TOUSA, the Stengos family,
opposed any settlement deal that diluted their equity position. They directed Mon
to terminate discussions with potential investors until new financing and the
Transeastern settlement closed. Due to constraints imposed by the Stengos family,
TOUSA decided to fund the settlement solely with new debt. The deal would
15
make TOUSA the most highly-leveraged company in the industry.
In the months preceding the July 31 closing of the transaction, public and
private assessments made clear that the financial position of TOUSA was moving,
as one securities analyst wrote, “from bad to worse.” Investors recognized the dire
straits that TOUSA faced, as evidenced by the drop in TOUSA stock prices from a
high of $23 per share in 2006 to just $4 per share by April 2007. TOUSA bonds
traded at discounts of 30 to 40 percent of face value in May 2007. After TOUSA
presented the proposed July 31 transaction to ratings agencies, its corporate credit
rating dropped.
In the same period, the national housing market was fast approaching
collapse. On May 29, 2007, Mon and other TOUSA executives received a report
that Standard and Poor’s had downgraded the bond ratings on several major
homebuilders from stable to negative. On June 6, 2007, TOUSA executives
received a report that the National Association of Realtors was predicting that
prices of new homes would fall 2.3 percent, and prices of existing homes would
fall 1.3 percent. Mon forwarded the report to the Board and noted, “FYI, this
represents [ ] the first time in 40 years that the US median home prices have
declined.”
TOUSA management recognized the implications of this financial news for
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the proposed settlement. In an email to himself on May 25, 2007, Wagman noted
that the outlook of the rating agencies for the homebuilding industry was “grim
and getting grimmer,” with downward pressure on prices and margins. He
expressed his concerns about the precarious financial position of TOUSA and the
proposed settlement in especially colorful language that would prove prophetic:
“As CFO, and in light of all of this market uncertainty, I have absolutely no desire
to fly this plane too close to the ground, achieve some from [sic] of consensual
settlement today and crash within the upcoming year. That would be a
clusterfuck.” In an email to the Board on June 14, 2007, Mon stated that the
company had not anticipated the degree to which problems in the subprime
mortgage segments were spreading to less risky mortgage segments. Mortgage
lenders began to implement more restrictive underwriting practices for residential
mortgage loan applications, demand higher interest rates, and revoke commitments
to homebuyers. These developments, Mon observed, “could have a cascading
effect down the line.” Mon told the Board, “this housing correction is far from
over.” At the Board meeting on June 20, 2007, at which the Board approved the
July 31 transaction, Mon informed the Board that the U.S. housing market was at
its lowest point since 1991.
On June 22, 2007, Mon sent the Stengos family’s financial advisor a memo
17
entitled “Strategic Alternatives,” which began by acknowledging that “[t]he TE
settlement leaves TOUSA in a very difficult position.” Post-transaction TOUSA
would be “[o]ver-leveraged,” “[w]ithout access to the capital markets,” “[i]n the
middle of a serious housing correction,” “[f]orced to reduce assets at the ‘wrong
time,’” “[i]n need of a significant equity infusion,” and “[u]nable to survive should
housing conditions degrade further or the housing correction lengthen
appreciably.” Mon’s memorandum predicted that a “Stay the Course”
strategy—even when coupled with the company’s de-leveraging plan—would
leave TOUSA unable to service its $1 billion of bond debt, at a “competitive
disadvantage,” with “[c]apital [c]onstraints” that would allow “[b]arely enough
‘oxygen’ to survive,” “[l]ittle room for error; increased risk of crashing and
burning,” “[l]imited ability to re-invest in the business,” and “[a]lways on the
brink of default.” The “[e]nd [r]esult” of the strategy, Mon acknowledged, would
be “[i]ncreased risk of failure and inability to withstand worsening business
conditions.”
The bankruptcy court found that Mon reached these dire conclusions before
the June 20 Board meeting at which the transaction was approved. Mon
exchanged a substantially identical version of the memo with Tommy McAden,
then an executive vice president of TOUSA and President of the Transeastern
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Joint Venture, as early as June 17, 2007. The bankruptcy court found that “[a]
more complete and prescient prediction (that the effect of the Transeastern
transaction would be to leave TOUSA with unreasonably small capital) would be
hard to imagine.” In re TOUSA, 422 B.R. at 795.
In the six weeks between Mon’s assessment that the transaction would leave
TOUSA “[u]nable to survive should housing conditions degrade further” and the
closing of the July 31 transaction, housing conditions unquestionably degraded
further. On June 27, 2007, Mon advised the Board that Lennar, a national home
builder based in Miami, reported a “very ugly quarter” with “more ugliness to
come” as “housing markets . . . continued to deteriorate.” Mon testified that
“throughout the summer we continued to see a downward slope in the housing
market.” On July 9, 2007, Mon sent the Board copies of articles from Barron’s
and The Wall Street Journal that Mon described as providing “un-relenting
negative news on housing.” Barron’s foresaw that home sales volume would
decline another 20 to 25 percent. The Wall Street Journal reported that declining
home prices would increase impairments for homebuilders and decrease their book
values “for the foreseeable future.” By late July 2007, McAden described the
Florida homebuilding market as having gone from the “hottest market” to being
“at the bottom,” with the worst yet to come for Southwest Florida.
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Financial reports from TOUSA revealed the effects the housing downturn
was having on the company. TOUSA sales in the first quarter of 2007 plunged
more than 16 percent from the comparable quarter the previous year, the number
of homes in development fell more than 20 percent, and its profit margin declined.
The crash continued in the second quarter. On July 12, 2007, TOUSA notified
investors that its deliveries and sales dropped 15 percent, homes under
construction fell 29 percent year over year, the cancellation rate on sale contracts
rose to 33 percent, and profit margins continued to fall. Internal financial
reporting showed similar declines from the prior year.
Numerous analysts, ratings agencies, and market participants recognized
that TOUSA was deeply troubled. On May 16, Debtwire reported that TOUSA
bondholders had warned that the company would be entering the “zone of
insolvency” if it took on new debt to settle with the Transeastern Lenders, and that
some creditors of TOUSA “believe[d] that the proposed settlement could force the
company into an eventual bankruptcy.” In July 2007, ratings agencies Moody’s
and Standard & Poor’s both downgraded their ratings of TOUSA bonds in
contemplation of the July 31 transaction, concluding that TOUSA was “not likely”
to be able to meet its financial obligations. By July 31, 2007, unsecured TOUSA
bonds were selling at discounts as low as $0.45 on the dollar.
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The bankruptcy court also found that the syndication process for the new
loans in the transaction reflected the perilous position of TOUSA. As the housing
sector and TOUSA continued their decline, the syndication market for the new
loans became “[m]ore challenging,” and the cost of the transaction loans to
TOUSA increased. At least as early as July 24, lenders were dropping out of the
deal. One of the lead bankers on the deal for Citicorp, Svetoslav Nikov, informed
his colleagues that they were losing syndicate participants, and “[t]hings were
looking ugly out there.” Marni McManus, the Citicorp engagement leader,
described leaving “panicky” messages about the deal as the market got worse. In a
July 24 email to TOUSA management, McManus urged TOUSA to be prepared to
close the loan deals soon because “the [market] has completely dried up,” and
“[t]he market is going from horrendous to worse.” Nearly half of the prospective
lenders for the First Lien Term Loan dropped out of the deal in the four days
preceding July 31. Citicorp had to provide significant pricing incentives for the
lenders, which raised borrowing costs for TOUSA. The final group of New
Lenders included some firms that were lenders on the Transeastern debt that the
new loans paid off. Through the transaction, these lenders essentially converted
their unsecured loans to the Transeastern Joint Venture into secured loans to
TOUSA and the Conveying Subsidiaries.
21
The bankruptcy court avoided the transfer as fraudulent under section 548
and held that the Transeastern Lenders were “entities for whose benefit” the liens
were transferred. See 11 U.S.C. § 550(a)(1). The bankruptcy court held that,
under controlling precedent and the plain language of section 550(a)(1), the
“Transeastern Lenders directly received the benefit of the Transaction and the
Transaction was undertaken with the unambiguous intent that they would do so.”
In re TOUSA, 422 B.R. at 870. The bankruptcy court avoided the liens on the
assets of the Conveying Subsidiaries and ordered the Transeastern Lenders to
disgorge $403 million and prejudgment interest for the period between July 31,
2007, and October 13, 2009. From the disgorged funds, the court awarded the
Committee damages to cover the transaction costs related to the consummation of
the July 31 transaction; the costs the debtors and the Committee incurred in the
prosecution of the adversary proceeding, including fees and expenses paid to
attorneys, advisors, and experts; and the diminution in the value of the liens
between July 31, 2007, and October 13, 2009. The bankruptcy court held that the
Committee was entitled to the diminution in the value of the liens because “if the
court limits the Trustees to recovery of the property itself, and if the property has
declined in value, the estate will have lost the opportunity to dispose of the
property prior to its depreciation.” Id. at 883 (quoting Feltman v. Warmus (In re
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Am. Way Serv. Corp.), 229 B.R. 496, 532 (Bankr. S.D. Fla. 1999). The
bankruptcy court ordered that the remaining funds be distributed to the First and
Second Lien Lenders. Because the settlement the Transeastern Lenders had
reached with TOUSA had been undone, the bankruptcy court restored the
unsecured claims of the Transeastern Lenders against TOUSA and its partner in
the joint venture.
C. District Court Proceedings
The Transeastern Lenders and the First and Second Lien Lenders appealed,
and their cases were assigned to three separate district court judges. After a series
of transfers, five appeals by the Transeastern Lenders were assigned to one judge
and four appeals by the New Lenders were assigned to another judge. This appeal
arises from the five appeals by the Transeastern Lenders.
The district court issued an order quashing the bankruptcy court decision as
it related to the liability of the Transeastern Lenders. 3V Capital Master Fund Ltd.
v. Official Comm. of Unsecured Creditors of TOUSA, Inc., 444 B.R. 613, 680
(S.D. Fla. 2011). The district court held that, as a matter of law, the bankruptcy
court had too narrowly defined “value.” The district court cited a Third Circuit
decision that held that “[t]he mere ‘opportunity’ to receive an economic benefit in
the future constitutes ‘value’ under the Code.” Mellon Bank, N.A. v. Official
23
Committee of Unsecured Creditors of R.M.L., Inc. (In re R.M.L., Inc.), 92 F.3d
139, 148 (3d Cir. 1996). The district court also relied on a decision of the Eighth
Circuit that explained that the correct way to determine “value” was not to define
it “only in terms of tangible property or marketable financial value,” but instead to
“examine[] all aspects of the transaction and carefully measure[] the value of all
benefits and burdens to the debtor, direct or indirect, including ‘indirect economic
benefits.’” United States v. Crystal Evangelical Free Church (In re Young), 82
F.3d 1407, 1415 (8th Cir. 1996) (internal quotation marks omitted) vacated on
other grounds, 521 U.S. 1114, 117 S. Ct. 2502 (1997). The district court also cited
a decision by our Court that stated that Section 548(a) “does not authorize voiding
a transfer which ‘confers an economic benefit upon the debtor,’ either directly or
indirectly.” GE Credit Corp. v. Murphy (In re Rodriguez), 895 F.2d 725, 727
(11th Cir. 1990) (citing Rubin v. Mfr. Hanover Trust Co., 661 F.2d 979, 991 (2d
Cir. 1981)); see also 5 Collier On Bankruptcy ¶ 548.05, at 548–67 (Alan N.
Resnick & Henry J. Sommer eds., 16th ed. 2006) (“The nature of the value that is
received need not be a tangible, direct economic benefit. An indirect economic
benefit can suffice, so long as it is ‘fairly concrete.’”). The district court
concluded that indirect benefits, including the opportunity to avoid bankruptcy,
could constitute “value” under section 548(a).
24
The district court then determined that the bankruptcy court clearly erred
when it found that the Conveying Subsidiaries had not received reasonably
equivalent value from the transaction. The district court found that the transaction
gave the Conveying Subsidiaries the opportunity to avoid bankruptcy, continue as
going concerns, and make further payments to their creditors. The district court
found that these benefits did not need to be quantified to establish reasonably
equivalent value. “Inherently, these benefits have immense economic value that
ensure the debtor’s net worth has been preserved, and, based on the entirety of this
record, were not disproportionate between what was given up and what was
received.” In re TOUSA, 444 B.R. at 666.
The district court also held that the Transeastern Lenders could not, as a
matter of law, be liable as “entities for whose benefit” the transfers were made
because they did not benefit from the transfer of the liens to the New Lenders
within the meaning of section 550(a)(1). The district court held that the
Transeastern Lenders were subsequent transferees of the proceeds backed by the
liens, not immediate beneficiaries of the transfer of the liens, and that subsequent
transferees are not covered by section 550(a)(1). See id. at 674.
Finally, the district court held that remand was unnecessary because “the
record allows only one resolution of the factual issues at stake,” id. at 680, and
25
because the Transeastern Lenders made “compelling arguments” regarding the
ability of the bankruptcy court “to approach the Defendant’s evidence and
arguments fairly.” Id. at 679 n.65. The district court quashed the order of the
bankruptcy court and declared all the proceedings regarding the Transeastern
Lenders closed.
Because the district court ruled on issues that were central to the separate
appeals of the New Lenders, the district court allowed the New Lenders to
intervene in this appeal, and the district court stayed the appeals of the New
Lenders pending disposition of this appeal.
II. STANDARDS OF REVIEW
As the second court to review the judgment of the bankruptcy court, we
review the order of the bankruptcy court independently of the district court.
Westgate Vacation Villas, Ltd. v. Tabas (In re Int’l Pharmacy & Disc. II, Inc.), 443
F.3d 767, 770 (11th Cir. 2005). We review determinations of law made by either
court de novo. Id. We review the findings of fact of the bankruptcy court for clear
error. Id. The factual findings of the bankruptcy court are not clearly erroneous
unless, in the light of all the evidence, “we are left with the definite and firm
conviction that a mistake has been made.” Id. “Neither the district court nor this
Court is authorized to make independent factual findings; that is the function of
26
the bankruptcy court.” Equitable Life Assurance Soc’y v. Sublett (In re Sublett),
895 F.2d 1381, 1384 (11th Cir. 1990). We review equitable determinations of the
bankruptcy court for abuse of discretion. Bakst v. Wetzel (In re Kingsley), 518
F.3d 874, 877 (11th Cir. 2008).
III. DISCUSSION
We divide our discussion into three parts. We first explain that the
bankruptcy court did not clearly err when it found that the Conveying Subsidiaries
did not receive reasonably equivalent value in exchange for their liens. We then
explain that the bankruptcy court did not err when it found that the Transeastern
Lenders were entities for whose benefit the liens were transferred. Finally, we
explain why we will not consider, in the first instance, challenges to the remedies
imposed by the bankruptcy court or issues of judicial assignment or consolidation
of proceedings.
A. The Bankruptcy Court Did Not Clearly Err When It Found That the Conveying
Subsidiaries Did Not Receive Reasonably Equivalent Value in Exchange for the
Liens They Transferred to the New Lenders.
The Committee argues that the bankruptcy court did not clearly err when it
found that the conveyance of the liens by the Conveying Subsidiaries to the New
Lenders was a fraudulent transfer. Section 548(a)(1)(B) of the Bankruptcy Code
provides for the avoidance of “any transfer . . . of an interest of the debtor in
27
property, or any obligation . . . incurred by the debtor, that was made or incurred . .
. within two years before the date of the filing” of the bankruptcy petition, if the
debtor “received less than reasonably equivalent value in exchange for” the
transfer or obligation, and the debtor (1) “was insolvent on the date such transfer
was made or such obligation was incurred, or became insolvent as a result of such
transfer or obligation;” (2) “was engaged in business or a transaction, or was about
to engage in business or a transaction, for which any property remaining with the
debtor was an unreasonably small capital;” or (3) “intended to incur, or believed
that the debtor would incur, debts that would be beyond the debtor’s ability to pay
as such debts matured.” 11 U.S.C. § 548(a)(1)(B). The parties do not dispute, in
this appeal, that the Conveying Subsidiaries were either insolvent, had
unreasonably small capital, or were unable to pay their debts when the liens were
conveyed. Their dispute concerns whether the Conveying Subsidiaries received
less than reasonably equivalent value. “The purpose of voiding transfers
unsupported by ‘reasonably equivalent value’ is to protect creditors against the
depletion of a bankrupt’s estate.” G.E. Credit Corp. v. Murphy (In re Rodriguez),
895 F.2d 725, 727 (11th Cir. 1990).
The bankruptcy court endorsed a definition of “value” that the district court
rejected as too narrow and potentially “inhibitory of contemporary financing
28
practices,” In re TOUSA, 444 B.R. at 659, but we need not adopt the definition of
either court. We decline to decide whether the possible avoidance of bankruptcy
can confer “value” because the bankruptcy court found that, even if all the
purported benefits of the transaction were legally cognizable, they did not confer
reasonably equivalent value. See In re TOUSA, 422 B.R. at 869. Because these
findings are not clearly erroneous, they settle this matter.
The bankruptcy court was entitled to find that the benefits of the transaction
were not reasonably equivalent in value to what the Conveying Subsidiaries
surrendered. “It has long been established that ‘[w]hether fair consideration has
been given for a transfer is ‘largely a question of fact, as to which considerable
latitude must be allowed to the trier of the facts.’” Nordberg v. Arab Banking
Corp. (In re Chase & Sanborn Corp.), 904 F.2d 588, 593 (11th Cir. 1990) (quoting
Mayo v. Pioneer Bank & Trust Co., 270 F.2d 823, 829–30 (5th Cir.1959)
(Wisdom, J.)). The record supports the finding by the bankruptcy court that, for
the Conveying Subsidiaries, the almost certain costs of the transaction of July 31
far outweighed any perceived benefits.
The Transeastern Lenders and New Lenders argue that the transaction of
July 31 allowed the Conveying Subsidiaries to escape the “existential threat” of
the likely bankruptcy that would ensue and that this chance to avoid bankruptcy
29
was a benefit reasonably equivalent in value to the obligations the Conveying
Subsidiaries incurred, but we are unpersuaded that the record compels that finding.
“A corporation is not a biological entity for which it can be presumed that any act
which extends its existence is beneficial to it.” Bloor v. Dansker (In re Investors
Funding Corp. of New York Sec. Litig., 523 F. Supp. 533, 541 (S.D.N.Y. 1980).
In other words, not every transfer that decreases the odds of bankruptcy for a
corporation can be justified. The bankruptcy court considered the potential
benefits of the transaction and found that they were nowhere close to its expected
costs. In the light of all the evidence, we are not “left with the definite and firm
conviction that” the bankruptcy court clearly erred. In re Int’l Pharmacy & Disc.
II, Inc., 443 F.3d at 770.
The Transeastern Lenders and New Lenders argue that the record
establishes that an adverse judgment in the Transeastern litigation would have
caused TOUSA to file for bankruptcy, the revolving financing for the Conveying
Subsidiaries to disappear, and the Conveying Subsidiaries to become liable for
immediate payment of more than $1.3 billion to the revolving loan lenders and
TOUSA bondholders. They contend that the bankruptcy court clearly erred when
it found that the Conveying Subsidiaries could have survived a TOUSA
bankruptcy. They argue that the bankruptcy court found that the Conveying
30
Subsidiaries were insolvent before the transaction, and they argue that it is
unlikely that the insolvent Conveying Subsidiaries could have obtained new
financing. They also argue that the absence of standalone financial statements was
a “clear obstacle” to new financing. They highlight that one of the experts for the
Committee described the intercompany payables and receivables for TOUSA and
the Conveying Subsidiaries as a “huge pile of tangled spaghetti.” The
Transeastern Lenders and New Lenders assert that it would have taken months, if
not years, to sort through the mound of records, which proves that the Conveying
Subsidiaries had no chance to receive standalone financing.
The bankruptcy court found this evidence to be irrelevant because, “even
assuming that all of the TOUSA entities would have spiraled immediately into
bankruptcy without the July 31 Transaction, the Transaction was still the more
harmful option.” In re TOUSA, 422 B.R. at 847. “[A]t most it delayed the
inevitable.” Id. at 846. The bankruptcy court found that the benefits to the
Conveying Subsidiaries were not close to being reasonably equivalent in value to
the $403 million of obligations that they incurred. The Transeastern Lenders and
New Lenders attack this finding as “hindsight reasoning . . . at its most extreme,”
but the bankruptcy court based its extensive findings on a thorough review of
public knowledge available before July 31, 2007; expert analysis of data available
31
before July 31, 2007; and statements by TOUSA insiders made before July 31,
2007.
The Transeastern Lenders and New Lenders argue that the finding of an
“inevitable” bankruptcy is against the weight of the evidence, but the only
evidence they cite, in contrast with the thorough findings of the bankruptcy court,
are the opinions of a TOUSA advisor that the company would remain viable after
the transaction and statements from Tony Mon about a comprehensive strategy to
shrink TOUSA after the transaction, shore up its finances, and rebuild the
company. The Transeastern Lenders and New Lenders contend that the
projections of TOUSA look unreasonable now only because weeks after the
transaction, “a tragic global financial crisis of unprecedented proportions” began.
They assert that the unexpected downturn was described by Alan Greenspan as “a
once in a century credit tsunami” and by Warren Buffett as an “economic Pearl
Harbor.” The Transeastern Lenders and New Lenders argue that they cannot be
held liable for failing to foresee the unforeseeable, that their actions were
reasonable, and that the bankruptcy court clearly should have found that the
transaction was a reasonable risk for the Conveying Subsidiaries to take.
The record supports a determination that the bankruptcy of TOUSA was far
more like a slow-moving category 5 hurricane than an unforseen tsunami. The
32
bankruptcy court considered the evidence from outside advisors to TOUSA and
found much of it suspect or based on faulty premises. The bankruptcy court
considered and discounted Mon’s deleveraging strategy for TOUSA in the light of
the dire predictions he and other insiders made regarding the effects the
transaction would have on TOUSA. And the bankruptcy court found that, even
though Alan Greenspan and Warren Buffet could not foresee the general economic
downturn that began in earnest in August 2007, numerous external observers and
insiders at TOUSA recognized that the relevant housing markets for TOUSA had
begun their free fall before the July 31 transaction. In contrast with the surprise
attack at Pearl Harbor, the warnings about the collapse of TOUSA made that event
as foreseeable as the bombing of Nagasaki after President Truman’s ultimatum.
The opportunity to avoid bankruptcy does not free a company to pay any
price or bear any burden. After all, “there is no reason to treat bankruptcy as a
bogeyman, as a fate worse than death.” Olympia Equipment Leasing Co. v.
Western Union Telegraph Co., 786 F.2d 794, 802 (7th Cir. 1986) (Easterbrook, J.,
concurring). The bankruptcy court correctly asked, “based on the circumstances
that existed at the time the investment was contemplated, whether there was any
chance that the investment would generate a positive return.” See Mellon Bank,
N.A. v. Official Committee of Unsecured Creditors of R.M.L., Inc. (In re R.M.L.,
33
Inc.), 92 F.3d 139, 152 (3rd Cir. 1996). And the record supports the negative
answer found by the bankruptcy court.
B. The Bankruptcy Court Did Not Err When It Ruled That the Committee Could
Recover from the Transeastern Lenders under Section 550(a)(1).
If a transfer is avoided under section 548 or one of several other provisions
of the Bankruptcy Code, section 550(a)(1) allows the recovery of the property
transferred or its value from the initial transferee or from an “entity for whose
benefit such transfer was made.” 11 U.S.C. § 550(a)(1). Although the liens of the
Conveying Subsidiaries were transferred to secure loans to pay the Transeastern
Lenders, the Transeastern Lenders argue that they are not covered by section 550
because they were subsequent transferees, not entities that benefitted from the
initial transfer. Their argument is contradicted by the loan agreements, which
required that the proceeds of the loans secured by the liens be transferred to the
Transeastern Lenders. Under the plain language of section 550(a)(1) and the
precedent of our Court, the Transeastern Lenders are entities for whose benefit the
Conveying Subsidiaries transferred their liens.
To be sure, we have stated that “the paradigm case of a benefit under
§ 550(a) is the benefit to a guarantor by the payment of the underlying debt of the
debtor.” Reily v. Kapila (In re Int’l Mgmt. Ass’n), 399 F.3d 1288, 1292 (11th Cir.
34
2005). The guarantor receives an immediate benefit when the debtor pays back a
creditor, which reduces the liability of the guarantor. Although this relationship
may be the paradigmatic case, it is not the only circumstance that can give rise to
“for whose benefit” liability.
We have also held that a creditor similarly situated to the Transeastern
Lenders can be liable as an entity for whose benefit a transfer was made. In
American Bank of Marin County v. Leasing Service Corp. (In re Air Conditioning,
Inc. of Stuart), 845 F.2d 293 (11th Cir. 1988), we ruled that section 550(a)(1)
allowed the trustee to recover the value of a $20,000 certificate of deposit from the
creditor of a company that had transferred a security interest in the certificate of
deposit to a bank, which had transferred a $20,000 letter of credit to the creditor.
Id. at 299. The company in Air Conditioning owed its creditor $20,000. Id. at
295. When the company began falling behind on payments, the parties worked out
a deal to keep the company in business. Id. As part of the deal, the company
issued a $20,000 promissory note to a bank secured by a $20,000 certificate of
deposit. Id. The bank, in turn, executed a $20,000 letter of credit to the creditor.
Id. After the company entered bankruptcy, we ruled that the transfer of the
security interest in the certificate of deposit to the bank constituted an avoidable
preference under section 547(b) because it was a transfer of property of the debtor
35
to a creditor within 90 days of filing for bankruptcy that provided more value to
the creditor than it would have received under chapter 7 of the Bankruptcy Code.
Id. at 296–97; see also 11 U.S.C. 547(b). We then ruled that the bankruptcy
trustee could recover the value of the certificate of deposit from the creditor
because the company granted the security interest to the bank for the benefit of the
creditor. Id. at 299. We explained that the text of section 550(a)(1) allows the
trustee to recover from a creditor when it was an entity for whose benefit the
transfer of the certificate of deposit was made. Id.Our decision in Air Conditioning controls this appeal. In Air Conditioning,
the debtor transferred a lien to a lender who transferred funds to a creditor. The
transfer of the lien was avoided and, under section 550(a)(1), the creditor was an
entity for whose benefit the transfer was made. In the same way, the Conveying
Subsidiaries transferred liens to the New Lenders, who transferred funds to
creditors, the Transeastern Lenders. The bankruptcy court avoided the transfer of
the liens and, under section 550(a)(1), the Transeastern Lenders were entities for
whose benefit the transfer was made.
The Transeastern Lenders attempt to distinguish their appeal from Air
Conditioning in two ways, but their arguments ignore the material similarities
between the preference in that decision and the fraudulent transfer at issue in this
36
appeal. First, the Transeastern Lenders contend that Air Conditioning involved a
preference under section 547 instead of a fraudulent transfer under 548, but “[t]he
theory under which a transfer has been avoided is irrelevant to the liability of the
transferee against whom the trustee seeks to recover [under section 550].”
Danning v. Miller, 922 F.2d 544, 546 n.2 (9th Cir. 1991). Second, the
Transeastern Lenders argue that section 550(a)(1) applied in Air Conditioning
because a letter of credit was involved, but the Transeastern Lenders cannot
provide a principled basis for limiting section 550(a)(1) to factual scenarios that
involve letters of credit.
The Transeastern Lenders also contend that they cannot be liable under
section 550(a)(1) because they benefitted from a subsequent transfer of funds from
TOUSA, not from the initial transfer of the liens, but the record contradicts their
assertion. The new loan agreements required that the loan proceeds be used to pay
the Transeastern settlement, and the Transeastern settlement expressly depended
on the new loans. When the liens were transferred to the New Lenders, the
proceeds of the loans went to the Transeastern Lenders. The Transeastern Lenders
assert that the funds passed from the New Lenders to a wholly-owned subsidiary
of TOUSA before the funds were paid to the Transeastern Lenders, but the
subsidiary that wired the money to the Transeastern Lenders did not have control
37
over the funds. The loan documents required the subsidiary to wire the funds to
the Transeastern Lenders immediately. Although the funds technically passed
through the TOUSA subsidiary, this formality did not make the Transeastern
Lenders subsequent transferees of the funds because TOUSA never had control
over the funds. See Nordberg v. Societe Generale (In re Chase & Sanborn Corp.),
848 F.2d 1196, 1199 (11th Cir. 1988) (stating that courts must apply a “very
flexible, pragmatic” test that “look[s] beyond the particular transfers in question to
the entire circumstance of the transactions” when deciding whether debtors had
controlled property later sought by their trustees); Bonded Fin. Servs., 838 F.2d at
893 (holding that a bank was not an initial transferee because it held funds “only
for the purpose of fulfilling an instruction to make the funds available to someone
else”).
The Transeastern Lenders warn that our reading of section 550(a) would
drastically expand the potential pool of entities that could be liable for any
transaction, but these concerns are unsubstantiated. The Transeastern Lenders
offer examples of a parent company taking out a loan secured by its subsidiaries
with the specific intent of paying a contractor to build a building for the parent
company or paying the dry cleaning bill of the parent company. The Transeastern
Lenders caution that the contractor or dry cleaner could be forced to return their
38
payments if the loan securing the money involved a fraudulent transfer, which
would impose “extraordinary” duties of due diligence on the part of creditors
accepting repayment. But every creditor must exercise some diligence when
receiving payment from a struggling debtor. It is far from a drastic obligation to
expect some diligence from a creditor when it is being repaid hundreds of millions
of dollars by someone other than its debtor.
C. We Remand for the District Court To Consider First the Remedies Imposed by
the Bankruptcy Court and Matters of Assignment and Consolidation.
The parties’ remaining arguments pertain to issues that are not ripe for our
review. The Transeastern Lenders ask that we vacate the remedies ordered by the
bankruptcy court, and both parties ask that we wade into matters of judicial
assignment and consolidation on remand. These issues must be resolved first by
the district court.
The Transeastern Lenders challenge the remedies imposed by the
bankruptcy court, but we will not address an issue that the district court has not yet
considered. See e.g., Dzikowski v. Northern Trust Bank of Florida, N.A. (In re
Prudential of Florida Leasing, Inc.), 478 F.3d 1291, 1303 (11th Cir. 2007) (“When
the district court does not address an issue [it dismissed as moot], the proper
course of action often is to vacate the order of the district court and remand.”).
39
The district court, on remand, should review, in the first instance, the remedies
ordered by the bankruptcy court. We express no opinion on that subject.
The parties’ requests about judicial assignment and consolidation of
proceedings are also misdirected. The Committee urges us to remand this case to
a different district judge; and the Transeastern Lenders and New Lenders argue
that, if the case needs to be heard again by the bankruptcy court, we should
instruct the district court to remand the case to a different bankruptcy judge. Both
sides complain that the judge who issued a decision unfavorable to their interests
is biased, but neither side has established that “the original judge would have
difficulty putting his previous views and findings aside.” CSX Transp., Inc. v.
State Bd. of Equalization, 521 F.3d 1300, 1301 (11th Cir. 2008). The Committee
also argues that the remaining remedial issues are intertwined with remedial issues
from a related appeal before a different district judge and that consolidation of
proceedings would promote judicial economy. We leave these matters of future
judicial administration and management for the district court to address first.
IV. CONCLUSION
We REVERSE the order of the district court, AFFIRM the liability
findings of the bankruptcy court, and REMAND to the district court for further
proceedings consistent with this opinion.
40
REVERSED AND REMANDED.
41