Great Western Bank v. Sierra Woods Group

• Decision Date: 13 January 1992
• Docket Number: No. 90-16500,90-16500
• Citation: 953 F.2d 1174
• Parties: , 26 Collier Bankr.Cas.2d 342, 22 Bankr.Ct.Dec. 949, Bankr. L. Rep. P 74,428 GREAT WESTERN BANK; the Bank of America, Creditors-Appellees, v. SIERRA WOODS GROUP, a California Limited Partnership, Debtor-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1174

953 F.2d 1174

60 USLW 2465, 26 Collier Bankr.Cas.2d 342,

22 Bankr.Ct.Dec. 949,

Bankr. L. Rep. P 74,428

GREAT WESTERN BANK; the Bank of America, Creditors-Appellees, v. SIERRA WOODS GROUP, a California Limited Partnership,

Debtor-Appellant.

No. 90-16500.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 1991.

Decided Jan. 13, 1992.

Lee S. Molof and Robert C. Vohl, Henderson & Nelson, Reno, Nev., for debtor-appellant.

Bruce T. Beesley, Gordon & Silver, Reno, Nev., for creditor-appellee Great Western Bank.

Roland K. Martin, Beckley, Singleton, et al., Reno, Nev., for creditor-appellee Bank of America.

Before POOLE, REINHARDT and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Sierra Woods Group (Sierra Woods) appeals the district court's decision that Sierra Woods' proposed reorganization plan, which included negative amortization, was not "fair and equitable" under 11 U.S.C. § 1129(b). The bankruptcy court did not make specific factual findings regarding the fairness of the proposed deferral of

                interest, but rather adopted a per se rule against negative amortization.   The district court did not address the legal permissibility of negative amortization, but concluded based upon a review of the record that the proposed plan was not fair and equitable.   We hold that the fairness of a reorganization plan that includes the deferral of interest must be determined on a case-by-case basis.   Therefore we reverse the district court's decision and remand to the district court for further remand to the bankruptcy court so that the bankruptcy court may make factual findings concerning the fairness of the proposed plan
                

FACTUAL AND PROCEDURAL BACKGROUND

This dispute centers on the Chapter 11 reorganization plan proposed by Sierra Woods. Its only asset is a ten-year-old apartment complex located in Sparks, Nevada. Bank of America owns a note secured by a first deed of trust on the property. As of April 17, 1989, Bank of America was owed $4,098,000. Great Western Bank (Great Western) owns a note secured by a second deed of trust, and was owed $3,845,124.47 plus $103,124.47 in interest as of April 17, 1989. The terms of Great Western's note called for an adjustable interest rate 3% over the Federal Home Loan Bank of San Francisco Eleventh District Cost of Funds Rate. The note was fully amortized over 30 years and was to mature in the year 2015.

Originally Sierra Woods proposed a reorganization plan under which it would make interest-only payments of 8% to Great Western for the first three years, and would then make interest-only payments at the prevailing note rate for the remaining term. The deferred interest and principal payments would be capitalized and would incur interest at the existing note rate. Sierra Woods later modified this proposal to include interest-only payments for the first five years. For the first three years, Sierra Woods proposed to pay interest of 8% and allow interest in excess of that amount to accrue and be added to principal. After five years, the note would fully amortize over the balance of the term at the adjustable note rate. The result would be negative amortization for three years because during that time the debt would increase rather than decrease.

Sierra Woods presented its modified proposal at a bankruptcy court hearing. Great Western cited In re McCombs Properties VIII, Ltd., 91 B.R. 907, 911 (Bankr.C.D.Cal.1988), for the proposition that the promise to make up lost interest payments is not the legal equivalent of having those interest payments today. Sierra Woods told the court that its accountants were prepared to testify that the stream of payments under its proposal was equivalent to the stream of payments under the original note. Great Western responded that the permissibility of negative amortization was a "legal issue," and argued that interest deferral was not appropriate "under any circumstances."

The bankruptcy judge ruled in favor of Great Western. He said:

I read the Code, and it's very clear, and I've always applied it in this manner.... [11 U.S.C. § 1129(b)(2)(A)(i)(II) requires that] Mr. Beesley's client receive, on account of his claim, deferred cash payments totaling at least the amount of this claim as of the debt on the effective date of the plan. And that means a payment today, the next deferred payment, and next deferred payment, and the next. That's all it's ever meant. And I'm interpreting it that way. And I don't think negative amortization even--it just doesn't comply with that....

Thereafter, the bankruptcy court confirmed a reorganization plan that required Sierra Woods to make timely interest payments at the market rate of interest. Sierra Woods appealed the bankruptcy court's ruling against deferral of interest to the district court. The district court examined the record and concluded that Sierra Woods had not honored its previous promises to pay Great Western, that the negative amortization proposal required a 100-percent value loan from Great Western to Sierra Woods, and that Great Western was in a secondary position to Bank of America on

                the loan.   According to the district court, "the bankruptcy court properly determined that the deferral proposed in the plan ... did not under the circumstances provide Great Western Bank with the equivalent of the present value of its claim ..." (emphasis added)
                

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 158(d). We review de novo the district court's review of a bankruptcy court decision. In re Fowler, 903 F.2d 694, 696 (9th Cir.1990). This court reviews the bankruptcy court's findings of facts for clear error and its conclusions of law de novo. Id.

DISCUSSION

Under 11 U.S.C. § 1129(b), the bankruptcy court can confirm a plan of reorganization without creditor approval if the plan "does not discriminate unfairly, and is fair and equitable...." 11 U.S.C. § 1129(b)(1). The "fair and equitable" condition includes the requirement that the holder of a secured claim receive "deferred cash payments totaling at least the allowed amount of such claim, of a value, as of the effective date of the plan, of at least the value of such holder's interest in the estate's interest in such property." 11 U.S.C. § 1129(b)(2)(A)(i)(II).

Sierra Woods argues that 11 U.S.C. § 1129(b) permits the deferral of interest, or negative amortization. Negative amortization refers to "a provision wherein part or all of the interest on a secured claim is not paid currently but instead is deferred and allowed to accrue," with the accrued interest added to the principal and paid when income is higher. In re Club Associates, 107 B.R. 385, 398 (Bankr.N.D.Ga.1989). The extent of negative amortization depends upon the difference between the "accrual rate," or the overall rate of interest to be paid on a claim, and the "pay rate," or the rate of interest to be paid on a monthly basis. Id. Even when a debtor defers payments of interest on its debt obligation, the deferred amount can be capitalized at a rate of interest which enables the deferred amount to equal the present value of the creditor's allowed secured claim. Barry Schermer & Keith Bartz, Negative Amortization and Plan Confirmation: Is it Fair and Equitable Under Section 1129(b) of the Bankruptcy Code?, 8 Bankr.Dev.J. 1, 3-4 (1991). See also In re Memphis Partners, L.P., 99 B.R. 385, 388 (Bankr.M.D.Tenn.1989) (with an appropriate interest rate, a negative amortization plan can mathematically provide present value).

A. The Bankruptcy Court Ruling and District Court Review

The bankruptcy court did not make specific findings regarding the fairness of the proposed deferral of interest under § 1129(b), but rather objected to negative amortization on legal grounds. The bankruptcy court rejected appellant's proposal for the deferred payment of interest because, in that court's view, deferral of interest does not comport with the statutory requirement that secured creditors receive the present value of their claims.

The district court did not address the legal argument against negative amortization, but rather found support in the record for the proposition that in the context of this particular case the deferral of interest would not be fair and equitable. We have held, however, that the district court may not make its own factual findings when reviewing a decision of the bankruptcy court. In re Hall, Bayoutree Assoc., Ltd., 939 F.2d 802, 804 (9th Cir.1991). The question of whether a reorganization plan is fair and equitable involves questions of fact. In re Acequia, 787 F.2d 1352, 1358 (9th Cir.1986). Because the bankruptcy court did not make factual findings on this issue, the district court erred when it independently determined that appellant's proposed plan was not fair and equitable. The district court should have decided whether the bankruptcy judge erred in adopting a blanket prohibition of negative amortization. If so, the district court should have remanded the case to the

bankruptcy court for the making of necessary findings regarding the fairness of the plan, rather than conducting its own review of the record. In re Hall, Bayoutree, 939 F.2d at 804.

B. The Fairness of Negative Amortization under 11 U.S.C. § 1129(b)

We have not previously decided whether negative amortization is permissible under 11 U.S.C. § 1129(b). See In re Fowler, 903 F.2d 694, 699 n. 6 (9th Cir.1990), where we noted the existence of the issue. One court has ruled that deferral of interest is not fair and equitable under section 1129(b) if the payment rate falls below the market rate of interest. In re McCombs, 91 B.R. at 911. In McCombs, the debtor sought to "cram down" a reorganization plan under which interest would accrue at the market rate of 10.5%, but the debtor would make payments of 9% and accrue the difference until sufficient funds were available. The court indicated a willingness to accept deferral of interest only...