Official Committe of Unsecured Creditors v. Moeller , 801 F.3d 530 ( 2015 )


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  •    Case: 14-50046   Document: 00513196170   Page: 1   Date Filed: 09/16/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 14-50046
    FILED
    September 16, 2015
    Lyle W. Cayce
    In the Matter of: AGE REFINING, INCORPORATED,                          Clerk
    Debtor
    ------------------------------
    THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS,
    Appellant
    v.
    ERIC J. MOELLER, Chapter 11 Trustee for AGE Refining, Incorporated,
    Appellee
    In the Matter of: AGE REFINING, INCORPORATED,
    Debtor
    ------------------------------
    THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS,
    Appellant
    v.
    CHASE CAPITAL CORPORATION; LIQUIDATING TRUSTEE RANDOLPH
    N. OSHEROW,
    Appellees
    In the Matter of: AGE REFINING, INCORPORATED,
    Debtor
    ------------------------------
    THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS,
    Appellant
    v.
    RANDOLPH N. OSHEROW, Chapter 11 Trustee,
    Appellee
    Appeal from the United States District Court
    for the Western District of Texas
    Case: 14-50046      Document: 00513196170        Page: 2    Date Filed: 09/16/2015
    No. 14-50046
    Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.
    PATRICK E. HIGGINBOTHAM, Circuit Judge:
    The Official Committee of Unsecured Creditors (the “Committee”)
    appeals a consolidated district court judgment affirming several bankruptcy
    court judgments. The bankruptcy court approved a Rule 9019 settlement,
    denied a motion to value a secured claim, denied an objection to an allowed
    claim, and approved a Chapter 11 cramdown plan. We affirm.
    I. Background
    AGE Refining, Inc. (“AGE”), owned and operated a petroleum refinery in
    San Antonio. AGE processed crude oil into jet fuel for sale to local military
    bases and certain airlines, financing the purchase of its oil primarily through
    credit facility arrangements with J.P. Morgan Chase Bank (“JP Morgan”) 1 and
    Appellee Chase Capital (“Chase”). Chase’s position was secured by liens in
    certain AGE assets pursuant to a security agreement (the “Chase Security
    Agreement”) with first-priority liens in the AGE refinery (the “Refinery”) and
    some related AGE real and personal property. JP Morgan held first-priority
    security interests in AGE’s cash, inventory, and accounts (the “Working
    Capital Assets”), in which Chase also held a subordinate security interest. AGE
    had four significant unencumbered assets: (1) approximately 14.52 acres of
    vacant real property adjacent to the Refinery (the “Adjacent Real Property”);
    (2) a tank farm in Elmendorf, Texas (the “Elmendorf Tank Farm”); (3) interests
    in executory contracts and unexpired leases under a storage and service
    agreement with the Redfish Bay terminal in San Patricio County, Texas (the
    “Redfish Bay Assets”); and (4) proceeds from pending avoidance claims against
    former AGE officers and directors (the “Gonzales Litigation”). Although Chase
    1 In the lower court record, JP Morgan is sometimes referred to as “Chase Bank.” We
    use “JP Morgan” to distinguish from Appellee Chase Capital.
    2
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    held no lien in the general proceeds from the Gonzales Litigation, it did assert
    a lien in one underlying component of the Gonzales Litigation: an AGE account
    receivable from one of the defendants in that case (the “ATI Receivables”),
    valued at about $1.7 million. Chase later agreed to release its lien in the ATI
    Receivables as part of AGE’s settlement of the Gonzales Litigation on
    December 12, 2011.
    AGE filed a voluntary petition commencing Chapter 11 proceedings on
    February 8, 2010. Chase properly filed a secured pre-petition claim against
    AGE of about $40.2 million; JP Morgan properly filed a secured pre-petition
    claim of about $35 million. Various unsecured creditors also filed claims,
    represented collectively by the Committee.
    JP Morgan’s pre-petition claim constituted unfunded letters of credit
    extended to AGE trade creditors to secure AGE crude supply purchases. 2 The
    bankruptcy court authorized post-petition payment of critical vendors from
    other estate assets, thereby paying trade creditors during administration
    without requiring funding of the letters of credit comprising JP Morgan’s pre-
    petition claim. These unfunded pre-petition letters of credit were ultimately
    retired or otherwise paid, satisfying JP Morgan’s pre-petition claim in full.
    On March 3, 2010, the bankruptcy court entered an order permitting
    AGE to obtain “debtor-in-possession” (“DIP”) financing through a new, post-
    petition credit facility arrangement with JP Morgan. The DIP Financing
    Facility was an agreement among AGE, JP Morgan, and Chase, and it also
    provided authority for AGE to use the cash collateral of JP Morgan as first-
    priority lienholder and Chase as second-priority under Bankruptcy Code
    2An unfunded letter of credit is a line of credit that a lender has issued to a borrower,
    enabling the borrower to draw funds, but upon which the borrower has not drawn funds.
    3
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    section 363. 3 JP Morgan renewed its first-priority liens in the Working Capital
    Assets and received new first-priority liens in AGE’s unencumbered assets—
    the Adjacent Real Property, the Elmendorf Tank Farm, and the Redfish Bay
    Assets—in exchange for post-petition financing.
    AGE stipulated to the validity and amount of Chase’s and JP Morgan’s
    secured pre-petition claims and, acting as debtor-in-possession, decided early
    in the case to sell substantially all its assets in a sale under section 363 or,
    alternatively, through a liquidating plan. The bankruptcy court approved the
    sale procedures on March 8, 2010, but AGE faced unexpected delays in
    restarting operations, adverse domestic economic conditions, mismanagement,
    and a massive explosion and fire at the Refinery on May 5, 2010 (the “Truck
    Rack Fire”). These difficulties forced delay in the sale process. The Truck Rack
    Fire gave rise to an insurance claim to which Chase’s lien in the Refinery
    attached as to the casualty policy proceeds. In light of these difficulties and on
    the joint motion of Chase, JP Morgan, and the Committee, the bankruptcy
    court appointed Eric Moeller (the “Trustee”) to serve as Chapter 11 Trustee for
    AGE, effective July 6, 2010.
    A. The Sale to NuStar.
    By April 2011, the Trustee had renewed sale efforts and chose NuStar
    Energy (“NuStar”) as designated purchaser for the Refinery (including the
    Working Capital Assets), the Adjacent Real Property, and the Elmendorf Tank
    Farm. The sale to NuStar did not include the Redfish Bay Assets. The
    bankruptcy court approved the sale to NuStar for a base purchase price of $41
    311 U.S.C. § 363. All section references herein are to title 11 of the United States Code
    (the “Bankruptcy Code”).
    4
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    No. 14-50046
    million, $2.2 million for platinum on hand, 4 and a “net working capital
    adjustment.” This Working Capital Adjustment was a post-closing finalization
    of the value of the Working Capital Assets. It appears from the record that
    because the relevant parties could only estimate the value of the Working
    Capital Assets at the close of the sale to NuStar, the ultimate purchase price
    could have been either greater or less than the $41 million base price. By its
    terms, the Refinery Sale Order directed that NuStar place about $8 million in
    escrow and transfer about $37 million to the Trustee at closing. Of that $37
    million, after subtracting expenses, the Refinery Sale Order directed that the
    Trustee transfer $36 million to Chase, in partial payment of its pre-petition
    claim, and $118,915 to JP Morgan, in partial payment of the DIP Financing
    Facility balance. The sale to NuStar closed on April 19, 2011.
    On April 28, 2011, pursuant to the Refinery Sale Order, the Trustee and
    NuStar jointly prepared an estimated valuation of the Working Capital Assets,
    permitting the release of about $5 million from escrow to the Trustee, leaving
    $3 million in escrow, subject to finalization of the Working Capital Adjustment.
    Following the sale to NuStar and the subsequent release of part of the
    escrowed funds, the Trustee held $12,653,111 in cash. On May 6, 2011, the
    Trustee transferred $7 million to JP Morgan, reducing the outstanding balance
    of the DIP Financing Facility to about $5 million and leaving the Trustee with
    a cash balance of about $5.6 million. The partial payment to Chase had reduced
    the outstanding balance of Chase’s pre-petition claim to about $4.2 million.
    B. The Redfish Bay Sale.
    Meanwhile, the Trustee sought permission to sell the Redfish Bay Assets
    4Platinum is used as a catalyst in refining. It is unclear from the record whether the
    platinum on hand was covered in security agreements for the Working Capital Assets. Our
    holding does not depend on such coverage.
    5
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    separately. On May 20, 2011, the bankruptcy court authorized the sale of the
    Redfish Bay Assets to TexStar MidStream Services for $6.5 million. The
    Redfish Bay Sale Order directed the Trustee upon closing to reduce or
    eliminate the remaining DIP Financing Facility balance from sale proceeds. 5
    The Redfish Bay sale closed on May 20, 2011, and the Trustee as directed paid
    the DIP Financing Facility virtually in full, leaving the remainder of the sale
    proceeds to the AGE estate. 6
    C. The Working Capital Adjustment.
    Three weeks later, on June 10, 2011, the Trustee and NuStar finalized
    the Working Capital Adjustment, agreeing to value the Working Capital
    Assets at about $4.8 million. The $3 million remaining in escrow was released
    to the Trustee and NuStar transferred an additional $2.8 million to the
    Trustee. All told, the Trustee received a final purchase price of about $48
    million in the sale to NuStar: the $41 million base price (for the Refinery, the
    Adjacent Real Property, and the Elmendorf Tank Farm, collectively), plus $2.2
    million (for the platinum on hand), plus $4.8 million (for the Working Capital
    5 The Redfish Bay Sale Order provided, in pertinent part, as follows:
    [I]nterim partial payments of [JP Morgan’s] claims may be made from
    the proceeds of the transaction contemporaneously with the [c]losing.
    The Trustee submits that the interim, partial payments of the [DIP
    Financing Facility] due [JP Morgan] are entirely appropriate because
    (i) such payments were a precondition to the consents of [JP Morgan]
    and [Chase] to the [Redfish Bay] Sale . . . (ii) the Trustee might not be
    able to adequately protect the liens of [JP Morgan] in the cash proceeds
    of its collateral, and (iii) it would make little economic sense for the
    Trustee to retain the proceeds in escrow and continue to incur the
    substantial ongoing interest accruals and “negative carry” with respect
    to the [DIP Financing Facility].
    6 NuStar had posted back-up letters of credit, along with the Trustee’s segregation of
    cash collateral, to cover any outstanding letters of credit attributable to the DIP Financing
    Facility. Although JP Morgan was still owed certain accrued but unpaid letter of credit fees,
    those fees appear to have totaled less than $10,000.
    6
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    No. 14-50046
    Assets). 7
    The Trustee did not allocate the $41 million base price among the various
    underlying collateral (the Refinery, the Adjacent Real Property, and the
    Elmendorf Tank Farm). Although the parties stipulated to a fair market value
    of the Adjacent Real Property of about $1.9 million, the parties dispute what
    portion of the remaining $39.1 million represents proceeds from sale of the
    Refinery (encumbered by Chase’s lien) versus the Elmendorf Tank Farm
    (unencumbered by Chase). The Committee argues on appeal that the
    Elmendorf Tank Farm represents between $1.3 million and $4 million of the
    base price and, therefore, that the proceeds from the sale of the Refinery total
    $35.4 to $38.1 million. 8
    D. Chase’s Claim for Post-Petition Interest.
    On August 2, 2011, Chase filed a post-petition claim for payment of
    principal, interest, and other charges pursuant to section 506(b). 9 Chase
    asserted it was oversecured 10 and entitled to post-petition interest pursuant
    7 NuStar initially paid $37,146,000.02 to the Trustee and placed $8,118,562.84 in
    escrow, totaling $45,264,562.86 before the Working Capital Adjustment. All escrowed funds
    were ultimately released to the Trustee, and NuStar paid an additional $2,783,083.63, for an
    adjusted total purchase price of $48,047,646.49.
    8 In the Committee’s view, if we begin with the $41 million base price and subtract
    $1.9 million for the Adjacent Real Property and $1.3 to $4 million for the Elmendorf Tank
    Farm, we are left with $35.4 million to $38.1 million to allocate to the Refinery.
    9 11 U.S.C. § 506(b) provides:
    To the extent that an allowed secured claim is secured by
    property the value of which, after any recovery . . . is greater
    than the amount of such claim, there shall be allowed to the
    holder . . . interest on such claim, and any reasonable fees, costs,
    or charges provided for under the agreement . . . under which
    such claim arose.
    10 A creditor is “oversecured” where the value of its secured collateral exceeds the
    amount of its secured claim.
    7
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    to the terms of the Chase Security Agreement, 11 which provided for post-
    petition interest to accrue at the default rate. 12 Applying that rate, Chase
    sought “up to $6 million” in post-petition interest. An oversecured creditor is
    entitled to post-petition interest on its claim only “to the extent that such
    interest, when added to the principal amount of the claim, [does] not exceed
    the value of the collateral.” 13 Accordingly, Chase argued that the combined
    value of its liens in the proceeds from the sale to NuStar, the proceeds from
    the Working Capital Assets, the insurance proceeds from the Truck Rack Fire,
    and the ATI Receivables exceeded the amount of its pre-petition claim by up
    to $6 million. As an alternative remedy, Chase filed an administrative expense
    claim against the AGE estate seeking $14.7 million for failure to adequately
    protect Chase’s liens in the event that the bankruptcy court found Chase
    undersecured.
    On August 3, 2011, the Committee challenged Chase’s oversecured
    status in a motion to value Chase’s secured collateral under section 506. The
    Committee included a proposed order setting the value of Chase’s collateral at
    $39 million and objected to Chase’s claim for post-petition interest and its
    alternative diminution claim. Although the Trustee disputed the absolute
    extent to which the value of Chase’s secured collateral exceeded the amount of
    its pre-petition claim, the Trustee did not dispute that the collateral value
    11  See In re Laymon, 
    958 F.2d 72
    , 75 (5th Cir. 1992) (“[W]hen an oversecured creditor’s
    claim arises from a contract, the contract provides the rate of post-petition interest.”).
    12 See In re Southland Corp., 
    160 F.3d 1054
    , 1059–60 (5th Cir. 1998) (discussing post-
    petition interest at a default rate under section 506(b) and holding that “a default interest
    rate is generally allowed, unless ‘the higher rate would produce an inequitable . . . result’”
    (alteration in original) (quoting In re 
    Laymon, 958 F.2d at 75
    )). The Committee does not
    contest the equity of the default rate here, and therefore we do not address it.
    13 United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 
    484 U.S. 365
    ,
    372 (1988); see 11 U.S.C. § 506(a)–(b). For instance, if Chase were oversecured by $4 million,
    it would be entitled to a post-petition claim of $4 million under section 506, even though the
    Chase Security Agreement provided for up to $6 million in post-petition interest.
    8
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    exceeded the amount of the pre-petition claim as a relative matter, thus
    making Chase oversecured. The Trustee requested permission to pay the $40.2
    million principal balance of Chase’s pre-petition claim from cash on hand. The
    bankruptcy court granted permission and by its order preserved Chase’s $6
    million claim for post-petition interest but did not address the Motion to Value
    or the Claim Objection.
    E. The Settlement Agreement.
    The Trustee and Chase subsequently negotiated a settlement of Chase’s
    post-petition claim. Under the terms of the Settlement Agreement, the Trustee
    allowed Chase to retain the $40,212,048.63 payment made to Chase in
    satisfaction of its pre-petition claim and Chase agreed to waive additional
    claims, including its alternative $14.7 million administrative claim. In
    exchange, Chase would receive an allowed post-petition claim of $5 million,
    comprising an allowed secured post-petition claim of $3,615,000 and an
    allowed unsecured post-petition claim of $1,385,000. The Trustee further
    agreed to “[i]mmediately pay [Chase] the sum of $200,000.00 as a payment of
    a portion of [Chase’s allowed secured post-petition claim under the Settlement
    Agreement].” The Trustee and Chase filed a joint motion to approve the
    Settlement Agreement under Federal Rule of Bankruptcy Procedure (“Rule”)
    9019(a) on September 13, 2011.
    F. The Consolidated Hearings.
    The bankruptcy court held consolidated hearings on October 27 and 28,
    2011 (the “Consolidated Hearings”), regarding the Settlement Agreement, the
    Motion to Value, and the Claim Objection. During the Consolidated Hearings,
    the Committee produced numerous exhibits, evidence of stipulations, and
    witness testimony in support of its position as to each of the consolidated
    matters. Counsel for the Committee cross-examined witnesses for the Trustee
    9
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    and for Chase. On November 1, 2011, over the Committee’s objections, the
    bankruptcy court issued an oral ruling approving the Settlement Agreement.
    In its oral ruling, the bankruptcy court considered the Settlement Agreement,
    the Motion to Value, and the Claim Objection “intertwined [such that] the
    resolution of one resolve[d] the others.” Consistent with that view, in addition
    to approving the Settlement Agreement the bankruptcy court also denied the
    Motion to Value and the Claim Objection. The bankruptcy court memorialized
    its oral ruling in three separate orders—one pertaining to the Settlement
    Agreement, one to the Motion to Value, and one to the Claim Objection. The
    Committee appealed the bankruptcy court’s approval of the Settlement
    Agreement, its denial of the Motion to Value, and its denial of the Claim
    Objection.
    G. The Plan of Reorganization.
    The Trustee filed an amended plan of reorganization on November 15,
    2011 (the “Third Plan”), incorporating the terms of the Settlement Agreement
    and stating that the $200,000 initial payment due Chase had been paid. The
    Committee objected to the Third Plan and the Trustee called for a vote with a
    deadline of December 6, 2011. The class of claims comprising the Committee’s
    unsecured claims voted to reject confirmation. The class comprising Chase’s
    allowed secured claim, which the Third Plan characterized as impaired, cast
    the deciding vote in favor of confirmation.
    Following receipt of the ballots, the Trustee filed a “final” amended plan
    of reorganization (the “Fourth Plan”) on December 9, 2011, incorporating what
    the Trustee’s attorney described to the bankruptcy court as “some
    inconsequential and beneficial changes” to the Third Plan. Those changes
    included a rewording of the section of the Third Plan pertaining to the $200,000
    initial payment due Chase under the Settlement Agreement (changes
    10
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    underlined):
    Under the terms of the [Settlement Agreement], [Chase’s] Post-
    Petition Claim is Allowed and capped at $5,000,000.00 . . . [Chase]
    was to be paid $200,000.00 of that $5,000,000.00 following entry of
    the order approving the [Settlement Agreement] and prior to
    confirmation of a plan. Notwithstanding the obligation to make
    such payment, the Trustee has not made such payment and will
    not make such payment prior to confirmation. Notwithstanding
    such modification of [Chase’s] right to payment, [Chase] has voted
    in favor of the Plan . . . .
    The bankruptcy court conducted a hearing on the record regarding plan
    confirmation on December 9, 2011. The bankruptcy court found Chase’s claim
    to be impaired under section 1129(a)(10) 14 and confirmed the cramdown-style
    Fourth Plan over the Committee’s objection. 15 The Committee appealed the
    bankruptcy court’s confirmation of the Plan.
    H. The Appeal.
    The district court consolidated the Committee’s appeals regarding the
    Settlement Agreement, the Motion to Value, the Claim Objection, and the
    Plan. In a memorandum and judgment dated January 3, 2014, the district
    court affirmed the bankruptcy court on all fronts. Although the Committee
    ostensibly asserted eight separate arguments on appeal, the district court
    14 11 U.S.C. § 1129(a)(10) (“The court shall confirm a plan only if . . . [in a case where]
    a class of claims is impaired under the plan, at least one class of claims that is impaired
    under the plan has accepted the plan . . . .”).
    15 See 7 Collier on Bankruptcy ¶ 1129.03 (16th ed. 2015) (“The [Bankruptcy] Code
    anticipates that not all reorganizations will proceed with the assent of all participants. . . .
    [C]onfirmation may be desirable when one or more classes refuse to accept the plan. . . . To
    confirm such a plan, the proponent must thus proceed under the nonconsensual confirmation
    provisions of section 1129(b). . . . In the colorful argot of bankruptcy practice, when the
    requirements of section 1129(b) are met, confirmation can be ‘crammed down’ the throat of
    the dissenting class.”).
    11
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    distilled those arguments to two central issues. First, the district court
    concluded that the bankruptcy court acted within its discretion in determining
    that the Settlement Agreement was fair and equitable. And second, the district
    court concluded under In re Village at Camp Bowie I, L.P., 16 that the Fourth
    Plan “provided for the requisite ‘impairment’ necessary to give Chase a vote”
    in a cramdown confirmation under section 1129(a)(10) and (b). The Committee
    appeals the district court’s judgment.
    II. Standard of Review
    “When a court of appeals reviews the decision of a district court, sitting
    as an appellate court, it applies the same standards of review to the bankruptcy
    court’s findings of fact and conclusions of law as applied by the district court.” 17
    Acting as a “second review court,” we “review[] the bankruptcy court’s findings
    of fact under the clearly erroneous standard, and the bankruptcy court’s
    conclusions of law de novo.” 18 Although we may “benefit from the district
    court’s analysis of the issues presented, the amount of persuasive weight, if
    any, to be accorded the district court’s conclusions is entirely subject to our
    discretion.” 19 Our review is properly focused on the actions of the bankruptcy
    court. 20
    III. Analysis
    The Committee ostensibly designates eight issues on appeal. Of those
    16 
    454 B.R. 702
    (Bankr. N.D. Tex. 2011), aff’d, 
    710 F.3d 239
    (5th Cir. 2013).
    17 In re Crager, 
    691 F.3d 671
    , 676 (5th Cir. 2012) (internal quotation marks omitted).
    18 In re T-H New Orleans Ltd. P’ship, 
    116 F.3d 790
    , 796 (5th Cir. 1997).
    19 In re CPDC, Inc., 
    337 F.3d 436
    , 441 (5th Cir. 2003) (alterations and internal
    quotation marks omitted).
    20 See In re Perry, 
    345 F.3d 303
    , 309 (5th Cir. 2003) (“[W]e must determine whether
    the evidence supports the bankruptcy court’s findings and set them aside only if we are left
    with ‘the definite and firm conviction that a mistake has been committed.’” (quoting In re
    Dennis, 
    330 F.3d 696
    , 701 (5th Cir. 2003))).
    12
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    eight issues, all but two challenge district court actions. 21 Acting as a “second
    review court” in a Chapter 11 bankruptcy case, we do not review the findings
    or conclusions of the district court—rather, we review the findings and
    conclusions of the bankruptcy court. 22 As an initial matter, we conclude that
    the issues the Committee designates challenging exclusively district court
    actions do not require our consideration, and we do not address those issues.
    Further, although the Committee challenges Chase’s eligibility to vote
    as an impaired creditor vis-à-vis the district court’s decision affirming the
    bankruptcy court’s approval of the Fourth Plan, nowhere in the Committee’s
    voluminous briefing does it designate an issue or raise a substantial argument
    regarding an erroneous conclusion of law or finding of fact on the part of the
    bankruptcy court. We do not address this challenge, as the Committee has
    waived it. 23 Even assuming the Committee did not waive it, this challenge is
    21  The Committee designates the following issues:
    [Issue One:] Both lower courts focused on settlement standards under [Rule 9019],
    ignoring issues and standards for determining: (i) value of the Chase secured
    claim; (ii) claims objections and/or, (iii) burden on Chase to establish the value
    of its collateral.;
    [Issue Two:] The District Court erred when ignoring designated Plan issues . . . . ;
    [Issue Three:] Error in determination that the Chase Settlement was fair and
    equitable and in the best interest of the estate and/or that the Bankruptcy
    Court abused its discretion when approving the Chase Settlement. . . . ;
    [Issue Four:] The District Court was clearly in error when upholding
    determinations that Chase was oversecured. . . . ;
    [Issue Five:] District Court was clearly erroneous in its findings . . . . ;
    [Issue Six:] The District Court was clearly erroneous in review of confirmation
    issues focusing solely on Chase’s status as an impaired creditor . . . . ;
    [Issue Seven:] The District Court clearly erred by upholding determinations that
    the Plan was fair and equitable . . . . ;
    [Issue Eight:] The District Court clearly erred by determining that Chase was
    impaired . . . .
    Appellant’s Brief at 3–7.
    22 In re T-H New Orleans Ltd. 
    P’ship, 116 F.3d at 796
    .
    23 Federal Rule of Appellate Procedure 28(a)(5) requires an appellant’s brief to include
    “a statement of the issues presented for review.” In re Tex. Mortg. Servs. Corp., 
    761 F.2d 1068
    ,
    1073 (5th Cir. 1985) (“Rule [28(a)(5)] has been construed as a mandate that the brief of the
    13
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    arguably foreclosed by our decision in In re Village at Camp Bowie I, L.P. 24
    The Committee designates two issues implicating bankruptcy court
    actions reviewable here. We therefore consider: (1) whether the bankruptcy
    court abused its discretion in approving the Settlement Agreement; and (2)
    whether the bankruptcy court erred in denying the Motion to Value and the
    Claim Objection concurrent with its approval of the Settlement Agreement. We
    have discretion to consider the district court’s analysis of these two issues, but
    we are not bound by its conclusions. 25
    A.
    We consider first the bankruptcy court’s approval of the Settlement
    Agreement. The Committee claims in essence that Chase was not, in fact,
    oversecured, and that the bankruptcy court therefore should not have
    approved the Settlement Agreement. Our task is to review the bankruptcy
    court’s decision for an abuse of discretion. 26
    A bankruptcy court may approve a compromise or settlement on motion
    by the trustee and after notice and a hearing pursuant to Rule 9019, 27 but it
    should do so “only when the settlement is fair and equitable and in the best
    appellant contain a statement of the issues presented for review, and an argument portion
    which analyzes and supports those contentions.” (citing 16 Charles Alan Wright, Arthur R.
    Miller, Edward H. Cooper & Eugene Gressman, Federal Practice & Procedure § 3947, at 421
    (1977))). Issues not raised or argued in the appellant’s brief may be considered waived and
    thus will not be noticed or entertained. Id.; see, e.g., United States v. Whitfield, 
    590 F.3d 325
    ,
    346 (5th Cir. 2009).
    24 
    710 F.3d 239
    , 245 (5th Cir. 2013) (“[Section] 1129(a)(10) does not distinguish
    between discretionary and economically driven impairment. . . . [A]ny alteration of a
    creditor’s rights, no matter how minor, constitutes impairment.” (internal quotation marks
    omitted)).
    25 In re CPDC, Inc., 
    337 F.3d 436
    , 441 (5th Cir. 2003).
    26 In re Bodenheimer, Jones, Szwak, & Winchell L.L.P., 
    592 F.3d 664
    , 668 (5th Cir.
    2009).
    27 Fed. R. Bankr. P. 9019(a).
    14
    Case: 14-50046       Document: 00513196170          Page: 15     Date Filed: 09/16/2015
    No. 14-50046
    interest of the estate.” 28 In determining whether a settlement is fair and
    equitable, we apply the three-part test set out in Jackson Brewing with a focus
    on comparing “the terms of the compromise with the likely rewards of
    litigation.” 29 A bankruptcy court must evaluate: (1) the probability of success
    in litigating the claim subject to settlement, with due consideration for the
    uncertainty in fact and law; (2) the complexity and likely duration of litigation
    and any attendant expense, inconvenience, and delay; and (3) all other factors
    bearing on the wisdom of the compromise. 30 These “other” factors—the so-
    called Foster Mortgage factors—include: (i) “the best interests of the creditors,
    ‘with proper deference to their reasonable views’”; and (ii) “‘the extent to which
    the settlement is truly the product of arms-length bargaining, and not of fraud
    or collusion.’” 31
    1.
    We are persuaded that the bankruptcy court undertook the requisite
    analysis in comparing the terms of the settlement with the likely rewards of
    litigation. The bankruptcy court made findings showing its consideration of the
    three-part Jackson Brewing test along with the Foster Mortgage factors. With
    regard to the Trustee’s probability of success in litigation, the bankruptcy court
    found that “the success of the Committee’s position would [ultimately] rest on
    an appeal,” a prediction that stemmed from the bankruptcy court’s “feel[ing]
    that Chase [was] oversecured.” With regard to the complexity and likely
    duration of litigation, the bankruptcy court found that “[a]n appeal would be
    28 See In re Foster Mortg. Corp., 
    68 F.3d 914
    , 917 (5th Cir. 1995).
    29 In re Jackson Brewing Co., 
    624 F.2d 599
    , 602 (5th Cir. 1980) (internal quotation
    marks omitted).
    30 
    Id. 31 In
    re Cajun Elec. Power Coop., Inc., 
    119 F.3d 349
    , 356 (5th Cir. 1997) (quoting In re
    Foster 
    Mortg., 68 F.3d at 917
    –18).
    15
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    No. 14-50046
    costly, and would seriously delay the resolution of [the] case.” And with regard
    to other factors bearing on the wisdom of the Settlement Agreement, the
    bankruptcy court found that the Settlement Agreement would “speed the full
    and fair closing of [the] estate, and a distribution to creditors;” that,
    “[c]onsidering the costs of litigation, the unsecured creditors [would] probably
    receive more in [the Settlement Agreement] than they would receive if the
    [Committee] prevailed on appeal;” that “[d]istribution to unsecured creditors
    [would] certainly be sooner than if this matter [were] litigated;” and that the
    Settlement Agreement “limit[ed] [Chase’s] claim . . . allow[ed] for the payment
    of administrative expenses to pursue pending claims, allow[ed] for an orderly
    liquidation of the estate, and provide[d] for a potential recovery to the
    unsecured creditors.” 32 The bankruptcy court also noted that, “[w]hen [the]
    case was [initially] filed, it appeared that there would be no recovery at all for
    the unsecured creditors.”
    2.
    In evaluating a Rule 9019 settlement, a bankruptcy court need not
    “conduct a mini-trial to determine the probable outcome of any claims waived
    in the settlement.” 33 Rather, the bankruptcy court must “apprise [itself] of the
    relevant facts and law so that [it] can make an informed and intelligent
    decision.” 34 Given the record and structure of the Settlement Agreement, the
    32 Although the bankruptcy court did not expressly consider whether the Settlement
    Agreement was “truly the product of arms-length bargaining,” a close look at the record
    indicates that neither fraud nor collusion is likely here and, in any event, the Committee does
    not raise the bankruptcy court’s omission of that factor in its briefing.
    33 In re Cajun Elec. Power 
    Coop., 119 F.3d at 356
    .
    34 Id.; see In re Am. Reserve Corp., 
    841 F.2d 159
    , 163 (7th Cir. 1987) (“Since a
    bankruptcy judge will normally be familiar with the governing law and the factual issues
    surrounding a settlement, setting out his reasons for approving the settlement should not be
    unduly burdensome. A bankruptcy judge need not hold a mini-trial or write an extensive
    opinion every time he approves or disapproves a settlement. The judge need only apprise
    himself of the relevant facts and law so that he can make an informed and intelligent
    16
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    No. 14-50046
    bankruptcy court implicitly made findings regarding the value of Chase’s
    various secured collateral relative to the amount of Chase’s pre- and post-
    petition claims. We are persuaded from the record that the bankruptcy court
    adequately apprised itself to make an informed and intelligent decision in
    approving the Settlement Agreement and did so.
    The parties dispute the value of Chase’s various secured collateral. The
    record reflects that the bankruptcy court had before it estimated values of the
    Refinery ($35.4 to $38.1 million), the Working Capital Assets ($4.8 million),
    the insurance proceeds from the Truck Rack Fire ($0 to $6.6 million), and the
    ATI Receivables ($1.7 million). The Trustee urges that these values support
    the bankruptcy court’s conclusion that, if the matter were to proceed to
    litigation, Chase could have ultimately demonstrated by a preponderance of
    the evidence a combined secured collateral value of at least $46.2 million,
    representing its $40.2 million pre-petition claim plus its $6 million post-
    petition interest claim. 35
    The Committee asserts that at the time of the Consolidated Hearings the
    Working Capital Assets were subject to JP Morgan’s first-priority lien such
    that Chase’s second-priority lien should have been assigned no value. The
    Committee’s argument must rely on an assumption that the Trustee erred in
    not paying down the DIP Financing Facility balance prior to the Redfish Bay
    sale. Recall that JP Morgan held first-priority liens in the Working Capital
    Assets and the Redfish Bay Assets pursuant to the DIP Financing Facility,
    decision, and set out the reasons for his decision. The judge may make either written or oral
    findings; form is not important, so long as the findings show the reviewing court that the
    judge properly exercised his discretion.”).
    35 See In re T-H New Orleans Ltd. P’ship, 
    116 F.3d 790
    , 798 (5th Cir. 1997) (“The
    creditor . . . bears the ultimate burden to prove by a preponderance of evidence its entitlement
    to postpetition interest . . . .”).
    17
    Case: 14-50046    Document: 00513196170      Page: 18   Date Filed: 09/16/2015
    No. 14-50046
    while Chase held a subordinate lien in the Working Capital Assets but no lien
    in the Redfish Bay Assets. In the Committee’s view, had the Trustee used the
    proceeds from the Working Capital Assets to pay down the DIP Financing
    Facility balance earlier, JP Morgan’s lien in the Redfish Bay Assets would have
    been effectively extinguished, or at least minimized, and a greater share of the
    proceeds from the Redfish Bay sale—now unencumbered—would have been
    diverted into AGE’s general coffers for the unsecured creditors to share. In
    essence, the Committee challenges the Trustee’s decision to instead pay JP
    Morgan out of the proceeds from the Redfish Bay sale, which effectively
    extinguished JP Morgan’s lien in the Working Capital Assets and left the
    proceeds thereof to Chase, to the exclusion of the unsecured creditors.
    The Committee’s argument fails to persuade for two reasons. First, as
    the bankruptcy court explained, the Trustee had discretion to retain certain
    funds needed “to keep the estate alive, to pay ongoing expenses, administrative
    claims, and possible refunds which might have been due in connection with the
    sale of the [Refinery].” The Trustee was under no obligation to pay down the
    DIP Financing Facility prior to the Redfish Bay sale. Second, the Committee’s
    reasoning is confounded by the timing of events reflected in the record. The
    Trustee paid the DIP Financing Facility in full pursuant to the Redfish Bay
    Sale Order on May 20, 2011, effectively extinguishing JP Morgan’s first-
    priority lien in the Working Capital Assets and elevating Chase’s lien to first
    priority. The Working Capital Adjustment, which caused the release of
    proceeds from the Working Capital Assets to the Trustee, would not occur until
    three weeks later, on June 10, 2011. Thus, as of the Redfish Bay sale, the
    Trustee could not have paid down the balance of the DIP Financing Facility
    using the proceeds from the Working Capital Assets even if—in his
    discretion—he wished to do so. The timing of events did not allow for the
    18
    Case: 14-50046     Document: 00513196170      Page: 19   Date Filed: 09/16/2015
    No. 14-50046
    Trustee to use the proceeds from the Working Capital Assets to pay down the
    DIP Financing Facility balance prior to the Redfish Bay sale. The bankruptcy
    court therefore could reasonably have assigned the entire $4.8 million
    estimated value of the Working Capital Assets to Chase as secured collateral
    value in assessing the Trustee’s probability of success in litigation.
    The Committee further asserts that, at the time of the Settlement
    Agreement hearing, the bankruptcy court should have assigned values to the
    Truck Rack Fire claim and the ATI Receivables according to what those claims
    ultimately garnered. The Truck Rack Fire claim settled on November 30, 2011,
    for $2.35 million and Chase agreed to release its lien in the ATI Receivables in
    full as part of AGE’s settlement of the Gonzales Litigation on December 12,
    2011. The Committee’s assertion misconstrues the focus of our inquiry. We
    consider the bankruptcy court’s approval of the Settlement Agreement based
    on the record before it at the time it made its determination, which occurred on
    November 1, 2011. At that time, the bankruptcy court had before it an
    estimated value for the Truck Rack Fire claim of between $0 and $6.6 million;
    and for the ATI Receivables, an estimated value of $1.7 million.
    In short, the record provides support for the Trustee’s conclusion that
    the estate faced some probability of failure in litigating Chase’s post-petition
    claim such that the Settlement Agreement posed a fair and equitable, and
    favorable, alternative. We hold that the bankruptcy court did not abuse its
    discretion in approving the Settlement Agreement—a compromise the Trustee
    made in discharge of his fiduciary duty.
    B.
    We turn next to the Committee’s contention that the bankruptcy court
    was required under sections 502(b) and 506(a) to determine the value of
    Chase’s post-petition claim through continued litigation before denying the
    19
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    No. 14-50046
    Claim Objection and the Motion to Value. This question arises in a narrow
    context. The bankruptcy court held hearings on the Settlement Agreement, the
    Motion to Value, and the Claim Objection. The Committee adduced evidence
    and testimony regarding each matter. It developed the record fully. 36 After the
    Consolidated Hearings, the bankruptcy court ruled on each matter separately.
    The Committee does not now seek a right to adduce evidence to be fully heard
    and receive a ruling on its objections. It rather seeks detailed findings
    pertaining to each individual ruling. As these arguments raise questions of
    statutory construction, we review de novo. 37
    1.
    The Committee’s first argument focuses on whether the bankruptcy
    court had an obligation to “determine” the allowed amount of Chase’s claim
    under section 502(b) in response to the Claim Objection. Chase filed a claim for
    post-petition interest under section 506(b), which provides, “[t]o the extent that
    an allowed secured claim is secured by property the value of which . . . is
    greater than the amount of such claim, there shall be allowed to the holder of
    such claim[] interest on such claim.” 38 Section 502(a), in turn, deems a properly
    filed claim allowed unless a party in interest objects. 39 The Committee
    objected. Section 502(b) provides that “if . . . objection to a claim is made, the
    court, after notice and a hearing, shall determine the amount of such claim in
    36 The Committee acknowledged at oral argument that nothing remains to be said.
    The transcripts of the Consolidated Hearings comprise more than seven hundred pages of
    witness testimony, most of which pertain to the essential question at issue on appeal—
    whether Chase was oversecured.
    37 In re Vill. at Camp Bowie I, L.P., 
    710 F.3d 239
    , 244 (5th Cir. 2013) (citing Matthews
    v. Remington Arms Co., Inc., 
    641 F.3d 635
    , 641 (5th Cir. 2011)).
    38 11 U.S.C. § 506(b).
    39 
    Id. § 502(a).
    20
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    No. 14-50046
    lawful currency of the United States as of the date of the filing of the petition,
    and shall allow such claim in such amount.” 40
    The bankruptcy court denied the Committee’s objection and approved
    the Settlement Agreement without making a section 502(b) determination. The
    Committee argues that in doing so the bankruptcy court defied the statute’s
    plain command. We agree that the bankruptcy court erred. Under section
    502(b), the Committee had a right to have the bankruptcy court “determine the
    amount of” Chase’s allowed claim before it approved the Settlement
    Agreement. In this particular case, however, the bankruptcy court did provide
    the Committee, as an objecting party in interest, with notice and a hearing
    regarding its objection, allowing it to develop the record fully. The bankruptcy
    court then explicitly concluded that the Settlement Agreement was “in the best
    interest of the estate.” 41 It is bare that the bankruptcy court could not have
    simultaneously approved the Settlement Agreement and granted the
    substantive relief the Committee sought. Implicit in the bankruptcy court’s
    approval of the Settlement Agreement is a rejection of the Committee’s
    position—a determination that, while not compliant with the statute,
    persuades us that the error complained of was harmless. Having carefully
    reviewed the record, in this case—albeit not a template for future like cases—
    we need not remand. 42
    40 
    Id. § 502(b)
    (emphasis added). Section 502(b) provides for several exceptions, none
    of which apply here. See 
    id. § 502(b)(1)–(9).
           41 See In re Jackson Brewing Co., 
    624 F.2d 599
    , 602 (5th Cir. 1980) (internal quotation
    marks omitted).
    42 Fed. R. Bankr. P. 9005 (providing that the harmless-error rule, Federal Rule of Civil
    Procedure 61, “applies in cases under the Code”); see Fed. R. Civ. P. 61 (“Unless justice
    requires otherwise, no error . . . is ground for . . . vacating, modifying, or otherwise disturbing
    a judgment order. . . . [T]he court must disregard all errors and defects that do not affect any
    party’s substantial rights.”).
    Because we hold that the error was harmless, we need not consider the Committee’s
    subsidiary argument under Rule 7052 that the bankruptcy court’s oral ruling on the Claim
    21
    Case: 14-50046       Document: 00513196170         Page: 22     Date Filed: 09/16/2015
    No. 14-50046
    2.
    The Committee’s second argument, by contrast, focuses on whether the
    bankruptcy court had an obligation to “determine” the value of Chase’s secured
    collateral under section 506(a) in response to the Motion to Value, which was
    filed pursuant to Rule 3012. As Chase’s post-petition claim necessarily depends
    on Chase being oversecured, it implicates section 506(a), which provides that
    a secured creditor’s allowed claim is secured “to the extent of the value of such
    creditor’s interest . . . in such property . . . and is [otherwise] an unsecured
    claim.” 43 That section goes on to explain that “[s]uch value shall be determined
    in light of the purpose of the valuation . . . and in conjunction with any hearing
    on . . . a plan affecting such creditor’s interest.” 44 Alongside section 506(a), Rule
    3012 provides that “[t]he court may determine the value of a [secured] claim . .
    . on motion of any party in interest and after a hearing on notice to the holder
    of the secured claim and any other entity as the court may direct.” 45
    The Committee urges that the bankruptcy court was required to
    “determine” the absolute value of Chase’s secured collateral under section
    506(a) in response to the Motion to Value. We disagree. Whereas section 502(b)
    pertains to a determination of the allowed amount of any claim, section 506(a)
    applies only in situations involving the valuation of a secured creditor’s
    collateral. And in contrast to section 502(b), where Congress used mandatory
    language—“shall determine”—to require an action on the part of the
    bankruptcy court, section 506(a) contains no such language. Section 506(a)
    Objection was insufficient to allow for adequate appellate review. See Fed. R. Bankr. P. 7052
    (providing that Federal Rule of Civil Procedure 52 “applies in adversary proceedings”); Fed.
    R. Civ. P. 52 (“[T]he court must find the facts specially and state its conclusions of law
    separately.”).
    43 11 U.S.C. § 506(a)(1).
    44 
    Id. (emphasis added).
           45 Fed. R. Bankr. P. 3012 (emphasis added).
    22
    Case: 14-50046         Document: 00513196170           Page: 23      Date Filed: 09/16/2015
    No. 14-50046
    provides only that, if a bankruptcy court undertakes to determine the value of
    secured collateral, “[s]uch value shall be determined in light of the purpose of
    the valuation.” 46 But nowhere do we read the language of section 506 to require
    a “determination.” A plain reading of section 506(a) in context makes clear that
    “determine” under that provision is permissive rather than mandatory. 47
    Section 506(b) entitles an oversecured creditor to post-petition interest
    to the extent of that creditor’s “security cushion.” 48 Rule 3012, “read together
    with section 506,” 49 anticipates that some secured creditors’ claims for post-
    petition interest will draw requests by other parties for the bankruptcy court
    to “determine” the value of the underlying collateral. The purpose of these
    requests, of course, is to establish the extent of the creditor’s security cushion
    and corresponding entitlement to post-petition interest. To that end, Rule 3012
    provides that “[t]he court may determine the value of a claim secured by a lien
    on property in which the estate has an interest on motion of any party in
    interest and after a hearing on notice to the holder of the secured claim and
    any other entity as the court may direct.” 50 We read the permissive language
    of Rule 3012—“may determine”—to afford a bankruptcy court discretion “to
    46 11 U.S.C. § 506(a)(1) (emphasis added).
    47 Lower courts agree. See In re Hudson, 
    260 B.R. 421
    , 432–33 (Bankr. W.D. Mich.
    2001); In re Envirocon Int’l Corp., 
    218 B.R. 978
    , 980 (M.D. Fla. 1998) (“[T]he permissive
    aspect of Rule 3012 lies . . . in the court’s discretion to deny the motion.” (citing In re Linkous,
    
    141 B.R. 890
    , 894 (W.D. Va. 1992))); In re Herrick, Nos. 96-82441, 96-8250, 
    1997 WL 33475213
    , at *4 (Bankr. C.D. Ill. May 12, 1997) (“Rule 3012 is permissive, not mandatory.”);
    In re Wolf, 
    162 B.R. 98
    , 106–07 (Bankr. D.N.J. 1993) (same); In re Washington Mfg. Co., 
    128 B.R. 198
    , 204 (Bankr. M.D. Tenn. 1991) (same).
    48 United States v. Ron Pair Enters., Inc., 
    489 U.S. 235
    , 241 (1989) (“Recovery of
    postpetition interest is unqualified.”); see United Sav. Ass’n of Tex. v. Timbers of Inwood
    Forest Assocs., Ltd., 
    484 U.S. 365
    , 372–73 (1988). The Supreme Court has referred to the
    amount by which the value of secured collateral exceeds a secured creditor’s claim as that
    creditor’s “security cushion.” 
    Id. 49 9
    Collier on Bankruptcy ¶ 3012.01 (16th ed. 2015).
    50 Fed. R. Bankr. P. 3012 (emphasis added).
    23
    Case: 14-50046         Document: 00513196170         Page: 24    Date Filed: 09/16/2015
    No. 14-50046
    decline to make a ruling on value if [it] determines [such] ruling to be
    unnecessary.” 51 We see no conflict between Rule 3012’s permissive language
    and Section 506(a)’s provision that, where a bankruptcy court considers
    collateral valuation necessary, value must “be determined in light of the
    purpose of the valuation.”
    We affirmed above the Trustee’s conclusion that the estate’s best
    interests were better served by the Settlement Agreement than by continued
    litigation to determine the absolute value of Chase’s secured collateral. We also
    held that, for purposes of section 502(b), although the bankruptcy court did not
    adequately determine the amount of Chase’s allowed claim, its error was
    harmless. We hold now that the bankruptcy court did not abuse the discretion
    afforded it by Rule 3012 in declining the Committee’s request to undertake a
    “more precise determination of value.” 52 The bankruptcy court did not err in
    denying the Motion to Value simultaneously with its approval of the
    Settlement Agreement.
    IV.
    We AFFIRM the district court’s consolidated judgment affirming the
    bankruptcy court’s orders approving the Settlement Agreement, denying the
    Claim Objection, and denying the Motion to Value.
    51   See 9 Collier on Bankruptcy ¶ 3012.01 (16th ed. 2015).
    52   See 
    id. 24 Case:
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    No. 14-50046
    OWEN, Circuit Judge, dissenting:
    I agree with most of the panel’s majority opinion. However, I respectfully
    submit that the bankruptcy court’s error in failing to determine whether Chase
    Capital Corp. (“Chase”) was in fact oversecured was not harmless. The Official
    Committee of Unsecured Creditors (the “Committee”) contends that Chase was
    in fact undersecured and therefore that Chase will be overpaid under the terms
    of the Settlement Agreement by more than $5,000,000. The Committee further
    contends that any costs of future litigation to resolve whether Chase was
    oversecured would be substantially less than $5,000,000. There is a reasonable
    probability that the costs of further litigation would not approach $5,000,000.
    I therefore cannot say that the bankruptcy court’s error was harmless or
    conclude that approval of the Settlement Agreement was fair and equitable or
    in the best interests of the estate.
    Chase contends that if the Settlement Agreement is not approved, Chase
    will re-assert a $14.7 million claim against the Trustee, arguing that there was
    a diminution of the value of Chase’s collateral.      However, the Committee
    asserts that the value of Chase’s collateral increased substantially (by
    approximately $25,000,000) during the pendency of the bankruptcy
    proceedings and that Chase’s diminution claim should have been denied by the
    bankruptcy court or considered as having no value in assessing the Settlement
    Agreement.     There appears to be evidence in the record supporting the
    Committee’s position that Chase’s collateral did not decline in value, and
    Chase does not contend otherwise in this appeal. Chase contends only that the
    Committee waived its argument regarding the diminution claim.
    25
    Case: 14-50046       Document: 00513196170        Page: 26     Date Filed: 09/16/2015
    No. 14-50046
    Because the bankruptcy court erred in failing to determine if Chase was
    oversecured under 11 U.S.C. § 502(b), and there are material issues of fact, I
    would remand this case to the bankruptcy court for findings.
    The bankruptcy court held a two-day hearing and admitted numerous
    exhibits on the issue of the value of Chase’s collateral, and without discussing
    any specific testimony or evidence in particular, it stated only that it “fe[lt]” as
    though Chase was oversecured. The Fifth Circuit has remanded for factual
    determinations when the lower court’s factual findings are not “explicit enough
    to enable us to review them.” 1
    In In re Missionary Baptist Foundation of America, the bankruptcy
    trustee and a creditor disagreed on the amount the creditor was secured in the
    estate’s capital at different points in time. 2 The bankruptcy court did not make
    specific findings of fact; it stated only that that “the evidence does not support
    the trustee’s position.” 3 The Fifth Circuit was “left with no basis for deciding
    whether the bankruptcy court’s ‘findings’ on this issue were clearly erroneous
    or not; indeed, we have no basis for meaningful review at all.” 4 The court
    explained that “the proper solution is to remand the case for a factual
    determination” of the issue. 5
    In the present case, the bankruptcy court has provided an inadequate
    explanation for its determinations, and no meaningful review can occur on
    appeal.    The bankruptcy court did not discuss any evidence or testimony
    1  Ratliff v. Governor’s Highway Safety Program, 
    791 F.2d 394
    , 400 (5th Cir. 1986).
    
    2 Wilson v
    . First Nat’l Bank, Lubbock, Tex. (In re Missionary Baptist Found. of Am.,
    Inc.), 
    796 F.2d 752
    , 759-60 (5th Cir. 1986).
    3 
    Id. at 760.
            4 
    Id. at 761.
            5 
    Id. 26 Case:
    14-50046      Document: 00513196170         Page: 27    Date Filed: 09/16/2015
    No. 14-50046
    supporting its “feel[ing]” of the value of Chase’s collateral.              Nor did the
    bankruptcy court discuss evidence in support of its conclusion that
    “[c]onsidering the costs of litigation, the unsecured creditors will probably
    receive more in this settlement than they would receive if the committee
    prevailed upon appeal.”
    Remanding for a factual determination on Chase’s secured status does
    not likely carry the risk of harm to third parties not party to this litigation that
    might otherwise accompany further litigation after a reorganization plan has
    been substantially consummated.            As this court explained regarding this
    particular bankruptcy litigation: “The only change in the estate distribution
    that the Committee seeks is a smaller distribution to Chase and a larger
    distribution to the Committee. In this liquidating plan scenario, under the
    particular facts of this case, ‘overturning the Plan’ functionally would mean no
    more than re-allocation of money from Chase to other parties in interest.” 6
    For these reasons, I would reverse and remand this proceeding to the
    bankruptcy court.
    6 Official Comm. of Unsecured Creditors v. Moeller (In re AGE Refining, Inc.), 537 F.
    App’x 393, 398 (5th Cir. 2013).
    27
    

Document Info

Docket Number: 14-50046

Citation Numbers: 801 F.3d 530

Judges: Jolly, Higginbotham, Owen

Filed Date: 9/16/2015

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (21)

United States v. Whitfield , 590 F.3d 325 ( 2009 )

United Sav. Assn. of Tex. v. Timbers of Inwood Forest ... , 108 S. Ct. 626 ( 1988 )

In the Matter of Texas Mortgage Services Corporation, ... , 761 F.2d 1068 ( 1985 )

United States v. Ron Pair Enterprises, Inc. , 109 S. Ct. 1026 ( 1989 )

Lee Servicing Co. v. Wolf (In Re Wolf) , 30 Collier Bankr. Cas. 2d 730 ( 1993 )

United States v. Kiester (In Re Envirocon International ... , 218 B.R. 978 ( 1998 )

In Re Hudson , 2001 Bankr. LEXIS 319 ( 2001 )

Southland Corp. v. Toronto-Dominion (In Re Southland Corp.) , 160 F.3d 1054 ( 1998 )

Perry v. Dearing (In Re Perry) , 345 F.3d 303 ( 2003 )

Matthews v. Remington Arms Co., Inc. , 641 F.3d 635 ( 2011 )

In the Matter of Wayne M. Laymon, Debtor. Theron Bradford, ... , 958 F.2d 72 ( 1992 )

Official Committee of Unsecured Creditors v. Cajun Electric ... , 119 F.3d 349 ( 1997 )

in-the-matter-of-jackson-brewing-company-debtor-rivercity-a-louisiana , 624 F.2d 599 ( 1980 )

In Re Village at Camp Bowie I, L.P. , 2011 Bankr. LEXIS 3033 ( 2011 )

Zer-Ilan v. Frankford , 337 F.3d 436 ( 2003 )

Robertson v. Dennis (In Re Dennis) , 330 F.3d 696 ( 2003 )

Szwak v. Earwood (In Re Bodenheimer, Jones, Szwak, & ... , 592 F.3d 664 ( 2009 )

in-the-matter-of-t-h-new-orleans-limited-partnership-debtor-financial , 116 F.3d 790 ( 1997 )

40-fair-emplpraccas-1729-40-empl-prac-dec-p-36230-john-h-ratliff , 791 F.2d 394 ( 1986 )

Piedmont Trust Bank v. Linkous (In Re Linkous) , 141 B.R. 890 ( 1992 )

View All Authorities »