Central Bank and Real Estate Owned, L.L.C., an Iowa Limited Liability Company v. Timothy C. Hogan, as Trustee of the Liberty Bank Liquidating Trust Liberty Bank, F.S.B. Iowa State Bank First State Bank Farmers Savings Bank Farmers Trust & Savings Bank And First Community Bank

IN THE SUPREME COURT OF IOWA
No. 15–0995
Filed March 3, 2017
CENTRAL BANK and REAL ESTATE OWNED, L.L.C., an Iowa Limited
Liability Company,
Appellant,
vs.
TIMOTHY C. HOGAN, as Trustee of the Liberty Bank Liquidating Trust;
LIBERTY BANK, F.S.B.; IOWA STATE BANK; FIRST STATE BANK;
FARMERS SAVINGS BANK; FARMERS TRUST & SAVINGS BANK; and
FIRST COMMUNITY BANK,
Appellees.
Appeal from the Iowa District Court for Dickinson County, Carl
Petersen, Judge.
Bank appeals grant of summary judgment to appellees in an action
seeking a declaratory judgment that the bank had no obligations under
participation agreements entered into by the bank’s predecessor in
interest. AFFIRMED.
Nicholas J. Brown of Nick Brown, P.C., Storm Lake, for appellant.
Robin K. Carlson of Stinson Leonard Street L.L.P., Kansas City,
Missouri, and Scot Bauermeister of Fitzgibbons Law Firm, L.L.C.,
Estherville, for appellee Timothy C. Hogan.
Craig A. Knickrehm and Andrew R. Biehl of Walentine, O’Toole,
McQuillan & Gordon, L.L.P., Omaha, Nebraska, for appellee participant
banks.
2
APPEL, Justice.
In this case, we deal with the question of whether participation
agreements in connection with a loan transaction transferred security
interests in the underlying property or only a contractual right to the
proceeds from the originating bank. For the reasons expressed below, we
conclude that the participating agreements transferred security interests
in the underlying property to the participating banks and that those
security interests were perfected under article 9 of the Uniform
Commercial Code (U.C.C.).
I. Factual and Procedural Background.
Between 2008 and 2009, Liberty Bank made five loans to Iowa
Great Lakes Holding, L.L.C., the owner of real property known as “The
Inn at Okoboji” (The Inn). The Liberty Bank loan (the loan) was secured
by real and personal property associated with The Inn. Liberty Bank and
five other banks entered into participation agreements related to the
loan. Under the participation agreements, Liberty Bank maintained an
undivided 59.48% interest in the transaction, while the participating
banks held an undivided 40.52% interest.
Iowa Great Lakes Holding defaulted on the loan and the collateral
was voluntarily surrendered to Liberty Bank through a “Voluntary
Surrender Agreement” and an “Agreement for Alternative Nonjudicial
Foreclosure” pursuant to Iowa Code section 654.18 (2014), thereby
extinguishing the mortgage. After the surrender and foreclosure, Liberty
Bank and the participating banks entered into an agreement with a hotel
management company to operate The Inn. The proceeds of operations
were held in a segregated account with Liberty Bank with the
participating banks maintaining their pro rata interest in the proceeds.
3
On October 1, 2013, Liberty Bank and Central Bank entered into a
“Purchase and Assumption Agreement” (P&A Agreement). Under the
P&A Agreement, Central Bank acquired assets from Liberty Bank,
including “loans.” Under the P&A Agreement, the term “loans” was
broadly defined to include loans in which the borrower’s obligations had
been extinguished. The Great Lakes loans remained on the books of
Liberty Bank as nonledger loans.
At the time of closing of the P&A Agreement, Liberty Bank
conveyed The Inn to a Central Bank affiliated entity via quitclaim deed.
The language of the quitclaim deed indicated that it transferred only the
interests of Liberty Bank.
In 2014, Central Bank filed a declaratory action against the trustee
of Liberty Bank and the five participating banks. Central Bank sought a
ruling that it owned The Inn property free and clear of any interest of the
participating banks.
The trustee for Liberty Bank and the participating banks filed a
joint motion for summary judgment. They maintained that under the
participation agreements, Liberty Bank transferred to them an undivided
interest in the entire transaction, including the security interest of
Liberty Bank.
The district court agreed. According to the district court, the
participation agreements did not merely transfer the right to a share of
loan proceeds. Instead, according to the district court, the participation
agreements transferred “all legal and equitable title in its share of the
loan and collateral” to the participating banks. As a result, the district
court granted summary judgment to the trustee for Liberty Bank and the
participating banks, stating that it could not declare that Central Bank
4
owned the property in fee simple because Liberty Bank did not sell
Central Bank a one hundred percent interest in the property.
Central Bank appeals.
II. Standard of Review.
Generally our standard of review for declaratory actions is
determined by the nature of the action below. Lindsay v. Cottingham &
Butler Ins. Servs., Inc., 763 N.W.2d 568, 572 (Iowa 2009). When a
summary judgment is granted on a declaratory action, however, we
review for correction of errors at law because we are reviewing the
summary judgment ruling, not the declaratory judgment. Shelby Cty.
Cookers, L.L.C. v . Util. Consultants Int’l, Inc., 857 N.W.2d 186, 189 (Iowa
2014).
III. Discussion.
A. Introduction. Participation agreements have been around at
least since financiers successfully sought additional parties to participate
in a massive loan to the imperial Russian government in 1916—an
undertaking which, as events subsequently showed, was a poor
investment. Jeffrey D. Hutchins, What Exactly Is a Loan Participation, 9
Rutgers-Camden L.J. 447, 450 (1978) [hereinafter Hutchins]. Although
not limited to financial institutions, participation agreements have played
an important role in the banking sector of the American economy. See
Alan W. Armstrong, The Developing Law of Participation Agreements, 23
Bus. Law. 689, 689 (1968) [hereinafter Armstrong] (describing the rapid
development of participation agreements and their economic benefits);
Hutchins, 9 Rutgers-Camden L.J. at 447 (noting that loan participations
are “widely used throughout the financial community in recent years”).
The usual participation agreement involves a lead lender and
participating parties. Hutchins, 9 Rutgers-Camden L.J. at 448. The
5
transaction is documented by a participation agreement and a summary
page called a certificate of participation. Patrick J. Ledwidge, Loan
Participation Among Commercial Banks, 51 Tenn. L. Rev. 519, 521 (1984)
[hereinafter Ledwidge].
The participation agreement, of course, may contain a wide variety
of provisions agreed upon by the parties. Hutchins, 9 Rutgers-Camden
L.J. at 449. Under most participation agreements, however, the lead
lender is ordinarily responsible for originating the loan, but seeks to
share the financial obligations and benefits with other parties. Id. at
448. The lead lender ordinarily assumes responsibility for the servicing
of the loan. Id.
The reasons for loan participations are varied. Id. at 449. A bank
may seek third-party participation in a loan transaction to avoid
borrowing limits or to promote diversity in its loan portfolio. Ledwidge,
51 Tenn. L. Rev. at 521–22. Alternatively, a customer may prefer
involving multiple banks with whom it has relationships in a loan
transaction. Id. at 522.
This case involves an issue that has surfaced only relatively
recently—namely, what happens to the interests of participants when the
lead bank fails? In the distant past, financial institutions rarely failed
and thus the question was largely academic. See generally James W.
Brewer & Elaine Childress Lee, Bank Failure and the FDIC: A Survey of
Legal Rights and Relationships of the Client and the Insolvent Bank, 18
Tex. Tech L. Rev. 1193, 1193–94 (1987). Beginning with the failure of
financial institutions in the 1970s and 1980s, however, the question of
the status of participants in a loan transaction after the failure of the
lead bank has become a topic explored in a number of cases and in the
academic literature. See Kevin B. Fisher, Loan Participations and Bank
6
Failures: The Penn Square Decisions, 44 Sw. L.J. 753, 754–58 (1990)
[hereinafter Fisher].
In this case, the loan originated with Liberty Bank. The borrower
entered default and the collateral securing the loan, including real
property known as The Inn, was voluntarily surrendered to Liberty Bank.
After surrender of the property, Liberty Bank voluntarily dissolved and
was taken over by a trustee. The trustee then sold the surrendered
collateral associated with The Inn to Central Bank through a quitclaim
deed.
The question in this case was whether Central Bank owns the
entire property in fee simple as a result of its transaction with the
trustee. We begin our analysis by reviewing the terms of the various
agreements and documents in this case.
B. The Documentary Record.
1. The participation agreements. Liberty Bank entered into five
sets of documents related to its loan and the participation of additional
banks. Except for dates and names of the parties, the participation
documents are identical.
The preface to the participation agreement states that the
originating bank “hereby sells” and the participating bank “hereby
purchases” a “participation interest” in the loan. The loan “is more fully
described on attached Exhibit A.” Exhibit A is a one-page document
identifying the loan, providing details of the terms of the loan, and
describing the collateral supporting the loan. The collateral listed
includes a real estate mortgage on The Inn property and an “[a]ll
[i]nclusive” U.C.C. filing.
Paragraph 1 of the participation agreement is entitled “Purchase of
Participation” and generally describes what is being bought and sold.
7
Paragraph 1 provides that the originating bank is selling “a participation
interest as set forth on attached Exhibit A” to the participating bank.
Paragraph 3 of the participation agreement is entitled “Possession
and Control of Note and Collateral” and addresses issues related to the
security underlying the loan. Paragraph 3 provides the originating bank
“shall hold the Note and Loan Documents, in trust, for the undivided
interest of Participating Bank and other participating banks.”
Paragraph 3 addresses the issue of insolvency of the originating
bank. In the event that the originating bank becomes insolvent, or “any
other event which, pursuant to this Agreement, makes it legally
necessary for Participating Bank to obtain possession of, or legal title to,
the Note, Loan Documents, Loan file, or business records regarding the
Loan” in order to enforce the participating bank’s rights pursuant to the
agreement, the originating bank “shall surrender possession and legal
title shall revert to Participating Bank, regarding such documents and
records so held in trust by [the] Originating Bank for Participating Bank.”
Paragraph 9 of the participation agreement is entitled “Default”
and addresses the question of default of the borrower. In the event of a
default of the borrower,
the interests of the Originating and Participating Banks in
such Defaulted Loan and in any of the Security therefore
shall be deemed ratably concurrent and any payments
received thereafter from such Borrower or any other parties
to the Loan Documents executed in connection with such
Defaulted Loan or by liquidation of collateral, application of
deposits, or otherwise shall be applied in proportion to each
Bank’s then respective interest in the total amount of the
Defaulted Loan outstanding.
Paragraph 9 also addresses the issue of set-off. If the originating
bank or any participating bank receives more than a pro rata share of
the loan through an offset, the bank receiving the greater proportion
8
through the offset is required to make payments to the other participants
to equalize payments received to the pro rata share that each participant
bank is entitled to under the participation agreement.
2. The purchase and asset agreement. Under the P&A Agreement,
Central Bank purchased from Liberty Bank “the Management Company
Cash on Deposit.” The term “Management Company Cash on Deposit” is
defined to mean “Liberty Bank’s portion of the cash held by third party
management companies with respect to OREO [other real estate owned],
including The Inn at Okoboji.”
3. The quitclaim deed and bill of sale. Pursuant to the P&A
Agreement, Central Bank received a quitclaim deed with respect to The
Inn property from Liberty Bank. The quitclaim deed stated that Liberty
Bank transferred to Central Bank “all of its right, title, interest, estate,
claim, and demand” in various real property thereafter described,
including The Inn property. The bill of sale further states that Liberty
Bank conveys to Central Bank “all of its right, title and interest in and to
the Transferred Assets [including The Inn property].” An email dated
September 16, 2013, shows that Central Bank was aware of the
existence of the participating banks in connection with the loan in which
The Inn served as collateral.
C. Positions of the Parties. Central Bank asserts that this case
turns on the nature of the parties’ agreement. See Chase Manhattan
Bank, N.A. v. FDIC, 554 F. Supp. 251, 256 (W.D. Okla. 1983) (holding
that, under the express terms of the participation agreement, no security
interest in the collateral passed to the participating bank); First Bank of
WaKeeney v. Peoples State Bank, 758 P.2d 236, 238 (Kan. Ct. App. 1988)
(holding rights of participant banks stem from the express terms of the
participation agreement). Central Bank recognizes that a bank may sell
9
a participation in a loan that is either secured or unsecured. Central
Bank asserts that standard rules of contract interpretation should be
applied to the participation agreements in this case to answer this basic
question.
Central Bank asserts that using ordinary contract interpretation
principles, the participation agreements between Liberty Bank and the
five participating banks in this case were loan transactions that created a
debtor–creditor relationship. According to Central Bank, the
participating banks had no right to the underlying loan documents and
collateral, but only a contractual right against Liberty for payment.
Liberty Bank, according to Central Bank, did not contract away any
rights in the underlying collateral supporting the loan. Central Bank
notes that the participation agreements are “silent to granting a security
interest in and to the property, collateral, or underlying loan
documentation.” See Jefferson Sav. & Loan Ass’n v. Lifetime Sav. & Loan
Ass’n, 396 F.2d 21, 24 (9th Cir. 1968) (holding the sale of property by the
lead bank was valid and participating banks had the right to either the
proceeds of the sale or a claim against the trustee for violation of the
participation agreement); Ross v. First Sav. Bank of Arlington, 675 N.W.2d
812, 817 (Iowa 2004) (implying that participating banks did not have any
interest in and to the contracts between the lead bank and the
consumer); In re Receivership of Mt. Pleasant Bank & Trust Co., 526
N.W.2d 549, 556 (Iowa 1995) (stating “the participant banks were not
mere creditors of the receivership estate but were parties to contracts”
with the lead bank).
Further, Central Bank maintains that nothing in the participation
agreements created a fiduciary duty between Liberty Bank and the
participating banks. In support of its argument, Central Bank cites a
10
number of cases in which courts held that participation agreements did
not create fiduciary relationships. See Hibernia Nat’l Bank v. FDIC, 733
F.2d 1403, 1408 (10th Cir. 1984); N. Trust Co. v. FDIC, 619 F. Supp.
1340, 1345 (W.D. Okla. 1985); First Bank of WaKeeney, 758 P.2d at 240.
Central Bank suggests that the participating banks might have an
interest in the proceeds of the sale paid by Central Bank to Liberty Bank,
but have no claim against Central Bank. To the extent the participating
banks claim they have not been paid pursuant to their participation
agreements, their sole remedy is to look to Liberty Bank.
Further, Central Bank maintains that Liberty Bank transferred to
Central Bank fee simple interest in The Inn real estate under the P&A
Agreement. Central Bank notes that none of the participating banks had
filed a security interest in the property. Central Bank further states that
it did not assume any of Liberty Bank’s potential liabilities toward the
participating banks under the P&A Agreement.
Central Bank further asserts that the participating banks have no
perfected security interest in The Inn property to support the loan
obligation of Liberty Bank. In order for a security interest to attach,
there must be a security agreement. See Iowa Code § 554.9102(1)(bv).
Central Bank concedes that if the agreement between the parties creates
a security interest in the contract, then automatic perfection attaches
under Iowa Code section 554.9203(1). But, as indicated above, Central
Bank claims that the agreement creates no such security interest and, as
a result, no security interests attached.
Based on the above line of reasoning, Central Bank asserts that
the district court erred by failing to find that the language of the
participation agreements in this case created a security interest.
Instead, according to Central Bank, the district court simply assumed
11
that all participation agreements give rise to security interests in the
underlying collateral.
Central Bank further notes that no mortgage has ever been
recorded on the property in favor of the participating banks and, with
respect to personal property, there has been no U.C.C. filing. Instead,
the filed U.C.C. notice is the mortgage on the property that ran in favor of
Liberty Bank. Central Bank asserts that if the participating banks
wanted to perfect a security interest in the property, they should have
filed appropriate documents to give notice to the world of their claims.
Finally, Central Bank cites cases standing for the proposition that
a security interest in a promissory note can be perfected only by
possession. See In re Reeves, 65 F.3d 670, 674 (8th Cir. 1995) (holding
under Arkansas law); McIlroy Bank v. First Nat’l Bank of Fayetteville, 480
S.W.2d 127, 128 (Ark. 1972).
The trustee of Liberty Bank and the participating banks counter
that, under the participation agreements, the participating banks
obtained an undivided fractional interest not simply in the loan proceeds
but in the collateral as well. While Central Bank sees the transaction
merely as a loan of funds from the participating banks to Liberty, the
trustee and the participating banks see the transaction as involving the
sale, or partial assignment, of ownership interest in the loan and the
underlying collateral.
The trustee and participating banks emphasize three aspects of the
participation agreements to support their argument that the transaction
involved the sale of an undivided interest in the loan, including the
collateral. First, they stress language in the participation agreements
which provides that the lead bank “shall hold the Note and Loan
Documents, in trust, for the undivided interest of Participating Bank and
12
other participating banks.” Second, they note the participation
agreements provide that in the event of default of the underlying
borrower,
the interests of the Originating and Participating Banks in
such Defaulted Loan and in any of the Security therefore
shall be deemed ratably concurrent and any payments
received thereafter . . . shall be applied in proportion to each
Bank’s respective interest in the total amount of the
Defaulted Loan outstanding.
Finally, Exhibit A to the participation agreements includes a description
of the loan, including the underlying collateral.
In support of their argument, the trustee and the participating
banks cite Asset Restructuring Fund, L.P. v. Liberty National Bank &
Resolution Trust Corp., 886 S.W.2d 548 (Tex. App. 1994). In Asset
Restructuring, the Texas appellate court adopted the view that a
participation is “a complete transfer of ownership interest in the loan and
collateral to the participant.” Id. at 552 (quoting Bradford Anderson,
Loan Participations and the Borrower’s Bankruptcy, 64 Am. Bankr. L.J.
39, 40 (1990) [hereinafter Anderson]).
They argue that when the borrower voluntarily surrendered The
Inn property to Liberty Bank, the participating banks had an undivided
fractional interest in the real estate. They note that when Liberty Bank
sold its interest in The Inn, it did so with a quitclaim deed. By using a
quitclaim deed, the trustee and the participating banks argue that
Liberty Bank transferred only its fractional interest in The Inn to Central
Bank. According to the trustee and participating banks, a buyer of a
quitclaim deed takes the transferred interest subject to outstanding
equities, about which the buyer is assumed to have notice. See
Raymond v. Morrison, 59 Iowa 371, 373, 13 N.W. 332, 333 (1882)
(holding grantee in quitclaim deed takes grantor’s interest only, no
13
protection from interests of which the grantee had no notice), overruled
on other grounds by Young v. Hamilton, 213 Iowa 1163, 1173, 240 N.W.
705, 710 (1932). Thus, according to the trustee and the participating
banks, Central Bank does not own The Inn property in fee simple, but
instead the ownership is divided between Central Bank as successor to
Liberty Bank’s approximately fifty-nine percent interest and the
participating banks.
The trustee and participating banks also argue that the interest of
the participating banks in The Inn is a perfected interest under the
U.C.C. The trustee and participating banks present the argument in
several steps.
The first question is whether the participation agreements amount
to a “security agreement” under the U.C.C. According to the trustee and
participating banks, a “security agreement” means an agreement that
creates or provides for a “security interest.” Iowa Code § 554.9102(1)(bv).
The trustee and participating banks assert that a “security interest”
includes any interest of a buyer in “a payment intangible, or a
promissory note in a transaction that is subject to Article 9.” Id.
§ 554.1201(2)(ai).
The trustee and participating banks argue that the participation
agreements in this case involve a “payment intangible.” Under Iowa Code
section 554.9102(1)(bi), a “payment intangible” is defined as “a general
intangible under which the account debtor’s principle obligation is a
monetary obligation.” The trustee and participating banks point out that
under Official Comment 5 to U.C.C. section 9–109, a payment intangible
includes a participation interest in a bank loan. See U.C.C. § 9–109
official cmt. 5, 3 U.L.A. 142 (Am. Law Inst. & Unif. Law Comm’n 2000).
14
The trustee and participating banks next consider when a security
interest in the payment intangibles attaches. Under Iowa Code section
554.9203(1), the trustee and participating banks argue, “[a] security
interest attaches to collateral when it becomes enforceable against the
debtor with respect to that collateral.” The term debtor means “a seller of
. . . payment intangibles.” Iowa Code § 554.9102(1)(ab)(2).
Further, the trustee and participating banks assert that when a
security interest attaches to a right of payment there is an automatic
attachment in any security interest that secures the right of payment.
See id. § 554.9203(7). Thus, the trustee and participating banks argue
that once a security interest attaches to the right to payment, it also
includes a security interest in the underlying collateral. Further, the
trustee and participating banks note that when the debtor has sold a
payment intangible, the debtor does not retain legal or equitable interest
in the collateral sold. See id. § 554.9318(1).
Finally, on the question of perfection, the trustee and participating
banks assert that the interest of a buyer of a payment intangible is
automatically perfected. See id. § 554.9309(3). And, perfection in a
security interest in a right to payment also perfects a security interest in
any real or personal property securing the right of payment. See id.
§ 554.9308(5). Further, according to the trustee and participating
banks, a holder of a payment intangible has a perfected security interest
in the proceeds of a payment intangible. See id. § 554.9315(3). Under
the U.C.C., “proceeds” is defined as “whatever is collected on, or
distributed on account of, collateral.” Id. § 554.9012(1)(bl)(2). Thus,
when Liberty Bank received the surrendered property, namely, The Inn,
the surrendered property amounted to proceeds of the loan in which the
participating banks had a perfected security interest.
15
D. Overview of the Developing Law Related to Participation
Agreements. Historically, participation agreements have not always
been subject to careful drafting, in part because the risk of default by a
bank or other financial institution was thought to be very small. David
B. Simpson, Loan Participations: Pitfalls For Participants, 31 Bus. Law.
1977, 1983 (1976) [hereinafter Simpson]. Events in the latter decades of
the twentieth century undermined this assumption, and a body of
caselaw and academic literature developed around various legal issues
associated with participations. See generally, e.g., Anderson, 64 Am.
Bankr. L.J. at 39; Armstrong, 23 Bus. Law. at 689; Fisher, 44 Sw. L.J. at
753; Hutchins, 9 Rutgers-Camden L.J. at 447; Ledwidge, 51 Tenn. L.
Rev. at 519; Simpson, 31 Bus. Law. at 1977; Debora L. Threedy, Loan
Participations—Sales or Loans? Or Is That the Question?, 68 Or. L. Rev.
649 (1989).
The leading authorities find that the characterization of a
participation agreement is critical to the legal consequences that flow
from it. See, e.g., Fisher, 44 Sw. L.J. at 768–79; Simpson, 31 Bus. Law.
at 2022; Richard E. Weiner, Rights of a Participant Bank Against a Lead
Bank in a Participation Loan Agreement, 104 Banking L.J. 529, 530
(1987) [hereinafter Weiner]. If the interest conveyed in a participation
agreement is regarded as a sale or assignment of a fractional interest in
the underlying loan, then the participant is deemed to “own” a portion of
the loan and acquire by assignment all rights associated with the loan.
Fisher, 44 Sw. L.J. at 769; Simpson, 31 Bus. Law. at 2022; Weiner, 104
Banking L.J. at 530. When the lead bank sells an ownership but
maintains possession of the underlying note and loan documentation,
the parties often state that the documents are held “in trust” by the lead
16
bank for the benefit of the participating banks. Simpson, 31 Bus. Law.
at 1992–95.
An ownership interest generally improves the position of the
participant in the event of failure of the originating bank because, as a
pro rata owner, the participating bank is not a mere general creditor
standing in line for its often paltry share of the insufficient assets of the
failed institution but actually owns an interest in the underlying assets.
Hutchins, 9 Rutgers-Camden L.J. at 459–60; Fisher, 44 Sw. L.J. at 768–
69.
On the other hand, if the participation agreement merely creates a
debtor–creditor relationship between the originating bank and the
participating bank, the participating bank has no ownership interest in
the rights of the originating bank in underlying collateral. Hutchins, 9
Rutgers-Camden L.J. at 458–59. If the participant is merely a creditor of
the originating bank, the participant must have a security interest in the
underlying collateral or will be reduced to a general creditor of the
originating bank in any bankruptcy or liquidation proceeding. Id.
Participation agreements, of course, come in all kinds of shapes
and sizes. And, assuming the validity of the sale versus loan distinction,
it is not always easy to make the call with respect to a particular
participation agreement. See Jason H. P. Kravitt et al., Securitization
Financial Assets § 5.03 (3d ed. Supp. 2017), Westlaw SFINA (referring to
a need “to temper one’s expectation for guidance” in the cases)
[hereinafter Kravitt]; Hutchins, 9 Rutgers-Camden L.J. at 458 (“[N]ot an
easy task.”); Simpson, 31 Bus. Law. at 1981 (“[T]he line between the two
relationships is often indistinct.”).
In determining whether a participation creates an ownership
interest or a debtor–creditor relationship, some courts tend to give
17
presumptive weight to the intent of the parties, while others seek to
divine the “true” nature of the transaction. Kravitt, § 5.03. The intent of
the parties may not always be determinative. For example, the parties
may declare that a “sale” has occurred, but then cloud the issue with
provisions such as a “put” or guaranteed buy-back that minimizing the
risk to the participating bank and makes the underlying nature of the
transaction look like a loan rather than a purchase. Simpson, 31 Bus.
Law. at 1981–82. Other provisions that minimize or lessen the risk to
participating banks include payment of interest by the lead bank when
the borrower has not paid or the payment of higher interest rates to the
participating bank than to the lead bank. Alan W. Armstrong, The
Evolving Law of Participations, R175 ALI-ABA 255, 263 (1992). Although
attempts to recharacterize a loan as a sale may be relatively rare,
experience shows that creatively labeling a goose as a duck may not
always work. See In re S.O.A.W. Enters., Inc., 32 B.R. 279, 282 (Bankr.
W.D. Tex. 1983) (finding significant rate differential to be indicative of a
loan rather than a sale); Bernard v. Fireside Commercial Life Ins. Co., 633
So. 2d 177, 188 (La. Ct. App. 1994) (holding participation agreement with
buy-back provision a loan); see also Hutchins, 9 Rutgers-Camden L.J. at
474 (stating “the theory that a participation creates a debt from the lead
to the participant should be restricted to those rare cases in which the
lead has guaranteed payment to the participant and the terms of the
participation differ significantly from the terms of the loan made by the
lead” (footnote omitted)).
That said, there are a number of factors that are often considered
in determining whether a participation agreement amounts to a sale of
an undivided interest in the total loan package or merely establishes a
debtor–creditor relationship. The words “sale,” “transfer,” and
18
“assignment” are often associated with a sale. Wiener, 104 Banking L.J.
at 529–30. Use of the phrase “undivided fractional interest” suggests an
obligation on the part of the originating bank to monitor the loan in the
best interest of the participants and suggests a sale. See Anderson, 64
Am. Bankr. L.J. at 40 n.5 (citing language such as the lead bank
“assigned, transferred, and conveyed” an “undivided fractional interest”
as creating a “partial assignment”); W.H. Knight, Jr., Loan Participation
Agreements: Catching Up with Contract Law, 1987 Colum. Bus. L. Rev.
587, 613 (1987) [hereinafter Knight] (“Thus, the agreement’s fractional
interest language in essence evidences an intention that the participant
receive a partial assignment of the lead’s interest in the underlying
loan.”).
In addition, use of the word “trust” tends to cut against a mere
debtor–creditor relationship in a participation agreement. Trust
language in a participation agreement may obligate the originating bank
to hold the debt, the security instruments, and all payments in trust for
the participant. Fisher, 44 Sw. L.J. at 774–76; Ledwidge, 51 Tenn. L.
Rev. at 526–27. In cases involving a failed originating institution, when
possession of property is impressed with a trust, the trustee in
bankruptcy holds such property subject to the outstanding interests of
the beneficiaries. 2 Michael T. Madison, et al., Law of Real Estate
Financing § 11.27, Westlaw (Nov. 2016 update) [hereinafter Madison];
Weiner, 104 Banking L.J. at 531.
There is a body of caselaw illustrating the above concepts.
According to one commentator, a majority of cases have characterized a
participation as “a complete transfer of ownership interest in the loan
and collateral to the participant.” Anderson, 64 Am. Bankr. L.J. at 40,
42–43. For example, in Asset Restructuring Fund, the Texas appellate
19
court concluded that it would follow the majority rule that “the
participant has an ownership or trust interest in the loan and underlying
collateral, not just in the collections from the loan.” 886 S.W.2d at 552.
Similarly, in In re Drexel Burnham Lambert Group, Inc., the court
declared,
The lead bank, by participating the loan, assigns, transfers,
and conveys an undivided percentage ownership interest in
the collateral for the participated loan to the participant. . . .
Accordingly, the loan participants are entitled to their shares
as beneficiaries of a trust.
113 B.R. 830, 843 (Bankr. S.D.N.Y. 1990). Similar observations appear
in other cases and commentaries. See Jefferson Sav. & Loan Ass’n, 396
F.2d at 24 (holding participant was “cotenant” with lead bank and “the
beneficiary of the trust”); see also Mark E. MacDonald, Loan
Participations as Enforceable Property Rights in Bankruptcy—A Reply to
the Trustee’s Attack, 53 Am. Bankr. L.J. 35, 39–41 & n.13 (1979)
[hereinafter MacDonald] (noting “[a] partial assignment of a note and
mortgage makes the participant a tenant in common of the mortgage
security”); Simpson, 31 Bus. Law. at 1977 (“Where a loan is collateralized
by real estate . . . , the participation will normally include the transfer of
an undivided interest in the underlying collateral.”).
There is some caselaw that seems at least somewhat to the
contrary. For instance, in In re Alda Commercial Corp., the district court
considered whether an interest in property was transferred by a
participation agreement when the participant received an undivided
fractional interest in the loans. 327 F. Supp. 1315, 1316 (S.D.N.Y.
1971). The district court held that because the participant did not share
in the lead’s profits, played no role in the initial determination to make
the loan, and did not manage the accounts or have any say as to security
20
and collection, the participant was not entitled to preferential treatment
in the lead’s bankruptcy on the ground that the lead was serving as its
agent or trustee. Id. at 1317–18. Notably, however, the participation
agreement did not include any “in trust”-type language. 1
A frequently cited case supporting the view that a trust
relationship negates the finding of a debtor–creditor relationship is
Stratford Financial Corp. v. Finex Corp., 367 F.2d 569 (2d Cir. 1996). In
this case, the parties stated in their participation agreement that the
borrower’s notes were to be held by the lead “in trust” for the benefit of
the purchaser of the participation. Id. at 571. The Stratford court held
that when there was trust language, and the proceeds were identifiable
and not comingled with the seller’s, the purchaser was entitled to its
share of the proceeds. Id. 2
In order to introduce a degree of clarity, the literature contains a
host of drafting recommendations. One expert urges use of Stratford-
type “in trust” language as a planning device. See Ledwidge, 51 Tenn. L.
Rev. at 527. Another has developed a sample loan participation sale and
trust agreement containing the magic words the commentator finds
helpful. See Michael T. Skindell, Lead Lender Failure and the Pitfalls for
the Unwitting Participant, 42 Sw. L.J. 1071, 1100 (1989). Yet another
1In the literature, the leading commentators advocating the approach of In re
Alda Commercial Corp. are W. Homer Drake, Jr. and Kyle R. Weems. See W. Homer
Drake, Jr. & Kyle R. Weems, Mortgage Loan Participations: The Trustee’s Attack, 52 Am.
Bankr. L.J. 23, 35–36 (1978). For a response, see MacDonald, 53 Am. Bankr. L.J. at
35.
2No “in trust” language was utilized in the participation agreements in Federal
Deposit Insurance Corp. v. Mademoiselle of California, 379 F.2d 660 (9th Cir. 1967) or
Chase Manhattan Bank, N.A., 554 F. Supp. 251. In these cases, the courts held that
participants were not entitled to preferred pro rata payment of offset deposits. The
result in these cases has been questioned. See Ledwidge, 51 Tenn. L. Rev. at 526. In
any event, this case does not involve a right of set-off.
21
has declared that a participation agreement “should always convey to the
participant an undivided ownership interest in the loan, loan documents
and collateral, using typical language of purchase and sale.” Marvin
Rau, Beyond the Handshake and a Prayer: Documenting the Modern Loan
Participation, 59-Jun. J. Kan. B. Ass’n 19, 20 (1990); see also 2 Madison,
§ 11.4 (“Since the lead is the only publically secured party . . . , the
participants should require language in the agreement that the
participants will become the owners of undivided fractional interest in all
notes and underlying mortgage collateral to be held by the lead . . . in
trust for the participants and the lead shall act as a trustee with
fiduciary duties toward the participants.”). As a general proposition,
participants wishing to ensure that their interest is treated as an
ownership interest and not a mere loan should use the language of
ownership, undivided fractional interest, and trust, and avoid risk
dilution devices that might persuade a court that true ownership is not
present.
E. Iowa Law Related to Participation Agreements and
Quitclaim Deeds.
1. Participation agreements. We have only a few occasions to
consider the nature of a participating bank’s interest in a participation
agreement. In Ross, we considered whether a district court in Iowa had
personal jurisdiction over a nonresident participating bank. 675 N.W.2d
at 814. In considering this question, we noted that although the
participation agreement had some elements of an assignment, “it falls
well short of the traditional concept of an assignment because it merely
involves the transfer of a portion of an intangible right.” Id. at 817. We
further noted that the participation agreement did not give the bank
control over the collection of the loan. Id. We further emphasized that
22
the participant had no relationship with the underlying borrower. Id.
We thus concluded that a mere participant cannot be hauled into an
Iowa court without more to establish an adequate nexus to the forum
jurisdiction. Id. at 818.
A second case is In re Receivership of Mt. Pleasant Bank & Trust
Co., 526 N.W.2d 549. In that case, we held the district court properly
paid participating banks their pro rata share of loan proceeds. Id. at
556. We held the participating banks were not general creditors of the
borrower but instead had an ownership interest in the collateral. Id.
2. Quitclaim deeds. We have considered the scope of legal
interests conveyed by quitclaim deeds in a number of contexts. Over a
century ago, we held that a grantee who takes real estate by a quitclaim
deed cannot be regarded as a good-faith purchaser and is not entitled to
protection as against prior equities of which he had no notice. Raymond,
59 Iowa at 373, 13 N.W. at 333. We have further stated that the grantee
of a quitclaim deed is “conclusively presumed to have knowledge of all
prior equities” and therefore is not entitled to protection of the recording
statutes. Duntz v. Ames Cemetery Ass’n, 192 Iowa 1341, 1345, 186 N.W.
443, 445 (1922); see also Brenton Bros. v. Bissell, 214 Iowa 175, 183,
239 N.W. 14, 18 (1931).
F. Analysis of Participation Agreements in This Case. We now
turn to consider the central questions posed in this case. We adopt the
view of the majority of cases and commentators that a threshold question
in cases involving an insolvent lead bank is determining whether the
participation interests involved a sale of undivided ownership interests in
the entire loan or whether the participation agreements merely
established a debtor–creditor relationship.
23
We conclude the participation agreements in this case involved the
sale of an undivided ownership interest in the entire loan. The
participation agreements in this case do not have the kind of explicit
language recommended by some of the commentators. Yet, there are a
number of key markers.
First, the participation agreements state that the originating bank
“hereby sells to the Participating Bank and the Participating Bank hereby
purchases from the Originating Bank a participation interest.” (Emphasis
added.) The use of the terminology of a sale suggests that the
participating bank is not making a loan to the originating bank, but is
buying an ownership interest in the underlying loan. See Asset
Restructuring Fund, 886 S.W.2d at 553 (noting agreement clearly states
that participant “agreed to purchase” a participation in the loan).
Additionally, the participation agreement states that the
originating bank shall “hold the Note and Loan documents, in trust, for
the undivided interest of Participating Bank and other participating
banks.” Holding the note and loan documents in trust is not a
characteristic of a typical loan agreement and has generally been thought
to be a talisman of a sale of an ownership interest. Franklin v. Comp’r,
683 F.2d 125, 128 (5th Cir. 1982); Jefferson Sav. & Loan Ass’n, 396 F.2d
at 24; Stratford, 367 F.2d at 570–71.
Further, the participation agreements provide that the participant
holds an “undivided interest” in the documents held in trust, thereby
reinforcing the notion that the participating banks are not loaning funds
to the lead bank, but instead are co-owners of the entire loan, including
the underlying collateral. See In re Drexel Burnham Lambert, 113 B.R. at
843; Knight, 1987 Colum. Bus. L. Rev. at 613.
24
The fact that the participating banks have an ownership interest in
the underlying collateral is indicated by the default provision of the
participation agreements, which emphasizes in the event of default, the
participating banks shall ratably share in “any of the Security” of the
loan.
We also note there are no disqualifying provisions in the
participation agreement that suggest an effort to mitigate the risk of
ownership. There is no buy-back provision, no marked difference in
interest rates or other terms affecting the risk of a participant. See In re
S.O.A.W. Enters., 32 B.R. at 282; Bernard, 633 So. 2d at 188.
If the participating banks have an undivided ownership interest in
the loan and the collateral, then Liberty Bank only owned a fifty-nine
percent interest in The Inn after it was surrendered to the bank. The
remaining forty-one percent ownership interest rested with the
participating banks. When Liberty Bank sold its interest in The Inn to
Central Bank, it transferred the property through a quitclaim deed. As
has been clearly established above, purchasers of a quitclaim deed take
the property subject to all outstanding equities. In short, Liberty Bank
sold only its interest in The Inn—specifically, its fifty-nine percent
interest. The participating banks continue to own their forty-one percent
undivided interest purchased through the participating agreements.
Because Central Bank received only a quitclaim deed from the trustee of
Liberty Bank, it took the property subject to all outstanding equities,
including those of the participating banks. 3
3CentralBank does not claim to be a bona fide purchaser of a warranty deed
from Liberty Bank. As indicated above, Central Bank received only a quitclaim deed
from Liberty Bank. Further, Central Bank was aware there were participating banks in
connection with Liberty Bank’s loan collateralization by The Inn prior to receiving the
quitclaim deed as part of the P&A Agreement. By taking a quitclaim deed with
25
In light of our conclusion regarding the limited ownership interest
transferred by the quitclaim deed, we need not address the question of
whether the participating banks had a “perfected” security interest in the
real estate arising out of the participation agreements. We only hold that
the ownership interest of the participating banks in the mortgage and
underlying collateral is superior to Central Bank, which claims its
interest is derivative of and limited to the interest held by Liberty Bank.
IV. Conclusion.
For the above reasons, the ruling of the district court dismissing
the declaratory judgment action brought by Central Bank is affirmed.
AFFIRMED.
___________________________
knowledge that Liberty had procured participants in the loan, Central Bank cannot
claim protection of real estate recording statutes.