In re Penn Central Transportation Co.
In re Penn Central Transportation Co.
Opinion of the Court
In this case, we are presented with three issues for resolution. First, does the court in railroad reorganization proceedings under section 77 of the Bankruptcy Act, 11 U.S.C. § 205 (1964), have the power to order that proceeds from the sale of mortgaged properties be placed in a central depository rather than be placed in accordance with the terms of the mortgage agreements? Second, assuming that the reorganization court has the power to order the deposit of proceeds of the sale of mortgaged properties contrary to the terms of the mortgage agreements, what are the applicable standards under the Bankruptcy Act which should guide the court in this regard? And third, has the reorganization court complied with such standards here.
I. FACTS
The facts of this case are essentially undisputed. On November 13, 1970, the trustees of the property of the debtor Penn Central Transportation Company (Penn Central Trustees) petitioned the reorganization court for authority to sell nine parcels of real estate, each sale exceeding $100,000 in amount.
The petition of the Penn Central Trustees requested that the nine parcels be conveyed free of lien, that the liens to which the property had been subject attach to the sale proceeds, and that the net sale proceeds be deposited in the registry of the reorganization court. The New Haven Trustee opposed any deposit of proceeds other than with the indenture trustees.
On March 23, 1971, the reorganization court entered Orders No. 192 and 193 directing that a common bank account be established with the Girard Trust Bank, into which would be deposited the proceeds of the nine parcels of real estate in controversy here as well as the proceeds of all future sales of Penn Central properties in excess of $100,000.
II. JURISDICTIONAL BASIS FOR EXERCISE OF POWER BY REORGANIZATION COURT
The jurisdictional basis for the reorganization court’s control over the property of a debtor is found in section 77(a) of the Bankruptcy Act.
The indenture trustees here do not challenge the authority of the reorganization court to order the sale of the property. Rather, they are attacking the orders on the ground that the reorganization court exceeded its power un
III. APPLICABLE STANDARDS
Holding that the reorganization court had power to issue the challenged orders, however, does not terminate our inquiry. Section 77(o), by providing that orders entered pursuant to it are final for the purposes of appeal, clearly contemplates that meaningful judicial-review of such orders may be obtained. It thus follows that the power of the reorganization court is not absolute. Since the provision of section 77 (o) which is controlling here vests discretion in the reorganization court, we may apply traditional standards and reverse that court only if it has abused its discretion. The Supreme Court, m the New Haven Inclusion Cases, supra, 392 U.S. at 435, 90 S.Ct. at 2081, restated the test previously established:
“ ‘It is not enough to reverse the District Court that we might have appraised the facts somewhat differently. If there is warrant for the action of the District Court, our task on review is at an end.’ Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., 318 U.S., at 564 [63 S.Ct. 727, 87 L.Ed. 959].”
Of course, the test should not be applied in a vacuum. In evaluating whether “there is warrant for the action of the District Court”, we must keep in mind, in addition to the fact that certain valuable property rights are being adjusted, the underlying philosophy of the Act in question. “After 35 years of § 77, as amended, it is unnecessary to re-canvass the two basic objectives of the statute — the conservation of the debtor’s assets for the benefit of creditors and the preservation of an ongoing railroad in the public interest.” New Haven Inclusion Cases, supra, at 431, 90 S.Ct. at 2078.
IV. COMPLIANCE WITH APPLICABLE STANDARDS
The appellants contend that the reorganization court has abused its discretion in that the orders have materially
The Penn Central Trustees have countered that these objections have no sound basis. As to the first contention —possible litigation to determine whether the liens have lapsed — we agree that this in terrorem argument is speculative and that the appellants are adequately protected by the terms of the orders. We do not agree, however, that the other objections may be summarily rejected as being “without merit.” These objections outline what amounts either to the creation of real hazards to the security of the debt or to the imposition of additional burdens upon the administration of the security under the mortgage indenture, and some of the burdens may be chargeable to that estate.
A most serious problem with the arrangment ordered by the reorganization court is that nine groups of indenture trustees under 29 separate mortgage agreements will probably feel compelled to litigate every future takedown petition by the Penn Central Trustees, whereas otherwise only the indenture trustees directly affected by a given taken down petition would litigate.
Another serious drawback to the utilization of the central depository is that such an arrangement might increase the charges to the debtor’s estate for the accounting and auditing of the funds so deposited. Orders No. 192 and 193 do not relieve the indenture trustees of their fiduciary responsibilities to the bondholder. Such indenture trustees would still be required to account for the funds and might be held responsible if omissions on their part resulted in detriment to the bondholder’s security. Therefore, they undoubtedly would have to continue to maintain their own accounts and would have to audit accounts kept by Penn Central and the central depository.
The appellants have asserted that they have, been adversely affected because they have been deprived, in favor of a stranger, of their bargained-for right to have the indenture trustees manage investment of the funds deposited as security for the underlying debt. The Penn Central Trustees argue that this contention has no merit because “to the average bondholder, the Fidelity Bank and Joseph F. McDonald are just as much strangers as the Girard Trust
The significance of who manages the investments resides in the fact that secured creditors are entitled to receive interest on their claims after the filing of a Chapter X petition if the value of the collateral exceeds the unpaid balance of the debt, if the income from the collateral equals or exceeds the interest payable on the instrument, or if a surplus exists. See Nicholas v. United States, 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966); Sexton v. Dreyfus, 219 U.S. 399, 31 S.Ct. 256, 55 L.Ed. 244 (1911). Whether income in excess of the interest is earned is a matter which might well depend upon the management of the investments.
Appellants further argue that they would be deprived of the right to obtain the full value of proceeds of the investment of deposits and instead would receive a share of an average rate on the total return.
The Penn Central Trustees contend that the establishment of a central depository was justified by the exigencies of this complex reorganization, setting forth numerous reasons why this arrangement is administratively necessary. They assert that to have the sale proceeds deposited in separate banks in various locations would be unnecessarily confusing, that the funds are subject to liens of higher priority than those of the indenture trustees, because of the issuance of trustees’ certificates, and that the policing, supervision, and inspection of the accounts would be impeded. They also claim that some banks might refuse to obey turnover instructions necessitating plenary actions, that the reorganization court would lose control of funds belonging to the estate thus increasing the risk of dissipation, that the expense of policing would preclude any cost savings, and that economies could be effected if the funds were consolidated. However, the record before us does not support these concerns regarding the administration of the funds, and the objectives sought by the Penn Central Trustees possibly could be met by other less drastic arrangements.
The heart of the matter is that although the Penn Central Trustees have attempted to justify the orders on the grounds of “efficiency, economy and security,” in that commingling of the proceeds of the sale of property under any of the mortgages would prevent “fragmented administration” and disobedience to “turnover directions by the Court,” and would lessen the risk of “dissipation” of the assets and “the expense of policing and inspection,” such assertions are not adequately supported by evidence in the "record. Thus, one of the purposes of the statute — “conservation of the debtor’s assets for the benefit of creditors” — has been de-emphasized although it has not been demonstrated that the other purpose — “preservation of an ongoing railroad” — has been realistically furthered. We hold, therefore, on this record, that the reorganization court was not justified in ordering the establishment of a central depository in derogation of appellants’ contract rights under the mortgage indenture.
Accordingly, Order No. 192 and paragraph 2 of Order No. 193 of the reorganization court will be reversed and the cause remanded for action consistent with this opinion. And in any event, our disposition of this matter is without prejudice to the filing at some appropriate time in .the future of another petition to establish a central depository or some other arrangement should a demonstrable need for such a depository or other arrangement arise.
. Under Reorganization Court Order No. 78, the court granted Penn Central’s petition for authority to convey property sold for less than $100,000 free of lien without specific court approval of each transaction if such sales met the standards of the applicable mortgage indenture and the proceeds of the sales were deposited in accordance with the controlling mortgage agreement.
. The aggregate principal amount of the bonds was originally $34,025,800.
. The New Haven trustee is the sole holder of the bonds issued subject to the mortgage.
. See n. 1, stipra.
. At the hearing on the petition, no questions were raised as to the power of the reorganization court to approve the sales or as to the adequacy of the consideration to be received by the Penn Central trustees for the properties.
. It appears that this case will affect nine groups of indenture trustees who are re
. Order No. 192 placed the burden of accounting for and maintenance of the separate interests in the common account upon Penn Central. They were directed to file monthly statements with the reorganization court and the respective mortgage indenture trustees.
. “ . . .If the petition [for reorganization] is so approved, the court in which the order is entered shall, during the pendency of the proceedings under this section and for the purposes thereof, have exclusive jurisdiction of the debtor and its property wherever located, and shall have and may exercise in addition to the powers conferred by this section all the powers, not inconsistent with this section, which a court of the United States would have had if it had appointed a receiver in equity of the property of the debtor for any purpose. . . . ” 11 U.S.C. § 205 (a) (Supp.VI. 1970).
. “ . . . The judge may order and decree any sale of property, whether or not incident to an abandonment, under this subsection at public or private sale and subject to or free from liens. The proceeds derived from any such sales shall be received by the trustee or trustees subject, in case the property was sold free from lien, to any liens thereon at the time of sale, and shall be applied or disposed of in such manner as the judge by further order shall direct. The expense of such sale shall be borne in such manner as the judge may determine to be equitable. The judge may order the trustee or trustees of the debtor to deposit such proceeds with any mortgage trustee entitled thereto, to be applied in payment of all or part of such mortgage.” 11 U.S.C. § 205(o) (1964).
. In Chapter X reorganizations, the remedial and procedural rights of secured creditors are subject to modification, provided that such modification does not violate the creditors’ Fifth Amendment rights. See Wright v. Vinton Branch of Mountain Trust Bank, 300 U.S. 440, 470, 57 S.Ct. 556, 81 L.Ed. 736 (1937). However, a substantial impairment of secured creditors’ rights would be unconstitutional, particularly if not justified by facts of record. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935).
. The public interest is of particular importance in this reorganization for several reasons. The maintenance of the Penn Central as an operating railroad is a matter of serious importance to the nation’s economic well-being and physical security. Millions of private individuals as well as most financial and eleemosynary institutions, have invested in this railroad and are entitled to protection. Also, the federal Government has guaranteed loans made by the trustees of the railroad, and if there is a default, the public well bear the ultimate burden of repayment.
. Normally, railroad mortgages are open- ' ended, allowing property covered by the mortgage to be sold and replaced by other property of equal value. When property is sold but not replaced, the mortgage lien attaches to the .sale proceeds, which are then deposited with the indenture trustee as security for the debts; the railroad has access to such money or other such proceeds only if the utilization it contemplates complies with the terms of the mortgage indenture. Expenditures for improvements and better-ments are generally provided for under the indenture because they are subject to the lien of the mortgage. During reorganization, the supervising court has the power under appropriate safeguards to authorize the railroad trustees to take down for operational purposes funds held
. It is argued that the advantage to the Penn Central Trustees is that the indenture trustees, under the central depository arrangement, would not have custody of the funds, and would have to post a bond every time they desired to stay takedown orders of the reorganization court pending appeal. The hazards, on the other hand, were frankly recognized by the reorganization court: “THE COURT: You would agree that the bondholders [in the case of Central R. Co. of N. J. v. Manufacturers Hanover Trust Co., 421 F.2d 604 (3d Cir. 1970)] got a rather empty victory in the Court of Appeals.”
Similarly, appellants argue that the bondholder will be deprived of his assurance that the indenture trustees will release deposited funds only in accordance with the mortgage; namely only for improvements and betterments which would then secure the debt, or for operations only after exerting every possible effort to protect the bondholder’s position. This, too, indicates that commingling of the proceeds of sales under under all of the mortgages would further complicate subsequent litigation which would arise during the course of the reorganization.
Penn Central, as further justification for the order, has raised the specter that not all of the indenture trustees are subject to the jurisdiction of the reorganization court, and that if they refused to obey takedown orders, plenary suits in other courts may have to be instituted to compel compliance. Even assuming that counsel’s statement that he represented the interests of all indenture trustees would not bind the others to his further statement “that we have submitted ourselves to the jurisdiction of this Court . . . ”, the appellant indenture trustees in No. 71-1445 are clearly within the jurisdiction of the court. Therefore, the fear of future plenary actions is not justification, by itself, for including appellant within the scope of Order No. 192.
. It seems anomalous that the debtor is being given the responsibility in the first instance for accounting for and management of the creditor’s security.
. For example, assume that the proceeds from a given sale of mortgaged property amounted to $1,000,000, and that it would be possible to invest that sum at 7%. If, some months later, another parcel of property to which a different mortgage applies is sold for $10,000,000, and the latter sum can be invested at only 5% interest, then under the central depository arrangement, the benefit to the first indenture trustees would be only one-eleventh of the interest yield on $11,000,-000 at an average rate of return of 5.18%, rather than all of the interest yield on $1,000,000 at 7%. Over the period of a year, this would amount to a dollar loss of $18,182 to the first indenture trustees.
. For example, it appears that if the proceeds were deposited in 29 separate accounts, under the exclusive control of the respective indenture trustees, in one bank within the jurisdiction of the reorganization court, the interests of all parties could be accommodated. The indenture trustees would be free to invest the funds as they deem appropriate, subject to court approval. Accounting functions could be assumed by one representative selected by all the indenture trustees, and the imposition of the requirement that the securities in which funds are invested be kept in safe deposit boxes in that bank would simplify a number of the problems referred to by the Penn Central Trustees.
Another arrangement would be for the district court to require that all the funds
Reference
- Full Case Name
- In the Matter of PENN CENTRAL TRANSPORTATION COMPANY, Debtor. Appeal of Richard Joyce SMITH, Trustee of the Property of the New York, New Haven and Hartford Railroad Company, Debtor, in No. 71-1405. Appeal of The FIDELITY BANK and Joseph F. McDonald, as Trustees under the Divisional First Mortgage dated as of December 31, 1968 of Penn Central Company (Now Penn Central Transportation Company, the Debtor), in No. 71-1445
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