General Growth Update II: Bankruptcy Court Issues Significant Ruling Allowing SPE Debtors to Remain in Bankruptcy
By Derek E. Smith, Gregory E. Spitzer and Bradley V. Ritter
In a significant ruling addressing the issue of when a company may file a bankruptcy petition, the United States Bankruptcy Court for the Southern District of New York on August 11, 2009 denied the motions to dismiss the bankruptcies of certain financially solvent subsidiaries of General Growth Properties, Inc. (GGP and, together with all of its subsidiaries and affiliates, the GGP Group). GGP, one of the largest shopping mall owners and managers in the country, filed a voluntary bankruptcy petition on April 16, 2009. The bankruptcy petition included approximately half of GGPs subsidiaries, many of which were financially healthy special purpose entities (SPEs). Like so many other companies that relied heavily on secured lending, including debt issued in the commercial mortgage-backed securities (CMBS) market, GGP became unable to refinance its heavy debt-load. The courts memorandum of opinion was in response to five motions to dismiss that challenged the propriety of the bankruptcy filings as to several subsidiaries of GGP (the SPE Debtors). One motion was filed by ING Clarion Capital Loan Services LLC (ING Clarion), as special servicer to certain secured lenders, another was filed by Helios AMC, LLC (Helios), as special servicer to other secured lenders, and three other motions to dismiss were filed by Metropolitan Life Insurance Company (Metlife and, together with ING Clarion and Helios, the Lenders). All five Lenders advanced a substantially similar argument that the bankruptcy petitions of the SPE Debtors were filed in bad faith.