Ultra Petroleum Corp. v. Ad Hoc Comm. of Unsecured Creditors of Ultra Res., Inc. (In Re Ultra Petroleum Corp.)
Ultra Petroleum Corp. v. Ad Hoc Comm. of Unsecured Creditors of Ultra Res., Inc. (In Re Ultra Petroleum Corp.)
Opinion
*537 These bankruptcy proceedings arise from exceedingly anomalous facts. The debtors entered bankruptcy insolvent and now are solvent. That alone makes them rare. But second, the debtors accomplished their unlikely feat by virtue of a lottery-like rise in commodity prices. The combination of these anomalies makes these debtors as rare as the proverbial rich man who manages to enter the Kingdom of Heaven.
The key legal question before us is whether the rich man's creditors are "impaired" by a plan that paid them everything allowed by the Bankruptcy Code. The bankruptcy court said yes. In that court's view, a plan impairs a creditor if it refuses to pay an amount the Bankruptcy Code independently disallows. In reaching that conclusion, the bankruptcy court split from the only court of appeals to address the question, every reported bankruptcy court decision on the question, and the leading treatise discussing the question. We reverse and follow the monolithic mountain of authority holding the Code-not the reorganization plan-defines and limits the claim in these circumstances.
Because the bankruptcy court saw things differently, it ordered the debtors to pay certain creditors a contractual Make-Whole Amount and postpetition interest at a contractual default rate. We vacate and remand those determinations for reconsideration.
I.
Ultra Petroleum Corporation ("Petroleum") is an oil and gas exploration and production company. To be more precise, it's a holding company. Petroleum's subsidiaries-UP Energy Corporation ("Energy") and Ultra Resources, Inc. ("Resources")-do the exploring and producing. Resources took on debt to finance its operations. Between 2008 and 2010, Resources issued unsecured notes worth $1.46 billion to various noteholders. And in 2011, it borrowed another $999 million under a Revolving Credit Facility. Petroleum and Energy guaranteed both debt obligations.
In 2014, crude oil cost well over $100 per barrel. But then Petroleum's fate took a sharp turn for the worse. Only a year and a half later, a barrel cost less than $30. The world was flooded with oil; Petroleum and its subsidiaries were flooded with
*538
debt. On April 29, 2016, the companies voluntarily petitioned for reorganization under Chapter 11.
See
During bankruptcy proceedings, however, oil prices rose. Crude oil approached $80 per barrel, and the Petroleum companies became solvent again. So, the debtors proposed a rare creature in bankruptcy-a reorganization plan that (they said) would compensate the creditors in full. As to creditors with claims under the Note Agreement and Revolving Credit Facility (together, the "Class 4 Creditors"), the debtors would pay three sums: the outstanding principal on those obligations, pre-petition interest at a rate of 0.1%, and post-petition interest at the federal judgment rate.
In re Ultra Petroleum Corp.
, No. 4:16-bk-32202, ECF No. 1308-1 at 25-26 (Bankr. S.D. Tex. 2017). Accordingly, the debtors elected to treat the Class 4 Creditors as "unimpaired." Therefore, they could not object to the plan.
The Class 4 Creditors objected just the same. They insisted their claims were impaired because the plan did not require the debtors to pay a contractual Make-Whole Amount and additional post-petition interest at contractual default rates.
Under the Note Agreement, prepayment of the notes triggers the Make-Whole Amount. That amount is designed "to provide compensation for the deprivation of" a noteholder's "right to maintain its investment in the Notes free from repayment." A formula defines the Make-Whole Amount as the amount by which "the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal" exceeds the notes' "Called Principal." Remaining scheduled payments include "all payments of [the] Called Principal and interest ... that would be due" after prepayment (if the notes had never been prepaid). And the discounted value of those payments is keyed to a "Reinvestment Yield" of 0.5% over the total anticipated return on comparable U.S. Treasury obligations.
Under the Note Agreement, petitioning for bankruptcy automatically renders the outstanding principal, any accrued interest, and the Make-Whole Amount "immediately due and payable." Failure to pay immediately triggers interest at a default rate of either 2% above the normal rate set for the note at issue or 2% above J.P. Morgan's publicly announced prime rate, whichever is greater.
The Revolving Credit Facility does not contain a make-whole provision. But it does contain a similar acceleration clause that made the outstanding principal and any accrued interest "automatically ... due and payable" as soon as Resources petitioned for bankruptcy. And it likewise provides for interest at a contractual default rate-2% above "the rate otherwise applicable to [the] Loan"-if Resources delayed paying the accelerated amount.
Under these two agreements, the creditors argued the debtors owed them an additional $387 million-$201 million as the Make-Whole Amount and $186 million 1 in post-petition interest. Both sides chose to kick the can down the road. Rather than force resolution of the impairment issue at the plan-confirmation stage, the parties stipulated the bankruptcy court could resolve the dispute by deeming the creditors *539 unimpaired and confirming the proposed plan. Meanwhile, the debtors would set aside $400 million to compensate the Class 4 Creditors if necessary "to render [the creditors] Unimpaired." The bankruptcy court agreed and confirmed the plan.
After confirmation, the parties (and the bankruptcy court) turned back to the question of impairment. The debtors acknowledged the plan did not pay the Make-Whole Amount or provide post-petition interest at the contractual default rates. But they insisted the Class 4 Creditors were not "impaired" because federal (and state) law barred them from recovering the Make-Whole Amount and entitled them to receive post-petition interest only at the federal judgment rate.
The Bankruptcy Code provides that a class of claims is not impaired if "the [reorganization] plan ... leaves unaltered the legal, equitable, and contractual rights to which such claim ... entitles the holder."
The debtors' argument as to post-petition interest was much the same: The Bankruptcy Code entitles creditors, at most, to post-petition interest at the "legal rate," not the rates set by contract.
The bankruptcy court rejected the premise that it must bake in the Code's provisions before asking whether a claim is impaired. Instead it concluded unimpairment "requires that [creditors] receive all that they are entitled to under state law."
In re Ultra Petroleum Corp.
,
The debtors sought a direct appeal to this Court (rather than the district court) because the case raises important and unsettled questions of law.
See
II.
We consider first whether a creditor is "impaired" by a reorganization plan simply because it incorporates the Code's disallowance provisions. We think not.
*540 A.
Chapter 11 lays out a framework for proposing and confirming a reorganization plan. Confirmation of the plan "discharges the debtor from any debt that arose before the date of such confirmation."
Let's start with the statutory text. Section 1124(1) says "a class of claims or interests" is not impaired if "the plan ... leaves unaltered the [claimant's] legal, equitable, and contractual rights." The Class 4 Creditors spill ample ink arguing their rights have been altered. But that's both undisputed and insufficient. The plain text of § 1124(1) requires that "the plan" do the altering. We therefore hold a creditor is impaired under § 1124(1) only if " the plan " itself alters a claimant's "legal, equitable, [or] contractual rights."
The only court of appeals to address the question took the same approach. In
In re PPI Enterprises (U.S.), Inc.
, a landlord (creditor) argued the reorganization plan of his former tenant (debtor) impaired his claim because it did not pay him the full $4.7 million of rent he was owed over the life of the lease.
Decisions from bankruptcy courts across the country all run in the same direction.
See, e.g.
,
In re Tree of Life Church
,
The creditors cannot point to a single decision that suggests otherwise. That's presumably why Collier's treatise states the point in unequivocal terms: "Alteration of Rights by the Code Is Not Impairment under Section 1124(1)." 7 COLLIER ON BANKRUPTCY ¶ 1124.03[6] (16th ed. 2018). "We are always chary to create a circuit split."
United States v. Graves
,
B.
The Class 4 Creditors' counterarguments do not move the needle. First, they focus on § 1124(1) 's use of the word "claim." They note the Code elsewhere speaks of "
allowed
claims."
See, e.g.
,
But the broader statutory context cuts the other way. Section 1124 is not just (or even primarily) about the allowance of claims. It is about rights-the "legal, equitable, and contractual rights to which [the] claim ... entitles the holder."
Finding no help in § 1124(1) 's statutory text, the Class 4 Creditors turn to the legislative history of a different provision. In 1994, Congress repealed § 1124(3), which provided that a creditor's claim was not impaired if the plan paid "the
allowed amount
of such claim."
Even for those who think legislative history can be relevant to statutory interpretation, this particular history is not. It does not say that every disallowance causes impairment. Rather, Congress repealed § 1124(3) in response to a specific bankruptcy court decision.
See
In re New Valley Corp.
,
Next, the Class 4 Creditors attempt to distinguish
PPI
. True, that case involved disallowance under § 502(b)(6), not § 502(b)(2). But that's a distinction without a difference.
See
In re W.R. Grace & Co.
,
*542
Section 502 states that "the court ...
shall allow
[a] claim in [the requested] amount,
except to the extent that
" any one of nine conditions apply. If any of the enumerated conditions applies, the court shall not allow the relevant portion of the claim.
PPI
reasoned that where one of those conditions applies, the Code-not the plan-impairs the creditors' claims.
See
The Class 4 Creditors (like the bankruptcy court) also point to the mechanics of Chapter 11 discharge to suggest the plan itself, not the Code, is doing the impairing. They note the Code's disallowance provisions are carried into effect only if the plan is confirmed, and "confirmation of the plan ... discharges the debtor from any debt that arose before" confirmation.
III.
That leaves the question whether the Code disallows the creditors' claims for the Make-Whole Amount and post-petition interest at the contractual default rates specified in the Note Agreement and the Revolving Credit Facility. The bankruptcy court never reached either question. The parties nevertheless urge us to reach them now. The creditors say their contracts entitle them to both amounts, and that their contracts should be honored under bankruptcy law's longstanding "solvent-debtor" exception. The debtors argue no such exception exists in modern bankruptcy law. And the debtors further argue both claims are governed by the Bankruptcy Code, not the pre-Code law or the parties' contracts.
A word of clarification at the outset regarding terminology: For almost three hundred years, bankruptcy law has recognized different kinds of "postpetition interest." As relevant here, the first is part of an underlying debt obligation-like the rate specified in the Note Agreement (i.e., interest as part of a claim). Although such interest has a life before bankruptcy, it may continue to exist and accrue from when the debtor files a bankruptcy petition until the day he finally pays the underlying debt. The second is interest a creditor is entitled to recover as a consequence of receiving a bankruptcy award (i.e., interest on a claim). That interest never existed before bankruptcy; rather, it arises only after bankruptcy has transmogrified a debt obligation into a bankruptcy award. Both types of interest are "post-petition" in that they accrue after the petition is filed. But the parties use the phrase "post-petition interest" to refer exclusively to the latter type of interest. Unless otherwise indicated below, so do we.
With that understanding, we first consider the historical, pre-Code provenance of the solvent-debtor exception. Second, we consider the proper interpretation of the Code. Finally, we vacate and remand both questions to the bankruptcy court.
A.
In eighteenth-century England, only a creditor could kick-start bankruptcy proceedings by submitting a petition and an affidavit to the Lord Chancellor. (There was nothing like our voluntary debtor petition under Chapter 11.
See
*543
Several debtor-friendly rules softened things. Of critical importance, English law barred creditors from recovering any interest that accrued after the Lord Chancellor issued his commission.
Sexton v. Dreyfus
,
But there were exceptions to these rules. For example, where a secured creditor held collateral that produced interest during bankruptcy proceedings, he could recover that interest after the commission date.
See Ex Parte Ramsbottom
(1835),
in
2 BASIL MONTAGU & SCROPE AYRTON, REPORTS OF CASES IN BANKRUPTCY 79, 83-84 (1836);
cf.
Sexton
,
Most importantly for our purposes, however, English bankruptcy law carved out an exception for solvent debtors. "In case of a surplus coming to a Bankrupt, Creditors have a right to interest wherever there is a contract for it appearing, either on the face of the security or by evidence." 1 COOKE , supra , at 198; 2 WILLIAM BLACKSTONE, COMMENTARIES *488. So, in 1743, the Lord Chancellor awarded "subsequent interest" to Stephen Evance's creditors because his estate was "able to pay it." Bromley v. Goodere (1743), 26 Eng. Rep. 49, 50-52; 1 Atk. 75, 77-80 (Ch.). Where the bankrupt's estate was solvent, the Lord Chancellor reasoned, awarding post-commission interest to some creditors would not prevent other creditors from receiving their "rateable portion." Ibid. ; see also Ex Parte Rooke (1753), 26 Eng. Rep. 156, 157; 1 Atk. 244, 245 (Ch.).
But the fact the bankrupt's estate contained sufficient funds to pay creditors post-commission interest did not create a free-standing right to recover interest accruing throughout bankruptcy and up to payment.
Ex Parte Marlar
(1746), 26 Eng. Rep. 97, 98; 1 Atk. 150, 151 (Ch.). The solvent-debtor exception simply allowed any interest to
continue
accruing (at the contractual rate) if the creditor's contract already provided for interest on the underlying debt.
See Ex Parte Mills
(1793), 30 Eng. Rep. 640, 644; 2 Ves. jun. 295, 303 (Ch.);
accord
Nicholas v. United States
,
American bankruptcy law is codified against this background. The Constitution authorizes Congress "[t]o establish ... uniform Laws on the subject of Bankruptcies throughout the United States." U.S. CONST . art. I, § 8, cl. 4. When Congress first exercised that power to adopt permanent federal bankruptcy legislation in 1898, it borrowed extensively from this English history.
See
Bankruptcy Act of 1898, ch. 541,
B.
In 1978, Congress enacted an entirely new Bankruptcy Code.
See
Bankruptcy Reform Act of 1978, Pub. L. No. 95-598,
For starters, Congress codified the general rule barring post-petition interest
*545
that is
part of
a creditor's claim in
Congress also codified the exception for oversecured creditors.
See
United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd.
,
At first blush, it appears Congress also codified the solvent-debtor exception-or something very much like it-in § 726(a)(5).
See
In re Colortex Indus., Inc.
,
(a) Except as provided in section 510 of this title, property of the estate shall be distributed-
(1) first, in payment of claims of the kind specified in ... section 507 ... ;
(2) second, in payment of any allowed unsecured claim, other than a claim of a kind specified in paragraph (1), (3), or (4) of this subsection ... ;
(3) third, in payment of any allowed unsecured claim proof of which is tardily filed under section 501(a) of this title ... ;
(4) fourth, in payment of any allowed claim, whether secured or unsecured, for any fine, penalty, or forfeiture, or for multiple, exemplary, or punitive damages, arising before the earlier of the order for relief or the appointment of a trustee ... ;
(5) fifth, in payment of interest at the legal rate from the date of the filing of the petition, on any claim paid under paragraph (1), (2), (3), or (4) of this subsection; and
(6) sixth, to the debtor.
This principle applies in Chapter 11 cases too. Chapter 7 and Chapter 11 bankruptcies generally run along different tracks.
4
But § 1129(a)(7), commonly referred to as the "Best Interests of Creditors" test, incorporates § 726(a) 's waterfall provision.
See
7 COLLIER ,
supra
, ¶ 1129.02[7][c][iii]. It requires a Chapter 11 plan to provide that impaired creditors "will receive ... not less than the amount that [they] would ... receive if the debtor were liquidated under chapter 7,"
But § 726(a) 's solvent-debtor exception differs from the pre-Code version in several respects. First, although the pre-Code version applied to all creditors with a contractual entitlement to interest, the Code's version applies to all creditors in Chapter 7 cases, but only impaired creditors in Chapter 11 cases. Section 1129(a)(7) states it applies only "with respect to [an] impaired class of claims." Its plain text does not apply to
unimpaired
claims.
See
Cont'l Sec. Corp. v. Shenandoah Nursing Home P'ship
,
Second, the Code changed the source of recoverable post-petition interest. The pre-Code solvent-debtor exception allowed creditors to recover interest as part of a claim. The Code, by contrast, requires solvent debtors to pay post-petition interest on a claim.
The Code itself highlights the difference. And we infer a distinction in meaning from Congress's distinction in language. See, e.g. , ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (2012). For example, § 726(a)(2) refers to payment of a "claim." So too does § 502(b)(2), which refers to a " claim ... for unmatured interest." These provisions prove Congress knew how to write about interest as part of a claim when it wanted to. By contrast, § 726(a)(5) provides for "payment of [postpetition] interest ... on [ the ] claim ." In doing so, Congress necessarily determined the type of post-petition interest contemplated in § 726(a)(5) is not part of the claim itself. 5
Third, the Code may have changed the applicable interest rate. The pre-Code exception allowed interest at the contract rate because it permitted interest fixed by contract to continue accruing according to the contract's terms.
Ex Parte Marlar
, 27 Eng. Rep. at 98. The Code, however, requires "interest at the legal rate."
One final note: Pre-Code, our Court pioneered the incorporation of England's solvent-debtor exception into American bankruptcy law. But we did so, at least in part, based on concerns that a solvent debtor could file a voluntary petition in bad faith to avoid paying interest and that
*547
a creditor would be powerless to stop the then-
ex
-
parte
bankruptcy proceedings.
See
Johnson v. Norris
,
C.
The next question is what this historical and statutory backdrop means for the creditors' claims to the Make-Whole Amount and post-petition interest. As we explain below, the creditors can recover the Make-Whole Amount if (but only if) the solvent-debtor exception survives Congress's enactment of § 502(b)(2). We doubt it did. But we vacate and remand to allow the bankruptcy court to answer the question in the first instance.
The creditors' entitlement vel non to post-petition interest is even murkier. The parties agree the creditors are entitled to some post-petition interest, but they disagree about the rate-namely, whether it is the federal judgment rate or something higher. To the extent the creditors seek postpetition interest as part of their claims, they run into the same issues that affect the Make-Whole Amount. To the extent they seek post-petition interest on their claims, the pre-Code solvent-debtor exception does not countenance it. And the Code itself says nothing about post-petition interest on unimpaired claims for Chapter 11 cases. It is not clear then what should fill that vacuum, and the bankruptcy court said nothing about it. We therefore vacate the award of post-petition interest and remand that question to the bankruptcy court as well.
1.
We start with whether the Make-Whole Amount is disallowed by § 502(b)(2). That Code provision requires a bankruptcy court to disallow a claim "to the extent that [it seeks] unmatured interest."
The debtors make a compelling argument the Make-Whole Amount is one such disallowed claim. We are persuaded by three aspects of the debtors' argument.
First, the Make-Whole Amount is the economic equivalent of "interest." The purpose of a make-whole provision "is to compensate the lender for lost interest." 4 COLLIER ,
supra
, ¶ 502.03[3][a];
see
In re MPM Silicones, L.L.C.
,
Second, the interest for which the Make-Whole Amount compensates was "unmatured" when the debtors filed their Chapter 11 petitions. Section 502(b) 's disallowance provisions apply "as of the date of the filing of the petition." On that day, the debtors did not owe the Make-Whole Amount or the underlying interest. The Note Agreement's acceleration clause doesn't change things because it operates as an
ipso facto
clause by keying acceleration to, among other things, the debtor's decision to file a bankruptcy petition.
See
In re Lehman Bros. Holdings Inc.
,
Third, those decisions taking a different view are unpersuasive. Some courts have concluded § 502(b)(2) does not cover make-whole provisions on the assumption "they fully mature pursuant to the provisions of the contract."
In re Outdoor Sports Headquarters, Inc.
,
The Class 4 Creditors' most persuasive response is that none of these arguments applies to a
solvent
debtor. First, they try the "absolute priority rule," insisting it bars a solvent debtor from paying stockholders any surplus before fully compensating its creditors. That is only half right. For starters, the absolute priority rule applies when asking whether a plan is "fair and equitable" in a cram-down scenario.
Their second argument fares better: If the pre-Code solvent-debtor exception survives in the background of the Code, then the Class 4 Creditors have a point. As explained above in Part III.A, English bankruptcy law gave the creditors of a solvent debtor the "right to interest wherever there is a contract for it." 1 COOKE , supra , at 198; accord Bromley , 26 Eng. Rep. at 50-52. And it appears undisputed the Class 4 Creditors would have a contractual right outside of bankruptcy to the interest specified in the Make-Whole Amount. Therefore, the pre-Code solvent-debtor exception would operate as a carve-out from § 502(b)(2) 's general bar on unmatured interest-in much the same way the exception operated as a carve-out from the pre-Code rule barring contract interest after the commission date.
The only question then is whether the pre-Code solvent-debtor exception survives the enactment of § 502(b)(2). As discussed above in Part III.B, Congress carefully incorporated some pre-Code principles but not others. And those principles it did incorporate, Congress sometimes modified. It might be true Congress chose not to codify the solvent-debtor rule as an absolute exception to § 502(b)(2).
See, e.g.
,
Ron Pair Enters.
,
One last note on our remand of the Make-Whole Amount. Much of the pre-Code law regarding solvent debtors-including our 1911 decision in
Johnson
-appears motivated by concerns over bad-faith filings. That is, courts worried that without the solvent-debtor exception, solvent debtors would seek bankruptcy protection in bad faith simply to avoid paying their debts. And many of the creditors' arguments before our Court have the same flavor. But Chapter 11 addresses this problem by creating a motion-to-dismiss procedure for bad-faith filings.
See
2.
Finally, we turn to post-petition interest. Both parties agree the creditors are entitled to
some
post-petition interest. That agreement is founded on Congress's past amendments to the Code. "Before 1994, [the Code] specified that a creditor receiving full payment of an 'allowed claim' was not impaired."
PPI
,
Even if this entitles the Class 4 Creditors to at least some post-petition interest, it does not establish how much. The parties point to only one Code provision setting a rate for post-petition interest on awards, § 726(a)(5), but for the reasons discussed above, it does not apply to the creditors here. Thus, we look outside the Code to see if a more general rule controls.
Here, the pre-Code practice provides no help. As far as we can tell, English bankruptcy law provided no right at all to interest on a bankruptcy award. See Ex Parte Marlar , 26 Eng. Rep. at 98. It merely allowed contractual interest that was accruing prior to the solvent debtor's bankruptcy to continue accruing at the contractual rate. See Ex Parte Mills , 30 Eng. Rep. at 644. That is why English creditors could recover post-petition interest as part of a claim (perhaps like the Make-Whole Amount). But it also is why the solvent-debtor exception does not answer whether the creditors can recover post-petition interest on a claim-or how much. As far as we can tell, the modern concept of post-petition interest on a claim had no analogy under pre-Code law.
In our view, that leaves two potential paths. The first is the general post-judgment interest statute.
See
One benefit of applying § 1961 to the claims of unimpaired creditors in Chapter 11 proceedings could be uniformity. If, as some courts hold, § 726(a)(5) 's reference to "the legal rate" incorporates the rate from § 1961, then all bankruptcy creditors could receive post-petition interest at the same rate.
See
Dow Corning
,
A second potential path is equity. Bankruptcy courts have long been thought of as courts of equity, especially when it comes to awarding interest.
See
Vanston Bondholders
,
After all, we know the Class 4 Creditors are by stipulation unimpaired, and § 1124(1) says unimpaired creditors retain their "legal, equitable, and contractual rights." The creditors here have no
legal
right to post-petition interest at the default rates. They do not point to a New York law requiring them to receive post-petition interest. Nor do they have a
contractual
right to such interest. The contractual rates at issue here governed interest paid on amounts owed under the contract, not interest on a bankruptcy award. The contracts did not purport to fix an interest rate that would govern if the parties proceeded to protracted litigation, obtained the equivalent of a "judgment" in bankruptcy court, and then a court awarded interest. But they might have an
equitable
right to post-petition interest. At least one well-reasoned bankruptcy decision has so held: For creditors "to be unimpaired the plan must provide that the Court may award post-petition interest at an appropriate rate if it determines to do so under its equitable power."
Energy Future
,
* * *
As we have explained, Code impairment is not the same thing as plan impairment. Because the bankruptcy court found otherwise, it did not address whether the Code disallows the Make-Whole Amount or post-petition interest, and if not, how much the debtors must pay the Class 4 Creditors. To secure plan confirmation, the parties stipulated the debtors would do whatever is necessary to make the creditors unimpaired. The bankruptcy court, therefore, must make that stipulation a reality. For that reason and others explained above, we REVERSE in part, VACATE in part, and REMAND for further proceedings consistent with this opinion.
This amount includes $106 million in interest on the outstanding principal under the notes, $14 million in interest on the Make-Whole Amount, and $66 million in interest on the outstanding principal under the Revolving Credit Facility, all accruing after the debtors filed their petitions.
Because the Lord Chancellor appointed commissioners promptly upon determining the debtor qualified as a bankrupt, the commission marked the beginning of bankruptcy proceedings. See Stephen J. Lubben, A New Understanding of the Bankruptcy Clause , 64 Case Western Res. L. Rev. 319, 331-32 (2013); Louis Edward Levinthal, Note, The Early History of English Bankruptcy , 67 U. Penn. L. Rev. 1, 17 (1919). For that reason, the commission date is functionally equivalent to the petition date under our present bankruptcy laws.
As England's foremost jurist once said, we "like not Lawes written in bloode." Edward Coke, Speech in the House of Commons (May 24, 1621), in 5 Commons Debates , 1621, at 176 (Wallace Notestein et al. eds., 1935). Compare Leges Duodecim Tabularum tbl. III, law X in 1 S.P. Scott, The Civil Law 64 (2001) ("Where a party is delivered up to several persons, on account of a debt, after he has been exposed in the Forum on three market days, they shall be permitted to divide their debtor into different parts, if they desire to do so."), with An Acte for the Discripcion of a Banckrupt and Reliefe of Credytors 1623, 21 Jac. c. 19, § 6 (A bankrupt may be "sett upon the Pillory in some publique Place, for the space of Two Houres, and have one of his or her Eares nayled to the Pillory and cutt off."); but see An Act to Prevent Frauds Frequently Committed by Bankrupts 1705, 4 & 5 Ann. c. 4, § 1 (authorizing punishment of death without the benefit of clergy for certain bankrupts).
Proceedings under Chapter 7 end in a fire sale, and the debtor is left a pile of ash.
See
Courts routinely talk about § 726(a)(5) as a present-day solvent-debtor "exception" to the general rule-now codified in § 502(b)(2) -barring post-petition interest.
See, e.g.
,
Fesco Plastics
,
The Class 4 Creditors' principal objection is the Make-Whole Amount is not
actually
interest. For example, they note it compensates the Noteholders not for the use of their money, but for Resources' forbearance from using that money. They add it is paid in a lump sum rather than earned over time. But as already discussed, our precedent interpreting § 502(b)(2) does not require the Make-Whole Amount to
be
unmatured interest; it requires only that it walk, talk, and act like unmatured interest.
See
Pengo
,
Reference
- Full Case Name
- In RE: ULTRA PETROLEUM CORPORATION; Keystone Gas Gathering, L.L.C.; Ultra Resources, Incorporated; Ultra Wyoming, Incorporated ; Ultra Wyoming LGS, Incorporated; UP Energy Corporation; UPL Pinedale, L.L.C. ; UPL Three Rivers Holdings, L.L.C., Debtors, Ultra Petroleum Corporation; Keystone Gas Gathering, L.L.C.; Ultra Resources, Incorporated; Ultra Wyoming, Incorporated ; Ultra Wyoming LGS, Incorporated; Up Energy Corporation; UPL Pinedale, L.L.C. ; UPL Three Rivers Holdings, L.L.C., Appellants, v. Ad Hoc Committee of Unsecured Creditors of Ultra Resources, Incorporated; OpCo Noteholders, Appellees.
- Cited By
- 3 cases
- Status
- Published