Prudential Insurance Company v. SW Boston Hotel Venture, LLC

United States Court of Appeals
For the First Circuit
Nos. 12-9008, 12-9009
SW BOSTON HOTEL VENTURE, LLC; AUTO SALES & SERVICE, INC.;
GENERAL TRADING COMPANY; FRANK SAWYER CORPORATION;
100 STUART STREET, LLC; 30-32 OLIVER STREET CORPORATION;
GENERAL LAND CORPORATION; 131 ARLINGTON STREET TRUST,
Debtors.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
Appellee,
v.
SW BOSTON HOTEL VENTURE, LLC; AUTO SALES & SERVICE, INC.;
GENERAL TRADING COMPANY; FRANK SAWYER CORPORATION;
100 STUART STREET, LLC; 30-32 OLIVER STREET CORPORATION;
GENERAL LAND CORPORATION; 131 ARLINGTON STREET TRUST,
Appellants.
Nos. 12-9011, 12-9012
SW BOSTON HOTEL VENTURE, LLC; AUTO SALES & SERVICE, INC.;
GENERAL TRADING COMPANY; FRANK SAWYER CORPORATION;
100 STUART STREET, LLC; 30-32 OLIVER STREET CORPORATION;
GENERAL LAND CORPORATION; 131 ARLINGTON STREET TRUST,
Debtors.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
Appellee,
v.
CITY OF BOSTON,
Appellant.
APPEALS FROM THE BANKRUPTCY APPELLATE PANEL
FOR THE FIRST CIRCUIT
Before
Lynch, Chief Judge,
Stahl and Howard, Circuit Judges.
Harold B. Murphy, with whom Charles R. Bennett, Jr., John C.
Elstad, Christopher M. Condon, and Murphy & King, P.C., were on
brief, for appellants SW Boston Hotel Venture, LLC; Auto Sales &
Service, Inc.; General Trading Company; Frank Sawyer Corporation;
100 Stuart Street, LLC; 30-32 Oliver Street Corporation; General
Land Corporation; and 131 Arlington Street Trust.
E. Kate Buyuk, with whom Joseph F. Ryan and Lyne, Woodworth &
Evarts LLP were on brief, for appellant City of Boston.
Emanuel C. Grillo, with whom William M. Jay and Goodwin
Procter LLP were on brief, for appellee.
April 11, 2014
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STAHL, Circuit Judge. This appeal presents multiple
issues arising from a heavily contested Chapter 11 bankruptcy
proceeding. Stated simply, a secured creditor appealed to the
Bankruptcy Appellate Panel for the First Circuit ("the BAP") from
the bankruptcy court's orders determining its entitlement to post-
petition interest (and thus the total amount of its claim) and
confirming the debtors' Chapter 11 plan. The BAP reversed in part,
significantly increasing the secured creditor's entitlement to
post-petition interest, and vacated and remanded the confirmation
order. The debtors and the City of Boston ("City"), as a junior
creditor, appealed to this court. After careful consideration, we
conclude that the BAP erred in reversing the bankruptcy court's
post-petition interest determination. And, because the BAP's
confirmation order was based solely on its erroneous interest
determination, we vacate that order as well.
I. Facts & Background
A. Financing and Construction of the W
In 2007, Debtor-Appellant SW Boston Hotel Venture, LLC,
("SW Boston") sought financing to develop a mixed-used property
that would become the W Hotel and Residences ("the W") in Boston's
theater district. In January of 2008, after a previous lender
withdrew its financing commitment, the Prudential Insurance Company
of America ("Prudential") agreed to provide up to $192.2 million in
financing ("the Prudential Loan") pursuant to a construction loan
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agreement ("the CLA"). Prudential took a mortgage and first
priority security interest in SW Boston's real and personal
property and any proceeds thereof. It also required additional
collateral and credit support in the form of certain real estate
and other property owned by the remaining Debtors-Appellants
("Affiliated Debtors"), as well as a $17.3 million letter of
credit. Sovereign Bank issued the letter of credit based on the
credit provided by two non-debtor affiliates of SW Boston.
The W project consists of a 235-room hotel, 123 luxury
condominium units, an underground parking garage, a restaurant, a
spa and related retail space, and a bar. The hotel was to operate
under the W Hotels brand of Starwood Hotels and Resorts Worldwide,
Inc. ("Starwood"), with Starwood managing the operations.
The W opened on schedule in October of 2009, but, due in
large part to the ongoing recession, obtained substantially fewer
commitments to purchase condominiums than the CLA required. In
addition, the restaurant, spa, and bar -- all required to operate
under the W Hotel flag -- had not been completed, and the Debtors
lacked sufficient funding to complete them. In December 2009,
after Prudential declined to provide additional funds, SW Boston
and the City entered into a loan agreement ("the City Loan"), with
the City agreeing to provide $10.5 million in additional funding.1
1
The City stresses that, to make this loan, it borrowed $10.5
million from the U.S. Department of Housing and Urban Development,
giving in return a note secured by a pledge of present and future
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The City Loan was secured by a junior lien on most of the
collateral that secured the Prudential Loan and a first lien on $4
million in cash provided by an Affiliated Debtor. The CLA required
the Debtors to obtain Prudential's consent before entering into any
junior loans. In return for its consent, Prudential required the
City to execute an Intercreditor Agreement that, among other
things, subordinated the City's right to payment to Prudential and
purported to assign to Prudential the City's right to vote on any
bankruptcy plan.
B. Bankruptcy Court Proceedings
On April 28, 2010, after SW Boston failed to make a
mandatory quarterly payment to Prudential and loan-restructuring
negotiations failed, SW Boston and four of the Affiliated Debtors
filed voluntary Chapter 11 bankruptcy petitions. The remaining
three Affiliated Debtors commenced Chapter 11 cases on June 4. The
bankruptcy court administered all of the Chapter 11 cases jointly.
Prudential filed a proof of claim asserting secured claims of not
less than $180,803,186, plus fees, costs, and pre- and post-
petition interest. Shortly after the petition date, Prudential
Community Development Block Grant revenues, funding the City relies
on for its affordable housing and economic development programs.
The City further notes that, had it not stepped in, "[t]he Debtors
and Prudential both were at risk of losing significant portions of
their investments, and the City of Boston would have been left with
an unfinished building that would have been a blight and an
economic detriment to an already vulnerable section of the city."
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drew down the letter of credit, reducing its pre-petition claim to
$165,592,659.
The filing of the bankruptcy petitions resulted in
imposition of an automatic stay as to all creditors' efforts to
enforce their liens. See 11 U.S.C. § 362(a). However, § 362(d)
requires the court to grant relief from the stay unless certain
creditor safeguards are met. See id. § 362(d)(1).2 In August of
2010, Prudential filed a motion for relief from the stay as to SW
Boston only ("lift-stay motion"), arguing that it was undersecured
because the amount of its claim against SW Boston exceeded the
value of SW Boston's assets and that the Debtors lacked the means
to provide alternative forms of adequate protection. It sought
permission to exercise its contractual rights and remedies to,
among other things, commence foreclosure proceedings. In its
January 28, 2011, ruling, the bankruptcy court found that SW
Boston's outstanding debt to Prudential, after deductions for
payments made from ongoing condominium sales and exclusive of any
post-petition interest or expenses, was approximately $154 million.
Prudential's expert valued the remaining condominiums at $86
2
The bankruptcy court is directed to grant relief from the
stay "for cause, including the lack of adequate protection of an
interest in property of such party in interest;" or, with respect
to an act against particular property, if "(A) the debtor does not
have an equity in such property; and (B) such property is not
necessary to an effective reorganization . . . ." 11 U.S.C.
§ 362(d)(1), (2). Prudential moved for relief under both
subsections.
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million and the W hotel at $55 million, while SW Boston's expert
valued the remaining condominiums at $90.6 million and the hotel at
$65.6 million. After a three-day evidentiary hearing, the
bankruptcy court concluded that the value of the condominiums was
$88 million and the value of the hotel was $65.6 million, making
the total value of SW Boston's collateral $153.6 million. Thus,
Prudential was undersecured as to SW Boston alone. However, the
bankruptcy court noted that, with respect to the entire collateral
package of all of the Debtors, Prudential had an equity cushion in
excess of $19 million. Taking that finding in conjunction with the
facts that SW Boston was reducing the amount of the outstanding
debt through payments from condominium sales and that the value of
its secured claim was not declining, the bankruptcy court concluded
that Prudential was adequately protected under § 362(d)(1). With
respect to § 362(d)(2), the bankruptcy court found that SW Boston
lacked equity in the W project, but that the property was necessary
to a successful reorganization, which the court ruled was
reasonably likely. The bankruptcy court therefore denied
Prudential's lift-stay motion on January 28, 2011.
On March 28, 2011, SW Boston filed a motion for court
approval of a purchase and sale agreement ("the P&S") for the sale
of the hotel and garage to an unrelated third party for $89.5
million. The bankruptcy court granted the motion on May 24. But,
before the sale could close, SW Boston was required to resolve
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several outstanding issues on which the P&S was contingent. For
example, the P&S was conditioned on the assignment of certain
construction warranties from the W's construction manager, Bovis
Lend-Lease LMB, Inc. ("Bovis"), to the purchaser. Although the
Bovis-SW Boston contract required assignment of the warranties to
SW Boston upon completion of the project, Bovis claimed to be
excused from this obligation due to various disputes with SW
Boston. The P&S was also conditioned on the assignment to the
purchaser of several Starwood-SW Boston contracts. However,
Starwood alleged that various incurable non-monetary defaults --
including failure to timely open the spa and bar -- precluded
assumption and assignment of the contracts. After SW Boston
managed to resolve these contingencies, the sale closed on June 8,
2011, and the net proceeds of $88,322,017 were paid over to
Prudential.
On March 31, 2011, three days after filing the hotel sale
motion, the Debtors filed their reorganization plan. The plan need
not be described in great detail, but, in broad strokes, it called
for Prudential to be paid in full by March of 2014 if the hotel
sale closed, or after a more extended period if it did not. The
plan contemplated that Prudential would receive post-effective-date
interest of 4.25% per annum, but it made no provision for post-
petition, pre-effective-date interest. Prudential objected to
confirmation of the plan on multiple grounds.
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Throughout the pendency of the bankruptcy case, SW Boston
continued construction. After SW Boston resolved various issues
with contractors who had suspended their work because of the
bankruptcy filings, the spa was completed and opened on August 18,
2010. That September, after two work interruptions caused by a
change in the building code and the state's appeal of a variance
granted to SW Boston, SW Boston received all necessary approvals to
recommence construction of the bar. Multiple open construction
items on the W were completed. SW Boston continued to sell
condominiums, paying over the proceeds (less certain deductions) to
Prudential.
On April 15, 2011, Prudential moved for a determination
that it was oversecured and therefore entitled to post-petition
interest under 11 U.S.C. § 506(b).3 In general terms, a claim is
oversecured if the value of the creditor's interest in its
collateral exceeds the amount of its claim. Under § 506(b), an
oversecured creditor is entitled to post-petition interest, as well
as reasonable fees, costs, or charges provided for in the parties'
contracts or by state law, up to the extent of its oversecurity.
Prudential argued that it should receive post-petition interest at
3
Specifically, Prudential sought to apply any condominium
proceeds it received from the Debtors first to outstanding post-
petition interest and second to the outstanding principle balance
of the Prudential Loan.
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the contractual default rate of 14.5% per annum,4 5% higher than
the contractual base rate, accruing from the petition date. The
Debtors argued that Prudential only became oversecured upon the
closing of the hotel sale, and therefore could only receive post-
petition interest from that point forward. They also claimed that
the default rate was unenforceable and inequitable, and requested
that, to the extent Prudential was entitled to any post-petition
interest, it should accrue at the base rate of 9.5% per annum.
The bankruptcy court held a three-day combined trial
addressing Prudential's § 506(b) motion and the Debtors' proposed
plan. On October 4, 2011, it issued an order granting Prudential
post-petition interest at 14.5% per annum, commencing on the hotel
sale date. The court ruled that the hotel sale price, rather than
its earlier valuation at the lift-stay hearing, was the best
indicator of the hotel's value. However, it also noted that, in
light of the ongoing improvements and the resolution of various
contingencies, the sale price did not reflect its value on any
earlier date. Therefore, it found that Prudential only became
oversecured once the hotel sale closed. After receiving the
parties' interest calculations (which differed only as to whether
the interest should be compounding), the bankruptcy court entered
an order fixing Prudential's claims, inclusive of non-compounding
4
As discussed in greater detail below, after the bankruptcy
court issued its § 506(b) order, Prudential also claimed that it
was entitled to monthly compounding of its interest.
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post-petition interest. Prudential appealed and the Debtors cross-
appealed the § 506(b) decision and the resultant claim order to the
BAP.
On November 14 and 16, respectively, the bankruptcy court
issued an opinion finding that the plan (with some modifications)
met all confirmation requirements and an order confirming the
modified plan over Prudential's objections. On November 17,
Prudential filed a notice of appeal of the confirmation decision to
the BAP, along with a motion to stay the confirmation order pending
appeal. The bankruptcy court denied the stay motion on November
21, and, on November 30, so did the BAP when Prudential sought the
same relief there. The plan became effective on December 1.
C. Bankruptcy Appellate Panel Proceedings
While the parties were briefing the appeals, the Debtors
moved to dismiss Prudential's appeals as equitably moot. The BAP
found that, although the plan had been substantially consummated,
the appeals were not equitably moot because Prudential could still
be afforded relief without harming innocent third parties or
unraveling the reorganization (especially because Prudential
represented its willingness to accept alternative forms of relief
that would not require such unraveling).
As to the § 506(b) appeal, the BAP: (1) held that
Prudential was entitled to post-petition interest from the petition
date, reversing the bankruptcy court's finding that Prudential had
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only become oversecured on the hotel sale date; (2) affirmed the
bankruptcy court's determination that the contractual default rate
of interest (14.5%) applied; and (3) reversed the bankruptcy
court's ruling that the interest was not compounding. As to the
confirmation order appeal, without addressing the confirmability of
the plan, the BAP vacated and remanded the confirmation order so
that the plan could be amended to accommodate Prudential's now-
increased claim. The Debtors and the City5 each appealed both of
the BAP's decisions to this court. Prudential moved to dismiss the
confirmation order appeals for lack of jurisdiction, arguing that
they were not final appealable orders. Those motions were referred
to this panel for consideration along with the merits.
Throughout these proceedings, the Debtors have continued
to sell W condominiums and have since paid Prudential the full
amount due under the originally confirmed plan. The City, in
contrast, has not received all the payments owed to it under the
plan, which became effective on December 1, 2011. The Debtors, we
were informed at oral argument, have also stopped making
installment payments owed to other creditors under that plan.
5
The City, as a junior lienholder, argues that its ability to
recover its affordable housing and economic development money may
be severely compromised if the BAP's order stands.
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II. Analysis
According no special deference to the BAP, we focus
instead on the bankruptcy court's decisions, reviewing conclusions
of law de novo and findings of fact for clear error. Stornawaye
Fin. Corp. v. Hill (In re Hill), 562 F.3d 29, 32 (1st Cir. 2009).
The bankruptcy court's interpretation of the relevant statutes
presents a question of law, while its application of those statutes
to the facts of this case presents a mixed question of law and fact
that we review for clear error unless its analysis was "infected by
legal error." Winthrop Old Farm Nurseries, Inc. v. New Bedford
Inst. for Sav. (In re Winthrop Old Farm Nurseries, Inc.), 50 F.3d
72, 73 (1st Cir. 1995) (internal quotation marks omitted). Absent
legal error, we will not reverse a factual finding under this
"formidable standard," Sharfarz v. Goguen (In re Goguen), 691 F.3d
62, 69 (1st Cir. 2012), unless, "on the whole of the record, we
form a strong, unyielding belief that a mistake has been made,"
Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.
1990). "If the bankruptcy court's account of the evidence is
plausible in light of the record viewed in its entirety, we may not
reverse." Goat Island S. Condo. Ass'n v. IDC Clambakes, Inc. (In
re IDC Clambakes, Inc.), 727 F.3d 58, 64 (1st Cir. 2013)
(alteration and internal quotation marks omitted).
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A. Equitable Mootness
The Debtors first appeal from the BAP's denial of their
motions to dismiss Prudential's appeals as equitably moot. The
doctrine of equitable mootness allows an appellate court to dismiss
a bankruptcy appeal if "an unwarranted or repeated failure to
request a stay enabled developments to evolve in reliance on the
bankruptcy court order to the degree that their remediation has
become impracticable or impossible," Hicks, Muse & Co. v. Brandt
(In re Healthco Int'l, Inc.), 136 F.3d 45, 48 (1st Cir. 1998), or
if "the challenged bankruptcy court order has been implemented to
the degree that meaningful appellate relief is no longer
practicable even though the appellant may have sought a stay with
all due diligence," id.
As a threshold issue,6 the parties dispute the
appropriate standard of review, the subject of a circuit split that
this circuit has not yet addressed. Compare Liquidity Solutions,
Inc. v. Winn-Dixie Stores, Inc. (In re Winn-Dixie Store, Inc.), 286
6
There is, in fact, a prior threshold issue. Prudential
argues that this court lacks jurisdiction because the Debtors did
not identify in their notices of appeal the BAP's orders denying
the motions to dismiss. We disagree. See Martínez-Serrano v.
Quality Health Servs. of P.R., Inc., 568 F.3d 278, 282–83 (1st Cir.
2009) (rejecting argument that court lacked jurisdiction to
consider exclusion of expert witness where only final judgment was
listed in notice, because "a notice of appeal is deemed to
encompass not only the final judgment but also all interlocutory
orders that merge into it"). Moreover, the Debtors listed the
equitable mootness issue in their statement of issues on appeal,
and there is no assertion that Prudential was caught by surprise
due to technical defects, if any, in the notices of appeal.
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F. App'x 619, 622 & n.2 (11th Cir. 2008) (per curiam) (adopting de
novo standard), Curreys of Neb., Inc. v. United Producers, Inc. (In
re United Producers, Inc.), 526 F.3d 942, 946–47 (6th Cir. 2008)
(same), and United States v. Gen. Wireless, Inc. (In re GWI PCS 1
Inc.), 230 F.3d 788, 799–800 (5th Cir. 2000) (same), with R2 Invs.,
Inc. v. Charter Commc'ns, Inc. (In re Charter Commc'ns, Inc.), 691
F.3d 476, 483 (2d Cir. 2012) (adopting abuse-of-discretion
standard), Search Mkt. Direct, Inc. v. Jubber (In re Paige), 584
F.3d 1327, 1334–35 (10th Cir. 2009) (same), In re Continental
Airlines, 91 F.3d 553, 560 (3d Cir. 1996) (en banc) (same), and In
re AOV Indus., Inc., 792 F.2d 1140, 1148 (D.C. Cir. 1986) (same).
The Debtors argue that our review should be de novo
"[s]ince the [c]ourt applies plenary review to virtually all other
rulings of the BAP." Prudential, noting that a dismissal for
equitable mootness is an exercise of the "court's discretion in
matters of remedy and judicial administration not to determine a
case on its merits," Rochman v. Ne. Utils. Serv. Grp. (In re Pub.
Serv. Co. of N.H.), 963 F.2d 469, 471 (1st Cir. 1992) (internal
quotation marks omitted), argues that review should be for abuse of
that discretion. We need not resolve the issue because we cannot
say that the BAP's refusal to dismiss the appeals was inappropriate
under either standard.
In a careful and detailed analysis that we need not
reproduce here, the BAP considered the relevant factors and
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concluded that, if Prudential prevailed on appeal, the bankruptcy
court could fashion some form of practicable relief, even if only
partial or alternative. We perceive no reason to dislodge this
determination. We therefore turn to the substance of the
bankruptcy court's orders.
B. § 506(b) Order
As a general matter, unmatured interest is not allowed
after the filing of a bankruptcy petition. 11 U.S.C. § 502(b)(2).
However, Congress has created an exception to this rule in the case
of "oversecured" creditors. See United Sav. Ass'n of Tex. v.
Timbers of Inwood Forest Assocs., 484 U.S. 365, 372–73 (1988); Ford
Motor Credit Co. v. Dobbins, 35 F.3d 860, 869 (4th Cir. 1994). Two
provisions of § 506 of the Bankruptcy Code govern the award of
post-petition interest to an oversecured creditor. First, § 506(a)
sets the amount of a creditor's allowed secured claim:
An allowed claim of a creditor secured by a lien on
property in which the estate has an interest, . . . is a
secured claim to the extent of the value of such
creditor's interest in the estate's interest in such
property,7 . . . and is an unsecured claim to the extent
7
A creditor's "interest in property" is its "security
interest without taking account of [its] right to immediate
possession of the collateral on default," Timbers, 484 U.S. at 372,
or, in other words, the value of the collateral alone, not
including other rights that the word "interest" may invoke, id. at
371–72. The phrase "the value of such creditor's interest in the
estate's interest in such property" recognizes that a debtor may
not own the entire interest in the collateral and that other
creditors may hold senior liens on that same collateral. "A debtor
may own only a part interest in the property pledged as collateral,
in which case the court will be required to ascertain the 'estate's
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that the value of such creditor's interest . . . is less
than the amount of such allowed claim. Such value shall
be determined in light of the purpose of the valuation
and of the proposed disposition or use of such property,
and in conjunction with any hearing on such disposition
or use or on a plan affecting such creditor’s interest.
11 U.S.C. § 506(a)(1).8 Thus, a claim may be bifurcated into
secured and unsecured portions depending on the value of the
collateral. Next, § 506(b) defines an oversecured creditor's
entitlement to post-petition interest:
To the extent that an allowed secured claim is secured by
property the value of which, after any recovery under
subsection (c) of this section, is greater than the
amount of such claim, there shall be allowed to the
holder of such claim, interest on such claim, and any
reasonable fees, costs, or charges provided for under the
agreement or State statute under which such claim arose.
interest' in the collateral. Or, a creditor may hold a junior or
subordinate lien, which would require the court to ascertain the
creditor's interest in the collateral." Assocs. Commercial Corp.
v. Rash, 520 U.S. 953, 961 (1997). Here, Prudential is the senior
creditor, so its interest in the collateral is undiminished. In
addition, although the parties dispute whether the various Debtors'
collateral should be aggregated for purposes of the oversecurity
determination, each Debtor's interest in the collateral it pledged
is undivided. The cumbersome statutory language thus distills to
"value of the collateral."
8
In addition to entitlement to post-petition interest, a
§ 506(a) determination of secured status triggers several rights
and protections for the claimholder. See 4 Collier on Bankruptcy
¶ 506.02 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed.)
(noting that the holder of a secured claim may be entitled to
adequate protection relief, lifting of the automatic bankruptcy
stay, and greater protection in cramdown situations). The § 506(a)
determination may differ depending on the purpose of the valuation.
Here we are concerned solely with valuations for the purpose of
determining entitlement to post-petition interest.
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Id. § 506(b). Thus, if the collateral is worth more than the
amount of the secured claim, the creditor is entitled to
post-petition interest on its claim9 up to the amount of the
difference in values (this difference is referred to as an "equity
cushion" or "security cushion"). See Baybank-Middlesex v. Ralar
Distribs., Inc., 69 F.3d 1200, 1202 (1st Cir. 1995) ("A creditor is
oversecured when the value of its collateral exceeds the amount of
its [allowed secured] claim; postpetition interest and fees are
allowable only to the extent of that oversecurity."); see also
Timbers, 484 U.S. at 372 (noting that § 506(b) "permits
postpetition interest to be paid only out of the 'security
cushion'"). Post-petition interest accrues until the secured claim
is paid or until the effective date of the plan. Rake v. Wade, 508
U.S. 464, 468 (1993), superseded by statute on other grounds, 11
U.S.C. § 1322(e).
The parties agree that Prudential was oversecured during
at least part of the bankruptcy proceeding and therefore is
9
Prudential also sought approximately $750,000 in post-
petition fees and costs. The bankruptcy court denied this request,
noting that Prudential failed to explain or itemize this amount of
fees and costs or to indicate what provision(s) of the relevant
contracts provided for them. The BAP noted that Prudential "did
not brief any issues relating to the bankruptcy court's ruling,"
and deemed the issue waived. Similarly, here, Prudential refers
several times to its entitlement to post-petition costs and fees in
its brief, but offers no argument that the bankruptcy court erred.
Like the BAP, we consider this issue waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
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entitled to some amount of post-petition interest, but they differ
as to how to determine oversecured status, when Prudential became
oversecured, and the applicable interest rate and type.
1. Determination of Oversecurity
We review the bankruptcy court's interpretation of § 506
de novo, and its factual finding as to when Prudential became
oversecured for clear error. See Hill, 562 F.3d at 32.
i. Flexible Versus Single-Valuation Approach
Although § 506(a) dictates how courts should determine
secured status and collateral value, it does not specify the time
as of which these determinations should be made.10 See Fin. Sec.
Assurance Inc. v. T-H New Orleans Ltd. P'ship (In re T-H New
Orleans Ltd. P'ship), 116 F.3d 790, 798 (5th Cir. 1997). Where
these figures remain relatively constant, the choice of measuring
date may not matter. But where, as here, the amount of the claim
has decreased significantly and the value of the collateral has
increased during the course of the bankruptcy, the choice can make
the difference between a finding of oversecurity or undersecurity.
10
We recognize that "timing of the valuation" and similar
language could be read to refer either to the time the court
actually renders the valuation determination or to the value of the
collateral at some particular point in time. For the purposes of
this opinion, we use the terms "timing of the valuation" and
"measuring date" to refer to the value of collateral as of a
particular date, without regard to when the court renders its
determination.
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Courts have split on the timing issue. Several have
adopted a "single-valuation" approach, where the determination of
oversecurity for § 506(b) purposes always occurs at a fixed point
in time (generally either the petition date or the confirmation
date). See, e.g., Orix Credit Alliance, Inc. v. Delta Res., Inc.
(In re Delta Res., Inc.), 54 F.3d 722, 729 (11th Cir. 1995) (per
curiam) ("[T]he oversecured creditor's allowed secured claim for
postpetition interest is limited to the amount that a creditor was
oversecured at the time of filing."). Others have adopted a
"flexible" approach, giving the bankruptcy court discretion to
determine the appropriate measuring date based on the circumstances
of the case. See, e.g., T-H New Orleans, 116 F.3d at 798 ("[F]or
purposes of determining whether a creditor is entitled to accrue
interest under § 506(b) in the circumstance where the collateral's
value is increasing and/or the creditor's allowed claim has been or
is being reduced by cash collateral payments, such that at some
point in time prior to confirmation of the debtor's plan the
creditor may become oversecured, valuation of the collateral and
the creditor's claim should be flexible and not limited to a single
point in time, such as the petition date or confirmation date.").
The bankruptcy court provided a thorough review of the split in
authority, see In re SW Hotel Venture, LLC, 460 B.R. 4, 27–31
(Bankr. D. Mass. 2011), and we need not repeat it here.
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The bankruptcy court and the BAP both adopted the
flexible approach, although their applications of it differed. The
bankruptcy court found that the hotel sale price provided the best
evidence of the hotel's value as of the sale date, but concluded
that the sale price was not reflective of its value at any earlier
point in time due to the previously outstanding contingencies. The
BAP agreed that the sale price was the best evidence of value, but
concluded that the sale price established that Prudential was
oversecured throughout the pendency of the bankruptcy proceedings.
The Debtors and the City urge us to uphold the bankruptcy
court's application of the flexible approach in this case.
Prudential's argument is two-pronged. Prudential urges us to adopt
a single-valuation approach using the confirmation date as the
measuring date, and to hold that, as a matter of law, its
oversecurity at confirmation dictates that it receive post-petition
interest from the petition date regardless of whether it was
undersecured at any point prior to that date.11 It also argues
that, even if the flexible approach were appropriate, the
bankruptcy court erred in applying it, and that we should affirm
11
We note that it took opposite positions before the
bankruptcy court. In its § 506(b) motion, Prudential explicitly
argued that "the appropriate time at which to value the secured
creditor's interest in the collateral is . . . flexible," and "to
the extent a secured creditor's claim fluctuates between being
oversecured and undersecured during the course of a bankruptcy
case, the creditor is entitled to accrue post-petition interest
during the period which it is oversecured."
-21-
the BAP's conclusion that the hotel sale price established that it
was oversecured throughout the bankruptcy.
In a helpful amicus brief, the Mortgage Bankers
Association ("Mortg. B.A.") argues that the timing of the valuation
must, by statute, be tethered to the purpose for which the
valuation is made, and that the single valuation approach is overly
simplistic because it requires the same measuring date regardless
of the purpose of the valuation. However, noting that an open-
ended flexible approach could require potentially limitless
redeterminations in cases of fluctuating value, it cautions that
any rule must avoid serious practical consequences: if the flexible
approach provides that a pre-confirmation valuation is not only
relevant but also essential to determining creditors' secured
status at confirmation, that may unduly burden creditors or,
conversely, be used to harass debtors by encouraging aggressive
action by creditors. We do not believe our resolution of this case
raises those concerns.
We agree with the bankruptcy court and the BAP that, at
least in the circumstances presented here, a bankruptcy court may,
in its discretion, adopt a flexible approach.
We have previously recognized that the statutory
directive to determine collateral's value "in light of the purpose
of the valuation and of the proposed disposition or use of such
property," § 506(a), affords bankruptcy courts flexibility in
-22-
determining the appropriate valuation method, given the particular
facts of the case at hand. Winthrop Old Farm, 50 F.3d at 73–74;
see also In re Heritage Highgate, Inc., 679 F.3d 132, 141 (3d Cir.
2012) ("[In the § 506(a) context], Congress envisioned a flexible
approach to valuation whereby bankruptcy courts would choose the
standard that best fits the circumstances of a particular case.").
But we have not yet addressed whether this same flexibility extends
to selecting a measuring date. Several considerations convince us
that, in appropriate circumstances, it does.
First, neither § 506(b)'s language, nor its legislative
history, nor the bankruptcy rules define the measuring date for
purposes of post-petition interest, suggesting flexibility. See T-
H New Orleans, 116 F.3d at 798. The language of § 506(a) also
suggests that Congress intended bankruptcy courts to have
flexibility. While § 506(a)(1) sets out a general rule that
collateral value "shall be determined in light of the purpose of
the valuation and of the proposed disposition or use of such
property," § 506(a)(2) creates an exception to the general rule:
If the debtor is an individual in a case under chapter 7
or 13, such value with respect to personal property
securing an allowed claim shall be determined based on
the replacement value of such property as of the date of
the filing of the petition without deduction for costs of
sale or marketing. With respect to property acquired for
personal, family, or household purposes, replacement
value shall mean the price a retail merchant would charge
for property of that kind considering the age and
condition of the property at the time value is
determined.
-23-
§ 506(a)(2) (emphasis added). The fact that Congress mandated
particular measuring dates in the exception without mandating a
particular measuring date in the general rule suggests that it
intended flexibility under § 506(a)(1). See Russello v. United
States, 464 U.S. 16, 23 (1983) ("Where Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion.") (alteration and internal quotation marks omitted); see
also In re Urban Communicators PCS Ltd. P'ship, 379 B.R. 232, 243
(Bankr. S.D.N.Y. 2007) ("The statutory guidance appearing as part
of section 506(a) is the antithesis of a hard-and-fast rule, and
instead embodies a more functional approach."), aff'd in part,
rev'd in part on other grounds sub nom. Urban Communicators PCS
Ltd. P'ship v. Gabriel Capital, L.P., 394 B.R. 325 (S.D.N.Y. 2008).
Second, the considerations that supported affording
flexibility in selecting a valuation method in Winthrop Old Farm
apply equally to selecting a valuation time. There, we noted that
allowing bankruptcy courts to select the appropriate valuation
method on a case-by-case basis "allows the bankruptcy court, using
its informed discretion and applying historic principles of equity,
to adopt in each case the valuation method that is fairest given
the prevailing circumstances." 50 F.3d at 75–76; see also Heritage
Highgate, 679 F.3d at 142 n.7 ("Like the appropriate measure of
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fair market value, the appropriate time as of which to value
collateral may differ depending on the facts presented. As with
the replacement valuation technique, bankruptcy courts are best
situated to determine when is the appropriate time to value
collateral in the first instance.") (citation omitted); T-H New
Orleans, 116 F.3d at 798 (noting that a flexible standard
"recognizes the discretionary nature of bankruptcy courts as courts
of equity . . . [and] the equitable nature of bankruptcy in seeking
a balance between debtors and creditors (debtor's right to a fresh
start versus the creditor's right to the value of its claim)").
Third, rather than yielding the fairest result, a rigid
single-valuation approach guarantees an all-or-nothing result that
hinges more on fortuity than reality. For example, if the petition
date were the required measuring date, a creditor that first became
oversecured even one day later would be allowed no post-petition
interest, even though it was oversecured throughout almost the
entire bankruptcy and even though it could receive substantial
post-petition interest under a flexible approach. Conversely, if
the confirmation date were the required measuring date, a creditor
that first became oversecured just one day earlier would be allowed
post-petition interest for the entirety of the bankruptcy
proceeding (up to the amount of the equity cushion).12 We do not
12
This case well demonstrates the problem with Prudential's
proposed single-valuation-at-confirmation approach. As will be
discussed below, Prudential only became oversecured as a result of
-25-
believe that Congress intended entitlement to post-petition
interest to depend so heavily on chance. Nor do we believe that
Congress intended to restrict the bankruptcy courts' equitable
discretion without explicitly saying so. The availability of a
flexible approach strikes us as more likely to produce fair
outcomes than allowing post-petition interest for the entire
bankruptcy, or not at all, based on a rigidly defined one-shot
vantage point.
In support of its argument that the confirmation date
must be the measuring date, Prudential notes that the collateral
value must be calculated at confirmation because, by definition,
the estate can only distribute what value the debtors actually have
at that time. Thus, its entitlement to post-petition interest (or,
more precisely, whether its receipt of post-petition interest to
which it would otherwise be entitled will be limited because the
equity cushion is insufficient to cover it) can only be known at
confirmation. Similarly, the existence and extent of oversecurity
can only be conclusively determined once the amount of any recovery
under § 506(c) is known, which also, by necessity, is at
confirmation. These considerations explain why a creditor does not
the Debtors' continued efforts to complete the W project and
continue selling condominium units -- successful efforts that were
funded in large part by a cash infusion made by the City. Equity
does not require that a senior secured creditor be allowed to
vacuum up all the upside of appreciation of its collateral where
that appreciation was only realized due to funding provided by a
junior creditor.
-26-
receive accrued post-petition interest until confirmation. See
United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs. (In
re Timbers of Inwood Forest Assocs.), 793 F.2d 1380, 1407 (5th Cir.
1986). But we see nothing incongruous about finding that a
creditor became entitled to post-petition interest at one point in
the proceedings and determining whether that interest will be
limited by the size of the equity cushion at a different point
(namely, the time of confirmation). See T-H New Orleans, 116 F.3d
at 799 ("[A] secured creditor's entitlement to accrue interest
under § 506(b) matures at that point in time where the creditor's
claim becomes oversecured. However, as Timbers dictates, accrued
interest under § 506(b) is not paid to an oversecured creditor
until the plan's confirmation or its effective date, whichever is
later.") (footnote omitted).
For these reasons, we hold that, under the particular
facts presented in this case, the bankruptcy court did not err in
adopting a flexible approach for determining oversecured status.13
13
We do not suggest that bankruptcy courts must, or even
should, adopt the flexible approach whenever collateral values
and/or claim amounts fluctuate. We simply recognize that a
bankruptcy court may, in the exercise of its discretion, determine
that, on the particular facts before it, equity and fairness would
be best served by application of a flexible approach.
-27-
ii. Application of the Flexible Approach
a. Standard of Review
The bankruptcy court determined that Prudential became
oversecured as of the date the hotel sale closed and was entitled
to post-petition interest from that date through the effective
date. Although this is a factual determination to which the clear-
error standard would normally apply, cf. Baybank-Middlesex, 69 F.3d
at 1203 (reviewing for clear error a determination that the
creditor was undersecured for adequate-protection purposes),
Prudential argues that that standard is inappropriate here because
the bankruptcy court's factual determination was infected by legal
error, see Winthrop Old Farm, 50 F.3d at 73, in that the bankruptcy
court wrongly elevated Prudential's burden of proof in establishing
oversecurity. We find no such error.
The parties agree that, ultimately, the burden was on
Prudential to show by a preponderance of the evidence that it was
oversecured,14 but Prudential argues that the bankruptcy court erred
14
Prudential advocates for a burden-shifting approach by which
its burden was not triggered unless and until the Debtors refuted
the presumed validity of its proof of claim by introducing
sufficient evidence that the collateral was worth less than the
amount of the secured claim plus interest. See Heritage Highgate,
679 F.3d at 139–40, 145 (discussing varied approaches, and adopting
a burden-shifting framework for determining the extent to which a
claim is secured under § 506(a)). Regardless of the merits of this
approach, Prudential did not request its application below and did
not challenge the Debtors' citation to a long string of cases
holding that the creditor bears the burden of establishing
oversecured status. See, e.g., T-H New Orleans, 116 F.3d at 798
(holding that, although the burden to motion for a § 506(b)
-28-
in holding it to a much higher standard. In ruling that the sale
closing date was the appropriate time to fix Prudential's
oversecured status, the bankruptcy court stated that, "[o]n that
date, it was unequivocally established and beyond dispute that
Prudential was an oversecured creditor." SW Hotel Venture, 460
B.R. at 32. We do not agree with Prudential that this passage
means that the bankruptcy court replaced the preponderance standard
with a newly created "unequivocal and beyond dispute" standard.
The bankruptcy court correctly recited the preponderance standard
three separate times in its comprehensive § 506(b) ruling. We read
the "beyond dispute" language as a comment on the certainty of the
oversecurity finding, and see absolutely nothing in the bankruptcy
court's reasoning or conclusions to suggest that it was applying
anything other than the correct standard. Because the bankruptcy
determination lies with whichever party contends that there is a
dispute about entitlement to post-petition interest, "[t]he
creditor . . . bears the ultimate burden to prove by a
preponderance of evidence its entitlement to postpetition interest,
that is, that its claim was oversecured, to what extent, and for
what period of time"). The Debtors can hardly be faulted for
purportedly failing to make a showing that no binding precedent
required that they make and that they were never asked to make.
In addition, Prudential apparently failed to submit copies of
the relevant documentation (the note, mortgage, and CLA) along with
its proof of claim, despite the proof-of-claim form's specific
instructions to do so and contrary to the requirements of
Bankruptcy Rule 3001. Therefore, even if the burden-shifting
approach had applied, it is highly questionable whether Prudential
was entitled to the presumed validity that attaches to a "proof of
claim executed and filed in accordance with [Rule 3001]," Fed. R.
Bankr. P. 3001(f).
-29-
court's analysis was not infected by legal error, the clear-error
standard applies.
b. Measuring Date
The bankruptcy court considered several possible
measuring dates (the petition date, the date of the lift-stay
decision, the date SW Boston signed the hotel P&S and filed its
motion for approval of the sale, the date the court approved the
sale motion, the hotel sale date, and the date of the confirmation
hearing), and determined that the sale closing date was the
earliest that Prudential had established oversecured status.15
As for the petition date, the court noted that Prudential
had submitted no evidence that it was oversecured at that time, and
that it instead relied on the Debtors' schedules of assets, which
indicated that the value of Prudential's collateral, in the
aggregate, was substantially more than its total pre-petition
claim. As Prudential points out, these schedules were completed
under penalty of perjury. But, as the Debtors point out, the
schedules also specifically indicated that the listed values were
book values that may not reflect the fair market value of the
15
The bankruptcy court relied on stipulated values for the
remaining condominiums and other collateral. These values are not
disputed on appeal. The parties likewise stipulated to the method
for calculating Prudential's claim, in light of the ongoing
condominium sales and application of those proceeds to Prudential's
claim. The only real factual dispute is with respect to the
hotel's value over time, culminating in its final sale price of
$89.5 million.
-30-
Debtors' interest in the relevant property. See Lawson v. Ford
Motor Co. (In re Roblin Indus., Inc.), 78 F.3d 30, 36 (2d Cir.
1996) ("[B]ook values are not ordinarily an accurate reflection of
the market value of an asset."). The bankruptcy court did not rely
on these values because they were not substantiated by any
evidence. We perceive no error, clear or otherwise.
As for the lift-stay decision, the Debtors correctly note
that the main issue there was whether the W was necessary to an
effective reorganization. The Bankruptcy Code provides that the
bankruptcy court "shall grant relief from the stay" of an act
against property if:
(A) the debtor does not have an equity in such property;
and
(B) such property is not necessary to an effective
reorganization.
11 U.S.C. § 362(d)(2).16 SW Boston conceded that it did not have
equity in its assets alone, and the bankruptcy court rejected its
argument that the combined collateral pledged by all of the Debtors
16
In its lift-stay motion, Prudential also moved for relief
under § 362(d)(1) (granting relief from a stay "for cause,
including the lack of adequate protection of an interest in
property of such party in interest"), but appears to have abandoned
that ground in its post-trial briefing. The bankruptcy court
considered it anyway, and determined that Prudential had failed to
show cause for relief because: (1) it produced no evidence that it
was not adequately protected and failed to address it in its brief;
(2) it had an equity cushion of $19 million when its remaining
claim was compared to the entire collateral package; (3) SW Boston
was reducing the amount owed to Prudential through condominium sale
proceeds; and (4) the value of its secured claim was not declining.
-31-
should be considered in determining whether it had equity under
§ 362(d)(2)(A). See In re SW Bos. Hotel Venture LLC, 449 B.R. 156,
177–78 (Bankr. D. Mass. 2011) (discussing split of authority,
determining that all liens, including the City's, should be
compared only to the value of the property that was the subject of
the creditor's lift-stay request, and noting that consideration of
other collateral is relevant for other purposes, including
§ 362(d)(1) and (2)(B)). Thus, the primary question was whether an
effective reorganization was in prospect and, if so, whether the W
was necessary to that reorganization. See 11 U.S.C.
§ 362(d)(2)(B). After a detailed evaluation of each side's
evidence and expert testimony, the court concluded that SW Boston
was "making sufficient progress towards a realistic goal such that
its efforts should be allowed to continue without the threat of
foreclosure by Prudential." SW Bos. Hotel Venture, 449 B.R. at
182. It thus denied Prudential's motion for relief from the stay.
Pointing to the bankruptcy court's finding that, although
Prudential was undersecured as to SW Boston alone, it was
oversecured by approximately $19 million when all of the Debtors'
collateral was considered in the aggregate, Prudential argues that,
under Baybank-Middlesex, the bankruptcy court's subsequent
"dismiss[al]" or "disregard" of this earlier finding is "a practice
not countenanced" in this circuit. Prudential misstates both the
facts of the case and the relevant law.
-32-
First, the bankruptcy court did not dismiss or disregard
its earlier findings; instead, it surveyed the entire lifespan of
the case, incorporating subsequent developments into its analysis
of the earlier valuation, and determined that Prudential had not
met its burden of showing oversecurity for § 506(b) purposes at any
time before the sale date. The bankruptcy court did not simply
ignore its earlier valuation; it explicitly considered its earlier
valuation and explained in detail why that valuation did not
control. And, as we will discuss below, that determination was not
clearly erroneous.
Second, while Baybank-Middlesex noted that a valuation
made at an adequate-protection hearing was not dicta, as the
valuation was a factual finding that constituted a "logical step in
making an adequate protection determination," 69 F.3d at 1203, it
plainly does not require an earlier valuation for one purpose to be
binding for some other purpose. Nor would such a requirement
square with the statutory directive that collateral's value "shall
be determined in light of the purpose of the valuation and of the
proposed disposition or use of such property." 11 U.S.C. § 506(a).
We have not expressly ruled on the question, but other courts have
generally held that a valuation at one point in the proceedings has
no binding effect on valuations performed at other points and for
-33-
other purposes.17 See, e.g., Norwest Bank Worthington v. Ahlers (In
re Ahlers), 794 F.2d 388, 398 (8th Cir. 1986) ("An initial
valuation for adequate protection purposes is not res judicata for
purposes of determining the value of the collateral, and thus the
allowed secured claims of the creditors, under a reorganization
plan."), rev'd on other grounds, 485 U.S. 197 (1988); 4 Collier on
Bankruptcy ¶ 506.03[7][g] (Alan N. Resnick & Henry J. Sommer, eds.,
16th ed.) ("The need to look to the purpose of the valuation
appears to have achieved virtually universal acceptance. Hence,
courts generally agree that a valuation determination in one
context will not have res judicata or collateral estoppel effect
with respect to a different valuation hearing in a different
context within the same case."). We now hold, as have other
courts, that a valuation made for one purpose at one point in a
bankruptcy proceeding has no binding effect on valuations performed
for other purposes at other points in the proceeding.
Prudential next argues that the sale price is the best
evidence of the hotel's value, and that that price necessarily
established that it was oversecured throughout the bankruptcy
proceedings. Courts have routinely held that "so long as the sale
17
In Baybank-Middlesex, we indicated agreement with that
proposition, but were not presented with the issue because the
creditor "might have argued, but did not, that even a valid finding
as to collateral value made at an adequate protection hearing has
no res judicata effect when valuations are to be made for other
purposes at later proceedings." 69 F.3d at 1203 n.5.
-34-
price is fair and is the result of an arm's-length transaction,
courts should use the sale price, not some earlier hypothetical
valuation, to determine whether a creditor is oversecured and thus
entitled to postpetition interest under § 506(b)." Dobbins, 35
F.3d at 870; see also Takisaki v. Alpine Grp., Inc. (In re Alpine
Grp., Inc.), 151 B.R. 931, 935–36 (B.A.P. 9th Cir. 1993). We have
no quibble with the proposition that an arm's-length sale generally
provides better evidence of value at a given time than does an
appraisal of its value at that same time. But that does not mean
that a sale price at one time necessarily establishes the
collateral's value at some other time. Where the value of
collateral is changing, a one-size-fits-all valuation poorly
reflects that reality.
Here, the bankruptcy court did note that the price
obtained at the arm's-length sale provided the best indicator of
the hotel's value, and it acknowledged that the price ($89.5
million) strongly suggested that the appraised values relied upon
at the lift-stay hearing ($55 million and $65.6 million) were
conservative, supporting Prudential's argument that it was
oversecured at least as of the appraisal dates. However, the
bankruptcy court went on to note that several contingencies "could
have derailed the sale," even after it granted the hotel sale
motion (about two weeks before the actual sale). It held that it
was only when the last improvements were completed, all outstanding
-35-
contingencies were resolved (including resolving issues with the
Starwood contract, a contingency that Prudential itself described
as "an essential element to the success of the [W]"), and the sale
actually closed that the sale price accurately reflected its value.
The court thus found that Prudential had not shown that it was
oversecured as of the date SW Boston signed the hotel P&S or the
date the court approved the sale motion.18 It seems plausible that
Prudential's declining claim and the hotel's increasing value may
have crossed paths at some point before the hotel closing date, but
Prudential did not meet its burden to establish when that cross-
over may have occurred. On this record, we cannot say that the
bankruptcy court clearly erred in determining when Prudential
became oversecured.
The BAP held that the bankruptcy court erred in not
applying the sale price to the entirety of the bankruptcy
proceeding based on its view of the reasoning in Urban
Communicators, 379 B.R. at 243–44. We are unpersuaded that the
reasoning in Urban Communicators leads to the outcome Prudential
seeks. There, the secured creditor loaned funds to the debtors for
the purchase of radio wave spectrum licenses. During a subsequent
bankruptcy, the Federal Communications Commission cancelled the
18
Having found that Prudential was oversecured as of the sale
date, and in light of the parties' agreement that Prudential was
oversecured as of the confirmation date, the bankruptcy court did
not separately consider using the confirmation date as the
measuring date.
-36-
debtors' licenses -- unlawfully so, as litigation between the FCC
and a different license-holder would later make clear. Id. at 238.
After the FCC "effectively und[id] its cancellation or attempted
cancellation" of the debtors' licenses, id. at 239, the debtors
sold them, with the sale price establishing that the creditor was
oversecured, id. at 239–240. However, the debtors argued that, at
least during the five-year cancellation period, the collateral
package was worth significantly less and the creditor was
undersecured. Id. at 204–41. The court disagreed, noting that, in
addition to the licenses themselves, the creditor's lien attached
to proceeds from the sale of the licenses, the debtors' litigation
rights against the FCC, and capital stock of the debtors'
subsidiaries. Id. at 244. The court determined that the sale
price actually did reflect the collateral's earlier value, as the
debtors had "maintained litigation rights against the FCC for this
wrongful cancellation, whose value is now apparent." Id. Thus,
even though it may have been uncertain for a time whether the
licenses could eventually be sold and the proceeds turned over to
the creditor, subsequent events made clear that the collateral
package -- including litigation rights -- always was sufficient to
render the creditor oversecured. This is plainly distinguishable
from the situation here, where the actual value of the hotel
increased over time. To the extent that one can read Urban
Communicators to hold that a sale price automatically and always
-37-
relates back to the petition date regardless of intervening events
-- and we doubt very much that it can be so read, see id. at 243
(noting that, even under the flexible approach, courts should
generally use the sale price as "the best available evidence of
collateral value except where the circumstances dictate a different
approach") (emphasis added) -- we disagree with it.
In addition, in rejecting the bankruptcy court's factual
determination, the BAP utterly ignored both the relevant clear-
error standard and the bankruptcy court's reliance on the
improvements and contingencies that, in its estimation, rendered
the eventual sale price a poor indicator of earlier value.
2. Computation of Interest
Having established that the bankruptcy court did not
clearly err in determining when Prudential's post-petition interest
began to accrue, we now turn to two questions regarding how that
interest accrued: at what rate, and whether the interest is simple
or compound.
Section 506(b) does not specify how to compute post-
petition interest. The Supreme Court, construing § 506(b), has
held that the phrase "provided for under the agreement or State
statute under which such claim arose" modifies only "reasonable
fees, costs, or charges," and not "interest on such claim." United
States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989). Thus,
the statutory language does not dictate that bankruptcy courts look
-38-
to the applicable contract provisions, if any, when computing post-
petition interest. However, courts are largely in agreement that,
although the "appropriate rate of pendency interest is . . . within
the limited discretion of the court," Key Bank Nat'l Ass'n v.
Milham (In re Milham), 141 F.3d 420, 423 (2d Cir. 1998), where the
parties have contractually agreed to interest terms, those terms
should presumptively apply so long as they are enforceable under
state law and equitable considerations do not dictate otherwise,
see, e.g., Gen. Electric Capital Corp. v. Future Media Prods. Inc.,
536 F.3d 969, 974 (9th Cir. 2008) (adopting the rule "adopted by
the majority of federal courts" that the "bankruptcy court should
apply a presumption of allowability for the contracted for default
rate, provided that the rate is not unenforceable under applicable
nonbankruptcy law") (internal quotation marks omitted); In re Terry
Ltd. P'ship, 27 F.3d 241, 243 (7th Cir. 1994) ("What emerges from
the post-Ron Pair decisions is a presumption in favor of the
contract rate subject to rebuttal based upon equitable
considerations."); 4 Collier on Bankruptcy ¶ 506.04[2][b] (stating
that interest, including allowance of contractual default rate and
compounding, should be determined by reference to applicable
nonbankruptcy law). As the General Electric Capital court noted,
enforcing the contract is consistent with the general premise that
"creditors' entitlements in bankruptcy arise in the first instance
from the underlying substantive law creating the debtor's
-39-
obligation, subject to any qualifying or contrary provisions of the
Bankruptcy Code." 536 F.3d at 973 (alteration omitted) (quoting
Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Electric Co., 549
U.S. 443, 450 (2007)) (internal quotation marks omitted); see also
In re Lapiana, 909 F.2d 221, 223 (7th Cir. 1990) ("[B]ankruptcy,
despite its equity pedigree, is a procedure for enforcing
pre-bankruptcy entitlements under specified terms and conditions
rather than a flight of redistributive fancy . . . .").
i. Interest Rate
The bankruptcy court and the BAP both held that
Prudential was entitled to interest at 14.5%, the default rate
specified in the CLA.19 There is no dispute that SW Boston
defaulted under the terms of the CLA. However, the Debtors argue
that the bankruptcy court erred by considering the enforceability
of the default rate only under federal law, when what was required
was a two-step analysis, first focusing on its enforceability under
Massachusetts law20 before turning to federal law. While the above
19
Section 2.3.3 of the CLA provides: "In the event that, and
for so long as, any Event of Default shall have occurred and be
continuing, the outstanding principal balance of the Loan and, to
the extent permitted by applicable Legal Requirements, overdue
interest in respect of the Loan, shall accrue interest at the
Default Rate . . . ." The Default Rate is defined as "a rate per
annum equal to the lesser of (i) the maximum rate permitted by
applicable law, or (ii) five percent (5%) above the Applicable
Interest Rate." The Applicable Interest Rate, in turn, is defined
as "9.50% per annum, compounding monthly."
20
The parties agree that the contract is governed by
Massachusetts law.
-40-
analysis suggests that, in all cases, the presumption in favor of
applying a contractual interest provision can be rebutted by
showing that is unenforceable under state law, we need not reach
that issue today. Here, the CLA's default interest provision
directs the court's inquiry to Massachusetts law, as the rate is
limited to the lesser of the default rate or the "maximum rate
permitted by applicable law." However, we do not believe that the
Debtors have shown that the default rate exceeds that threshold.
Under Massachusetts law, the court must determine whether
the default interest provision constitutes allowable liquidated
damages or an unenforceable penalty. See OneUnited Bank v. Charles
St. African Methodist Episcopal Church of Bos., 501 B.R. 1, 10 (D.
Mass. 2013). The party challenging a liquidated damages provision
bears the burden of showing that it constitutes an unenforceable
penalty, and all reasonable doubts are resolved in favor of
enforcement. See NPS, LLC v. Minihane, 886 N.E.2d 670, 673 (Mass.
2008). A liquidated damages provision will be enforced provided,
"first, that at the time of contracting the actual damages flowing
from a breach were difficult to ascertain; and second, that the sum
agreed on as liquidated damages represents a reasonable forecast of
damages expected to occur in the event of a breach." Id. (internal
quotation marks omitted). It was the Debtors' "burden to show that
the amount of liquidated damages [was] unreasonably and grossly
disproportionate to the real damages from a breach or
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unconscionably excessive." Id. at 421 (internal quotation marks
omitted).
Here, the Debtors established only that Joanna Mulford,
a Vice President of Prudential, did not personally engage in any
analysis of Prudential's anticipated damages in the event of a
breach, nor was she aware of whether anyone else had done so. If
the burden had been on Prudential to establish the enforceability
of default interest, perhaps this analysis would come out
differently. As it is, however, this partial admission does not
discharge the Debtors' burden to show that the default rate was not
reasonably related to anticipated damages and, in fact, was so
grossly disproportionate to anticipated damages or otherwise
unconscionable as to be unenforceable under Massachusetts law.
We also find no error in the bankruptcy court's analysis
under federal equitable principles. After discussing and applying
factors that bankruptcy courts have used in balancing the equities,
see In re Gen. Growth Props., Inc., No. 09-11977, 2011 WL 2974305,
at *4 (Bankr. S.D.N.Y. July 20, 2011) (setting out four-factor
test); In re Jack Kline Co., 440 B.R. 712, 745–46 (Bankr. S.D. Tex.
2010) (setting out seven-factor test, plus additional catch-all
factor), the court determined that application of the default rate
would not be inequitable. Specifically, the court noted that: (1)
other creditors would not be harmed because the plan contemplated
payment of all creditors in full; (2) although Prudential was quite
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litigious, "raising multiple objections to virtually every motion
made by the Debtors," SW Hotel Venture, 460 B.R. at 36, its conduct
did not rise to the level of obstruction of the bankruptcy process
or other misconduct; (3) the Debtors did not rebut Prudential's
evidence that the CLA's default rate was consistent with default
rates of similar loans in the market, including where Prudential
was either the lender or the borrower; and (4) courts have approved
larger spreads between base and default interest rates. We find no
error in the bankruptcy court's conclusion that the Debtors had
failed to rebut the presumption in favor of enforcing the
contractual provision.21
21
The Debtors also submit that, under § 506(b), default
interest is actually a "fee" or "charge" (to which the "reasonable"
modifier does apply) rather than interest (to which it does not).
They have some support for this characterization. See In re AE
Hotel Venture, 321 B.R. 209, 215 (Bankr. N.D. Ill. 2005) (treating
default interest as a charge because, "[g]enerally speaking,
interest compensates for the delay in receiving money owed: the
loss of the time value of money. [The creditor] arrived at the
interest rate it believed would compensate for that loss in the
Note: a rate of 9.72%. That being so, the difference between the
original rate and the 14.72% default rate -- a difference of 5% --
could not have been meant to perform the usual function of
interest. The time value of [the creditor's] money, after all, did
not magically increase by 5% once [the debtor] defaulted.")
(citations and internal quotation marks omitted); Fischer Enters.,
Inc. v. Geremia (In re Kalian), 178 B.R. 308, 313–14 (Bankr. D.R.I.
1995) ("Labeling a contract term an interest provision does not
make it so. If, though labeled interest, it exacts a penalty or
sets liquidated damages in an impermissible manner, it will not be
enforced. Moreover, if the term is really a 'charge,' § 506(b)
requires that it be reasonable. The parties may not insulate it
from scrutiny by affixing the 'interest' label.") (footnotes
omitted). But see Hepner v. PWP Golden Eagle Tree, LLC (In re K &
J Props., Inc.), 338 B.R. 450, 458 (Bankr. D. Colo. 2005) ("The [AE
Hotel Venture] court maintains that pre-default interest
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ii. Compound Versus Simple Interest
Prudential argues that it is entitled to accrue post-
petition interest at the default rate, compounding monthly. The
bankruptcy court held that it was not entitled to compound
interest, and the BAP reversed.
As noted above, the CLA defines "Applicable Interest
Rate" as "9.50% per annum, compounding monthly," and the "Default
Rate" as "a rate per annum equal to the lesser of (i) the maximum
rate permitted by applicable law, or (ii) five percent (5%) above
the Applicable Interest Rate." The bankruptcy court, however,
erroneously stated that the CLA "does not provide for compound
interest either at the default rate or the non-default rate of
interest." Noting that compound interest is disfavored by
Massachusetts law absent an express agreement to the contrary, see,
e.g., Inhabitants of Tisbury v. Vineyard Haven Water Co., 79 N.E.
256, 257 (Mass. 1906), the court ruled that Prudential was not
entitled to compound interest.
compensates for the time value of money, but post-default interest
does not; it represents some other 'charge,' and thus, must be
reasonable under section 506(b). This is a distinction without a
difference. Pre and post-default interest rates are simply matters
of pricing. The money costs more if not repaid when agreed. Had
Congress wished to distinguish between the treatment of pre and
post-default interest by section 506(b), it could easily enough
have said so."). We need not answer the question, because, even if
the reasonableness limitation applies, for largely the same reasons
enunciated in the equity analysis, we see no reason to dislodge the
bankruptcy court's finding that the default interest rate was not
unreasonable.
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Recognizing that the above-quoted provision does
expressly call for monthly compounding of interest, the Debtors
seek to introduce ambiguity by pointing to other provisions of the
contract that appear to imply that interest will be simple. We
need not delve into the ambiguity question because we find that
Prudential cannot claim entitlement to compounding where it --
whether by inadvertence or in an attempt to sandbag the Debtors and
mislead the bankruptcy court we cannot say -- did not seek compound
interest until after the bankruptcy court granted it post-petition
interest at the default rate running from the hotel sale date. In
its brief, Prudential cited Section 1.1 of the CLA for the
propositions that the Applicable Interest Rate "is defined to mean
9.50% per annum" -- with no mention of compounding -- and the
Default Rate is defined to mean the applicable rate plus 5%.22 See
Berman v. B.C. Assocs., 219 F.3d 48, 50 (1st Cir. 2000) ("[T]he
overwhelming majority of Massachusetts cases equate an interest
rate 'per annum,' whether in a contract or a statute, with simple
interest."). Prudential also presented, via Mulford's affidavit
and testimony, its calculation of interest at the base and default
rates, and referred simply to 9.5% versus 14.5% interest, again
without mentioning compounding. As the BAP and the bankruptcy
court noted, Mulford did not explain how she actually performed the
22
Prudential also used identical language in its objection to
confirmation of the plan, filed just three days before the combined
trial began.
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calculation. Prudential's expert witness, Marti Murray, testified
that she calculated post-petition interest at the default rate of
14.5%, but also made no mention of compounding. Indeed, throughout
the § 506(b) briefing and a three-day trial, the singular mention
of a contractual entitlement to compound interest was on one page
of Murray's expert report.
The bankruptcy court granted Prudential post-petition
interest from the hotel sale date at 14.5% based upon its
consideration of the equities of the situation in light of what
Prudential purported to request. Only after securing that order
did Prudential assert an entitlement to compound interest.23 We do
not believe that Prudential, having failed to give the bankruptcy
court the opportunity to consider whether application of compound
interest (even if the contract called for it) would have been
equitable, can now be heard to complain that the court abused its
discretion (or even erred) in disallowing compounding.
23
In its § 506(b) order, the bankruptcy court directed the
parties to submit an agreed order itemizing the amount of default
interest, or, if they could not agree, to submit separate proposed
orders. The parties apparently could not agree and submitted
separate orders, with the only difference being whether the loan
should accrue compound interest. The proposed orders are not part
of the record on appeal and do not appear on the bankruptcy court
docket. We thus cannot determine whether Prudential, even at that
late date, directed the bankruptcy court's attention to the exact
wording of Section 1.1. In any event, even if it did, the court
would have been entirely within its discretion to hold that
Prudential had forfeited the argument.
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For all of these reasons, we affirm the bankruptcy
court's holding that Prudential is entitled to post-petition
interest accruing from the hotel sale date at the default rate of
14.5% without compounding, and reverse the BAP's § 506(b) order to
the extent it conflicts.24
C. Confirmation Order
Prudential moved to dismiss the City's and the Debtors'
appeals from the BAP's order vacating and remanding the bankruptcy
court's confirmation order, arguing that this court lacked
jurisdiction to review the BAP's order because it was not a final
order within the meaning of 28 U.S.C. § 158(d) (providing that
"courts of appeals shall have jurisdiction of appeals from all
final decisions, judgments, orders, and decrees entered" by BAP
panels or district courts sitting in an intermediate appellate
capacity with respect to bankruptcy court orders).
24
The Debtors argue that only SW Boston's collateral should
be considered when determining both whether and when Prudential was
oversecured and the size of the resulting equity cushion out of
which any post-petition interest must be paid. Prudential argues
first that the Debtors waived this argument by not listing it in
their statement of issues to be presented. See Fed. R. Bankr. P.
8006. Prudential also disagrees on the merits, contending that,
especially in light of the merger of the Debtors for payment
purposes under the plan, it is appropriate to aggregate all
Debtors' collateral for both purposes. We need not resolve the
issue because the Debtors concede that, as of the combined trial
date, Prudential was oversecured as to SW Boston alone by an amount
sufficient to cover the post-petition interest as calculated by the
bankruptcy court (and as affirmed by this court).
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The BAP noted that its § 506(b) order resulted in a large
increase in the amount of Prudential's claim, and thus affected the
evaluation of the plan under 11 U.S.C. § 1129. On that basis, the
BAP vacated the confirmation order to "afford the Debtors an
opportunity to amend the [p]lan's terms to account for the
increased amount of Prudential's claim and the resulting pay out to
Prudential and/or for the bankruptcy court to fashion alternative
forms of relief for Prudential that would not unravel the
reorganization." In re SW Bos. Hotel Venture, LLC, No. 11-087,
2012 WL 4513869, at *3 (B.A.P. 1st Cir. Oct. 1, 2012). Prudential
argues that, because this order required significant further
proceedings in the bankruptcy court, it cannot have been a final
order subject to this court's jurisdiction.
"[B]ecause bankruptcy cases typically involve numerous
controversies bearing only a slight relationship to each other,
'finality' is given a flexible interpretation in bankruptcy."
Bourne v. Northwood Props., LLC (In re Northwood Props., LLC), 509
F.3d 15, 21 (1st Cir. 2007) (internal quotation marks omitted). A
bankruptcy court order may be final even if does not resolve all
issues in the case, "but it must finally dispose of all the issues
pertaining to a discrete dispute within the larger proceeding."
Perry v. First Citizens Fed. Credit Union (In re Perry), 391 F.3d
282, 285 (1st Cir. 2004). In this circuit, "when a district court
remands a matter to the bankruptcy court for significant further
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proceedings, there is no final order for purposes of § 158(d) and
the court of appeals lacks jurisdiction." In re Gould & Eberhardt
Gear Mach. Corp., 852 F.2d 26, 29 (1st Cir. 1988). However,
"[w]hen a remand leaves only ministerial proceedings, for example,
computation of amounts according to established formulae, then the
remand may be considered final." Id. There is no question that
the bankruptcy court's § 506(b) and confirmation orders were final,
nor is there any question that the BAP's § 506(b) order was final.
We are presented here with an unusual case, where the
BAP's remand order did contemplate significant proceedings in the
bankruptcy court, but did so based solely on its erroneous rulings
as to the measuring date and the compounding of interest. In light
of our reinstatement of the bankruptcy court's § 506(b) order, the
entire basis of the remand has been eviscerated, and effectuating
this court's opinion with respect to § 506(b) entails no further
proceedings in the bankruptcy court. Nor would our consideration
of the remand order risk the "piecemeal appellate review" that the
finality rule seeks to prevent. Northwood Props., 509 F.3d at 21.
It would be entirely illogical to leave the remand order in place,
thereby vacating the confirmation order on a now-rejected basis, to
be followed, presumably, by immediate reinstatement of the plan as
originally confirmed.25 As the Debtors note, the confirmation and
25
One could predict that, in such a scenario, Prudential would
then seek to continue its accrual of post-petition interest up
through the new effective date, thus adding more than two years of
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§ 506(b) orders were "inextricably linked,"26 first in the
bankruptcy court but especially before the BAP. While the
bankruptcy court's confirmation order considered a broad array of
issues beyond post-petition interest, the BAP's remand order
necessarily flowed directly and exclusively from its § 506(b)
order. Especially because the remand order considered none of
Prudential's objections to the confirmability of the plan, we think
it fair to say that the remand order was part and parcel of the
discrete dispute actually ruled on by the BAP.27 What is more,
during the course of this appeal, the Debtors have paid off the
entirety of Prudential's claim (including post-petition interest as
calculated pursuant to the bankruptcy court's § 506(b) order),
rendering moot Prudential's many objections to the confirmation
order.
interest to its claim. This would seem a wholly inappropriate
outcome in light of the facts that the bankruptcy court did not
clearly err in its § 506(b) order and that Prudential's
corresponding claim has been paid in full (not accounting for
additional post-petition interest accruing after the original
effective date).
26
Indeed, in opposing the Debtors' equitable mootness motions
before the BAP, Prudential argued that its failure to separately
seek a stay of the § 506(b) order when it sought a stay of the
confirmation order should not weigh against a finding of equitable
mootness, agreeing with the Debtors that the two orders were
"inextricably intertwined" and "all part of a whole."
27
Given our conclusion as to the BAP's § 506(b) order, we need
not decide whether the contractual assignment of the City's voting
rights to Prudential in bankruptcy proceedings was valid.
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In these circumstances, we believe that the Supreme
Court's instruction that "the requirement of finality is to be
given a practical rather than a technical construction," Gillespie
v. U.S. Steel Corp., 379 U.S. 148, 152 (1964) (internal quotation
marks omitted), is best effectuated by exercising jurisdiction over
both of the BAP's orders. And, because the BAP's remand order was
premised entirely on its mistaken § 506(b) order, we vacate the
remand order.
III. Conclusion
For the foregoing reasons, we vacate the BAP's § 506(b)
and confirmation orders and remand to that tribunal with
instructions that it affirm the bankruptcy court's § 506(b) and
confirmation orders and remand the case there for further
proceedings consistent with this opinion. All parties shall bear
their own costs on appeal.
So ordered.
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