Case: 10-50683 Document: 00511566784 Page: 1 Date Filed: 08/09/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 9, 2011
No. 10-50683 Lyle W. Cayce
Clerk
In the Matter of: LOTHIAN OIL INCORPORATED
Debtor
----------------------------------------------------------------------
ISRAEL GROSSMAN,
Appellee Cross-Appellant
LISTOKIN TRUST, SHORIVGER TRUST,
AKBERALI KHAKEE PENSION PLAN, LOTHIAN CASSIDY, L.L.C.,
SHOSHANA TRUST, DEUTSCH-SOKOL TRUST,
ANNA MEISHER PENSION PLAN,
731 895 866, L.L.C., PENSION SOLUTIONS, L.L.C., MYG TRUST,
HERZBERG FAMILY TRUST, JESSICA SOKOL,
Cross-Appellants
v.
LOTHIAN OIL INCORPORATED, Jointly Administered Member Cases;
Lothian Oil (USA) Inc., Lothian Oil Texas I, Inc., Lothian Oil Texas II, Inc.,
Lothian Oil Investments I, Inc., Lothian Oil Investments II, Inc., and
LeaD I JVGP, Inc.,
Appellant Cross-Appellee
Appeals from the United States District Court
for the Western District of Texas
Case: 10-50683 Document: 00511566784 Page: 2 Date Filed: 08/09/2011
No. 10-50683
Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit
Judges.
EDITH H. JONES, Chief Judge:
This case reaches us after extensive litigation in the bankruptcy and
district courts. It also brings a host of motions in its wake. One of the
disputes—whether the bankruptcy court may recharacterize a claim as equity
rather than debt—raises a novel question of law on which this court has yet to
speak. The other assertions of error are without merit.
I.
The parties to this bankruptcy appeal have a business history extending
from at least April 27, 2005. On that date, Israel Grossman and the Secretary
of Lothian Oil signed a handwritten document that states, in pertinent part:
I. Grossman loans $200,000 US to Lothian Oil Inc under the
following terms:
I) I. Grossman will receive a 1% royalty to the gross production
Lothian Oil receives on the Webb Properties of New Mexico,
without any further investment
ii) I. Grossman will be repaid the $200,000 US from the proceeds of
the $0.75 placement or any other equity placements.
The following month, Grossman and the Secretary of Lothian, now
identified as Bruce Ransom, signed another document. The May 12, 2005
document bore the title “Loan Agreement” and stated the terms as follows:
I. Grossman shall loan (the “Loan”) the sum of US $150,000 to
Lothian Oil;
II. In consideration for the Loan, Grossman shall receive a
royalty of one percent of Lothian Oil’s share of gross
production of oil and gas on the Webb properties in New
Mexico without further investment to be made by Grossman;
III. Lothian Oil shall repay Grossman the Loan from the
proceeds of a $0.75 per share equity placement made in
Lothian Oil or from the proceeds, subject always to the
Sterling Bank Credit Agreement, of any other equity
placement in Lothian Oil, which is currently in compliance.
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Two years later, these agreements would lead to proofs of claim 164 and 171,
respectively.
Debtors filed their Chapter 11 petitions on June 13, 2007. Approximately
one year later, on June 27, 2008, the bankruptcy court confirmed a plan of
liquidation. The bankruptcy case elicited numerous proofs of claim from
Appellees, many of which terminated in a settlement agreement dated October
30, 2008. The settlement awarded Grossman $1.025 million in full payment of
most of his claims. Grossman remained free to seek court determination of the
value of the remaining claims, called the “Undetermined Claims.” He did so,
and on December 15, 2008, the bankruptcy court held a hearing on the
Undetermined Claims. The court rejected all of them. In particular, it held
that “proof of claim numbers 164, 171, 172, 175, and 178 assert common equity
interests at best and that insufficient evidence of the value of the interests was
presented.” In re Lothian Oil, Inc., No. 07-7012, Doc #1832 at 2 (Bankr. W.D.
Tex. Dec. 17, 2008). As for the remaining Undetermined Claims, the
bankruptcy court held that “proof of claim numbers 174, 179, and 180 assert
claims against non-debtor entities for which the Reorganized Debtors are not
liable.” Id.
Israel Grossman personally signed the notice of appeal to the district
court. The claimants’ attorney, Jessica Sokol, did not sign the document, as she
was not admitted to practice in the Western District of Texas and had not
secured a pro hoc vice admission. The other claimants were aware of the
deficiency in their notice of appeal on or before April 7, 2009, when the clerk of
court sent a Notice of Filing Discrepancies to several of their lawyers.
Approximately one month later, on April 5, 2009, Lothian moved to dismiss the
appeal. Because Israel Grossman had no authority to sign the notice of appeal
for anyone other than himself, the district court held that “the instant appeal
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must be limited to those claims, if any, asserted by Israel Grossman personally.”
Following the district court’s decision, the so-called “Other Claimants” failed to
file a notice of appeal.
The district court affirmed in part and reversed in part the bankruptcy
court’s ruling. It reversed the recharacterization of claims 164 and 171 as
equity, “declin[ing] to extend the concept of debt recharacterization to a non-
insider creditor.” The district court cited this Circuit’s 11-factor test for
distinguishing between debt and equity. See Jones v. United States, 659 F.2d
618, 622 n.12 (5th Cir. 1981). Perceiving a rule against recharacterization for
all but “insiders,” however, the district court did not apply the factors to the
instant case. On all but the recharacterization issue, the district court affirmed
the bankruptcy court’s ruling in favor of the debtors.
Lothian filed this appeal, challenging the district court’s
recharacterization decision; Grossman cross-appealed, contesting the remainder
of the district court’s holdings. He argues for the first time on appeal that the
settlement agreement cannot impose a cap on his recovery for the
Undetermined Claims because Lothian has opposed Grossman’s efforts to
recover from third parties, negating consideration for the settlement. We do not
reach this newly raised argument, as it is waived. French v. Allstate Indem.
Co., 637 F.3d 571, 582-83 (5th Cir. 2011).
II.
In reviewing a bankruptcy appeal from the district court, this court
“appl[ies] the same standard to the bankruptcy court’s findings of fact and
conclusions of law that the district court applied.” In re Morrison, 555 F.3d 473,
480 (5th Cir. 2009). That standard reviews findings of fact for clear error and
conclusions of law de novo. Id. Of particular relevance to this case, the
determination that an investment constitutes equity rather than debt is a
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conclusion of law in the Fifth Circuit. Tex. Farm Bureau v. United States,
732 F.2d 437, 438 (5th Cir. 1984) (reviewing equity-versus-debt distinction in
tax context); see also In re Submicron Sys. Corp., 432 F.3d 448, 456-57 (3d Cir.
2004) (surveying other circuits’ standards of review for the equity-versus-debt
determination).
III.
A. Recharacterization
The district court applied a per se rule to prohibit bankruptcy courts from
recharacterizing contributions from anyone but corporate insiders. The court
therefore omitted any analysis on the merits of whether the agreements
between Grossman and Lothian represent debt or equity. We conclude that
recharacterization extends beyond insiders and is part of the bankruptcy courts’
authority to allow and disallow claims under 11 U.S.C. § 502. On the facts of
this case, recharacterization was appropriate.
When a creditor files a timely claim, the Code states that “the court, after
notice and a hearing, shall determine the amount of such claim . . . and shall
allow such claim in such amount, except to the extent that -- (1) such claim is
unenforceable against the debtor and property of the debtor, under any
agreement or applicable law . . . .” 11 U.S.C. § 502(b). The Supreme Court has
held that the “applicable law” is state law: “Congress has generally left the
determination of property rights in the assets of a bankrupt’s estate to state
law.” Butner v. United States, 440 U.S. 48, 54, 99 S. Ct. 914, 918 (1979). As a
result, “there is no reason why such [state law] interests should be analyzed
differently simply because an interested party is involved in a bankruptcy
proceeding.” 440 U.S. at 55, 99 S. Ct. at 918. Our analysis of “applicable law”
under § 502(b) is therefore an application of state law, unless Congress has
stated otherwise.
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Taken together, Butner and § 502(b) support the bankruptcy courts’
authority to recharacterize claims. If a claim asserts a debt that is contrary to
state law, the bankruptcy court may not allow the claim. Moreover, where the
reason for such disallowance is that state law classifies the interest as equity
rather than debt, then implementing state law as envisioned in Butner requires
different treatment than simply disallowing the claim. The Fourth Circuit
identified the inadequacy of traditional disallowance in noting that “[w]hen a
bankruptcy court disallows a claim, the claim is completely discharged. By
contrast, recharacterization is appropriate when the claimant has some rights
via-a-vis the bankrupt.” In re Dornier Aviation, Inc., 453 F.3d 225, 232 (4th Cir.
2006) (internal citation omitted; emphasis in original). These rights, fixed by
state law, are not irrelevant to the court’s decision to disallow a claim. To the
contrary, recharacterizing the claim as an equity interest is the logical outcome
of the reason for disallowing it as debt.
Other circuits to have considered this issue have approved
recharacterization, but they have generally grounded it in the bankruptcy courts’
equitable authority under 11 U.S.C. § 105(a). In re Submicron Sys. Corp.,
432 F.3d 448, 454 n.6 (3d Cir. 2006); In re Dornier Aviation, Inc., 453 F.3d 225
(4th Cir. 2006); In re Hedged-Invs. Assocs., 380 F.3d 1292 (10th Cir. 2004); In re
Autostyle Plastics, Inc., 269 F.3d 726, 748-49 (6th Cir. 2001). But see In re Pac.
Express, Inc., 69 B.R. 112 (B.A.P. 9th Cir. 1986) (disallowing
recharacterization). Based on the above analysis, resort to § 105(a) is
unnecessary. Nor is it necessary for courts to be concerned about the
interpretive implications of the bankruptcy court’s equitable subordination
power expressed in 11 U.S.C. § 510(c). Equitable subordination and
recharacterization, although sometimes based on the same facts, are directed at
different conduct and have different remedies. See In re Autostyle, supra. And
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in any event, this court’s precedent reflects a cautious view of § 105(a). For
example, this court held that § 105 does not authorize bankruptcy courts to
punish criminal contempt committed outside the court’s presence, in spite of the
fact that other courts had approved using that section to authorize bankruptcy
courts to punish civil contempt. Griffith v. Oles (In re Hipp), 895 F.2d 1503,
1515 (5th Cir. 1990). We agree with sister circuits’ results but not necessarily
their reasoning.
In the present case, the district court reversed the bankruptcy court’s
recharacterization on the basis of its legal conclusion that recharacterization
applies only to claims filed by corporate insiders. We decline to impose such a
per se rule. Unless state law makes insider status relevant to characterizing
equity versus debt, that status is irrelevant in federal bankruptcy proceedings.
Consequently, Texas law controls the agreements underlying Grossman’s
claims in this case. To distinguish between debt and equity, Texas courts have
imported a multi-factor test from federal tax law. Arch Petroleum, Inc. v. Sharp,
958 S.W.2d 475, 477 n.3 (Tex. Ct. App. 1997) (“For an oft-cited discussion of the
distinction between debt and equity, including a list of sixteen distinguishing
factors, see Fin Hay Realty Co. v. United States, 398 F.2d 694, 696 (3d Cir.
1968).”). Other courts that have permitted recharacterization have also
borrowed tests from federal tax cases. See, e.g., Hedged-Invs., 380 F.3d at 1298.
In the tax context, this court has employed several multi-factor tests. See Estate
of Mixon v. United States, 464 F.2d 394, 402 (5th Cir. 1972) (13-factor test);
Jones v. United States, 659 F.2d 618, 622 n.12 (5th Cir. 1981) (11-factor test).
In applying these tests, we “consider all the factors and weigh the evidence
favoring characterization of the [interest] as debt or equity, while realizing that
the various factors are not of equal significance and that no one factor is
controlling.” Mixon, 464 F.2d at 402.
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Although the district court did not review the bankruptcy court’s findings,
it did not suggest that the facts here oppose a recharacterization. We conclude
that under the multi-factor tests, the bankruptcy court committed no error in
finding that five of Grossman’s claims “assert common equity interests at best.”
The bankruptcy court’s written order incorporated by reference the findings of
fact and conclusions of law announced at a hearing two days earlier. Among the
topics discussed at that hearing were the factors listed in Jones, in particular
the fact that Grossman would be paid from royalties and “equity placements”
as well as the lack of a specified interest rate, term of repayment, and maturity
date. The court ruled that despite language referring to a “loan,” the
investments underlying claims 164, 171, and 178 were equity. The main factor
behind this ruling was the inclusion of a royalty payment, which depended on
the success of Lothian’s business, instead of a prescribed interest rate.
Because Texas law would not have recognized Grossman’s claims as
asserting a debt interest, the bankruptcy court correctly disallowed them as
debt and recharacterized the claims as equity interests. Moreover, because
insiders and non-insiders alike can mischaracterize their claims in
contravention of state law, we decline to limit recharacterization to insider
claims.
B. Appellants Other than Grossman
The district court dismissed appeals by all appellants other than Israel
Grossman, as only Grossman signed the notice of appeal to the district court.
The Federal Rules of Civil Procedure require that “[e]very pleading, written
motion, and other paper must be signed by at least one attorney of record in the
attorney’s name--or by a party personally if the party is unrepresented.”
Fed. R. Civ. P. 11(a); see also Bankr. R. 9011(a). Rule 9011(a) requires a court
to strike an unsigned document “unless the omission is promptly corrected after
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being called to the attorney’s or party’s attention.” Id. The non-Grossman
appellants cite a number of cases for the proposition that the signature
requirement is not jurisdictional and may be cured. Becker v. Montgomery,
532 U.S. 757, 121 S. Ct.1801 (2001), Wash v. Johnson, 343 F.3d 685, 689 (5th
Cir. 2003) (citing Becker). This correct statement of law does not change the
fact that they failed to correct their pleadings, despite notice from the clerk of
court. The district court’s dismissal was therefore correct.
C. Grossman’s Other Undetermined Claims
After eliminating the claims that are properly characterized as equity
rather than debt and the claims by parties other than Grossman, only a single
claim remains. That claim, 174, concerns a contractual obligation, which the
bankruptcy court found to exist between Grossman and an entity that is not
part of this bankruptcy. The bankruptcy court dismissed the claim, and the
district court affirmed. On appeal, Grossman concedes that the contract does
not bind any of the debtor entities. Instead, he seeks payment on “an implied
contract” because “Debtors benefitted from such financing efforts” even though
they were not parties to the agreements. The record does not support
Grossman’s claim that his services redounded to the debtors’ benefit. He cites
no evidence to support this claim and apparently failed to do so in the courts
below. The bankruptcy and district courts were therefore correct to disallow
claim 174.
IV.
For the foregoing reasons, we affirm the bankruptcy court’s judgment, and
in doing so, necessarily reverse the district court’s ruling on recharacterization
and affirm the judgment of the district court in all other respects.
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We also GRANT appellants’ Motion to Strike Appellee’s/Cross-Appellant’s
Record Excerpts and GRANT Jessica Sokol’s motion to withdraw as counsel; all
other motions are DENIED.
AFFIRMED IN PART AND REVERSED IN PART.
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