In re Charles Street African Methodist Episcopal Church
In re Charles Street African Methodist Episcopal Church
Opinion of the Court
MEMORANDUM OF DECISION AND ORDER ON DEBTOR’S MOTION FOR DESIGNATION OF VOTES OF ONEUNITED BANK
The chapter 11 debtor, Charles Street African Methodist Episcopal Church (“CSAME” or “the Debtor”), has moved under 11 U.S.C. § 1126(e) to designate the votes cast by secured creditor OneUnited Bank (“OneUnited”) against CSAME’s plan of reorganization and, by virtue of designation, to disregard the objections to confirmation of the plan that OneUnited has made under §§ 1129(a)(8) and 1129(b)(2) of the Bankruptcy Code.
CSAME’s first basis for designation — premature circulation of a plan and solicitation of votes — is not a basis on which the court may designate a claim. Section 1126(e) of the Bankruptcy Code states:
On request of a party in interest, and after notice and a hearing, the court may designate any entity whose acceptance or rejection of such plan was not in good faith, or was not solicited or procured in good faith or in accordance with the provisions of this title.
11 U.S.C. § 1126(e). An entity will qualify for designation
As its second basis for designation, CSAME alleges that OneUnited cast its votes with an ulterior, illegitimate motive: to compel CSAME and the First Episcopal District of the African Methodist Episcopal Church (“the District”), which guaranteed one of CSAME’s two debts to OneUnited, to pay OneUnited’s claim with a large, upfront deposit of cash instead of a promise of repayment by equal monthly payments over 30 years, which is the treatment that CSAME proposes in its current plan. This purpose is ulterior and illegitimate, CSAME argues, because OneUnited needs an immediate infusion of cash to address liquidity problems of its own. CSAME contends that it amounts to bad faith for OneUnited to permit its own need for cash to determine its votes on the current plan.
Case law supports the proposition that a vote for or against a plan may be deemed to have been cast in bad faith when it was cast “with an ulterior motive,” meaning “with an interest other than an interest as a creditor.” In re DBSD North America, Inc., 634 F.3d 79, 102-03 (2d Cir. 2011) and cases cited; SPM Mfg. Corp., 984 F.2d 1305, 1317 (1st Cir. 1993) (construing the good faith requirement as barring votes cast with “ulterior motives, such as coercing a higher payment from the debtor’s estate, pure malice, and advancing the interests of a competing business”). But not every ulterior motive is deemed bad faith. In re DBSD North America, Inc., 634 F.3d at 102-03. Selfishness alone is neither an ulterior motive nor bad faith. Id. at 102. Moreover, designation under § 1126(e) must be employed sparingly, and the burden of proving bad faith is on the party seeking designation. Id. at 101-02. The “decision that someone did or did not act in good faith hinges on an essentially factual inquiry and is driven by the data of practical human experience.” Id. at 102 (internal quotations and citations omitted).
This is not a close case. Stripped to its bare essentials, CSAME is arguing that it is bad faith for a creditor, a lender, to want to be paid immediately on loans that have matured, where, as here, the creditor both believes that immediate payment is possible and has a guarantor that it believes is legally obligated and has the financial wherewithal to make that happen. This is not bad faith or an ulterior motive, just an appropriate and legitimate interest in recovering on its claims. Nor would it be converted into bad faith by addition of the further factor on which CSAME relies: that, by virtue of financial difficulties of its own, caused in part by CSAME’s default, the creditor was especially needful and desirous of immediate payment and allowed its need and desire to influence or determine its vote. Therefore, I need make no finding as to whether OneUnited allowed concerns about its own liquidity to determine its vote. Even if CSAME were to prove its allegations in that regard, it would not establish bad faith. A lender needs to collect on its loans to stay in business; from this it follows that there exists an intrinsic relationship between
In any event, concern for its own liquidity, if it was a factor at all, was not the only factor in determining OneUn-ited’s votes. When OneUnited cast its votes, the plan proposed to pay OneUnit-ed’s secured claims by equal monthly payments over a very long term, thirty years, and to discharge the District’s guarantee of the loans,
ORDER
The Court having concluded, for the reasons set forth above, that no cause exists for designation of the votes of OneUnited, CSAME’s motion for designation of votes of OneUnited is hereby denied.
. The motion to designate is part of “Debtor Charles Street AME's (A) Motion for (i) Designation of Votes of OneUnited Bank and (ii) Costs and Attorney's Fees and (B) Statement in Support of Plan Subordination of Claims of OneUnited Bank" [doc. # 196]. The present memorandum addresses only the issue of designation. The Court will address costs and attorney's fees separately, when it addresses the issue of subordination in conjunction with confirmation of the plan. At this juncture, the confirmation hearing is not yet concluded.
. Consistent with the cases construing § 1126(e), CSAME’s motion asks for designation of votes. The statute itself, on the other hand, speaks of designation of an "entity” that has voted. At least for present purposes, they are speaking of one and the same thing, and accordingly the two locutions may be used interchangeably.
. The plan has since been modified to replace the complete discharge of the District’s guarantee with a more limited modification of its terms. This modification has not moved OneUnited to ask for an opportunity to change its vote.
Reference
- Full Case Name
- In re CHARLES STREET AFRICAN METHODIST EPISCOPAL CHURCH, Debtor
- Status
- Published