United States Court of Appeals For the First Circuit

No. 19-9004

IN RE: OLD COLD, LLC,

Debtor.

MISSION PRODUCT HOLDINGS, INC.,

Appellant,

v.

SCHLEICHER & STEBBINS HOTELS, L.L.C.; OLD COLD, LLC,

Appellees.

APPEAL FROM THE BANKRUPTCY APPELLATE PANEL FOR THE FIRST CIRCUIT

Before

Howard, Chief Judge, Selya and Kayatta, Circuit Judges.

Robert J. Keach, with whom Lindsay Z. Milne, Letson B. Douglass, and Bernstein, Shur, Sawyer & Nelson, P.A. were on brief, for appellant. Christopher M. Candon, with whom Sheehan Phinney Bass & Green PA was on brief, for appellee Schleicher & Stebbins Hotels, L.L.C.

October 1, 2020 KAYATTA, Circuit Judge. On its third appeal before us

in the bankruptcy proceedings of debtor Old Cold, LLC ("debtor"),

creditor Mission Product Holdings, Inc. ("Mission") now challenges

an order of the bankruptcy court granting creditor Schleicher &

Stebbins Hotels, L.L.C. ("S & S") relief from the automatic stay

imposed by section 362 of the Bankruptcy Code. See

(a). In addition to challenging the stay relief order on its

merits, Mission argues that the bankruptcy court lacked

jurisdiction to issue the order because Mission's prior appeal of

a bankruptcy court ruling was then still pending. Seeking to trump

Mission's jurisdictional argument, S & S contends that any

challenge to the bankruptcy court's order granting stay relief is

moot because the debtor has disbursed all assets remaining in the

estate to S & S. We reject both parties' jurisdictional arguments

and affirm on the merits.

I.

We have previously chronicled the long and tumultuous

fight between Mission and S & S over the debtor's assets.1 So we

1 See Mission Prod. Holdings, Inc. v. Tempnology, LLC,

(2019), rev'g

(1st Cir. 2018), aff'g in part, rev'g in part

(B.A.P. 1st Cir. 2016), aff'g in part, rev'g in part

(Bankr. D.N.H. 2015); Mission Prod. Holdings, Inc. v. Old Cold, LLC (In re Old Cold, LLC),

(1st Cir. 2018), aff'g

(B.A.P. 1st Cir. 2016), aff'g

(Bankr. D.N.H. 2015); Mission Prod. Holdings, Inc. v. Schleicher & Stebbins Hotels, L.L.C. (In re Old Cold, LLC),

(B.A.P. 1st Cir. 2019).

- 2 - repeat as succinctly as possible only those facts key to this

appeal.

A.

In 2012, the debtor granted Mission exclusive and non-

exclusive licenses to use and distribute several of its

intellectual property assets (the "Agreement"). When the parties'

relationship soured, Mission exercised its contractual right to

terminate the Agreement, triggering a provision calling for a two-

year wind-down period. Hoping to end any wind-down sooner, the

debtor sought to terminate the contract immediately by claiming

Mission had breached the Agreement. The parties entered

arbitration over that dispute, with the arbitrator ruling in favor

of Mission as to liability but making no findings with respect to

damages due to the intervening filing of the debtor's Chapter 11

petition.

B.

In its petition for Chapter 11 bankruptcy, the debtor

listed S & S as the only secured creditor, with a $5.55 million

claim of pre-petition advances stemming from credit extended prior

to the bankruptcy filing. The debtor listed Mission as an

unsecured creditor, with a contingent, unliquidated, and disputed

claim, and an executory contract.

Shortly after filing for Chapter 11 protection, the

debtor moved for debtor-in-possession financing from S & S. The

- 3 - bankruptcy court granted this motion in a series of orders, with

its final order allowing up to $1.45 million in post-petition

financing, secured by a first-priority perfected lien on the

debtor's estate. As part of this final order, the court confirmed

the "validity, extent, perfection or priority of [S & S's]

security interests" and pre-petition liens of $5.5 million, with

the order itself perfecting the $1.45 million post-petition

amount. The court also set November 12, 2015 (pre-petition), and

December 31, 2015 (post-petition), as deadlines for any challenges

to these lien-validity findings. Those deadlines passed with

neither Mission nor any other party lodging any objection.

C.

The debtor also sought to reject the Agreement with

Mission under the terms of the Bankruptcy Code. The bankruptcy

court granted the request "subject to [Mission's] election to

preserve its rights under [ ] § 365(n)" of the Bankruptcy Code.

Clarifying the extent of these section 365(n) rights, the

bankruptcy court stated that Mission's non-exclusive intellectual

property license survived the rejection but that Mission's

exclusive distribution rights and trademark license did not. In

re Tempnology, LLC,

, 6–7 (Bankr. D.N.H. 2015). We

affirmed. Mission Prod. Holdings, Inc. v. Tempnology, LLC (In re

Tempnology, LLC),

(1st Cir. 2018).

- 4 - On June 11, 2018 (the same day that S & S filed the

currently-at-issue motion for relief from the automatic stay),

Mission petitioned the Supreme Court for a writ of certiorari

seeking review of our affirmance. The Supreme Court granted the

petition in part on October 26, 2018 (a month after the bankruptcy

court granted the sought-after stay relief but before the relief

order took effect), to answer the following question: "Whether,

under § 365 of the Bankruptcy Code, a debtor-licensor's

'rejection' of a license agreement -— which 'constitutes a breach

of such contract,'

(g) -— terminates rights of the

licensee that would survive the licensor's breach under applicable

non-bankruptcy law." See Petition for a Writ of Certiorari at i,

Mission Prod. Holdings, Inc. v. Tempnology, LLC,

(2018) (No. 17-1657) (mem.). On May 20, 2019, the Supreme Court

reversed our ruling, holding that

under Section 365, a debtor's rejection of an executory contract in bankruptcy has the same effect as a breach outside bankruptcy. Such an act cannot rescind rights that the contract previously granted. Here, that construction of Section 365 means that the debtor- licensor's rejection cannot revoke the trademark license.

Mission Prod. Holdings, Inc. v. Tempnology, LLC,

(2019).

- 5 - D.

While Mission and S & S did battle, the debtor moved to

sell all its assets at auction pursuant to

. The

bankruptcy court appointed an examiner and approved the sale motion

in September and October 2015, respectively. S & S agreed to be

a stalking horse bidder, and the bankruptcy court authorized S & S

to credit bid "up to and including the post-petition amounts loaned

to" the debtor and "an additional $5,650,000" as listed on the

debtor's Schedule D.

The auction took place on November 5, 2015. In its first

bid, Mission included $200,000 of debtor cash as some sort of

supposed consideration for the sale, stating that the bid would

"leave $200,000 worth of cash in the debtor" and that "[Mission

is] leaving $[200,000] of the cash [it was] otherwise . . . going

to buy in the debtor." In an effort to bid similarly to Mission,

S & S also began to demand fewer than all of the debtor's assets,

with the debtor's counsel describing S & S's bid as "strik[ing]

the provisions of the . . . acquired assets, similar to those

struck by Mission" and thereby "leav[ing] back" or "leav[ing]

behind" various estate assets. As a result, both parties' final

bids left behind in the estate an identical subset of debtor

assets, worth approximately $800,000 (the debtor's inventory, its

accounts receivable, and $600,000 of cash). Perhaps seeking to

clarify each other's view regarding the precise treatment of these

- 6 - debtor assets post-auction, the following exchange took place

between the debtor's counsel (Desiderio) and Mission's counsel

(Keach):

MR. KEACH: So [S & S is] leaving $800,000 of assets in the estate. The estate gets to liquidate those and keep the money? MR. DESIDERIO: It’s more than that. They’re leaving— MR. KEACH: Well, if it was 800 for us, it’s going to be 800 for them. MR. DESIDERIO: . . . Yes. That’s right. Which means we value [S & S]’s last bid at $2,257,000.

Eventually, S & S incrementally increased its credit bid beyond an

amount Mission was willing to contribute in cash and won the

auction.

Mission objected to the sale procedures and final

determination that S & S had fairly won. It argued that the debtor

miscalculated S & S's bid; that the auction was conducted in bad

faith; and that S & S should not have been able to credit bid as

much as it did because much of that credit was in fact equity.

After the Examiner entered a report determining that the valuation

was fair and the transaction arms-length, the bankruptcy court,

after a two-day evidentiary hearing, entered a sale order approving

the sale of the debtor's assets to S & S pursuant to an Asset

Purchase Agreement between the two parties (APA). In re

Tempnology, LLC,

(Bankr. D.N.H. 2015). The bankruptcy

court rejected Mission's arguments, concluding that S & S was

- 7 - entitled to credit bid in the amount that it did because the

secured claim listed on the debtor's schedule D was not subject to

a bona fide dispute, as Mission had never previously disputed the

secured claim.

at 68–70. The court similarly refused either

to treat these claims as equity or find that S & S was not a good

faith purchaser. The court also found no collusion between the

debtor and S & S, and that the auction was otherwise fair.

at

70–72.

The APA memorializing the sale distinguishes between two

sets of debtor assets resulting from the sale: the Acquired Assets

and the Excluded Assets. The former included, free and clear of

all encumbrances, all of the debtor's assets save the Excluded

Assets, which were specifically identified as such in the APA. As

is customary in a transaction liquidating a debtor's assets, the

sale proceeds received by the debtor on the sale became subject to

all encumbrances that had been attached to the Acquired Assets.

We found a challenge to the entry of the sale order moot. Mission

Prod. Holdings, Inc. v. Tempnology, LLC (In re Old Cold LLC),

(1st Cir. 2018).

As to the left-behind Excluded Assets, neither the APA

nor the sale order purported to change in any way the status or

treatment of those assets, all of which had long been subject to

S & S's lien. The APA simply omitted the Excluded Assets from the

valuation of the bid, instead calculating only the dollar value

- 8 - given for the Acquired Assets, presumably on the assumption that,

because both S & S's and Mission's final bids included exactly the

same list of Excluded Assets, the precise valuation of those assets

was irrelevant to the ordinal ranking of each bid.

In February 2016, S & S sought to acquire one of those

Excluded Assets, the debtor's inventory, free and clear of its

liens, with the liens attaching to the proceeds of this second

sale. Mission challenged this proposed inventory sale, but it did

not dispute that the assets were subject to S & S's liens. Rather,

it challenged S & S's assertion that its intellectual property

rights restricted any other party from acquiring this inventory,

arguing that such a restriction would contradict the terms of the

APA (allowing the sale of these assets by the debtor to achieve

the highest value) and would evidence collusion between S & S and

the debtor. The bankruptcy court agreed with Mission that such an

IP restriction would have rendered the terms of the auction suspect

but approved the inventory sale, concluding that the price

(accounting cost) was fair and that the sale of the inventory to

S & S does not contradict the APA as long as the debtor would have

been free to sell the inventory to any party, which it had

unsuccessfully sought to do.

E.

With that history in mind, we turn to the motion on

appeal. On June 11, 2018, S & S filed a motion for relief from

- 9 - the automatic stay imposed in bankruptcy proceedings under

(a), to which the debtor assented. S & S claimed that

it had valid, first-priority, perfected liens exceeding $5 million

on the debtor's assets, and that the only remaining property in

the estate was $527,292 in cash (the proceeds of the aforementioned

inventory sale). It thus argued that the debtor lacked equity in

the remaining property and, because the debtor had assented to the

motion, that the property was not needed to effect a

reorganization. See

§ 362(d)(2).

Mission objected. First, it argued that the then-

pending petition for a writ of certiorari divested the bankruptcy

court of jurisdiction to decide the stay relief motion because, if

stay relief were granted, S & S would be able to strip the estate

of assets that could be used to satisfy any judgment that might

flow from Mission's appeal in the event the Supreme Court were to

side with Mission. Second, it argued that S & S no longer had a

security interest in that property because, as part of the auction

and sale, S & S had supposedly agreed either to recontribute those

assets back into the estate free and clear of its liens or to waive

those liens as part of the bidding process. Mission also stated

that it wished for limited discovery into how the non-lawyer

principals viewed the Excluded Assets after the auction, arguing

that this might show that the debtor and/or S & S believed them to

be unencumbered.

- 10 - After a preliminary hearing, the bankruptcy court asked

for supplemental briefing on whether S & S retained its liens on

the remaining assets. Mission argued that "the assets were

unencumbered because the Debtor said so at the Auction, S & S was

silent, and the entire sale (and appellate) process proceeded on

that mutual belief" and that "the bid values asserted at the

Auction and found at the Sale Hearing dictated that the

Recontributed Assets were unencumbered."

After a hearing on September 18, 2018, the bankruptcy

court granted the stay relief motion. As to Mission's

jurisdictional argument, the court concluded that the "practical

concern" that there may be no assets left in the estate to satisfy

a possible administrative claim resulting from the Supreme Court

appeal did not divest the bankruptcy court of jurisdiction "to

decide an issue that is not the subject of a pending appeal." It

also refused Mission's request for limited discovery, noting that

stay relief motions are "summary proceedings" and "there are not

sufficient issues of fact that would bear on the determination of

the motion."

The bankruptcy court also rejected Mission's assertion

that S & S's liens were somehow no longer valid. First, it noted

that there was no dispute that the liens were valid right before

the auction. Second, it reviewed the auction transcript, beginning

with Mission's bid proposing to "leave behind" certain assets,

- 11 - which proposal S & S ultimately matched. The bankruptcy court

pointed out that there was no discussion of how Mission could

conceivably extricate any left-behind assets from the liens

attached to those assets. Hence, there was no reason to think

that S & S, in matching Mission's bid, proposed to undertake such

a gratuitous elimination of its own liens. Because the liens were

valid before the auction and there was no evidence that anything

happened to them at the auction, the bankruptcy court concluded

that S & S had met its burden of showing that there was no equity

in the property and, because the debtor assented to the motion,

the property was not necessary for an effective reorganization.

Mission sought a stay of this order from the bankruptcy

court pending its appeal (electing to go to the Bankruptcy

Appellate Panel (BAP), see

), which the bankruptcy

court granted in part, extending to November 28, 2018, Federal

Rule of Bankruptcy Procedure 4001's automatic fourteen-day stay of

such orders so that Mission could seek a further stay of the relief

order from the BAP. On November 27, 2018, the BAP denied Mission's

request for a further stay, concluding that Mission had shown

neither a likelihood of success on the merits nor irreparable

injury absent relief, so the stay relief order took effect. The

next day, S & S demanded the remaining cash from the debtor, and

the debtor complied. The BAP then affirmed the bankruptcy court,

concluding that both it and the bankruptcy court had jurisdiction

- 12 - and that the bankruptcy court did not abuse its discretion in

granting S & S's motion for relief allowing it to foreclose on its

liens in the debtor's remaining cash. Mission Prod. Holdings,

Inc. v. Schleicher & Stebbins Hotels, L.L.C. (In re Old Cold, LLC),

(B.A.P. 1st Cir. 2019). Mission appealed.

II.

A.

We begin by deciding whether Mission's failure to obtain

a stay of the relief order and the subsequent disbursement of the

debtor's remaining assets have rendered this appeal moot.

Presenting what seems to be a hybrid of Article III, equitable,

and

(m) theories of mootness, S & S contends that

we can neither order disgorgement of these funds nor grant Mission

any other form of relief, even were we to decide the appeal in

Mission's favor. In support, S & S relies principally upon Soares

v. Brockton Credit Union, where we held that "when the debtor fails

to obtain a stay pending appeal of the bankruptcy court's . . .

order setting aside an automatic stay and allowing a creditor to

foreclose on property, the subsequent foreclosure and sale of the

property renders moot any appeal."

(1st Cir. 1998)

(per curiam) (table),

(quoting Matos v. Matos (In

re Matos),

(11th Cir. 1986)). In S & S's view,

this rule applies here even though the purchaser of the assets is

the creditor who is a party to the appeal, citing Greylock Glen

- 13 - Corp. v. Community Savings Bank,

(1st Cir. 1981),

and where the asset is only cash. The BAP thought otherwise.

We agree with the BAP that the disbursement of the funds

to S & S did not moot this appeal. Every case cited by S & S

involved a subsequent foreclosure and sale of property by the

creditor, not a mere disbursement of cash.2 But "[u]nlike other

assets . . . (e.g. real property, conveyances), cash is a fungible

item." United States v. $46,588.00 in U.S. Currency & $20.00 in

Canadian Currency,

, 904 n.5 (9th Cir. 1996) (quoting

Attorney General Policy Directive 87-1 (Mar. 13, 1987)) (holding

that the comingling of the cash in question with other cash did

not deprive the court of jurisdiction). Even under the less

stringent doctrine of equitable mootness (the applicability of

which to stay relief orders we need not decide), the failure to

obtain a stay pending appeal, by itself, does not provide

2 See 255 Park Plaza Assocs. Ltd. P'ship v. Conn. Gen. Life Ins. Co. (In re 255 Park Plaza Assocs. Ltd. P'ship),

(6th Cir. 1996) (concluding moot where a lack of a stay "permits a sale of a debtor's assets"); Oakville Dev. Corp. v. FDIC,

(1st Cir. 1993) (holding the same for a foreclosure sale as well as noting the constitutional aspects of the mootness issue); Miami Ctr. Ltd. P'ship v. Bank of N.Y.,

(11th Cir. 1988)(conveyance of real property title to a land trust); Egbert Dev., LLC v. Cmty. First Nat’l Bank (In re Egbert Dev., LLC),

(B.A.P. 10th Cir. 1998) (finding moot where "the moving creditor subsequently conducts a foreclosure sale"); Boudreau v. U.S. Bank Tr., N.A. (In re Boudreau), No. 61-cv-10747,

, *2–3 (D. Mass. Feb. 24, 2017) (holding the foreclosure sale of home rendered an appeal moot).

- 14 - "sufficient ground for a finding of mootness." Rochman v. Ne.

Utils. Serv. Grp. (In re Pub. Serv. Co. of N.H.),

,

473 (1st Cir. 1992). Rather, such mootness requires "the

challenged bankruptcy court order [to have] been implemented to

the degree that meaningful appellate relief is no longer

practicable." Hicks, Muse & Co. v. Brandt (In re Healthco Int'l,

Inc.),

(1st Cir. 1998). In contrast to a case

where we are unable to return title to the estate because it has

been transferred to a good faith purchaser, we simply cannot say

that ordering a party on appeal to disgorge mere cash is

impracticable and does not afford meaningful appellate relief.

See Spirtos v. Moreno (In re Spirtos),

, 1006–07 (9th

Cir. 1993) (finding no mootness where the creditor "stripped the

plans of their assets" but there was no foreclosure or sale and

the receiving party was a party to the appeal and knew of the

appeal at time it took that action, as the court could fashion

relief by ordering the money returned to the estate); Salomon v.

Logan (In re Int'l Envtl. Dynamics, Inc.),

(9th

Cir. 1983) (holding the court could fashion relief where there

were simply "erroneously disbursed funds").

S & S points out that a real property transfer can also

be unwound in theory if the property is still in the hands of the

original transferee, who is a party to the appeal, yet we still

treat such a transaction as irrevocable, mooting a post-transfer

- 15 - challenge. See Greylock, 656 F.2d at 3–4. But we recognized in

so holding that such a real property transferee was "entitled to

bid upon the [foreclosed] property with the assurance that its

title to the property would not be affected by appellate review

months or even years later," just like any other potential buyer.

Id. at 4. That holding depended on the text of former Bankruptcy

Rule 805, which did not distinguish between a mortgage holder and

any other potential purchaser who acquired the property in good

faith. Id. But that rule, and its modern equivalents, are not at

issue where there is no judicial sale order or an actual

"purchase[r]" relying on that order. See

(m),

364(c). So there is no risk of undermining "the integrity of the

judicial sale process upon which good faith purchasers rel[y]."

Miami Ctr. Ltd. P'ship v. Bank of N.Y.,

, 1555–

56 (11th Cir. 1988) (quoting Markstein v. Massey Assocs., Ltd.,

(11th Cir. 1985)) (discussing the complicated

reliance interests the court would be disturbing were it to unwind

aspects of a real estate transfer even to a designee of the

creditor-appellee). In short, Greylock is distinguishable, and we

find no similar text or policy interests that warrant extending

its holding to the present facts.

Moreover, the Supreme Court rejected the argument that

the disbursement of the remaining cash from the estate mooted its

consideration of the § 365(n) appeal, noting that, if successful,

- 16 - Mission "can seek the unwinding of prior distributions to get its

fair share of the estate." Mission Prod. Holdings, Inc., 139 S.

Ct. at 1661. It would be inconsistent to now hold that any such

relief is so implausible as to preclude our review of this order.

Accordingly, we find no basis to conclude this appeal is equitably

moot, moot under Article III, or moot under the provisions of the

Bankruptcy Code and rules.

B.

Having concluded that Mission's appeal is not moot, we

next answer whether the granting of Mission's petition for a writ

of certiorari divested the bankruptcy court of jurisdiction to

decide the stay relief motion. We review de novo a determination

regarding jurisdiction under the divestiture rule. United States

v. Rodríguez-Rosado,

(1st Cir. 2018). On appeal,

we look through the BAP's holding and review the bankruptcy court's

decision directly. PC P.R., LLC v. Empresas Martínez Valentín

Corp. (In re Empresas Martínez Valentín Corp.),

, 455

n.6 (1st Cir. 2020) (citing DeMore v. Lassman (In re DeMore),

(1st Cir. 2016)).

Mission argues that the stripping of assets from the

debtor's estate sought by the stay relief motion deprived Mission

of the same assets to which it would have looked in satisfaction

of the claim it was pursuing on appeal. In Mission's view, this

purported relatedness between S & S's claim for stay relief and

- 17 - Mission's claim for breach of the agreement caused the lower court

to lose jurisdiction to make that determination. Mission relies

primarily on Whispering Pines Ests., Inc. v. Flash Island, Inc.

(In re Whispering Pines Ests., Inc.), where the BAP held that the

bankruptcy court was divested of jurisdiction to grant stay relief

because the foreclosure of the property at issue in the stay relief

motion "directly implicated the matter under the appeal," namely,

the appropriateness of a "[p]lan providing for the sale of the

Property."

(B.A.P. 1st Cir. 2007).

As we have just discussed, though, if S & S had no right

to the assets, we could order a disgorgement in this case. And

the Supreme Court recognized that the disbursement of the cash had

no impact on its ability to decide Mission's appeal as long as

there was "any chance of money changing hands." Mission Prod.

Holdings,

. In Whispering Pines, possible

confusion could have occurred with a competing equitable order

requiring the disposal of a specific piece of property through a

different mechanism than the appeal specifically provided for,

thus interfering with the rights determined in the appeal.

. We discern no similar possibility of confusion here,

where the appeal concerned only the merits, rather than the

priority of Mission's claim against the debtor. The bankruptcy

court's determination that any claim by Mission would be junior to

S & S's claim as a secured creditor therefore did not take away

- 18 - any benefit that the Supreme Court appeal might purport to grant

Mission. Simply put, contrary to Mission's assertion that the

stay relief order would "impermissibly interfere with the rights

on appeal," we find no such interference.

C.

We now turn to the merits of Mission's challenge to the

bankruptcy court's order granting S & S the requested relief from

the automatic stay. Such orders are generally reviewed for an

abuse of discretion. Mitsubishi Motors Corp. v. Soler Chrysler-

Plymouth, Inc.,

(1st Cir. 1987). The bankruptcy

court's discretion was limited, though, by two preliminary

requirements. First, S & S must show a "colorable claim to

property of the estate." Grella v. Salem Five Cent Sav. Bank,

(1st Cir. 1994) (citing

). Second, the

amount of this lien, if valid, must "exceed[] the value of the

property" in question. In re Vitreous Steel Prod. Co.,

, 1234 (7th Cir. 1990). In making these findings, the

bankruptcy court was free to consider "any defenses or

counterclaims that bear on" the likelihood of the existence of the

creditor's claimed interest in the property. Grella,

. We review any factual findings for clear error. Fin.

- 19 - Oversight & Mgmt. Bd. v. Ad Hoc Grp. of PREPA Bondholders (In re

Fin. Oversight & Mgmt. Bd.),

(1st Cir. 2018).

1.

Mission does not dispute that prior to the auction the

debtor had no equity in its property because all of that property

was subject to liens that exceeded the property's value. Mission's

principal argument that relief from the automatic stay was improper

instead hinges on the assertion that, by entering into the APA

without buying all of the debtor's property, S & S implicitly

surrendered its liens on that property. This implication arises,

Mission says, from the discussion at the auction of a commitment

to match Mission's treatment of some debtor assets by leaving them

back or leaving them behind in the estate.3

Waiver is a potential defense that the bankruptcy court

may consider in deciding whether the creditor has a colorable

interest in the property that is the subject of a stay relief

motion. United States v. Fleet Bank of Mass. (In re Calore Express

Co.),

(1st Cir. 2002) (citing Grella,

) (noting that, although a stay relief hearing is not the proper

time for a determination of many substantive rights, the bankruptcy

3 Mission does not contend on appeal that S & S "recontributed" assets to the estate. Rather, it asserts that it would have recontributed the Excluded Assets had it won the auction, and S & S matched this bid structure by agreeing to waive its liens.

- 20 - court may "consider" issues of waiver in deciding whether to grant

relief, as a "waived [claim] is no longer colorable"). Neither

S & S’s successful bid, the APA, nor the order approving the sale,

though, contain any reference to such a waiver or release of any

lien, so Mission asks us to imply the presence of one.

Mission points to the fact that, early in the auction,

it increased its bid by "leav[ing] $200,000 worth of cash in the

debtor."4 Mission says we should assume that its bid, if accepted,

would have left those assets in the debtor free and clear of any

liens, citing

(f). To be sure, Mission's bid itself

said no such thing. So Mission argues that it did say that it was

leaving the assets "for the estate to liquidate and keep and

distribute to other creditors." But that statement says nothing

about which creditors are to receive the assets that are left

behind.

More fundamentally, the unstated premise of Mission's

argument -- that Mission had the power to eliminate S & S's liens

on the debtor's assets merely by agreeing to leave the assets in

the estate -- makes no sense. Were that premise correct, many

section 363(f) sales would turn into lien laundries. In such a

laundry, a debtor could sell at auction a truck -- in which Party A

4 Alternatively, Mission said it was "buy[ing] $200,000 less cash." Mission eventually increased the assets left in the estate to include $600,000 cash, the debtor's inventory, and the debtor's accounts receivable. S & S's final bid left in the same assets.

- 21 - has a security interest -- to Party B for $1 plus leaving the truck

itself in the debtor's estate, with Party B perhaps keeping the

rearview mirror for itself. Then, with nary a word of consent

from Party A, the rest of the truck would no longer be subject to

Party A's security interest. Mission provides no caselaw to

justify such alchemy. The Bankruptcy Code itself plainly protects

a security interest even when the assets to which the interests

attach are sold in a section 363(f) sale,

(e), which

often means that those security "interests attach to the proceeds

of the sale," H.R. Rep. No. 95–595, at 345 (1977), as reprinted in

1978 U.S.C.C.A.N. 5963, 6302; S. Rep. No. 95–989, at 56 (1978), as

reprinted in 1978 U.S.C.C.A.N. 5787, 5842.5 It would be strange

indeed to conclude that an auction that did not even result in the

sale of that same asset would somehow destroy the security

interest. Mission therefore tries to classify the assets it would

have "recontributed" as neither proceeds of the sale to which the

5See Rosemary E. Williams, Annotation, Special Commentary: Sales of Property, Other than in Ordinary Course of Business, of Bankruptcy Estate Free and Clear of Consensual and Nonconsensual Liens, Claims, and Encumbrances Under § 363(f) of Bankruptcy Code of 1978 (

(f)),

(Originally published in 2007) (collecting cases) ("While a bankruptcy estate is required to provide 'adequate protection' to the interests of lienholders, in the context of a sale free and clear of liens, the undisputed practice is to state in the sale notice and motion that all liens, claims, and encumbrances will attach to the sale proceeds without requiring any determination of their validity, priority, or interest concurrently with the sale, thus meeting the requirement of adequate protection in this context.").

- 22 - liens would attach nor undisturbed assets that were not sold free

and clear of the liens, but rather as something else. But it

offers no explanation as to how such a sale would provide adequate

protection to a secured creditor. And if Mission's bid did not

eliminate any liens, there is no reason that any match of that bid

would do so.

Bereft of support for such an asset reclassification,

Mission argues that a lien waiver was necessarily implicit in the

economics of the bids because both Mission and S & S received

credit for the value of the assets to be left behind. But if two

parties are bidding and each bids the same dozen apples, it matters

not how we value those apples. Moreover, a bid for $100 that

leaves behind $10 worth of apples is indeed worth more ($110) than

a bid for $100 that takes all the apples ($100). And we determine

that worth by looking at the value of the final package to the

estate, which at that auction stage is agnostic regarding which

creditor ends up getting what share of the $110. That S & S was

first in line (and likely knew that it would be unless its liens

were recharacterized as equity) does not change the fact that the

bid maximized the value to the estate.

Even if we were to assume that Mission had come up with

a novel argument that would support the claim that a bidder could

wash assets clean of liens in this manner, there is no reason at

all to assume that S & S intended such an effect as implicit in

- 23 - its bid. Waiver of a first secured lien on cash is no small matter

-- hardly something that would be offered only on an implication

so tenuous as that claimed by Mission. See In re Calore Express

Co.,

(noting that courts rarely "imply waiver from

mere silence"). In fact, New Hampshire law requires an action or

agreement inconsistent with the existence of the lien to find such

a waiver. City of Portsmouth v. Nash,

(N.H.

1985).6 The debtor's counsel agreeing with a mere ambiguous

statement at the auction -- "[t]he estate gets to liquidate those

[assets] and keep the money" -- that is grammatically and logically

consistent with S & S retaining its liens does not suffice.

The Examiner -- whose role was to investigate "the

amount, validity and priority of [S & S's] claims and liens" and

"to prepare and file with the Court a report with regard to the

sale process" -- saw no such implicit waiver. He wrote:

The structure of the bid means that immediately after closing there are substantial assets left for creditors the largest of which is inventory. The assets left are available to satisfy the remaining claim of Mission if Mission is correct that all of the pre-petition [S & S] debt should be re-characterized as equity. If Mission is incorrect and the [S & S] pre-petition debt may not be re-characterized as equity then the [S & S] security interest reaches all of those assets.

6 The BAP noted that New Hampshire law governs the debtor's loan agreements with S & S, and neither party contends otherwise.

- 24 - He further noted three possible characterizations of the estate

following the sale: (1) S & S's claim is not recharacterized as

equity and thus remains fully secured, (2) S & S's claim is

recharacterized as equity and Mission has an unsecured claim, and

(3) S & S's claim is recharacterized as equity and Mission has an

administrative claim. The report mentions no possibility that

S & S's claims are not equity but its liens were otherwise waived.

Even Mission’s own counsel seemed to discern no such waiver by

S & S, stating that if Mission had won the auction, S & S would

"have claims to whatever the proceeds are," focusing its effort on

recharacterizing S & S's claims as equity and not objecting to the

Examiner's report or the proposed sale on these grounds. Nor did

the experienced bankruptcy judge make mention of any such lien

waiver in either his sale order or the accompanying memorandum.7

Mission finally contends that some of the debtor's

filings describing its cash as "unrestricted" and referring to

sale proceeds being distributed in a "waterfall" imply that its

cash was somehow not subject to any lien. Given the overwhelming

7 Contrary to Mission's assertion, the bankruptcy court also did not somehow inappropriately shift the burden to Mission to show the liens were not valid. It recognized that S & S had the burden of proving its interest in the property. And it found that S & S produced clear documentary evidence from the court records that its liens were valid prior to the auction and successfully demonstrated that nothing that took place during the bidding process of the auction changed that status. We therefore need not decide whether the absence of a waiver is something a creditor seeking relief from stay bears the burden of proving in all cases.

- 25 - evidence that all of debtor's assets were subject to S & S's liens,

we find S & S's failure to discern and challenge those arguable

inferences in what the debtor said provided no basis for deeming

S & S to have miraculously and for no reason waived its liens.

See In re Calore Express Co.,

. In sum, the argument

that S & S waived its liens is poppycock.

2.

Mission next argues that S & S (which had the burden of

proof) failed to meet the quantum of proof necessary to warrant

relief from the automatic stay. Mission argues that the proper

standard for such a motion is for S & S to establish by a

preponderance of the evidence the validity and extent of its liens.

But, as we have explained, there was no question that S & S

possessed valid liens in excess of the value of the debtor's

remaining. So for that reason alone S & S certainly established

the "colorable claim to property of the estate" needed to obtain

relief from the stay. Grella,

.

3.

Finally, leaving no pebble unturned, Mission assigns

procedural error, claiming that under the Bankruptcy Code and rules

it was entitled to limited discovery and an evidentiary hearing

before the bankruptcy court could decide the stay relief motion,

which is a contested matter. The bankruptcy rules do state that

various applicable civil rules and discovery "rules shall apply"

- 26 - in contested matters -- "unless the court directs otherwise." Fed.

R. Bankr. P. 9014(c) (emphasis added) (citing Fed. R. Bankr.

P. 7026, which incorporates the discovery provisions of Civil

Rule 26). We therefore review a decision to limit the

applicability of these rules and to not grant discovery and a full

evidentiary hearing for an abuse of discretion. See In re

Stavriotis,

(7th Cir. 1992); Pub. Serv. Co. of

N.H. v. Hudson Light & Power Dep't,

, 346 (1st Cir.

1991) (reviewing a denial of a Rule 56 discovery motion

incorporated by Rule 9014 for an abuse of discretion).

The United States Bankruptcy Court for the District of

New Hampshire has a standing local rule that "Bankruptcy Rule 7026

and LBR 7026-1 shall not apply to contested matters governed by

Bankruptcy Rule 9014 unless otherwise ordered." Bankruptcy

D.N.H.R. 9014-1(a). On top of that, the bankruptcy court

specifically stated that "a further evidentiary hearing would

[not] be required." So there is no doubt that the court did

"direct[] otherwise." We need only decide whether this ruling was

an abuse of discretion.

It clearly was not. As we have explained, Mission's

claim that S & S waived its liens made no sense for a slew of

reasons. Given the written record and the absence of any reason

to think that S & S gratuitously waived its liens, the bankruptcy

court was hardly required to allow a fishing expedition aimed at

- 27 - unearthing imagined understandings contrary to the record and

common sense. Similarly, there was no need for any evidentiary

hearing. See Hebbring v. U.S. Tr.,

(9th Cir.

2006) (holding that where "there [a]re no disputed issues of

material fact," "[t]he bankruptcy court [i]s not required to hold

an evidentiary hearing"), superseded by statute on other grounds,

as recognized in Craig v. Educ. Credit Mgmt. Corp. (In re Craig),

, 1046 n.5 (9th Cir. 2009).

III.

For the foregoing reasons, we affirm the bankruptcy

court's order granting relief from the automatic stay. Costs are

awarded to appellee (S & S).

- 28 -