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Fifth Circuit Decision May Reignite Debate On Artificial Impairment In Engineering A Cramdown Plan Of Reorganization

March 06, 2013

By Luc A. Despins

Imagine this scenario: A real estate holding company in chapter 11 owes its secured lender approximately $32.1 million on a project with a value estimated at $34 million. The equity owners are willing to inject additional capital to keep the project, but the secured lender wants to foreclose. The holding company proposes a plan of reorganization in which the secured lender receives a new note for the full amount if its debt, and a class of unsecured trade creditors holding approximately $60,000 in pre-petition debt receives payment in cash of the face amount of that debt over three months but does not receive post-petition interest on that debt, an amount that would have equaled just $900 in the aggregate. The unsecured creditors (unsurprisingly) vote in favor of the plan, while the secured creditor votes to reject it. Did the plan proponent artificially impair the unsecured creditors in order to obtain a consenting class of impaired creditors so that it could cram down the plan on the secured lender, such that confirmation should be denied? That was the issue faced recently by the Fifth Circuit Court of Appeals in Western Real Estate Equities, L.L.C., v. Village at Camp Bowie I, L.P. The Fifth Circuit affirmed confirmation, endorsing a literal application of section 1129(a)(10) and refusing to examine the plan proponents motives. This decision may reignite a debate among the various circuits regarding whether the acceptance of a reorganization plan by an artificially impaired class of creditors will satisfy section 1129(a)(10)s requirement that at least one class of impaired claims accepts a plan.

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