Eastgroup Properties v. Southern Motel Assoc., Ltd.
Opinion of the Court
Appellants, Eastgroup Properties, A1 Ol-shan, and Morris Macy, all of whom are creditors of Southern Motel Association, challenge the district court’s decision to affirm the order of the bankruptcy court to consolidate substantively the bankruptcy estates of two related entities, Gainesville P-H Properties (“GPH”) and Southern Motel Association (“SMA”). Appellants contend that both the bankruptcy court and the district court erred in finding (1) a sufficient factual basis for consolidation and (2) a legal basis for consolidation. Because we conclude that the bankruptcy trustee made a prima facie case for consolidation and that appellants provided no substantial evidence of their reliance on the separate credit of SMA, we affirm the order of substantive consolidation.
I. BACKGROUND
Appellee George E. Mills is the Chapter 7 bankruptcy trustee for the bankruptcy estates of SMA and GPH. SMA is a limited partnership that was formed for the purpose of acquiring and holding fee simple title to, and leasehold interests in, motel properties. GPH is a corporation whose sole business is the operation of the motel businesses owned or leased by SMA.
SMA and GPH filed for Chapter 11 bankruptcy in 1987. In 1989, both bankruptcy cases were converted to Chapter 7 bankruptcy cases; and Mills was appointed the trustee in both cases. Mills moved to consolidate substantively the two bankruptcy cases.
SMA and GPH are commonly owned. The limited partners of SMA are Kilimanjaro Holdings, Inc.; Tharani, Inc.; and Ring-gold Investments, Inc.
SMA and GPH had entered into written lease agreements about the management and operation of eleven motel properties, including the five properties SMA had leased from Eastgroup. GPH’s lease obligations to SMA were designed to cover SMA’s mortgage and lease obligations on the properties.
SMA and GPH operated out of a central office in Orlando, Florida. Five or six GPH employees worked in this office. While the majority of their time was spent performing services for GPH, the entity which paid their salaries, these employees also performed services for SMA. No effort was
II. DISCUSSION
Appellants contend that the bankruptcy court erred in weighing the equities when it ordered substantive consolidation. They argue that its apparent rationale for consolidation — that, absent consolidation, SMA’s equity holders might receive a distribution after all claims were paid, while GPH’s unsecured creditors (who might receive a distribution if the estates were consolidated) would not receive anything — is disproved by the mathematics of the cases: that, regardless of consolidation, GPH’s unsecured creditors will receive no distribution and SMA’s equity holders will receive nothing. Appellants also argue that the bankruptcy court gave inadequate weight to the fact that consolidation would prejudice them because their unsecured claims would not be paid if the estates are consolidated. The trustee, on the other hand, contends that the bankruptcy court properly found that he had established a prima facie case for consolidation and that, because the appellants failed to present evidence that they had relied on SMA’s separate credit, the bankruptcy court’s order of substantive consolidation, which was affirmed by the district court, should be affirmed by this court.
A. The Legal Framework for Substantive Consolidation
While not specifically authorized by the bankruptcy code, bankruptcy courts have the power to order substantive consolidation by virtue of their general equitable powers. See, e.g., Union Savings Bank v. Augie/Restivo Baking Co. (In re Augie/Restivo Baking Co.), 860 F.2d 515, 518 & n. 1 (2d Cir. 1988); Drabkin v. Midland-Ross Corp. (In re Auto-train Corp.), 810 F.2d 270, 276 (D.C.Cir. 1987).
Because the entities to be consolidated are likely to have different debt-to-asset ratios, consolidation “almost invariably redistributes wealth among the creditors of the various entities.” In re Auto-train, 810 F.2d at 276. Thus, courts have stated that substantive consolidation should be “used sparingly.” See In re Continental Vending Machine Corp., 517 F.2d at 1001 (quoting Chemical Bank New York Trust Co. v. Kheel, 369 F.2d 845, 847 (2d Cir. 1966)). There is, however, a “modern” or “liberal” trend
*249 has its genesis in the increased judicial recognition of the widespread use of interrelated corporate structures by subsidiary corporations operating under a parent entity’s corporate umbrella for tax and business purposes.
In re Murray Indus., 119 B.R. at 828-29.
We have never addressed the issue of the standard which bankruptcy courts in this circuit should employ in making a determination of whether substantive consolidation is warranted. It is agreed that the basic criterion by which to evaluate a proposed substantive consolidation is whether “the economic prejudice of continued debtor separateness” outweighs “the economic prejudice of consolidation.” See In re Snider Bros., Inc., 18 B.R. 230, 234 (Bankr.D.Mass. 1982). In other words, a court must “conduct a searching inquiry to ensure that consolidation yields benefits offsetting the harm it inflicts on objecting parties.” In re Auto-train, 810 F.2d at 276.
The D.C. Circuit has elaborated a standard, which we adopt today, by which to determine whether to grant a motion for substantive consolidation. Under this standard, the proponent of substantive consolidation must show that (1) there is substantial identity between the entities to be consolidated; and (2) consolidation is necessary to avoid some harm or to realize some benefit. Id; see also In re Murray Indus., 119 B.R. at 829; Matter of Lewellyn, 26 B.R. 246, 251 (Bankr.S.D.Iowa 1982); In re Snider Bros., 18 B.R. at 238. When this showing is made, a presumption arises “that creditors have not relied solely on the credit of one of the entities involved.” Matter of Lewellyn, 26 B.R. at 251-52. Once the proponent has made this prima facie case for consolidation, the burden shifts to an objecting creditor to show that (1)it has relied on the separate credit of one of the entities to be consolidated; and (2)it will be prejudiced by substantive consolidation. See In re Auto-train, 810 F.2d at 276 (“a creditor may object on the grounds that it relied on the separate credit of one of the entities and that it will be prejudiced by the consolidation”); see also Matter of Lewellyn, 26 B.R. at 252 (“once the proponent of consolidation makes out a prima facie case the burden shifts to the objector to show there was sole reliance on the credit of one entity”); In re Snider Bros., 18 B.R. at 238 (that objecting creditor “has looked solely to the credit of its debtor” and “is certain to suffer more than minimal harm as a result of consolidation” constitutes defense to substantive consolidation).
In making his prima facie case for consolidation, the proponent of consolidation may want to frame his argument using the seven factors outlined in In re Vecco Construction Industries, Inc.
(1) The presence or absence of consolidated financial statements.
(2) The unity of interests and ownership between various corporate entities.
(3) The existence of parent and intercor-porate guarantees on loans.
(4) The degree of difficulty in segregating and ascertaining individual assets and liabilities.
(5) The existence of transfers of assets without formal observance of corporate formalities.
(6) The commingling of assets and business functions.
(7) The profitability of consolidation at a single physical location.
B. Substantive Consolidation in This Case
The bankruptcy court in this case found the existence of a number of factors, from which it concluded that substantive consolidation was warranted:
(1) Ownership is common.
(2) Both entities used the same employees and the same physical facilities. Employees were paid only by one entity, although they performed services for both.
(3) Funds were transferred from one entity to another.
(4) One entity paid unsecured debts of the other.
(5) Although the relationship between the two entities was set forth in written lease agreements, substantial defaults in performance of those agreements had no effect on the existing and continuing interrelationships.
(6) Confusion exists among creditors regarding the question of which entity owns which assets.
(7) It appears that, absent substantive consolidation, the majority of the creditors will receive only a small portion of their claims, while the equity interest holders may receive a substantial distribution.
In re Gainesville P-H Properties, Inc., 106 B.R. 304, 306 (Bankr.M.D.Fla. 1989). While appellants contest the significance of many of these findings with respect to substantive consolidation because of the particular facts of this ease, they challenge as clearly erroneous only the last factor. They point out that, based on the total amount of administrative and priority claims filed in both cases (which, under the relevant provisions of the bankruptcy code, must be paid before unsecured creditors receive a distribution), there is no chance that the unsecured creditors will receive a distribution even if the bankruptcy estates are consolidated. But the bankruptcy court did not limit this finding to unsecured creditors; given the claim-to-asset ratio in the GPH case and the testimony at the hearing on the motion for consolidation,
We still have to determine whether the bankruptcy court and the district court correctly ordered substantive consolidation. We have to determine whether “consolidation yields benefits offsetting the harms it inflicts on objecting parties,” In re Auto-train, 810 F.2d at 276, using the Auto-train analysis.
We believe that the bankruptcy trustee, as the proponent of substantive consolidation, presented sufficient evidence on the common identity of the debtor entities and on the harm to be avoided or benefit to be realized from consolidation to establish a prima facie case for consolidation. That there is substantial identity between the entities to be consolidated is undisputed: appellants concede this point in their brief.
Because the trustee, as proponent of consolidation, established a prima facie case for substantive consolidation, it was incumbent on the appellants to show that (1) they relied solely on SMA’s separate credit; and (2) they will be prejudiced by substantive consolidation. While we acknowledge that they have shown that they will be prejudiced by substantive consolidation, we do not believe that appellants have established that they relied solely on SMA’s separate credit in dealing with SMA. Appellants point to two pieces of evidence which, they contend, prove that they relied on the separate credit of SMA: (1) the testimony by Georgia King that both GPH and SMA held themselves out to the public and to their creditors as separate corporations and (2) the fact that Eastgroup pursued a court fight over the identity of the tenant in the lease contracts with East-group and that the bankruptcy and district
III. CONCLUSION
We AFFIRM the order of the bankruptcy court granting substantive consolidation in the bankruptcy cases of GPH and SMA.
. For a short time, GPH operated a motel for an unrelated entity.
. It seems that GPH’s predecessor corporations may have originally leased the properties from Eastgroup and that, later, GPH assigned its interests as lessee in the leases to SMA. See In re
Eastgroup’s claim against SMA is for prepetition rent and postpetition rent (during both the Chapter 11 and the Chapter 7 cases).
. After liquidation of the properties securing the mortgage — and partial payment of SMA’s obligation to them — Olshan and Macy have an unsecured claim of approximately $8,000,000 against SMA.
. At the time that Mills moved for substantive consolidation, SMA had $861,205 available to satisfy claims against it and GPH had $283,917.34 available to satisfy its creditors. The majority of the claims filed in the two bankruptcy cases were filed against GPH, the operator of the motel properties. Administrative — that is, post-petition — claims filed against SMA included $800,000 in Chapter 11 claims and $600,000 in Chapter 7 claims. Chapter 11 administrative claims filed against GPH total approximately $1,000,000; no evidence was presented on the amount of Chapter 7 administrative claims filed against GPH. The IRS and the State of Florida have priority claims of approximately $700,000 against GPH.
. SMA’s general partner is 11 Stars Realty, Inc. See In re Gainesville P-H Properties, Inc., 87 B.R. at 710; In re Southern Motel Assocs., Ltd., 81 B.R. at 113.
. In addition, we note that Amir Khimani is the principal and chief executive officer of both GPH and SMA. See In re Gainesville P-H Properties, 87 B.R. at 710; In re Southern Motel Assocs., 81 B.R. at 113.
. We note that SMA’s rental obligations consisted of fixed rental payments and percentage rental payments on each property (based on occupancy). See In re Gainesville P-H Properties, 87 B.R. at 710; In re Southern Motel Assocs., 81 B.R. at 114.
. King also testified that each of the entities had claims against the other.
. The Second Circuit has likened the bankruptcy court's power to consolidate substantively to the ability to pierce the corporate veil of separate corporations to reach assets for the satisfaction of a related corporation’s debt. See James Talcott, Inc. v. Warton (In re Continental Vending Machine Corp.), 517 F.2d 997, 1000 (2d Cir. 1975).
. See In re Murray Indus., 119 B.R. at 828; In re Vecco Construction Indus., 4 B.R. 407, 409 (Bankr.E.D.Va. 1980).
. Even if an objecting creditor establishes reliance in fact, it may be estopped from asserting this defense to consolidation where a reasonable creditor in a similar situation would not have relied on the separate credit of one of the entities to be consolidated — that is, "where such a claim would be unreasonable in light of all the facts." See In re Snider Bros., 18 B.R. at 237, 235, 238 (estoppel applies where creditors “knew or should have known of the close association between affiliate and bankrupt," or where creditors “could be deemed to have dealt with the debtors with full knowledge of their ‘consolidated operation’ ”). *
. See In re Vecco Construction Indus., 4 B.R. at 410.
. Other cases in which the seven-factor inquiry was used include In re Mortgage Investment Co., 111 B.R. 604, 610 (Bankr.W.D.Tex. 1990), and In re Donut Queen, 41 B.R. 706, 709 (Bankr.E.D.N.Y. 1984).
. We decjine to say in the abstract whether any particular factor shows one element or another in the proponent’s prima facie case: because of the fact-specific nature of cases on substantive consolidation, a factor may support either element of the prima facie case or both elements— depending on the facts of the particular case.
.The bankruptcy trustee testified that, absent consolidation, there were no funds available in the GPH cases to pay general unsecured creditors and that it was possible that not all administrative claims in the GPH case would be paid in full. In contrast, he testified that it was possible that some of the general unsecured creditors in the SMA case could be paid.
. In its arguments to the bankruptcy court in In re Gainesville P-H Properties, Eastgroup argued that, because GPH and SMA are so closely related, GPH should be bound by the findings entered in previous litigation between East-group and SMA. See 87 B.R. at 712.
. We note that this evidence regarding the identity of Eastgroup’s tenant only applies to Eastgroup’s defense that it relied on SMA’s separate credit; it does not support the defense of Olshan and Macy.
. To the extent that the bankruptcy opinions in these two cases, In re Gainesville P-H Properties, Inc., 87 B.R. 709 (Bankr.M.D.Fla. 1988), and In re Southern Motel Assocs., Ltd., 81 B.R. 112 (Bankr.M.D.Fla. 1987), serve to show that East-group knew of some sort of relationship between GPH and SMA and that a portion of the rent it received was based on motel occupancy, this litigation may actually undercut East-group’s defense of sole reliance on SMA’s credit. See In re Snider Bros., Inc., 18 B.R. at 235, 237, 238.
Reference
- Full Case Name
- EASTGROUP PROPERTIES, Al Olshan, Morris Macy v. SOUTHERN MOTEL ASSOC., LTD., George E. Mills, Jr., Trustee for Southern Motel Associates, Ltd. and Trustee for Gainesville P-H Properties, Inc., Gainesville P-H Properties, Inc.
- Cited By
- 30 cases
- Status
- Published