United
Savings Ass'n v. Timbers of Inwood Forest Associates, 484 U.S. 365 (1988)
Justice SCALIA delivered the opinion of
the Court.
Petitioner United Savings Association of Texas seeks
review of an en banc decision of the United States Court of Appeals for the
Fifth Circuit, holding that petitioner was not entitled to receive from
respondent debtor, which is undergoing reorganization in bankruptcy, monthly
payments for the use value of the loan collateral which the bankruptcy stay
prevented it from possessing. In re Timbers of Inwood Forest Associates,
Ltd., 808 F.2d 363 (1987). We granted certiorari, 481 U.S. 1068, 107 S.Ct.
2459, 95 L.Ed.2d 868 (1987), to resolve a conflict in the Courts of Appeals
regarding application of §§ 361 and 362(d)(1) of the Bankruptcy Code, 11 U.S.C.
§§ 361 and 362(d)(1) (1982 ed. and Supp. IV). Compare Grundy Nat. Bank v.
Tandem Mining Corp., 754 F.2d 1436, 1440-1441 (CA4 1985); In re American
Mariner Industries, Inc., 734 F.2d 426, 432-435 (CA9 1984); see also In
re Briggs Transp. Co., 780 F.2d 1339, 1348-1351 (CA8 1985).
I
On June 29, 1982, respondent Timbers of
Inwood Forest Associates, Ltd., executed a note in the principal amount of
$4,100,000. Petitioner is the holder of the note as well as of a security
interest created the same day in an apartment project owned by respondent in
Houston, Texas. The security interest included an assignment of rents from the
project. On March 4, 1985, respondent filed a voluntary petition under Chapter
11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. (1982 ed. and Supp.
IV), in the United States Bankruptcy Court for the Southern District of Texas.
On March 18, 1985, petitioner moved for relief from
the automatic stay of enforcement of liens triggered by the petition, see 11
U.S.C. § 362(a), on the ground that there was lack of "adequate
protection" of its interest within the meaning of 11 U.S.C. § 362(d)(1).
At a hearing before the Bankruptcy Court, it was established that respondent
owed petitioner $4,366,388.77, and evidence was presented that the value of the
collateral was somewhere between $2,650,000 and $4,250,000. The collateral was
appreciating in value, but only very slightly. It was therefore undisputed that
petitioner was an undersecured creditor. Respondent had agreed to pay petitioner
the postpetition rents from the apartment project (covered by the
after-acquired property clause in the security agreement), minus operating
expenses. Petitioner contended, however, that it was entitled to additional
compensation. The Bankruptcy Court agreed and on April 19, 1985, it conditioned
continuance of the stay on monthly payments by respondent, at the market rate
of 12% per annum, on the estimated amount realizable on foreclosure,
$4,250,000--commencing six months after the filing of the bankruptcy petition,
to reflect the normal foreclosure delays. In re Bear Creek Ministorage,
Inc., 49 B.R. 454 (1985) (editorial revision of earlier decision). The
court held that the postpetition rents could be applied to these payments. See id.,
at 460. Respondent appealed to the District Court and petitioner cross-appealed
on the amount of the adequate protection payments. The District Court affirmed
but the Fifth Circuit en banc reversed.
We granted certiorari to determine whether
undersecured creditors are entitled to compensation under 11 U.S.C. § 362(d)(1)
for the delay caused by the automatic stay in foreclosing on their collateral.
II
[The Court’s discussion of BRA § 362(d)
and relief from the stay is omitted.]
The phrase "adequate
protection" in paragraph (1) of the foregoing provision is given further
content by § 361 of the Code, which reads in relevant part as follows:
"When adequate protection is required under
section 362 ... of this title of an interest of an entity in property, such
adequate protection may be provided by--
"(1) requiring the trustee to make a cash
payment or periodic cash payments to such entity, to the extent that the stay
under section 362 of this title ... results in a decrease in the value of such
entity's interest in such property;
"(2) providing to such entity an additional or
replacement lien to the extent that such stay ... results in a decrease in the
value of such entity's interest in such property; or
"(3) granting such other relief ... as will
result in the realization by such entity of the indubitable equivalent of such
entity's interest in such property."
It is common ground that the "interest in
property" referred to by § 362(d)(1) includes the right of a secured
creditor to have the security applied in payment of the debt upon completion of
the reorganization; and that that interest is not adequately protected if the
security is depreciating during the term of the stay. Thus, it is agreed that
if the apartment project in this case had been declining in value petitioner
would have been entitled, under § 362(d)(1), to cash payments or additional
security in the amount of the decline, as § 361 describes.
The crux of the present dispute is that
petitioner asserts, and respondent denies, that the phrase "interest in
property" also includes the secured party's right (suspended by the stay)
to take immediate possession of the defaulted security, and apply it in payment
of the debt. If that right is embraced by the term, it is obviously not
adequately protected unless the secured party is reimbursed for the use of the
proceeds he is deprived of during the term of the stay.
The term "interest in property" certainly
summons up such concepts as "fee ownership," "life estate,"
"co-ownership," and "security interest" more readily than
it does the notion of "right to immediate foreclosure." Nonetheless,
viewed in the isolated context of § 362(d)(1), the phrase could reasonably be
given the meaning petitioner asserts. Statutory construction, however, is a
holistic endeavor. A provision that may seem ambiguous in isolation is often
clarified by the remainder of the statutory scheme--because the same
terminology is used elsewhere in a context that makes its meaning clear, see, e.g.,
Sorenson v. Secretary of Treasury, 475 U.S. 851, 860, 106 S.Ct. 1600, 1606,
89 L.Ed.2d 855 (1986), or because only one of the permissible meanings produces
a substantive effect that is compatible with the rest of the law, see, e.g.,
[citations omitted.] That is the case here. Section 362(d)(1) is only one
of a series of provisions in the Bankruptcy Code dealing with the rights of
secured creditors. The language in those other provisions, and the substantive
dispositions that they effect, persuade us that the "interest in
property" protected by § 362(d)(1) does not include a secured party's
right to immediate foreclosure.
Section 506 of the Code defines the amount of the
secured creditor's allowed secured claim and the conditions of his receiving
postpetition interest. In relevant part it reads as follows:
"(a) 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, ... and is an unsecured claim to the extent that the value of
such creditor's interest ... is less than the amount of such allowed claim....
"(b) To the extent that an allowed secured claim
is secured by property the value of which ... 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 under which such claim arose."
In subsection (a) of this provision the creditor's
"interest in property" obviously means his security interest without
taking account of his right to immediate possession of the collateral on
default. If the latter were included, the "value of such creditor's
interest" would increase, and the proportions of the claim that are secured
and unsecured would alter, as the stay continues--since the value of the
entitlement to use the collateral from the date of bankruptcy would rise with
the passage of time. No one suggests this was intended. The phrase "value
of such creditor's interest" in § 506(a) means "the value of the
collateral." [Citations omitted.]
We think the phrase "value of such entity's interest" in § 361(1) and
(2), when applied to secured creditors, means the same.
Even more important for our purposes than § 506's use
of terminology is its substantive effect of denying undersecured creditors
postpetition interest on their claims--just as it denies over secured
creditors postpetition interest to the extent that such interest, when added to
the principal amount of the claim, will exceed the value of the collateral.
Section 506(b) provides that "[t]o the extent that an allowed
secured claim is secured by property the value of which ... is greater than the
amount of such claim, there shall be allowed to the holder of such claim,
interest on such claim." (Emphasis added.) Since this provision permits
postpetition interest to be paid only out of the "security cushion,"
the undersecured creditor, who has no such cushion, falls within the general
rule disallowing postpetition interest. See 11 U.S.C. § 502(b)(2). If the Code
had meant to give the undersecured creditor, who is thus denied interest on his
claim, interest on the value of his collateral, surely this is
where that disposition would have been set forth, and not obscured within the
"adequate protection" provision of § 362(d)(1). Instead of the
intricate phraseology set forth above, § 506(b) would simply have said that the
secured creditor is entitled to interest "on his allowed claim, or on the
value of the property securing his allowed claim, whichever is lesser."
Petitioner's interpretation of § 362(d)(1) must be regarded as contradicting
the carefully drawn disposition of § 506(b).
Petitioner seeks to avoid this conclusion by
characterizing § 506(b) as merely an alternative method for compensating
oversecured creditors, which does not imply that no compensation is available
to undersecured creditors. This theory of duplicate protection for oversecured
creditors is implausible even in the abstract, but even more so in light of the
historical principles of bankruptcy law. Section 506(b)'s denial of
postpetition interest to undersecured creditors merely codified pre-Code
bankruptcy law, in which that denial was part of the conscious allocation of
reorganization benefits and losses between undersecured and unsecured
creditors. "To allow a secured creditor interest where his security was
worth less than the value of his debt was thought to be inequitable to
unsecured creditors." Vanston Bondholders Protective Committee v.
Green, 329 U.S. 156, 164, 67 S.Ct. 237, 240, 91 L.Ed. 162 (1946). It was
considered unfair to allow an undersecured creditor to recover interest from
the estate's unencumbered assets before unsecured creditors had recovered any
principal. [Citations omitted.] We think it unlikely that § 506(b) codified the
pre-Code rule with the intent, not of achieving the principal purpose and
function of that rule, but of providing over-secured creditors an alternative
method of compensation. Moreover, it is incomprehensible why Congress would
want to favor undersecured creditors with interest if they move for it under §
362(d)(1) at the inception of the reorganization process--thereby probably
pushing the estate into liquidation--but not if they forbear and seek it only
at the completion of the reorganization.
Second, petitioner's interpretation of § 362(d)(1) is
structurally inconsistent with 11 U.S.C. § 552. Section 552(a) states the
general rule that a prepetition security interest does not reach property
acquired by the estate or debtor postpetition. Section 552(b) sets forth an
exception, allowing postpetition "proceeds, product, offspring, rents, or
profits" of the collateral to be covered only if the security agreement
expressly provides for an interest in such property, and the interest has been
perfected under "applicable nonbankruptcy law." [Citations omitted.]
Section 552(b) therefore makes possession of a perfected security interest in
postpetition rents or profits from collateral a condition of having them
applied to satisfying the claim of the secured creditor ahead of the claims of
unsecured creditors. Under petitioner's interpretation, however, the
undersecured creditor who lacks such a perfected security interest in effect
achieves the same result by demanding the "use value" of his
collateral under § 362. It is true that § 506(b) gives the over secured
creditor, despite lack of compliance with the conditions of § 552, a similar
priority over unsecured creditors; but that does not compromise the principle
of § 552, since the interest payments come only out of the "cushion"
in which the oversecured creditor does have a perfected security
interest.
Third, petitioner's interpretation of § 362(d)(1)
makes nonsense of § 362(d)(2). On petitioner's theory, the undersecured
creditor's inability to take immediate possession of his collateral is always
"cause" for conditioning the stay (upon the payment of market rate
interest) under § 362(d)(1), since there is, within the meaning of that
paragraph, "lack of adequate protection of an interest in property."
But § 362(d)(2) expressly provides a different standard for relief from a stay
"of an act against property," which of course includes taking
possession of collateral. It provides that the court shall grant relief
"if ... (A) the debtor does not have an equity in such property [i.e.,
the creditor is undersecured]; and (B) such property is not necessary to
an effective reorganization." (Emphasis added.) By applying the
"adequate protection of an interest in property" provision of §
362(d)(1) to the alleged "interest" in the earning power of
collateral, petitioner creates the strange consequence that § 362 entitles the
secured creditor to relief from the stay (1) if he is undersecured (and thus
not eligible for interest under § 506(b)), or (2) if he is undersecured and
his collateral "is not necessary to an effective reorganization."
This renders § 362(d)(2) a practical nullity and a theoretical absurdity. If §
362(d)(1) is interpreted in this fashion, an undersecured creditor would seek
relief under § 362(d)(2) only if his collateral was not depreciating (or he was
being compensated for depreciation) and it was receiving market rate interest
on his collateral, but nonetheless wanted to foreclose. Petitioner offers no
reason why Congress would want to provide relief for such an obstreperous and
thoroughly unharmed creditor.
Section 362(d)(2) also belies petitioner's contention
that undersecured creditors will face inordinate and extortionate delay if they
are denied compensation for interest lost during the stay as part of
"adequate protection" under § 362(d)(1). Once the movant under §
362(d)(2) establishes that he is an undersecured creditor, it is the burden of
the debtor to establish that the collateral at issue is "necessary
to an effective reorganization." See § 362(g). What this requires is not
merely a showing that if there is conceivably to be an effective
reorganization, this property will be needed for it; but that the property is
essential for an effective reorganization that is in prospect. This
means, as many lower courts, including the en banc court in this case, have
properly said, that there must be "a reasonable possibility of a
successful reorganization within a reasonable time." 808 F.2d, at 370-371,
and nn. 12-13, and cases cited therein. The cases are numerous in which §
362(d)(2) relief has been provided within less than a year from the filing of
the bankruptcy petition. [Footnote omitted.] And while the bankruptcy courts
demand less detailed showings during the four months in which the debtor is
given the exclusive right to put together a plan, see 11 U.S.C. §§ 1121(b),
(c)(2), even within that period lack of any realistic prospect of effective
reorganization will require § 362(d)(2) relief. [Footnote omitted.]
III
A
Petitioner contends
that denying it compensation under § 362(d)(1) is inconsistent with sections of
the Code other than those just discussed. Petitioner principally relies on the
phrase "indubitable equivalent" in § 361(3), which also appears in 11
U.S.C. § 1129(b)(2)(A)(iii). Petitioner contends that in the latter context,
which sets forth the standards for confirming a reorganization plan, the phrase
has developed a well-settled meaning connoting the right of a secured creditor
to receive present value of his security--thus requiring interest if the claim
is to be paid over time. It is true that under § 1129(b) a secured claimant has
a right to receive under a plan the present value of his collateral. This
entitlement arises, however, not from the phrase "indubitable
equivalent" in § 1129(b)(2)(A)(iii), but from the provision of §
1129(b)(2)(A)(i)(II) that guarantees the secured creditor "deferred cash
payments ... of a value, as of the effective date of the plan, of at
least the value of such [secured claimant's] interest in the estate's interest
in such property." (Emphasis added.) Under this formulation, even though
the undersecured creditor's "interest" is regarded (properly) as
solely the value of the collateral, he must be rendered payments that assure
him that value as of the effective date of the plan. In § 361(3), by
contrast, the relief pending the stay need only be such "as will result
in the realization ... of the indubitable equivalent" of the
collateral. (Emphasis added.) It is obvious (since §§ 361 and 362(d)(1) do not
entitle the secured creditor to immediate payment of the principal of his
collateral) that this "realization" is to "result" not at
once, but only upon completion of the reorganization. It is then that he
must be assured "realization ... of the indubitable equivalent" of
his collateral. To put the point differently: similarity of outcome between §
361(3) and § 1129 would be demanded only if the former read "such other
relief ... as will give such entity, as of the date of the relief, the
indubitable equivalent of such entity's interest in such property."
Nor is there merit in petitioner's suggestion that
"indubitable equivalent" in § 361(3) connotes reimbursement for the
use value of collateral because the phrase is derived from In re Murel Holding
Corp., 75 F.2d 941 (CA2 1935), where it bore that meaning. Murel
involved a proposed reorganization plan that gave the secured creditor interest
on his collateral for 10 years, with full payment of the secured principal due
at the end of that term; the plan made no provision, however, for amortization
of principal or maintenance of the collateral's value during the term. In
rejecting the plan, Murel used the words "indubitable
equivalence" with specific reference not to interest (which was assured), but
to the jeopardized principal of the loan:
"Interest is indeed the common measure of the
difference [between payment now and payment 10 years hence], but a creditor who
fears the safety of his principal will scarcely be content with that; he wishes
to get his money or at least the property. We see no reason to suppose that the
statute was intended to deprive him of that in the interest of junior holders,
unless by a substitute of the most indubitable equivalence." Id.,
at 942.
Of course Murel, like § 1129, proceeds from
the premise that in the confirmation context the secured creditor is entitled
to present value. But no more from Murel than from § 1129 can it be
inferred that a similar requirement exists as of the time of the bankruptcy
stay. The reorganized debtor is supposed to stand on his own two feet. The
debtor in process of reorganization, by contrast, is given many temporary
protections against the normal operation of the law.
Petitioner also contends that the Code embodies a
principle that secured creditors do not bear the costs of reorganization. It
derives this from the rule that general administrative expenses do not have
priority over secured claims. See §§ 506(c), 507(a). But the general principle
does not follow from the particular rule. That secured creditors do not bear
one kind of reorganization cost hardly means that they bear none of them. The
Code rule on administrative expenses merely continues pre-Code law. But it was
also pre-Code law that undersecured creditors were not entitled to postpetition
interest as compensation for the delay of reorganization. See supra, at
631; see also infra, at 635. Congress could hardly have understood that
the readoption of the rule on administrative expenses would work a change in
the rule on postpetition interest, which it also readopted.
Finally, petitioner contends that failure to
interpret § 362(d)(1) to require compensation of undersecured creditors for
delay will create an inconsistency in the Code in the (admittedly rare) case
when the debtor proves solvent. When that occurs, 11 U.S.C. § 726(a)(5)
provides that postpetition interest is allowed on unsecured claims. Petitioner
contends it would be absurd to allow postpetition interest on unsecured claims
but not on the secured portion of undersecured creditors' claims. It would be
disingenuous to deny that this is an apparent anomaly, but it will occur so
rarely that it is more likely the product of inadvertence than are the blatant
inconsistencies petitioner's interpretation would produce. Its inequitable
effects, moreover, are entirely avoidable, since an undersecured creditor is
entitled to "surrender or waive his security and prove his entire claim as
an unsecured one." [Citations omitted.] Section 726(a)(5) therefore
requires no more than that undersecured creditors receive postpetition interest
from a solvent debtor on equal terms with unsecured creditors rather than ahead
of them--which, where the debtor is solvent, involves no hardship.
B
Petitioner contends that its interpretation is
supported by the legislative history of §§ 361 and 362(d)(1), relying almost
entirely on statements that "[s]ecured creditors should not be deprived of
the benefit of their bargain." [Citations omitted.] Such generalizations
are inadequate to overcome the plain textual indication in §§ 506 and 362(d)(2)
of the Code that Congress did not wish the undersecured creditor to receive
interest on his collateral during the term of the stay. If it is at all
relevant, the legislative history tends to subvert rather than support
petitioner's thesis, since it contains not a hint that § 362(d)(1) entitles the
undersecured creditor to postpetition interest. Such a major change in the
existing rules would not likely have been made without specific provision in
the text of the statute, cf. Kelly v. Robinson, 479 U.S. 36, 47, 107
S.Ct. 353, 359-360, 93 L.Ed.2d 216 (1986); it is most improbable that it would
have been made without even any mention in the legislative history.
Petitioner makes another argument based upon what the
legislative history does not contain. It contends that the pre-Code law
gave the undersecured creditor relief from the automatic stay by permitting him
to foreclose; and that Congress would not have withdrawn this entitlement to
relief without any indication of intent to do so in the legislative history,
unless it was providing an adequate substitute, to wit, interest on the
collateral during the stay.
The premise of this argument is flawed. As petitioner
itself concedes, Brief for Petitioner 20, the undersecured creditor had no
absolute entitlement to foreclosure in a Chapter X or XII case; he could not
foreclose if there was a reasonable prospect for a successful rehabilitation
within a reasonable time. [Citations omitted.] Thus, even assuming petitioner
is correct that the undersecured creditor had an absolute entitlement to relief
under Chapter XI, Congress would have been faced with the choice between
adopting the rule from Chapters X and XII or the asserted alternative rule from
Chapter XI, because Chapter 11 of the current Code "replaces chapters X,
XI and XII of the Bankruptcy Act" with a "single chapter for all
business reorganizations." S.Rep. No. 95-989, at 9; see also H.R.Rep. No.
95-595, at 223-224, U.S. Code Cong. & Admin. News 1978, pp. 5795, 6182, 6183.
We think § 362(d)(2) indicates that Congress adopted the approach of Chapters X
and XII. In any event, as far as the silence of the legislative history on the
point is concerned, that would be no more strange with respect to alteration of
the asserted Chapter XI rule than it would be with respect to alteration of the
Chapters X and XII rule.
Petitioner's argument is further weakened by the fact
that it is far from clear that there was a distinctive Chapter XI rule of
absolute entitlement to foreclosure. At least one leading commentator concluded
that "a Chapter XI court's power to stay lien enforcement is as broad as
that of a Chapter X or XII court and that the automatic stay rules properly
make no distinctions between the Chapters." Countryman, Real Estate Liens
in Business Rehabilitation Cases, 50 Am.Bankr.L.J. 303, 315 (1976). Petitioner
cites dicta in some Chapter XI cases suggesting that the undersecured creditor
was automatically entitled to relief from the stay, but the courts in those
cases uniformly found in addition that reorganization was not sufficiently
likely or was being unduly delayed. See, e.g., In re Bric of America, Inc.,
4 Collier Bankr. Cas. (MB) 34, 39-40 (Bkrtcy.Ct.MD Fla.1975); In re O.K.
Motels, 1 Collier Bankr. Cas. (MB) 416, 419-420 (Bkrtcy.Ct.MD Fla.1974).
Moreover, other Chapter XI cases held undersecured creditors not entitled to
foreclosure under reasoning very similar to that used in Chapters X and XII
cases. See In re Coolspring Estates, Inc., 12 Collier Bankr. Cas. (MB)
55, 60-61 (Bkrtcy.Ct.ND Ind.1977); In re The Royal Scot, Ltd., 2
Bankr.Ct. Dec. (CRR) 374, 376-377 (Bkrtcy.Ct.WD Mich.1976); In re Mesker
Steel, Inc., 1 Bankr.Ct. Dec. (CRR) 235, 236-237 (Bkrtcy.Ct.SD Ind.1974).
The at best divided authority under Chapter XI removes all cause for wonder
that the alleged departure from it should not have been commented upon in the
legislative history.
The Fifth Circuit correctly held that the
undersecured petitioner is not entitled to interest on its collateral during
the stay to assure adequate protection under 11 U.S.C. § 362(d)(1). Petitioner
has never sought relief from the stay under § 362(d)(2) or on any ground other
than lack of adequate protection. Accordingly, the judgment of the Fifth
Circuit is
Affirmed.