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Law360 Guest Column: Can Secured Creditors Credit Bid In Ch. 11 Plans?
Lawrence Mittman, John D. Penn
The issue is whether a Chapter 11 plan can be crammed down over the secured lender’s objection where the plan provides for the sale or transfer of the secured lender’s collateral with the proceeds going to the secured lender without the secured lender having the right to credit bid for its collateral up to the full amount of its claim.
The answer to this critical question is split among the circuit courts of appeal that most recently considered the issue. Two circuit courts, including the one that hears appeals from the popular Delaware Bankruptcy Court, have denied secured lenders the right to credit bid when their borrowers-debtors’ proposed to sell or transfer real estate as part and parcel of their Chapter 11 plans and force the secured lender to take the proceeds of sale as the “ indubitable equivalent” of its claim. One circuit court, more recently, however, recognized the secured lender’s right to always be able to credit bid in a plan context involving the sale or transfer of its collateral.
The U.S. Supreme Court decided to step in and resolve this split among the circuits in an appeal due to be decided in 2012.Excerpt from Law360, Feb. 8, 2012. To view the full article, click here (subscription required).