Indian Motocycle Associates III Ltd. Partnership v. Massachusetts Housing Finance Agency

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2233

INDIAN MOTOCYCLE ASSOCIATES III
LIMITED PARTNERSHIP,

Appellant,

v.

MASSACHUSETTS HOUSING FINANCE AGENCY,

Appellee,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

Torruella, Chief Judge,

Cyr and Stahl, Circuit Judges.

Paul R. Salvage, with whom Susan Luttrell Burns and Bacon &

Wilson, P.C. were on brief for appellant.

Kevin C. Maynard, with whom Mark D. Cress and Bulkley, Richardson

and Gelinas were on brief for appellee.

October 2, 1995

CYR, Circuit Judge. Indian Motocycle Associates III
CYR, Circuit Judge.

Limited Partnership, a chapter 7 debtor, appeals from a district

court order reversing a bankruptcy court decision denying

appellee Massachusetts Housing Finance Agency's ("MHFA") motion

to compel the chapter 7 debtor to restore diverted cash collater-

al to the chapter 7 estate. We vacate the district court order

and remand to the bankruptcy court for further proceedings.

I
I

BACKGROUND
BACKGROUND

A. The Regulatory Agreement
A. The Regulatory Agreement

In 1987, MHFA loaned Indian Motocycle Associates

Limited Partnership ("Indian Motocycle") $8.6 million to develop

low-income housing in Springfield, Massachusetts [hereinafter:

"the Project"]. Under a program authorized by the National

Housing Act ("NHA"), 12 U.S.C. 1701, 1709, 1715k et seq.

(1994); 24 C.F.R 250.1 (1994), the United States Department of

Housing and Urban Development ("HUD") coinsured the non-recourse

mortgage loan.1 In order to qualify for HUD coinsurance, Indian

Motocycle signed a "Regulatory Agreement," obligating it to

comply with pertinent HUD regulations and conditions whereby the

individual Indian Motocycle partners assumed personal liability

"for funds or property of the Project which come into their hands

and which they are not entitled to retain; and . . . for their

1NHA coinsurance permits the private lender to assign its
note and mortgage to HUD if unable to collect from the borrower.
See 12 U.S.C. 1710.

2

own acts and deeds or acts and deeds of their authorized agents

that are in violation of the provisions of this Agreement." The

Regulatory Agreement is incorporated into the mortgage by express

reference.

In addition to conveying a first mortgage on all real

property belonging to the Project, Indian Motocycle assigned all

its Project leases, rents, profits and income to MHFA "for the

purpose of discharging the [note]." See Mortgage 4; 12 U.S.C.

1715k(d)(2)(A). MHFA in turn authorized Indian Motocycle to

collect and apply Project rents to enumerated purposes, including

loan repayments and "reasonable expenses necessary to the opera-

tion and maintenance of the Project." Regulatory Agreement

3(b). Indian Motocycle's right to collect Project rents terminat-

ed upon default. See Mortgage 4. In the event the debtor were

to breach the Regulatory Agreement, MHFA or HUD would be entitled

to seek specific performance, injunctive relief, or the appoint-

ment of a receiver for the Project. See Regulatory Agreement

17-18. The mortgage and Regulatory Agreement were duly recorded

by MHFA.

In 1989, Indian Motocycle transferred its ownership

interest in the Project to Indian Motocycle Associates III

Limited Partnership, which assumed the MHFA note and mortgage; in

August 1992, it defaulted. MHFA promptly tendered notice of

default but took no immediate steps to acquire possession of the

Project (as by foreclosure) or the rents (as by appointment of a

receiver). Meanwhile, Indian Motocycle Associates III Limited

3

Partnership had withdrawn $65,000 from the rents on deposit in

the Project operating accounts, with which, inter alia, it

retained counsel in contemplation of the commencement of a

voluntary chapter 11 proceeding ($35,000 retainer) and an accoun-

tant (Coopers & Lybrand) to prepare a prepetition audit of the

Project ($20,000).2 On December 15, 1992, following these

disbursements, Indian Motocycle Associates III Limited Partner-

ship (hereinafter: "debtor") filed its chapter 11 petition and

continued to operate the Project as a debtor in possession.3

Pursuant to the Regulatory Agreement, MHFA filed a motion to

compel the debtor "to restore [the $65,000 in cash collateral]

improperly diverted from the [chapter 11] estate in violation of

Title II of the [NHA]."4

B. The Bankruptcy Court Decision
B. The Bankruptcy Court Decision

The bankruptcy court ruled that the unauthorized

prepetition transfer of MHFA cash collateral to retain chapter 11

2An additional $5,000 was used to retain counsel to prepare
and file a proof of claim in behalf of Indian Motocycle Associ-

ates III Limited Partnership in an unrelated bankruptcy case.
Another $5,000 was transferred to a business owned by a principal
of the debtor's managing general partner, for a purpose not
disclosed in the appellate record. See infra notes 18 & 20.

3The chapter 11 proceeding has since been converted to
chapter 7, see Bankruptcy Code 1112, 11 U.S.C. 1112, and a

chapter 7 trustee has been appointed, id. 702.

4At the same time, MHFA sought to sequester all postpetition
rents. Thereafter, on June 23, 1993, prior to denying the MHFA
motion to compel, the bankruptcy court granted an interim MHFA
motion for relief from the automatic stay. See Bankruptcy Code

362(d), 11 U.S.C. 362(d). MHFA represents that it has since
foreclosed upon all collateral except the monies at issue on
appeal.

4

counsel violated the Regulatory Agreement. In re Indian Moto-

cycle Assocs. III Ltd. Partnership, 161 B.R. 865, 867-68 (Bankr.

D. Mass. 1994).5 The court nonetheless denied the motion to

compel the debtor to restore the $65,000 to MHFA, noting that

Regulatory Agreement violations by the debtor were "irrelevant,"

given that the motion to compel purported to assert MHFA's legal

rights against the debtor only and that no adversary proceeding

had yet been commenced against the debtor's general partners,

attorneys or accountants, the transferees in possession. Id. at

868.

During the bankruptcy court proceedings, MHFA had

relied on case law to the effect that a debtor's unauthorized

prepetition disbursement of rents securing an NHA-insured loan

warrants postpetition relief compelling the debtor and/or its

attorneys to restore the encumbered funds to the debtor estate.

Id. The bankruptcy court reasoned, however, that the requested

relief would undermine the Bankruptcy Code distribution scheme by

entitling $65,000 of the HUD/MHFA unsecured claim against the

chapter 11 estate to "super priority" status.

On intermediate appeal, the district court reversed and

remanded to the bankruptcy court for entry of an order compelling

the "[d]ebtor to restore the distributions diverted from the

5The bankruptcy court traced the source of the contested
monies directly to Project rents, as distinguished from individu-
al partner advances as suggested by the debtor. Id. at 867. On

the other hand, the court mistakenly characterized the entire
$65,000 distribution as a retainer fee for legal services. Id.

at 865; see infra note 6.

5

estate." Massachusetts Hous. Fin. Agency v. Indian Motocycle

Assocs. III Ltd. Partnership (In re Indian Motocycle Assocs. III

Ltd. Partnership), 174 B.R. 351, 357-58 (D. Mass. 1994) (citing

Bankruptcy Code 105(a), 11 U.S.C. 105(a) (empowering the

court to "issue any order, process, or judgment that is necessary

or appropriate to carry out the provisions of this title")).

II
II

DISCUSSION
DISCUSSION

The debtor contends that the bankruptcy court correctly

determined that it lacked authority under Bankruptcy Code

105(a) to order a chapter 11 debtor even one who concedes that

it improperly diverted a secured creditor's collateral shortly

before filing its chapter 11 petition to return the collater-

al (or its monetary equivalent) to the chapter 11 estate. The

debtor argues that it no longer retained a property "interest"

in, or control over, the diverted collateral on the date it filed

its chapter 11 petition and, accordingly, the collateral never

became property of the chapter 11 estate amenable to administra-

tion. See Bankruptcy Code 541(a)(1), (6), 11 U.S.C. 541(a)-

(1), (6) (providing that estate is comprised of "all legal or

equitable interests of the debtor in property as of the commence-

ment of the case," including "rents . . . from [real] property of

the estate") (emphasis added). Further, the debtor says, its

diversion of the encumbered rents did not alter the amount of

MHFA's claim against the debtor estate, which remained the

balance outstanding on the note at the date of the chapter 11

6

petition. Finally, the debtor argues that the bankruptcy court

correctly declined to follow those courts which have ordered

chapter 11 debtors in possession to restore to the debtor estate

diverted NHA-encumbered rents, see infra Section II.A.2, since

those cases did not involve a non-federal agency like MHFA, nor

did those courts cite to legislative history indicating that

Congress intended that NHA policy override the debtor protection

policy underlying the Bankruptcy Code, including the right to

utilize monies in the debtor's possession to fund prepetition

retainers of chapter 11 counsel.

A. Injunctive Relief
A. Injunctive Relief

We review challenged rulings of law by the district

court de novo and contested findings of fact by the bankruptcy

court for clear error. See In re Laroche, 969 F.3d 1299, 1301

(1st Cir. 1992).6 A bankruptcy court's decision granting or

denying injunctive relief pursuant to Bankruptcy Code 105(a) is

reviewed only for abuse of discretion. See, e.g., Western Auto

6On appeal, neither party challenges the bankruptcy court
findings that (1) the entire $65,000 was disbursed as a retainer
for legal services, and (2) the entire disbursement breached the
Regulatory Agreement. Although this first finding is not an
accurate reflection of the record evidence, cf. supra note 2 &

accompanying text; note 5, it does not infect the legal conclu-
sions reached by the bankruptcy court, nor our decision on
appeal. Nor need we address the bankruptcy court ruling that
these disbursements, as a matter of law, did not constitute

"reasonable expenses necessary to the operation and maintenance
of the Project." In re Indian Motocycle Assocs. III Ltd. Part-

nership, 161 B.R. at 868 (citing United States v. Frank, 587 F.2d

924 (8th Cir. 1978) (legal fees not "reasonable expenses" under
HUD regulatory agreement)). Similarly, we decline to consider
whether the prepetition disbursements for accounting services
violated the Regulatory Agreement, since the bankruptcy court
made no relevant findings.

7

Supply Co. v. Savage Arms, Inc. (In re Savage Arms, Inc.), 43

F.3d 714, 719 n.8 (1st Cir. 1994). "Four principal factors

govern the appropriateness of permanent injunctive relief: (1)

whether the plaintiff has prevailed on the merits; (2) whether

the plaintiff will suffer irreparable injury absent injunctive

relief; (3) whether the harm to the plaintiff outweighs any harm

threatened by the injunction; and (4) whether the public interest

will be adversely affected by the injunction." Id. The present

appeal implicates only the first two factors.

1. Injury
1. Injury

Although the bankruptcy court ruled that the debtor's

prepetition transfer of MHFA's cash collateral constituted a

conversion, it concluded that injunctive relief was unwarranted

since the amount owed MHFA by the chapter 11 estate remained the

same. To the extent this ruling suggests that MHFA sustained no

cognizable injury, we disagree. Since there is no indication

that MHFA's claim was over-secured, the conversion by the debtor

of the $65,000 cash collateral reduced MHFA's secured claim by

that amount, leaving MHFA with an unsecured claim for $65,000.

See Bankruptcy Code 506(a), (b), 11 U.S.C. 506(a), (b); see

also id. 541(a)(6) ("Such estate is comprised of . . . [p]ro-

ceeds, product, offspring, rents, or profits of or from property

of the estate [viz., the Project]") (emphasis added).

The advantage to holding a secured claim to these rents

in the chapter 11 proceeding is not to be underestimated. Since

the rents constituted "cash collateral" securing the MHFA note,

8

id. 363(a) ("cash collateral" includes "cash . . . whenever

acquired in which the estate and an entity other than the estate

have an interest and includes . . . rents . . . ."); cf. id.

552(b) (governing enforceability of prepetition security interest

against postpetition rents), the rents could not have been

expended or transferred without MHFA consent, id. 363(c)(2)(A),

and bankruptcy court authorization conditioned on "adequate

protection" for MHFA's security interest, id. 363(c)(2)(B),

361, 363(e). Thus, restoration of the converted cash collateral

to the chapter 11 estate would have represented neither an empty

judicial exercise, nor a windfall or "super priority" to MHFA,

but appropriate recognition of the valuable legal advantage

enjoyed by the holder of a secured claim in a bankruptcy proceed-

ing.

Nevertheless, we do not think the bankruptcy court

ruling should be interpreted simply as a determination that

secured NHA lenders in these circumstances neither sustain

cognizable injury nor have any recourse for recovering their

collateral, but rather as a determination that MHFA prematurely

sought extraordinary injunctive relief against the wrong party

the chapter 11 debtor without first attempting to exhaust

other available remedies against nondebtors.

2. "Irreparability" of Injury; Adequacy of Remedy at Law
2. "Irreparability" of Injury; Adequacy of Remedy at Law

Every court which has considered the question has

determined that the NHA empowers HUD to enforce its prepetition

rights under a Regulatory Agreement notwithstanding the initia-

9

tion of a chapter 11 proceeding by or against the NHA borrower.

See, e.g., In re EES Lambert Assocs., 43 B.R. 689, 691 (Bankr.

N.D. Ill. 1984), aff'd, 63 B.R. 174 (N.D. Ill. 1986); In re

Marion Carefree Ltd. Partnership, No. 93-33011, 1994 Bankr. LEXIS

398, at *8-9 (Bankr. N.D. Ohio Mar. 17, 1994); In re Tampa Bay

Briarwood Assocs., Ltd., 118 B.R. 126, 128-29 (Bankr. M.D. Fla.

1990); In re Garden Manor Assocs., 70 B.R. 477, 486 (Bankr. N.D.

Cal. 1987); In re TWO-KMF Dev. Assoc., 63 B.R. 149, 151 (Bankr.

N.D. Ill. 1985); In re Hil'Crest Apartments, 50 B.R. 610, 613

(Bankr. N.D. Ill. 1985). Three principal grounds appear to

support postpetition enforcement of the NHA lender's prepetition

contract remedies notwithstanding the fact that the debtor no

longer has possession of, or access to, the precise collateral it

diverted prior to the petition.

First, the debtor's own partners are the parties

principally benefited by the prepetition diversion of the HUD

collateral most notably in this case the fees for retaining

professional assistance in fending off any MHFA foreclosure,

thereby safeguarding their personal financial investments7 at

the expense of low-income Project residents the intended

7The NHA allows HUD to coinsure non-recourse mortgages under
which the partners are relieved from individual liability for the
partnership obligation under the note. But the NHA conditions
that relief on the partners' agreement to assume personal liabil-
ity "for funds or property of the Project which come into their
hands and which they are not entitled to retain; and . . . for
their own acts and deeds or acts and deeds of their authorized
agents that are in violation of the provisions of this Agree-
ment." See In re Hil'crest Apartments, 50 B.R. at 612-13 (part-

ners relieved of personal liability on partnership obligation in
return for their agreement to restrictions on transfer of rents).

10

principal beneficiaries of the NHA. See In re Garden Manor, 70

B.R. at 485; In re Hil'crest Apartments, 50 B.R. at 612; In re

EES Lambert, 43 B.R. at 690. But for the unauthorized diversion,

the rents normally would have been applied, as appropriate,

toward Project maintenance. See In re Garden Manor, 70 B.R. at

483, 485 (regulatory agreement is not an "executory contract"

subject to rejection by debtor) (citing Bankruptcy Code 365).

Second, the assignment-of-rents provision in the

Regulatory Agreement is not merely a term in a private loan

agreement, but a contractual precondition to coinsurance which

Congress expected HUD to enforce in the public interest. See 12

U.S.C. 1709, 1715k, 1715v(c)(4) (listing numerous restrictions

on NHA mortgagors). Permitting partnership debtors, or their

individual partners, to divert public funds with any degree of

impunity threatens significant depletion of the treasury, see In

re Garden Manor, 70 B.R. at 483, and ultimately undercuts public

confidence in the efficacy of federal housing, lending, and

insurance programs, thereby subverting Congress's announced

intention to promote private construction of low-income housing.

Id.

Third, these cases point out that there is no inherent

inconsistency between the policies of the NHA and the Bankruptcy

Code, in that the partnership debtor, and its individual part-

ners, remain free to retain chapter 11 counsel provided they do

not fund their retainers with the NHA lender's cash collateral.

11

Id. at 482, 486; In re TWO-KMF, 63 B.R. at 151; In re Hil'crest

Apartments, 50 B.R. at 612.

Notwithstanding the strong judicial support for these

general policy considerations, however, we are given great pause

at the prospect of fashioning extraordinary injunctive relief

absent either demonstrated compliance with the explicit require-

ments of the enabling provision in the Bankruptcy Code, see 11

U.S.C. 105(a), or some clear indication in the NHA that Con-

gress envisioned such an accommodation between the NHA and the

Bankruptcy Code. Thus, we think it is not enough simply to point

to the importance of safeguarding the integrity of the NHA loan

program, where neither the NHA, the Regulatory Agreement entered

into pursuant to the NHA, nor the Bankruptcy Code itself so much

as intimates that a bankruptcy court may fashion the extraor-

dinary "reimbursement" relief sought by MHFA.

No matter how compelling the public policy reasons for

formulating such extraordinary relief, it must be recognized that

the right and remedy are judge-made. Bankruptcy courts must be

especially cautious about embarking upon a lawmaking exercise in

circumstances where the injured party has neither demonstrated

that it has exhausted, nor even pursued, efficacious alternative

forms of relief which, if available, might well preclude a

finding that the relief sought from the bankruptcy court is

either "necessary or appropriate to carry out the provisions of

[the Bankruptcy Code]." Bankruptcy Code 105(a), 11 U.S.C.

105(a). See generally Lopez v. Garriga, 917 F.2d 63, 68 (1st

12

Cir. 1990) (noting that injunction-seeker must first show that he

has "no adequate remedy at law"); see also Baker v. United

States, 27 F.2d 863, 875 (1st Cir. 1928) ("Where courts intrude

into their decree their opinions on questions of public policy,

they in effect constitute the judicial tribunals as law-making

bodies in usurpation of the powers of the Legislature.") (cita-

tion omitted).8 We therefore decline to endorse the MHFA's

request for extraordinary injunctive relief under Bankruptcy Code

105(a), absent any showing or appearance that it is either

"necessary or appropriate to carry out the provisions" of the

Bankruptcy Code. See Bankruptcy Code 105(a), 11 U.S.C.

105(a).

B. Alternative Remedies
B. Alternative Remedies

MHFA has not demonstrated that it is without other

viable remedies against the debtor's general partners, chapter 11

counsel, and/or its accounting firm, for restoring the diverted

collateral or its equivalent.

8Of course, federal courts may be expected to engage in
lawmaking where Congress "ambiguously addresses" an issue in
general terms, but deliberately leaves "an interstice" to be
filled by the courts in conformity with the purposes of the
statute. See Conille v. Secretary of Hous. and Urban Dev., 840

F.2d 105, 110 n.6 (1st Cir. 1988). This principle is of little
utility in the instant case, however, for two principal reasons.
First, there is no apparent interstice in the NHA, which express-
ly prescribes severe criminal penalties for violating HUD Regula-
tory Agreements, see 12 U.S.C. 1715z(19) ($250,000 fine, 5-

years' imprisonment), thereby providing a powerful deterrent to
unauthorized prepetition diversions of HUD collateral by debtors.
Second, the "reimbursement" remedy requested by MHFA not only
necessitates a judicial assessment of NHA policy, but of any
conflicting Bankruptcy Code policy. We do not regard this as an
appropriate invitation to engage in judicial lawmaking, except as
a last resort.

13

1. The General Partners
1. The General Partners

Whether or not it perfected its lien in the prepetition

rents, see infra Section II.B.2, MHFA could have sued the debt-

or's general partners for the value of the diverted collateral

(or, at the very least, for any deficiency between the value of

its collateral and any amount recovered by MHFA on its $65,000

unsecured claim against the chapter 11 estate), based on the

Regulatory Agreement provision that expressly obligates the

partners "for funds or property of the Project which come into

their hands and which they are not entitled to retain; and . . .

for their own acts and deeds or acts and deeds of their autho-

rized agents that are in violation of the provisions of this

Agreement." See, e.g., Austin v. UNARCO Indus., Inc., 705 F.2d

1, 4 (1st Cir.) (automatic stay normally does not foreclose suits

against general partners of bankrupt partnership), cert. dis-

missed, 463 U.S. 1247 (1983); see also supra notes 4 & 7. MHFA

has not alleged, nor does the appellate record disclose, that the

general partners are insolvent.

2. Chapter 11 Counsel
2. Chapter 11 Counsel

a) Perfection of MHFA Lien
a) Perfection of MHFA Lien

In order to obtain any meaningful relief against the

debtor or the transferees of the $65,000 in other venues, of

course, MHFA would have to demonstrate that it held a perfected

lien or security interest in the diverted rents; otherwise, as

property of the chapter 11 estate, see Bankruptcy Code 541(a)-

(6), any unperfected lien on the rents would be subject to

14

avoidance by the debtor in possession pursuant to its "strong

arm" powers. See id. 544(a) ("strong arm powers"), 1107(a);

see generally In re Ryan, 851 F.2d 502, 512 (1st Cir. 1988)

(trustee); In re Wabash Valley Power Ass'n, 114 B.R. 613, 617

(S.D. Ind. 1990) (debtor in possession). And once its unperfect-

ed lien was voided under Bankruptcy Code 544(a), MHFA would

have had no right to control the disposition of any portion of

the $65,000 in cash collateral which remained property of the

chapter 7 estate, cf. Bankruptcy Code 363(a), (c)(2), (e),9

nor any right of recourse to lien foreclosure proceedings outside

the bankruptcy court against third party transferees who acquired

title to the rents prior to the debtor's chapter 11 petition,

cf., e.g., In re McBee, 714 F.2d 1316, 1326 (5th Cir. 1983)

(perfected security interest in collateral continues after

collateral is conveyed). Nevertheless, we agree with the dis-

trict court that the MHFA security interest in these rents had

been perfected before the chapter 11 petition was filed. See In

re Indian Motocycle Assocs. III Ltd. Partnership, 174 B.R. at

356.

9Following appointment of the chapter 7 trustee, see supra

note 3, all avoidance powers resided exclusively in the trustee,
not in the debtor. See Bankruptcy Code 1107(a), 11 U.S.C.

1107(a). We assume arguendo that the chapter 7 trustee would

attempt to avoid MHFA's lien in order that the net proceeds could
be applied to claims against the estate, including any MHFA
claim. For present purposes, however, we confine ourselves to an
assessment of the debtor's avoidance powers at the time of the
bankruptcy court ruling; that is, during the chapter 11 proceed-
ing.

15

Although the prepetition perfection of a security

interest in property of the estate normally is determined in

reference to applicable state law, see Butner v. United States,

440 U.S. 48, 55 (1979), it is now well settled that the require-

ments for perfecting a federal agency's security interest in

property securing federally-insured loans a subject not

addressed by the NHA is controlled by federal common law, see

United States v. Kimbell Foods, Inc., 440 U.S. 715, 726 (1979);

Butner, 440 U.S. at 55 (noting that state law governing perfec-

tion of security interests applies "unless some federal interest

requires a different result");10 United States v. Landmark Park

& Assocs., 795 F.2d 683, 685-86 (8th Cir. 1986) (rents); United

States v. Floral Park Dev. Co., 619 F. Supp. 144, 147-48 (S.D.

Ohio 1985) (rents); United States v. Borden Fin. Corp., 164 B.R.

260, 264 (E.D. La. 1994) (rents); cf. Graham v. Security Sav. &

Loan, 125 F.R.D. 687, 692 (N.D. Ind. 1989) (federal law controls

government's rights in litigation involving federally guaranteed

student loans), aff'd sub nom. Veal v. First Am. Sav. Bank, 914

F.2d 909 (7th Cir. 1990); cf. also Conille v. Secretary of Hous.

and Urban Dev., 840 F.2d 105, 109 (1st Cir. 1988) (applying

federal common law to litigation involving scope of HUD's obliga-

10Butner, a Bankruptcy Act case, remains viable precedent

under the Bankruptcy Code. See Wolters Village Ltd. v. Village

Properties, Ltd. (In re Village Properties, Ltd.), 723 F.2d 441,

443 (5th Cir.), cert. denied, 466 U.S. 974 (1984).

16

tions as NHA landlord, after finding NHA left this issue for the

courts).11 Under established federal common law, HUD's securi-

ty interest in post-default NHA rents normally is perfected

simply by recording a HUD mortgage containing an assignment of

rents, which places third parties on notice of the HUD lien. See

Landmark Park & Assocs., 795 F.2d at 685-86 (noting need for

uniform federal rule in face of discordant state rules relating

to perfection of security interests in rents); In re Westwood

Plaza Apartments, Ltd., 154 B.R. 916, 920 (Bankr. E.D. Tex. 1993)

(same); cf. In re Executive House Assocs., 99 B.R. 266, 275-76

(Bankr. E.D. Pa. 1989) (adopting Landmark Park "perfection" rule,

but noting that other required means of perfection may be pre-

scribed in security agreement; e.g., an express declaration of

default). Of course, in our case the debtor concedes that the

HUD mortgage and Regulatory Agreement were duly recorded in the

appropriate registry of deeds, and that it had received a notice

of default under the note before disbursing the $65,000.12

11Like the district court, we see no policy basis for
distinguishing the instant case simply because MHFA, a state
agency, rather than HUD, is the party presently seeking return of
the collateral. Under the NHA coinsurance regime, MHFA will
assign the note to HUD in return for payment of any unrecovered
deficiency. See 12 U.S.C. 1710; see also supra note 1. In all

events, given our determination, infra, that MHFA's security

interest was perfected under both federal and Massachusetts law,

the distinction is inconsequential. See Conille, 840 F.2d at 110

(no need to adopt federal common law where there is "no 'signifi-
cant conflict between some federal policy or interest and the use
of state law'") (citation omitted).

12We note that the debtor's opening appellate brief did not
challenge the district court ruling that the MHFA security
interest in rents had been perfected. Issues presented for the
first time in a reply brief normally are deemed waived. See

17

Moreover, even if it were to be assumed that federal

common law does not govern the perfection of MHFA's security

interest, see supra note 11, the same result would obtain under

Massachusetts law.13 In Prudential Ins. Co. of Am. v. Boston

Harbor Marina Co., 159 B.R. 616 (D. Mass. 1993), the district

court held that a Massachusetts mortgagee which recorded its

assignment of rents in the registry of deeds as an adjunct to its

mortgage, "perfected" its lien in the rents so as to constitute

the rents "cash collateral" under Bankruptcy Code 363(a), and

that there was no need for the creditor to take possession of the

real property (e.g., as by foreclosure) or the rents (e.g., as by

Clarke v. Kentucky Fried Chicken, 57 F.3d 21, 27 (1st Cir. 1995).

There is no basis for relief from waiver in the instant case.
Even in its reply brief, the debtor chose not to discuss the
implications of Kimbell or Butner on the choice-of-law question;

instead simply stating its conclusion that Massachusetts law
should be applied. See Williams v. Poulos, 11 F.3d 271, 285 (1st

Cir. 1993) (issues adverted to in perfunctory manner, without
adequate argumentation, deemed waived).

13Although MHFA concedes that it did not file a financing
statement, the law in most states, including Massachusetts,
classifies an assignment of rents as an interest in real proper-

ty. Thus, parties with security interests in future rents

generated from encumbered real property need not comply with the
Uniform Commercial Code. See Mass. Gen. L. Ann. ch. 106, 9-

104(j) (excluding assignments of rent from Massachusetts U.C.C.);
see also, e.g., Commerce Bank v. Mountain View Village, 5 F.3d

34, 39 (3d Cir. 1993); J.H. Streiker & Co. v. SeSide Co. (In re

SeSide Co.), 152 B.R. 878, 882 (E.D. Pa. 1993); First Nat'l Bank

v. United States (In re Dorsey), 155 B.R. 263, 267 (Bankr. D. Me.

1993); see generally Laurence D. Cherkis, Collier Real Estate

Transactions and the Bankruptcy Code 2.03[1], at 2-65 (1992).

Instead, the mortgage and assignment of rents need only be
recorded in the appropriate registry of deeds. See Mass. Gen.

Laws Ann. ch. 183, 4 (providing that unrecorded assignment of
rents is invalid against third parties, except for persons with
actual knowledge); see also In re Cadwell's Corners Partnership,

174 B.R. 744, 754 (Bankr. N.D. Ill. 1994) (same).

18

appointment of a receiver) prior to the filing of the bankruptcy

petition. Id. at 620-22 (recognizing distinction between "per-

fection," which governs secured creditor's rights against third

parties, and "enforcement" of liens, which controls creditor's

rights against its debtor; rejecting theory that such "inchoate"

or unenforced security interests are voidable under Bankruptcy

Code 544(a)); see also H.R. Rep. No. 95-595, 95th Cong., 1st

Sess. 312 (1978) ("[T]he definition of 'lien' is new and is very

broad . . . [and] [i]t includes 'inchoate lien[s]'").14 The

Prudential court noted also that the "recordation" rule was fast

becoming the majority rule among the states, thus providing

further support for the "uniform" federal rule of decision

adopted in Landmark.15 See Conille, 840 F.2d at 112-13 (in

fashioning appropriate federal rule of decision, court should not

14The "possession" theory rejected in Prudential, supra, had

essentially sounded the knell for most security interests in
rents in the bankruptcy context, since the holder of a secured
claim is precluded by the automatic stay from taking the very
steps required to reduce rents to possession. See, e.g., Bank-

ruptcy Code 362(a)(1), (a)(3), (a)(4).

15See In re Park at Dash Point L.P., 121 B.R. 850, 855

(Bankr. W.D. Wash. 1990), aff'd, 152 B.R. 300 (W.D. Wash. 1991),

aff'd, 985 F.2d 1008 (9th Cir. 1993); In re Vienna Park Proper-

ties, 976 F.2d 106, 112-13 (2d Cir. 1992) (Virginia law); In re

SeSide Co., 152 B.R. at 884; In re Wiston XXIV Ltd. Partnership,

147 B.R. 575, 580-81 (D. Kan. 1992), appeal dismissed, 988 F.2d

1012 (10th Cir. 1993); Midlantic Nat'l Bank v. Sourlis, 141 B.R.

826, 832 (D.N.J. 1992); Creekstone Apartments Assocs. v. RTC (In

re Creekstone Apartments Assocs.), 165 B.R. 845, 851 (Bankr. M.D.

Tenn. 1993); SLC Ltd. V. v. Bradford Group West, Inc. (In re SLC

Ltd. V), 152 B.R. 755, 760-62 (Bankr. D. Utah 1993); In re KNM

Roswell Ltd. Partnership, 126 B.R. 548, 554 (Bankr. N.D. Ill.

1991); In re Rancourt, 123 B.R. 143, 147-48 (Bankr. D.N.H. 1991);

In re Foxhill Place Assoc., 119 B.R. 708, 711 (Bankr. W.D. Mo.

1990); cf. Commerce Bank, 5 F.3d at 39 (recordation, coupled with

notice to tenants).

19

adopt forum state's law if it would frustrate NHA's purposes, but

may consult other states' law as a "source" for the more apt

federal common law rule) (citing Kimbell Foods, Inc., 440 U.S.

715 (1979)).16 Accordingly, we conclude that the MHFA lien on

rents was fully perfected prior to the chapter 11 petition, hence

not voidable under Bankruptcy Code 544(a).

b) Law Firm
b) Law Firm

MHFA concedes that it can proceed against the debtor's

counsel in the bankruptcy court only if the $35,000 in diverted

cash collateral, intended as a prepetition "retainer," remains

property of the estate, presumably as a fund held "in trust" for

the debtor. MHFA cites several so-called "collateral reimburse-

ment" decisions, see supra Section II.A.2, in which debtor

counsel have been directed to surrender to the bankruptcy estate

monies diverted to fund prepetition retainers. See, e.g., In re

Westwood Plaza Apartments, 154 B.R. at 923 n.11. MHFA itself

intimated at oral argument that it may request the chapter 7

trustee to recoup the putative trust monies from counsel, see

Bankruptcy Code 542, 11 U.S.C. 542, see also In re Sinder,

16Though not retroactively applicable to this case, see In

re Barkley 3A Investors, 175 B.R. 755, 758 (Bankr. D. Kan. 1994),

the Bankruptcy Reform Act of 1994, Pub. L. 103-394 (Oct. 22,
1994), further supports the trend. Congress added a new subsec-
tion dealing separately with the question whether a prepetition
security interest in rents extends to postpetition rents. Under
prior law, the bankruptcy court was required to look to "applica-
ble nonbankruptcy law," usually state law, see Bankruptcy Code

552(b); the amendment now refers the court exclusively to the
terms of the parties' "security agreement." See id. 552(b)(2);

In re Barkley, 175 B.R. at 758 (noting that, henceforth, "courts

will not look to state law" to determine security interests in
rents).

20

102 B.R. 978, 982-83 (Bankr. S.D. Ohio 1989) (questioning whether

parties other than trustee and debtor in possession have standing

to bring 542 action), or may interpose objection to any fee

application submitted by debtor counsel, see Bankruptcy Code

330, 11 U.S.C. 330.17

The question whether the $35,000 "retainer" is subject

to turnover cannot be resolved on the present record, since it

may ultimately turn on the precise terms of any "retainer"

agreement between the debtor and its counsel. See, e.g., In re

McDonald Bros. Constr., Inc., 114 B.R. 989, 1002 (Bankr. N.D.

Ill. 1990) (type of retainer is question of fact); see also In re

DLIC, Inc., 120 B.R. 348, 351 (Bankr. S.D.N.Y. 1990) (type of

retainer depends on intent of parties).18 Certain retainers

simply ensure counsel's availability to represent the client

(whether or not any legal services are ever performed), or

constitute prepayment for all future legal services to be per-

formed (e.g., a flat fee). In these circumstances, counsel

acquires full title to the retainer fee on the date of payment,

regardless whether legal services are ever performed. See In re

McDonald, 114 B.R. at 997-98, 999-1000; see also In re Mondie

17For present purposes, we assume arguendo that the chapter

7 trustee would be amenable to MHFA's request that the trustee
prosecute a 542 turnover action against the transferees, since
the commensurate reduction in MHFA's unsecured claim could
increase the recoveries of other holders of unsecured claims.
See supra note 9.

18The same rationale would apply to MHFA's recovery of the
$5,000 which the debtor advanced to retain bankruptcy counsel in
an unrelated bankruptcy case. See supra note 2.

21

Forge Co., 154 B.R. 232, 235 (Bankr. N.D. Ohio 1993). Such a

retainer is precisely the same as the retainer fee paid Coopers &

Lybrand; it never became part of the property of the debtor

estate, and is subject to turnover only if it "exceeds the

reasonable value of services rendered." See Bankruptcy Code

329(b); In re McDonald, 114 B.R. at 995-96, 1003 n.18; cf. also

Bankruptcy Code 548(a)(2), 11 U.S.C. 548(a)(2) (avoidance of

prepetition "fraudulent" transfers where "insolvent" debtor

"received less than a reasonably equivalent value in exchange for

transfer").19

On the other hand, a "security" retainer is held by

counsel to secure payment of anticipated legal services yet to be

rendered. Under the ethical rules applicable in most jurisdic-

tions, these monies remain property of the client until applied

by counsel in payment of legal services actually performed. See

In re McDonald, 114 B.R. at 999; see also In re Saturley, 131

B.R. 509, 515 (Bankr. D. Me. 1991); In re Lilliston, 127 B.R.

119, 120 (Bankr. D. Md. 1991) (portion of prepetition retainer

not earned prior to petition is property of estate); In re

Fitzsimmons Trucking, Inc., 124 B.R. 556, 558-59 (Bankr. D. Minn.

1991) (same). In the instant case, the debtor's equitable

"interest" in any unearned portion of the retainer, impressed

19Some courts have held that debtor counsel may use these
two types of retainers without first filing a fee application
under Bankruptcy Code 330. See, e.g., In re McDonald, 114 B.R.

at 1002. In all events, these retainers remain subject to
scrutiny under Bankruptcy Code 329 (debtor counsel must report
all payments received for legal services). See also Fed. R.

Bankr. P. 2017.

22

with MHFA's perfected lien, would have become property of the

estate on the date the chapter 11 petition was filed, see Bank-

ruptcy Code 541(a)(6), and presumably would remain subject to a

turnover order in a section 542 action brought by the debtor in

possession. See In re McDonald, 114 B.R. at 1000 n.13 (citing In

re Gerwer, 898 F.2d 730, 734 (9th Cir. 1990)).

Of course, if the $35,000 transfer constituted a

"security" retainer, counsel would be required to file a section

330 fee application to withdraw the retainer. In re Burnside

Steel Foundry Co., 90 B.R. 942, 945 n.1 (Bankr. N.D. Ill. 1988).

MHFA could then object to debtor counsel's retention of any

portion of the retainer not yet devoted to legal services which

were "actual [and] necessary," see Bankruptcy Code 330, and the

bankruptcy court presumably could order debtor counsel to surren-

der the unearned portion as "property of the estate." See id.

105(a); 363(e); see also In re Westwood Plaza Apartments, 154

B.R. at 923 n.11.

We need not resolve the precise contours of the poten-

tial bankruptcy court remedies available to MHFA against the

debtor's law firm. Rather, it was MHFA's burden to demonstrate

the unavailability of any alternative remedy for recovering its

collateral. See supra Section II.A.2. Even if the $35,000

retainer is not property of the chapter 7 estate, hence not

subject to chapter 7 administration, MHFA has suggested no

plausible basis for concluding that it cannot trace and recover

the diverted collateral in a nonbankruptcy lawsuit directed

23

against the debtor's chapter 11 counsel (which is not protected

by the automatic stay, see Bankruptcy Code 362) to foreclose

upon its prior lien on the rents. On the other hand, if the

retainer remains property of the chapter 7 estate, MHFA may

pursue its bankruptcy court remedies against the nondebtor

chapter 11 counsel.

3. Accounting Firm
3. Accounting Firm

At oral argument, MHFA conceded that the debtor made

its $25,000 prepetition payment to Coopers & Lybrand for audit

services which were completed prior to the chapter 11 petition.

See supra Section I.A. Consequently, the debtor retained no

legal or equitable "interest" in these monies as of the date of

the chapter 11 petition; and no right to, or interest in, these

monies ever became property of the chapter 11 estate. See

Bankruptcy Code 541(a)(6). MHFA could point to no conceivable

basis upon which the bankruptcy court, at this point in time,

could direct Coopers & Lybrand to turn over any part of its

$25,000 retainer to the chapter 7 estate. See id. 542, 11

U.S.C. 542 (third party, in possession of property of estate,

may be compelled to turn it over to trustee); United States v.

Whiting Pools, Inc., 462 U.S. 198 (1983) (even a secured party in

possession of collateral constituting "property of the estate" is

subject to 542 turnover order). Moreover, MHFA has suggested

no other basis upon which either the debtor in possession or the

chapter 7 trustee could have avoided the prepetition transfer to

Coopers & Lybrand. See, e.g., id. 544 (avoidance of unper-

24

fected liens), 545 (avoidance of statutory liens), 547 (avoidance

of preferences), 548 (avoidance of fraudulent transfers).

Moreover, the limitations period for any such avoidance action

would appear to have lapsed. See id. 546(a)(1) (two years

after order for relief); compare also In re Ollada, 114 B.R. 654,

655 (Bankr. E.D. Mo. 1990) ( 542 has no comparable limitations

period) with In re De Berry, 59 B.R. 891, 898 (Bankr. E.D.N.Y.

1986) ( 542 turnover motion must be made within "reasonable

time").20

In all events, MHFA may have a direct cause of action

against Coopers & Lybrand outside the bankruptcy court. Cf. In

re Indian Motocycle Assocs. III Ltd. Partnership, 161 B.R. at 868

("[S]uch action . . . would involve only rights among nondebtors

in a case having no prospects of reorganization [and] I have

previously granted MHFA relief from [the automatic] stay."); see

generally In re McBee, 714 F.2d at 1326 (noting that perfected

security interest survives conveyance of collateral). The

automatic stay afforded no protection to Coopers & Lybrand, see

Bankruptcy Code 362, and MHFA may seek to execute its perfected

lien directly. At least this procedure would allay a troublesome

aspect of the present case, in that Coopers & Lybrand has never

received either notice or a hearing on MHFA's allegedly superior

claim to the $25,000.

20The same rationale would appear to preclude an order
compelling turnover of the $5,000 payment the debtor made to the
principal of its managing general partner, which might otherwise
have been voidable as a preferential transfer to an "insider."
See Bankruptcy Code 547; see also supra note 2.

25

III
III

CONCLUSION
CONCLUSION

For the foregoing reasons, we decline MHFA's invitation

to fashion extraordinary judicial relief under Bankruptcy Code

105(a), absent a showing that the judicial lawmaking it inevita-

bly entails is either "necessary or appropriate to carry out" any

provision of the Bankruptcy Code in the circumstances presented.

Accordingly, we vacate the district court decision entitling MHFA

to an order directing the debtor to turn over to the chapter 7

trustee the diverted MHFA cash collateral or its monetary equiva-

lent. MHFA shall not be entitled to further relief in these

chapter 7 proceedings, except on order of the bankruptcy court,

after appropriate notice and hearing.

The district court order is vacated and the case is
The district court order is vacated and the case is

remanded to the bankruptcy court for further proceedings consis-
remanded to the bankruptcy court for further proceedings consis-

tent with this opinion; costs to appellant.
tent with this opinion; costs to appellant.

26