BFP v. Resolution Trust Corporation
BFP v. Resolution Trust Corporation
Opinion of the Court
delivered the opinion of the Court.
This case presents the question whether the consideration received from a noncollusive, real estate mortgage foreclosure sale conducted in conformance with applicable state law conclusively satisfies the Bankruptcy Code’s requirement that transfers of property by insolvent debtors within one year prior to the filing of a bankruptcy petition be in exchange for “a reasonably equivalent value.” 11 U. S. C. § 548(a)(2).
I
Petitioner BFP is a partnership, formed , by Wayne and Marlene Pedersen and Russell Barton in 1987, for the purpose of buying a home in Newport Beach, California, from Sheldon and Ann Foreman. Petitioner took title subject to a first deed of trust in favor of Imperial Savings Association (Imperial)
In October 1989, petitioner filed for bankruptcy under Chapter 11 of the Bankruptcy Code, 11 U. S. C. §§ 1101-1174. Acting as a debtor in possession, petitioner filed a complaint in Bankruptcy Court seeking to set aside the conveyance of the home to respondent Osborne on the grounds that the foreclosure sale constituted a fraudulent transfer under § 548 of the Code, 11 U. S. C. §548. Petitioner alleged that the home was actually worth over $725,000 at the time of the sale to Osborne. Acting on separate motions, the Bankruptcy Court dismissed the complaint as to the private respondents and granted summary judgment in favor of Imperial. The Bankruptcy Court found, inter alia, that the foreclosure sale had been conducted in compliance with California law and was neither collusive nor fraudulent. In an unpublished opinion, the District Court affirmed the Bankruptcy Court’s granting of the private respondents’ motion to dismiss. A divided bankruptcy appellate panel affirmed the Bankruptcy Court’s entry of summary judgment for Imperial. 132 B. R. 748 (1991). Applying the analysis set forth in In re Madrid, 21 B. R. 424 (Bkrtcy. App. Pan. CA9 1982), affirmed on other grounds, 725 F. 2d 1197 (CA9), cert, denied, 469 U. S. 833 (1984), the panel majority held that a “non-collusive and regularly conducted nonjudicial foreclosure sale... cannot be challenged as a fraudulent conveyance because the consideration received in such a sale establishes ‘reasonably equivalent value’ as a matter of law.” 132 B. R., at 750.
Petitioner sought review of both decisions in the Court of Appeals for the Ninth Circuit, which consolidated the appeals. The Court of Appeals affirmed. In re BFP, 974 F. 2d 1144 (1992). BFP filed a petition for certiorari, which we granted. 508 U. S. 938 (1993).
Section 548 of the Bankruptcy Code, 11 U. S. C. § 548, sets forth the powers of a trustee in bankruptcy (or, in a Chapter 11 case, a debtor in possession) to avoid fraudulent transfers.
Section 548 applies to any “transfer,” which includes “foreclosure of the debtor’s equity of redemption.” 11 U. S. C. § 101(54) (1988 ed., Supp. IV). Of the three critical terms “reasonably equivalent value,” only the last is. defined: “value” means, for purposes of § 548, “property, or satisfaction or securing of a . . . debt of the debtor,” 11 U. S. C.
In contrast to the approach adopted by the Ninth Circuit in the present case, both Durrett and Bundles refer to fair market value as the benchmark against which determination
That suspicion becomes a certitude when one considers that market value, as it is commonly understood, has no applicability in the forced-sale context; indeed, it is the very antithesis of forced-sale value. “The market value of... a
Neither petitioner, petitioner’s amici, nor any federal court adopting the Durrett or the Bundles analysis has come to grips with this glaring discrepancy between the factors relevant to an appraisal of a property’s market value, on the one hand, and the strictures of the foreclosure process on the other. Market value cannot be the criterion of equivalence in the foreclosure-sale context.
There is another artificially constructed criterion we might look to instead of “fair market price.” One might judge there to be such a thing as a “reasonable” or “fair” forced-sale price. Such a conviction must lie behind the Bundles inquiry into whether the state foreclosure proceedings “were calculated ... to return to the debtor-mortgagor his equity in the property.” 856 F. 2d, at 824. And perhaps that is what the courts that follow the Durrett rule have in mind when they select 70% of fair market value as the outer limit of “reasonably equivalent value” for forecloseable property (we have no idea where else such an arbitrary percentage could have come from). The problem is that such judgments represent policy determinations that the Bankruptcy Code gives us no apparent authority to make. How closely the price received in a forced sale is likely to approximate fair market value depends upon the terms of the forced sale — how quickly it may be made, what sort of public notice must be given, etc. But the terms for foreclosure sale are not standard. They vary Considerably from State to State, depending upon, among other things, how the particular State values the divergent interests of debtor and creditor. To specify a federal “reasonable” foreclosure-sale price is to extend federal bankruptcy law well beyond the traditional field of fraudulent transfers, into realms of policy where it has not ventured before. Some sense of history is needed to appreciate this.
The modern law of fraudulent transfers had its origin in the Statute of 13 Elizabeth, which invalidated “covinous and fraudulent” transfers designed “to delay, hinder or defraud creditors and others.” 13 Eliz., ch. 5 (1570). English courts
The history of foreclosure law also begins in England, where courts of chancery developed the “equity of redemption” — the equitable right of a borrower to buy back, or redeem, property conveyed as security by paying the secured debt on a later date than “law day,” the original due date. The courts’ continued expansion of the period of redemption left lenders in a quandary, since title to forfeited property could remain clouded for years after law day. To meet this problem, courts created the equitable remedy of foreclosure: after a certain date the borrower would be forever foreclosed from exercising his equity of redemption. This remedy was called strict foreclosure because the borrower’s entire interest in the property was forfeited, regardless of any accumulated equity. See G. Glenn, 1 Mortgages 3-18,358-362,395-406 (1943); G. Osborne, Mortgages 144 (2d ed. 1970). The next major change took place in 19th-century America, with the development of foreclosure by sale (with the surplus over the debt refunded to the debtor) as a means of avoiding the draconian consequences of strict foreclosure. Id., at 661-663; Glenn, supra, at 460-462, 622. Since then, the States have created diverse networks of judicially and legislatively crafted rules governing the foreclosure process, to achieve what each of them considers the proper balance between the
Fraudulent transfer law and foreclosure law enjoyed over 400 years of peaceful coexistence in Anglo-American jurisprudence until the Fifth Circuit’s unprecedented 1980 decision in Durrett. To our knowledge no prior decision had ever applied the “grossly inadequate price” badge of fraud under fraudulent transfer law to set aside a foreclosure sale.
For the reasons described, we decline to read the phrase “reasonably equivalent value” in § 548(a)(2) to mean, in its application to mortgage foreclosure sales, either “fair market value” or “fair foreclosure price” (whether calculated as a percentage of fair market value or otherwise). We deem, as the law has always deemed, that a fair and proper price, or a “reasonably equivalent value,” for foreclosed property, is the price in fact received at the foreclosure sale, so long as all the requirements of the State’s foreclosure law have been complied with.
This conclusion does not render § 548(a)(2) superfluous, since the “reasonably equivalent value” criterion will continue to have independent meaning (ordinarily a meaning similar to fair market value) outside the foreclosure context. Indeed, § 548(a)(2) will even continue to be an exclusive means of invalidating some foreclosure sales. Although collusive foreclosure sales are likely subject to attack under § 548(a)(1), which authorizes the trustee to avoid transfers “made . . . with actual intent to hinder, delay, or defraud” creditors, that provision may not reach foreclosure sales that, while not intentionally fraudulent, nevertheless fail to comply with all governing state laws. Cf. 4 L. King, Collier on Bankruptcy ¶ 548.02, p. 548-35 (15th ed. 1993) (contrasting subsections (a)(1) and (a)(2)(A) of §548). Any irregularity in the conduct of the sale that would permit judicial invalidation of the sale under applicable state law deprives the sale
Ill
A few words may be added in general response to the dissent. We have no quarrel with the dissent’s assertion that where the “meaning of the Bankruptcy Code’s text is itself clear,” post, at 566, its operation is unimpeded by contrary state law or prior practice. Nor do we contend that Congress must override historical state practice “expressly or not at all.” Post, at 565. The Bankruptcy Code can of course override by implication when the implication is unambiguous. But where the intent to override is doubtful, our federal system demands deference to long-established traditions of state regulation.
The dissent’s insistence that here no doubt exists — that our reading of the statute is “in derogation of the straightforward language used by Congress,” post, at 549 (emphasis added) — does not withstand scrutiny. The problem is not that we disagree with the dissent’s proffered “plain meaning” of § 548(a)(2)(A) (“[T]he bankruptcy court must compare the price received by the insolvent debtor and the worth of the item when sold and set aside the transfer if the former was substantially (‘[un]reasonabl[y]’) ‘less than’ the latter,” post, at 552) — which indeed echoes our own framing of the question presented (“whether the amount of debt. . . satisfied at the foreclosure sale ... is ‘reasonably equivalent’ to the worth of the real estate conveyed,” supra, at 536). There is no doubt that this provision directs an inquiry into the relationship of the value received by the debtor to the worth of the property transferred. The problem, however, as any “ordinary speaker of English would have no difficulty grasping,” post, at 552, is that this highly generalized re
Instead of answering the question, the dissent gives us hope that someone else will answer it, exhorting us “to believe that [bankruptcy courts], familiar with these cases (and with local conditions) as we are not, will give [“reasonably equivalent value”] sensible content in evaluating particular transfers on foreclosure.” Post, at 560. While we share the dissent’s confidence in the capabilities of the United States Bankruptcy Courts, it is the proper function of this Court to give “sensible content” to the provisions of the United States Code. It is surely the case that bankruptcy “courts regularly make ... determinations about the ‘reasonably equivalent value’ of assets transferred through other
Although the dissent’s conception of what constitutes a property’s “value” is unclear, it does seem to take account of the fact that the property is subject to forced sale. The dissent refers, for example, to a reasonable price “under the circumstances,” post, at 559, and to the “worth of the item when sold,” post, at 552 (emphasis added). But just as we are never told how the broader question of a property’s “worth” is to be answered, neither are we informed how the lesser included inquiry into the impact of forced sale is to be conducted. Once again, we are called upon to have faith that bankruptcy courts will be able to determine whether a property’s foreclosure-sale price falls unreasonably short of its “optimal value,” post, at 559, whatever that may be. This, the dissent tells us, is the statute’s plain meaning.
We take issue with the dissent’s characterization of our interpretation as carving out an “exception” for foreclosure sales, post, at 549, or as giving “two different and inconsistent meanings,” post, at 557, to “reasonably equivalent value.” As we have emphasized, the inquiry under § 548(a)(2)(A)— whether the debtor has received value that is substantially comparable to the worth of the transferred property — is the same for all transfers. But as we have also explained, the fact that a piece of property is legally subject to forced sale, like any other fact bearing upon the property’s use or alien-ability, necessarily affects its worth. Unlike most other legal restrictions, however, foreclosure has the effect of completely redefining the market in which the property is offered for sale; normal free-market rules of exchange are replaced by the far more restrictive rules governing forced sales. Given this altered reality, and the concomitant inutil
* * *
For the foregoing reasons, the judgment of the Court of Appeals for the Ninth Circuit is
Affirmed.
Respondent Resolution Trust Corporation (RTC) acts in this case as receiver of Imperial Federal Savings Association (Imperial Federal), which was organized pursuant to a June 22,1990, order of the Director of the Office of Thrift Supervision, and into which RTC transferred certain assets and liabilities of Imperial. The Director previously had appointed RTC as receiver of Imperial. For convenience we refer to all respondents other than RTC and Imperial as the private respondents.
Title 11 U. S. C. §548 provides in relevant part:
“(a) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily—
“(1) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or
“(2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
“(B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation ....”
We emphasize that our opinion today covers only mortgage foreclosures of real estate. The considerations bearing upon other foreclosures and forced sales (to satisfy tax liens, for example) may be different.
Our discussion assumes that the phrase “reasonably equivalent” means “approximately equivalent,” or “roughly equivalent.” One could, wé suppose, torture it into meaning “as close to equivalent as can reasonably be expected” — in which event even a vast divergence from equivalent value would be permissible so long as there is good reason for it. On such an analysis, fair market value could be the criterion of equivalence, even in a forced-sale context; the forced sale would be the reason why gross in-equivalence is nonetheless reasonable equivalence. Such word-gaming would deprive the criterion of all meaning. If “reasonably equivalent value” means only “as close to equivalent value as is reasonable,” the statute might as well have said “reasonably infinite value.”
We are baffled by the dissent’s perception of a “patent” difference between zoning and foreclosure laws insofar as impact upon property value is concerned, post, at 657-558, n. 10. The only distinction we perceive is that the former constitute permanent restrictions upon use of the subject property, while the latter apply for a brief period of time and restrict only the manner of its sale. This difference says nothing about how significantly the respective regimes affect the property’s value when they are operative. The dissent characterizes foreclosure rules as “merely procedural,” and asserts that this renders them, unlike “substantive” zoning regulations, irrelevant in bankruptcy. We are not sure we agree with the characterization. But in any event, the cases relied on for this distinction all address creditors’ attempts to claim the benefit of state rules of law (whether procedural or substantive) as property rights, in a bankruptcy proceeding. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 370-371 (1988); Owen v. Owen, 500 U. S. 305, 313 (1991); United States v. Whiting Pools, Inc., 462 U. S. 198, 206-207, and nn. 14, 15 (1983). None of them declares or even intimates that state laws, procedural or otherwise, are irrelevant to prebankruptcy valuation questions such as that presented by § 548(a)(2)(A).
The only ease cited by Durrett in support of its extension of fraudulent transfer doctrine, Schafer v. Hammond, 456 F. 2d 15 (CA10 1972), involved a direct sale, not a foreclosure.
We are unpersuaded by petitioner’s argument that the 1984 amendments to the Bankruptcy Code codified the Durrett rule. Those amendments expanded the definition of “transfer” to include “foreclosure of the debtor’s equity of redemption,” 11 U. S. C. § 101(54) (1988 ed., Supp. IV), and added the words “voluntarily or involuntarily” as modifiers of the term “transfer” in § 548(a). The first of these provisions establishes that foreclosure sales fall within the general definition of “transfers” that may be avoided under several statutory provisions, including (but not limited to) §548. See § 522(h) (transfers of exempt property), §544 (transfers voidable under state law), § 547 (preferential transfers), § 549 (postpetition transfers). The second of them establishes that a transfer may be avoided as fraudulent even if it was against the debtor’s will. See In re Madrid, 725 F. 2d 1197, 1199 (CA9 1984) (preamendment decision holding that a foreclosure sale is not a “transfer” under §548). Neither of these consequences has any bearing upon the meaning of “reasonably equivalent value” in the context of a foreclosure sale.
Nor does our reading render these amendments “superfluous,” as the dissent contends, post, at 555. Prior to 1984, it was at least open to ques
The dissent criticizes our partial reliance on Gregory because the States’ authority to “defin[e] and adjus[t] the relations between debtors and creditors . . . [cannot] fairly be called essential to their indepen
The Court notes correctly that fraudulent conveyance laws were directed first against insolvent debtors’ passing assets to friends or relatives, in order to keep them beyond their creditors’ reach (the proverbial “Elizabethan deadbeat who sells his sheep to his brother for a pittance,” see Baird & Jackson, Fraudulent Conveyance Law and Its Proper Domain, 38 Vand. L. Rev. 829, 852 (1986)), and then later against conduct said to carry the “badges” of such misconduct, but bankruptcy law had, well before 1984, turned decisively away from the notion that the debtor’s state of mind, and not the objective effects on creditors, should determine the scope of the avoidance power. Thus, the 1938 Chandler Act, Bankruptcy Revision, provided that a transfer could be set aside without proving any intent to “hinder, delay, or defraud,” provided that the insolvent debtor obtained less than “fair consideration” in return, see 11 U. S. C. § 107(d)(2) (1976), and the 1978 Bankruptcy Code eliminated scrutiny of the transacting parties’ “good faith.” Cf. 11 U. S. C. § 107(d)(1)(e) (1976). At the time when bankruptcy law was more narrowly concerned with debtors’ turpitude, moreover, the available “remedies” were strikingly different, as well. See, e. g., 21 Jac. L, ch. 19, § 6 (1623), 4 Statutes of the Realm 1228 (insolvent debtor who fraudulently conceals assets is subject to have his ear nailed to pillory and cut off).
Dissenting Opinion
dissenting.
The Court today holds that by the terms of the Bankruptcy Code Congress intended a peppercorn paid at a non-collusive and procedurally regular foreclosure sale to be treated as the “reasonable] equivalent” of the value of a California beachfront estate. Because the Court’s reasoning fails both to overcome the implausibility of that proposition and to justify engrafting a foreclosure-sale exception onto 11 U. S. C. § 548(a)(2)(A), in derogation of the straightforward language used by Congress, I respectfully dissent. .
I
A
The majority presents our task of giving meaning to § 548(a)(2)(A) in this case as essentially entailing a choice between two provisions that Congress might have enacted, but did not. One would allow a bankruptcy trustee to avoid a recent foreclosure-sale transfer from an insolvent debtor whenever anything less than fair market value was obtained, while the second would limit the avoidance power to cases where the foreclosure sale was collusive or had failed to comply with state-prescribed procedures. The Court then argues that, given the unexceptionable proposition that forced sales rarely yield as high a price as sales held under ideal, “market” conditions, Congress’s “omission” from
If those in fact were the interpretive alternatives, the majority’s choice might be a defensible one.
In 1984, however, Congress pulled the rug out from under these previously serious arguments, by amending the Code in two relevant respects. See Bankruptcy Amendments and Federal Judgeship Act of 1984, §§ 401(1), 463(a), 98 Stat. 366, 378. One amendment provided expressly that “involuntar [y]” transfers are no less within the trustee’s § 548 avoidance powers than “voluntar[y]” ones, and another provided that the “foreclosure of the debtor’s equity of redemption” itself is a “transfer” for purposes of bankruptcy law. See 11 U. S. C. § 101(54) (1988 ed., Supp. IV).
The first and most obvious of these objections is the very enigma of the Court’s reading. If a property’s “value” is conclusively presumed to be whatever it sold for, the “less than reasonable] equivalence]” question will never be worth asking, and the bankruptcy avoidance power will apparently be a dead letter in reviewing real estate foreclosures. Cf. 11 U. S. C. §361(3) (“indubitable equivalent”).
The Court’s second answer to the objection that it renders the statute a dead letter is to remind us that the statute applies to all sorts of transfers, not just to real estate foreclosures, and as to all the others, the provision enjoys great vitality, calling for true comparison between value received for the property and its “reasonably equivalent value.” (Indeed, the Court has no trouble acknowledging that something “similar to” fair market value may supply the benchmark of reasonable equivalence when such a sale is not initiated by a mortgagee, ante, at 545.) This answer, however, is less tenable than the first. A common rule of con
I . do not share in my colleagues’ apparently extreme discomfort at the prospect of vesting bankruptcy courts with responsibility for determining whether “reasonably equivalent value” was received in cases like this one, nor is the suggestion well taken that doing so is an improper abdication. Those courts regularly make comparably difficult (and contestable) determinations about the “reasonably equivalent value” of assets transferred through other means than foreclosure sales, see, e. g., Covey v. Commercial Nat. Bank, 960 F. 2d 657, 661-662 (CA7 1992) (rejecting creditor’s claim that resale price may be presumed to be “reasonably equivalent value” when that creditor “seiz[es] an asset and sell[s] it for just enough to cover its loan (even if it would have been worth substantially more as part of an ongoing enterprise)”); In re Morris Communications NC, Inc., 914 F. 2d 458 (CA4 1990) (for “reasonably equivalent value” purposes, worth of entry in cellular phone license “lottery” should be discounted to reflect probability of winning); cf. In re Royal Coach Country, Inc., 125 B. R. 668, 673-674 (Bkrtcy. Ct. MD Fla. 1991) (avoiding exchange of 1984 truck valued at $2,800 for 1981 car valued at $500), and there is every reason to believe that they, familiar with these cases (and with local conditions) as we are not, will give the term sensible content in evaluating particular transfers on foreclosure, cf. United States v. Energy Resources Co., 495 U. S. 545, 549 (1990); NLRB v. Bildisco & Bildisco, 465 U. S. 513, 527 (1984); Rosen v. Barclays Bank of N. Y., 115 B. R. 433 (EDNY 1990).
C
What plain meaning requires and courts can provide, indeed, the policies underlying a national bankruptcy law fully
When the prospect of such avoidance is absent, indeed, the economic interests of a foreclosing mortgagee often stand in stark opposition to those of the debtor himself and of his other creditors. At a typical foreclosure sale, a mortgagee has no incentive to bid any more than the amount of the indebtedness, since any “surplus” would be turned over to the debtor (or junior lienholder), and, in some States, it can even be advantageous for the creditor to bid less and seek a deficiency judgment. See generally Washburn, The Judicial and Legislative Response to Price Inadequacy in Mortgage Foreclosure Sales, 53 S, Cal. L. Rev. 843,847-851 (1980); Ehrlich, Avoidance of Foreclosure Sales as Fraudulent Conveyances: Accommodating State and Federal Objectives, 71 Va. L. Rev. 933, 959-962 (1985); G. Osborne, G. Nelson, & D. Whitman, Real Estate Finance Law §8.3, p. 528 (1979). And where a property is obviously worth more than the amount of the indebtedness, the lending mortgagee’s interests are served best if the foreclosure sale is poorly attended; then, the lender is more likely to take the property by bidding the amount of indebtedness, retaining for itself any profits from resale. While state foreclosure procedures may somewhat mitigate the potential for this sort of opportunism (by requiring for publication of notice, for example), it surely
II
Confronted with the eminent sense of the natural reading, the Court seeks finally to place this case in a line of decisions, e. g., Gregory v. Ashcroft, 501 U. S. 452 (1991), in which we have held that something more than mere plain language is required.
We have, on many prior occasions, refused to depart from plain Code meaning in spite of arguments that doing that would vindicate similar, and presumably equally “important,” state interests. In Owen v. Owen, 500 U. S. 305 (1991), for example, the Court refused to hold that the state “opt-out” policy embodied in § 522(b)(1) required immunity from avoidance under § 522(f) for a lien binding under Florida’s exemption rules. We emphasized that “[n]othing in the text of § 522(f) remotely justifies treating the [state and federal] exemptions differently.” 500 U. S., at 313. And in Johnson v. Home State Bank, 501 U. S. 78 (1991), we relied on plain Code language to allow a debtor who had “stripped” himself of personal mortgage liability under Chapter 7 to reschedule the remaining indebtedness under Chapter 13, notwithstanding a plausible contrary argument based on Code structure and a complete dearth of precedent for the manoeuver under state law and prior bankruptcy practice.
Rather than allow state practice to trump the plain meaning of federal statutes, cf. Adams Fruit Co. v. Barrett, 494 U. S. 638, 648 (1990), our cases describe a contrary rule: whether or not Congress has used any special “pre-emptive” language, state regulation must yield to the extent it actually conflicts with federal law. This is no less true of laws enacted under Congress’s power to “establish . . . uniform Laws on the subject of Bankruptcies,” U. S. Const., Art. I, §8, cl. 4, than of those passed under its Commerce Clause power. See generally Perez v. Campbell, supra; cf. id., at
Nor, finally, is it appropriate for the Court to look to “field pre-emption” cases, see ante, at 544, to support the higher duty of clarity it seeks to impose on Congress. As written and as applied by the majority of Courts of Appeals to construe it, the disputed Code provision comes nowhere near working the fundamental displacement of the state law of foreclosure procedure that the majority’s rhetoric conjures.
Ill
Like the Court, I understand this case to involve a choice between two possible statutory provisions: one authorizing
I note, however, two preliminary embarrassments: first, the gloss on § 548(a)(2)(A) the Court embraces is less than entirely hypothetical. In the course of amending the Bankruptcy Code in 1984, see infra, at 554, Congress considered, but did not enact, an amendment that said precisely what the majority now says the current provision means, i. e., that the avoidance power is confined to foreclosures involving collusion or procedural irregularity. See S. 445, 98th Cong., 1st Sess., §360 (1983). Even if one is careful not to attach too much significance to such a legislative nonoccurrence, it surely cautions against undue reliance on a different, entirely speculative congressional “omission.” See ante, at 537 (the statute “seemingly goes out of its way to avoid” using “fair market value”); but c£ ante, at 545 (reasonably equivalent value will “continue” to have a meaning “similar to fair market value” outside the foreclosure-sale context).
In this case, such caution would be rewarded. While the assertedly “standard,” ante, at 537, phrase “fair market value” appears in more than 150 distinct provisions of the Tax Code, it figures in only two Bankruptcy Code provisions, one of which is entitled, suggestively, “Special tax provisions.” See 11 U. S. C. §346. The term of choice in the bankruptcy setting seems to be “value,” unadorned and undefined, which appears in more than 30 sections of the Bankruptcy Code, but which is, with respect to many of them, read to mean “fair market value.” See also § 549(c) (“present fair equivalent value”); § 506(a) (“value [is to] be determined in light of the purpose of the valuation and of the proposed disposition or use of such property”); S. Rep. No. 95-989, p. 54 (1978) (“[M]atters [of valuation under §361] are left to case-by-case interpretation and development. . . . Value [does not] mean, in every case, forced sale liquidation value or full going concern value. There is wide latitude between those two extremes . . .”). To the extent, therefore, that this negative implication supplies ground to “suspect,” see ante, at 537, that Congress could not have meant what the statute says, such suspicion is misplaced.
The majority’s statutory argument depends similarly heavily on the success of its effort to relegate “fair market value” to complete pariah status. But it is no short leap from the (entirely correct) observation that a property’s fair market value will not be dispositive of whether “less than a reasonably equivalent value” was obtained on foreclosure to the assertion that market value has “no applicability,” ante, at 537, or is not “legitimate evidence,” ante, at 549 (emphasis added), of whether the statutory standard was met. As is explored more fully infra, the assessed value of a parcel of real estate at the time of foreclosure sale is not to be ignored. On the contrary, that figure plainly is relevant to the Bankruptcy Code determination, both because it provides a proper measure of the rights received by the transferee and because it is indicative of the extent of the debtor’s equity in the property, an asset which, but for the prebankruptcy transfer under review, would have been available to the bankruptcy estate, see infra, at 562-565.
It is also somewhat misleading, similarly, to suggest that “[n]o one would pay as much,” ante, at 539, for a foreclosed property as he would for the same real estate purchased under leisurely, market conditions. Buyers no doubt hope for bargains at foreclosure sales, but an investor with a million dollars cash in his pocket might be ready to pay “as much” for a desired parcel of property on forced sale, at least if a rival, equally determined millionaire were to appear at the same auction. The principal reason such sales yield low prices is not so much that the properties become momentarily “worth less,” ibid, (on the contrary, foreclosure-sale purchasers receive a bundle of rights essentially similar to what they get when they buy on the market) or that foreclosing mortgagees are under the compulsion of state law to make no more than the most desultory efforts to encourage higher bidding, but rather that such free-spending millionaires are in short supply, and those who do exist are unlikely to read the fine print which fills the “legal notice” columns of their morning newspaper. Nor, similarly, is market value justly known as the “antithesis” of
Indeed, it is striking that this is what the Court says the statute (probably) does mean, with respect to almost every transfer other than a sale of property upon foreclosure. See ante, at 545.
The Court protests, ante, at 546, that its formulation, see ante, at 536, deviates only subtly from the reading advanced here and purports not to disagree that the statute compels an enquiry “into the relationship of the
As noted at n. 1, supra, an earlier version of the Senate bill contained a provision that would have added to §548 the conclusive presumption the Court implies here. See S. 445, 98th Cong., 1st Sess., §360 (1983) (“A secured party or third party purchaser who obtains title to an interest of the debtor in property pursuant to a good faith prepetition foreclosure, power of sale, or other proceeding or provision of nonbankruptcy law permitting or providing for the realization of security upon default of the borrower under a mortgage, deed of trust, or other security agreement takes for reasonably equivalent value within the meaning of this section”). The provision was deleted from the legislation enacted by Congress.
Evidently, many States take a less Panglossian view than does the majority about the prices paid at sales conducted in accordance with their prescribed procedures. If foreclosure-sale prices truly represented what properties are “worth,” ante, at 639, or their “fair and proper price,” ante, at 545, it would stand to reason that deficiency judgments would be awarded simply by calculating the difference between the debt owed and the “value,” as established by the sale. Instead, in those jurisdictions permitting creditors to seek deficiency judgments it is quite common to require them to show that the foreclosure price roughly approximated the property’s (appraised) value. See, e. g., Tex. Prop. Code Ann. §§ 51.003-51.005 (Supp. 1992); see generally Gelfert v. National City Bank of N. Y, 313 U. S. 221 (1941); cf. id., at 233 (“[T]he price which property commands at a forced sale may be hardly even a rough measure of its value”).
That is not the only aspect of the majority’s approach that is hard to square with the amended text. By redefining “transfer” in § 101, Congress authorized the trustee to avoid any “foreclosure of the equity of redemption” for “less than a reasonably equivalent value.” In light of the fact, see, e. g., Lifton, Real Estate in Trouble: Lender’s Remedies Need an Overhaul, 31 Bus. Law 1927,1937 (1976), that most foreclosure properties are sold (at noncollusive and procedurally unassailable sales, we may presume) for the precise amount of the outstanding indebtedness, when some (but by no means all) are worth more, see generally Wechsler, Through the Looking Glass: Foreclosure by Sale as De Facto Strict Foreclosure— An Empirical Study of Mortgage Foreclosure and Subsequent Resale, 70 Cornell L. Rev. 860 (1985), it seems particularly curious that Congress would amend a statute to recognize that a debtor “transfers” an “interest in property,” when the equity of redemption is foreclosed, fully intending that the “reasonably equivalent value” of that interest would, in the majority of cases, be presumed conclusively to be zero.
To the extent that the Court believes the amended § 648(a)(2)(A) to be addressed to “collusive” sales, meanwhile, a surprisingly indirect means was chosen. Cf. 11 U. S. C. §363(n) (authorizing trustee avoidance of post-petition sale, or, in the alternative, recovery of the difference between the “value” of the property, and the “sale price,” when the “sale price was controlled by an agreement”). Cf. ante, at 537 (citing Chicago v. Environmental Defense Fund, ante, at 338).
Indeed, the Court candidly acknowledges that the proliferation of meanings may not stop at two: not only does “reasonably equivalent value” mean one thing for foreclosure sales and another for other transfers, but tax sales and other transactions may require still other, unspecified “benchmark[s].” See ante, at 537, and n. 3.
The Court’s somewhat mischievous efforts to dress its narrowly procedural gloss in respectable, substantive garb, see ante, at 637-538,546-647, make little sense. The majority suggests that even if the statute must be read to require a comparison, the one it compels dooms the trustee always to come up short. A property’s “value,” the Court would have us believe, should be determined with reference to a State’s rules governing creditors’ enforcement of their rights, in the same fashion that it might encom
Such distinctions are a mainstay of bankruptcy law, where it is commonly said that creditors’ “substantive” state-law rights “survive” in bankruptcy, while their “procedural” or “remedial” rights under state debtor-creditor law give way, see, e. g., United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 370-371 (1988) (refusing to treat “right to immediate foreclosure” as an “interest in property” under applicable nonbankruptcy law); Owen v. Owen, 500 U. S. 305 (1991) (bankruptcy exemption does not incorporate state law with respect to liens); United States v. Whiting Pools, Inc., 462 U. S. 198, 206-207 (1983); see also Gelfert v. National City Bank of N. Y, 313 U. S., at 234 (“[T]he advantages of a forced sale” are not “a . .. property right” under the Constitution). And while state foreclosure rules reflect, inter alia, an understandable judgment that creditors should not be forced to wait indefinitely as their defaulting debtors waste the value of loan collateral, bankruptcy law affords mortgagees distinct and presumably adequate protections for their interest, see 11 U. S. C. §§ 548(c), 550(d)(1), 362(d); Wright v. Union Central Life Ins. Co., 311 U. S. 273, 278-279 (1940), along with the general promise that the debtor’s estate will, effectively, be maximized in the interest of creditors.
The majority professes to be “baffled,” ante, at 539, n. 5, by this commonsense distinction between state zoning laws and state foreclosure procedures. But a zoning rule is not merely “price-affecting,” ante, at 539: it affects the property’s value (i. e., the price for which any transferee can expect to resell). State-mandated foreclosure procedures, by contrast, might be called “price-affecting,” in the sense that adherence solely to their minimal requirements will no doubt keep sale prices low. But state rules hardly forbid mortgagees to make efforts to encourage more robust bidding at foreclosure sales; they simply fail to furnish sellers any reason to do so, see infra.
Indeed, it is not clear from its opinion that the Court has “come to grips,” ante, at 538, with the reality that “involuntary” transfers occur outside the real property setting, that legally voluntary transfers can be involuntary in fact, and that, where insolvent debtors on the threshold of bankruptcy are concerned, transfers for full, “fair market” price are more likely the exception than the rule. On the Court’s reading, for example, nothing would prevent a debtor who deeded property to a mortgagee “in lieu of foreclosure” prior to bankruptcy from having the transaction set aside, under the “ordinarfy],” ante, at 545, substantive standard.
It is only by renewing, see ante, at 548, its extreme claim, but see n. 2, supra, that market value is wholly irrelevant to the analysis of foreclosure-sale transfer (and that bankruptcy courts are debarred from even “referring” to it) that the Court is able to support its assertion that evaluations of such transactions are somehow uniquely beyond their ken.
The majority, as part of its last-ditch effort to salvage some vitality for the provision, itself would require bankruptcy judges to speculate as to the
In this regard and in its professions of deference to the processes of local self-government, the Court wrongly elides any distinction between what state law commands and what the States permit. While foreclosure sales “under state law” may typically be sparsely attended and yield low prices, see infra, at 664, these are perhaps less the result of state law “strictures,” ante, at 538, than of what state law fails to supply, incentives for foreclosing lenders to seek higher prices (by availing themselves of advertising or brokerage services, for example). Thus, in judging the reasonableness of an apparently low price, it will surely make sense to take into account (as the Court holds a bankruptcy court is forbidden to) whether a mortgagee who promptly resold the property at a large profit answers, “I did the most that could be expected of me” or “I did the least I was allowed to.”
I also do not join my colleagues in their special scorn for the “70% rule” associated with Durrett v. Washington Nat. Ins. Co., 621 F. 2d 201 (CA5 1980), which they decry, ante, at 540, as less an exercise in statutory interpretation than one of “policy determinatio[n].” Such, of course, it may be, in the limited sense that the statute’s text no more mentions the 70% figure than it singles out procedurally regular foreclosure sales for the special treatment the Court accords them. But the Durrett “rule,” as its expositor has long made clear, claims only to be a description of what foreclosure prices have, in practice, been found “reasonabl[e],” and as such, it is consistent (as the majority’s “policy determination” is not), with the textual directive that one value be compared to another, the transfer being set aside when one is unreasonably “less than” the other. To the extent, moreover, that Durrett is said to have announced a “rule,” it is better
The Court’s criticism, ante, at 546-548, deftly conflates two distinct questions: is the price on procedurally correct and noncollusive sale presumed irrebuttably to be reasonably equivalent value (the question before us) and, if not, what are the criteria (a question not raised here but explored by courts that have rejected the irrebuttable presumption)? What is “plain” is the answer to the first question, thanks to the plain language, whose meaning is confirmed by policy and statutory history. The answer to the second may not be plain in the sense that the criteria might be self-evident, see n. 13, supra, but want of self-evidence hardly justifies retreat from the obvious answer to the first question. Courts routinely derive criteria, unexpressed in a statute, to implement standards that are statutorily expressed, and in a proper case this Court could (but for the majority’s decision) weigh the relative merits of the subtly different approaches taken by courts that have rejected the irrebuttable presumption.
Tellingly, while the Court’s opinion celebrates fraudulent conveyance law and state foreclosure law as the “twin pillars” of creditor-debtor regulation, it evinces no special appreciation of the fact that this case arises under the Bankruptcy Code, which, in maintaining the national system of credit and commerce, embodies policies distinct from those of state debtor-creditor law, see generally Stellwagen v. Clum, 245 U. S. 605, 617 (1918), and which accordingly endows trustees with avoidance power beyond what state law provides, see Board of Trade of Chicago v. Johnson, 264 U. S. 1,10 (1924); Stellwagen, supra, at 617; 11 U. S. C. §§ 541(a), 544(a).
Although the majority accurately states this ‘“black letter’” law, it also acknowledges that courts will avoid a foreclosure sale for a price that “shock[s] the conscience,” see ante, at 542 (internal quotation marks omitted), a standard that has been invoked to justify setting aside sales yielding as much as 87% of appraised value. See generally Washburn, The Judicial and Legislative Response to Price Inadequacy in Mortgage Foreclosure Sales, 53 S. Cal. L. Rev. 843, 862-870 (1980). Moreover, while price inadequacy “alone” may not be enough to set aside a sale, such inadequacy will often induce a court to undertake a sort of “strict scrutiny” of a sale’s compliance with state procedures. See, e. g., id., at 861.
The Court dangles the possibility that Gregory itself is somehow pertinent to this case, but that cannot be so. There, invoking principles of constitutional avoidance, we recognized a “plain statement” rule, whereby Congress could supplant state powers “reserved under the Tenth Amendment” and “at the heart of representative government,” only by making its intent to do so unmistakably clear. Unlike the States’ authority to “determine the qualifications of their most important government officials,” 501 U. S., at 463 (e. g., to enforce a retirement age for state judges mandated by the State Constitution, at issue in Gregory), the authority of the States in defining and adjusting the relations between debtors and creditors has never been plenary, nor could it fairly be called “essential to their independence.” In making the improbable contrary assertion, the Court converts a stray phrase in American Land Co. v. Zeiss, 219 U. S. 47 (1911), which upheld against substantive due process challenge the power of a State to legislate with respect to land titles (California’s effort to restore order after title records had been destroyed in the calamitous 1906 San Francisco earthquake) into a pronouncement about the allocation of responsibility between the National Government and the States. Cf. Cipollone v. Liggett Group, Inc., 505 U. S. 504, 546 (1992) (Scalia, J., concurring in judgment in part and dissenting in part) (emphasizing the inapplicability of “clear-statement” rules to ordinary pre-emption cases).
Even if plain language is insufficiently “clear guidance” for the Court, further guidance is at hand here. The provision at hand was amended in the face of judicial decisions driven by the same policy concerns that animate the Court, to make plain that foreclosure sales and other “involuntary” transfers are within the sweep of the avoidance power.
Only over vigorous dissent did the Court read the trustee’s generally worded abandonment power, 11 U. S. C. §554, as not authorizing abandonment “in contravention of a state statute or regulation that is reasonably designed to protect the public health or safety from identified hazards.” Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494, 505 (1986); cf. id., at 513 (Rehnquist, J., dissenting) (“Congress knew how to draft an exception covering the exercise of ‘certain’ police powers when it wanted to”); cf. also L. Cherkis & L. King, Collier Real Estate Transactions and the Bankruptcy Code, p. 6-24 (1992) (postMidlantic cases suggest that “if the hazardous substances on the property do not pose immediate danger to the public, and if the trustee has promptly notified local environmental authorities of the contamination and cooperated with them, abandonment may be permitted”).
Talk of “‘radical 1] adjustments to] the balance of state and national authority,’ ” ante, at 544, notwithstanding, the Court’s submission with respect to “displacement” consists solely of the fact that some private companies in Durrett jurisdictions have required purchasers of title insurance to accept policies with “specially crafted exceptions from coverage in many policies issued for properties purchased at foreclosure sales.” Ante, at 544 (citing Cherkis & King, supra, at 5-18 to 5-19). The source cited by the Court reports that these exceptions have been demanded when mortgagees are the purchasers, but have not been required in policies issued to third-party purchasers or their transferees, Cherkis & King, supra, at 5-18 to 5-19, and that such clauses have neither been limited to Durrett jurisdictions, nor confined to avoidance under federal bankruptcy law. See Cherkis & King, supra, at 5-10 (noting one standard exclusion from coverage for “[a]ny claim, which arises ... by reason of the operation of federal bankruptcy, state insolvency, or similar creditors’ rights laws”). Nothing in the Bankruptcy Code, moreover, deprives the States of their broad powers to regulate directly the terms and conditions of title insurance policies.
The “federally created cloud” on title seems hardly to be the Damoclean specter that the Court makes it out to be. In the nearly 14 years since the Durrett decision, the bankruptcy reports have included a relative handful of decisions actually setting aside foreclosure sales, nor do the States, either inside or outside Durrett jurisdictions, seem to have ven
But cf. Wetmore v. Markoe, 196 U. S. 68 (1904) (alimony is not a “debt” subject to discharge under the Bankruptcy Act).
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