Summary
considering effect of termination statement filed by party with only limited authority granted by the secured party
Summary of this case from Official Comm. of Unsecured Creditors v. UMB Bank, N.A. (In re Residential Capital, LLC)Opinion
Bankruptcy No. 09–50026 (REG). Adversary No. 09–00504 (REG).
2013-03-1
In re MOTORS LIQUIDATION COMPANY, f/k/a General Motors Corporation, et al., Debtors. Official Committee of Unsecured Creditors of Motors Liquidation Company, Plaintiff, v. JPMorgan Chase Bank, N.A., et al., Defendants.
Dickstein Shapiro LLP, By: Barry N. Seidel, Esq., Eric B. Fisher, Esq. (argued), Katie L. Cooperman, Esq., New York, NY, for the Official Committee of Unsecured Creditors of Motors Liquidation Company. Kelley Drye & Warren LLP, By: John M. Callagy, Esq. (argued), Nicholas J. Panarella, Esq., Martin A. Krolewski, Esq., New York, NY, for Defendant JPMorgan Chase Bank, N.A.
Dickstein Shapiro LLP, By: Barry N. Seidel, Esq., Eric B. Fisher, Esq. (argued), Katie L. Cooperman, Esq., New York, NY, for the Official Committee of Unsecured Creditors of Motors Liquidation Company. Kelley Drye & Warren LLP, By: John M. Callagy, Esq. (argued), Nicholas J. Panarella, Esq., Martin A. Krolewski, Esq., New York, NY, for Defendant JPMorgan Chase Bank, N.A.
DECISION ON CROSS–MOTIONS FOR SUMMARY JUDGMENT
ROBERT E. GERBER, Bankruptcy Judge.
+-----------------+ ¦Table of Contents¦ +-----------------¦ ¦ ¦ +-----------------+
+----------------------------------+ ¦Introduction ¦602¦ +------------------------------+---¦ ¦ ¦ ¦ +------------------------------+---¦ ¦Facts ¦606¦ +----------------------------------+
+------------------------------------------+ ¦ ¦A.¦Synthetic Lease Origination ¦606 ¦ +--+--+-------------------------------+----¦ ¦ ¦B.¦Term Loan Origination ¦606 ¦ +--+--+-------------------------------+----¦ ¦ ¦C.¦Synthetic Lease Termination ¦607 ¦ +------------------------------------------+
+----------------------------------------------------------+ ¦ ¦ ¦1.¦The Synthetic Lease Termination Agreement¦608 ¦ +---+---+--+-----------------------------------------+-----¦ ¦ ¦ ¦2.¦The Synthetic Lease Closing Checklist ¦609 ¦ +---+---+--+-----------------------------------------+-----¦ ¦ ¦ ¦3.¦The Unrelated UCC–3 ¦611 ¦ +---+---+--+-----------------------------------------+-----¦ ¦ ¦ ¦4.¦The Synthetic Lease Escrow Agreement ¦612 ¦ +---+---+--+-----------------------------------------+-----¦ ¦ ¦ ¦5.¦The Synthetic Lease Transaction Payoff ¦614 ¦ +---+---+--+-----------------------------------------+-----¦ ¦ ¦ ¦6.¦GM's Understanding ¦614 ¦ +----------------------------------------------------------+
+------------------------------------------+ ¦ ¦D.¦Subsequent Events ¦614 ¦ +------------------------------------------+
+----------------------------------+ ¦ ¦ ¦ +------------------------------+---¦ ¦Discussion ¦615¦ +----------------------------------+
+-------------------------------------------------------------------+ ¦ ¦ ¦ ¦ +----+-------------------------------------------------------+------¦ ¦I. ¦Summary Judgment Standards ¦615 ¦ +----+-------------------------------------------------------+------¦ ¦ ¦ ¦ ¦ +----+-------------------------------------------------------+------¦ ¦II. ¦Choice of Law ¦616 ¦ +----+-------------------------------------------------------+------¦ ¦ ¦ ¦ ¦ +----+-------------------------------------------------------+------¦ ¦III.¦Effectiveness of the Unrelated UCC–3 ¦617 ¦ +-------------------------------------------------------------------+
+--------------------------------------------+ ¦ ¦A.¦The Requirement for Authorization¦618 ¦ +--+--+---------------------------------+----¦ ¦ ¦B.¦Was Authorization Granted? ¦620 ¦ +--------------------------------------------+
+----------------------------------------------------+ ¦ ¦ ¦1.¦Actual Authority ¦621 ¦ +---+---+--+------------------------------------+----¦ ¦ ¦ ¦2.¦Apparent Authority ¦634 ¦ +---+---+--+------------------------------------+----¦ ¦ ¦ ¦3.¦Ratification ¦635 ¦ +----------------------------------------------------+
+------------------------------------------+ ¦ ¦C.¦The Committees Other Arguments ¦637 ¦ +------------------------------------------+
+----------------------------------------------------------------------------+ ¦ ¦ ¦1. ¦Implied Authority ¦637 ¦ +----+----+---+------------------------------------------------------+-------¦ ¦ ¦ ¦2. ¦“UCC Filings that Mistakenly Terminate a Security ¦638 ¦ ¦ ¦ ¦ ¦Interest Are Legally Effective.” ¦ ¦ +----------------------------------------------------------------------------+
+---------------------------------------------------+ ¦ ¦ ¦ ¦ +---+------------------------------------------+----¦ ¦IV.¦Certification to Circuit ¦646 ¦ +---------------------------------------------------+
+----------------------------------+ ¦ ¦ ¦ +------------------------------+---¦ ¦Conclusion ¦647¦ +----------------------------------+
In this adversary proceeding under the umbrella of the chapter 11 case of Motors Liquidation Company, formerly known as General Motors Corporation (“GM”), plaintiff Official Committee of Unsecured Creditors (the “Committee”)
seeks a determination that the principal lien securing a syndicated $1.5 billion term loan (the “Term Loan”) that had been made to GM in November 2006 was terminated in October 2008, before the filing of GM's chapter 11 case—thereby making most of the $1.5 billion in indebtedness under the Term Loan unsecured. The defendants are the syndicate members who together made the Term Loan (the “Lenders”) and JPMorgan Chase Bank, N.A. (“JPMorgan”), the agent under the facility.
When GM's Plan of Reorganization (the “Plan”) was confirmed, after this adversary proceeding was commenced, the Committee's right to pursue this litigation devolved to one of several trusts created under the Plan—the “Avoidance Action Trust.” For simplicity, the Court continues to refer to the plaintiff here as the Committee.
While the Committee continues as plaintiff, there is a controversy, not yet resolved, as to the rights to any proceeds of this litigation. Although the United States Treasury (“Treasury”) disclaimed a lien on the litigation proceeds when it extended its DIP financing, Treasury later contended that it could nevertheless reach those proceeds ahead of GM's unsecured creditors by reason of Treasury's rights to a “superpriority” claim. This Court's determination in favor of the Committee as to that contention, on cross-motions for summary judgment in a separate adversary proceeding (brought by the Committee to address unsecured creditors' tax needs at the time, and to avoid prosecuting an action that if successful but benefitting someone else would be contrary to unsecured creditor interests), was later vacated on ripeness grounds by a judge of the district court. See Official Comm. of Unsecured Creditors v. U.S. Dept. of the Treasury ( In re Motors Liquidation Co.), 460 B.R. 603 (Bankr.S.D.N.Y.2011), vacated on ripeness grounds, 475 B.R. 347 (S.D.N.Y.2012). But unless this Court's determinations with respect to the present controversy, discussed below, are later reversed, neither Treasury nor GM's unsecured creditors will have litigation proceeds to claim, and that controversy will now turn out to be moot.
Appearances by the Lenders in this adversary proceeding were deferred while threshold issues, addressed in this decision, were addressed.
The action presents issues as to Uniform Commercial Code (“UCC”) filings that are commonly used in secured financings: a UCC–1 initial financing statement (“UCC–1”), with which a security interest can be perfected, and a UCC–3 financing statement amendment (“UCC–3”), with which, among other things,
the effectiveness of an earlier UCC–1 may be brought to an end. Here, in connection with the payoff of a GM “synthetic lease” (the “Synthetic Lease”), which was one-tenth of the size of the Term Loan and wholly unrelated to it,
Other things can include the continuation of an earlier initial financing statement, the assignment of a security interest, or the deletion of identified collateral. But one of the boxes that can be checked on a UCC–3 (Box 2, “Termination”) can provide for the effectiveness of an initial financing statement to be wholly brought to an end. When UCC–3 filings so provide, they are normally referred to as “termination statements.” See n. 72 below.
the batch of several UCC–3s to be filed to terminate liens on Synthetic Lease collateral (and which thereafter were filed) mistakenly included one UCC–3 (the “Unrelated UCC–3”) which would terminate a UCC–1—referenced only by its 8–digit filing number—that did not have any connection to the Synthetic Lease.
Neither the terms of the Synthetic Lease, nor the nature of synthetic leases generally, is relevant to the controversy here—except insofar as it is important to recognize, and agreed by the parties, that the Synthetic Lease financing was wholly unrelated to the Term Loan, and that the only thing they had in common was that UCC–1s were filed with respect to each.
By way of background only, a synthetic lease is a financing transaction under which an asset (most commonly real property) is acquired not by its user but a by a separate entity (often a special purpose vehicle) which then leases the asset to the ultimate user. A synthetic lease has been described as:
A lease which is arranged so that it is not shown as a liability on a company's balance sheet but as an expense on the income statement. The item or asset being leased is owned by a special purpose vehicle (SPV) which then leases it to the company. The SPV is usually owned by the company.
Reuters Financial Glossary, available at http:// glossary. reuters. com/ index. php? title= Synthetic_ Lease (last viewed 2/28/2013).
The UCC–1 was instead the principal UCC–1 securing the Term Loan (the “Main Term Loan UCC–1”).
An image of the Unrelated UCC–3 is attached to this decision as Appendix A.
The Main Term Loan UCC–1 was not the only initial financing statement that had been filed when the Term Loan was put in place. The Term Loan documentation also included UCC–1 filings relating to fixtures, and one relating to assets of one-time GM subsidiary, Saturn. But the Main Term Loan UCC–1, which covered, among other things, all of the equipment and fixtures at 42 GM facilities, was by far the most important of them.
Without dispute, all of GM and its counsel (who drafted and caused to be filed the Unrelated UCC–3) and JPMorgan and its counsel (who were provided draft documents before the Unrelated UCC–3 was filed) were aware of the UCC–1 filing numbers shown on the various draft UCC–3s in connection with the Synthetic Lease payoff (including the Unrelated UCC–3). But none were aware of their potential significance. None of the counsel on the Synthetic Lease financing, or the counsel on the Term Loan (which at least for JPMorgan was different), or their respective clients, knew that the UCC–1 filing number shown on the Unrelated UCC–3 was actually that of a UCC–1 for the Term Loan. And without dispute, neither the borrower nor the lenders on the Synthetic Lease financing, nor the borrower nor the Lenders on the Term Loan, intended to affect the Term Loan in any way.
But because the UCC–1 whose filing number was referenced in the Unrelated UCC–3 related to the Term Loan, and not the Synthetic Lease, the Court must decide, notwithstanding the absence of anyone's intention to affect the Term Loan, whether the perfection of the principal lien securing the Term Loan nevertheless came to an end.
Both sides move for summary judgment, in whole or in part.
Arguing that UCC filings are effective even when mistaken (and that a secured party's acquiescence in the filing of a UCC–3 making reference to a specified initial financing statement by file number alone, irrespective of intent, is sufficient to constitute any necessary authority), the Committee moves for summary judgment in part,
References to the briefs on the Committee's motion appear here as Comm. Partial SJ Br. ___; JPMorgan Partial SJ Opp. ___; and Comm. Partial SJ Reply ___ (ECF 26, 48, and 55, respectively). References to the briefs on JPMorgan's motion appear here as JPMorgan SJ Br. ___; Comm. SJ Opp. ___; and JPMorgan SJ Reply ___ (ECF 29, 45, and 56, respectively).
seeking a ruling that the Unrelated UCC–3, notwithstanding the parties' intentions, brought the Main Term Loan UCC–1 to an end. JPMorgan moves for summary judgment in full, seeking a ruling to the opposite effect—that JPMorgan's authorization to terminate the Main Term Loan UCC–1 was required under the UCC; that JPMorgan did not provide the required authorization; and thus that the Main Term Loan UCC–1, and JPMorgan's resulting lien, remained in place.
The Committee moves for partial summary judgment only, recognizing that other UCC–1s with respect to the Term Loan remained in place, covering some other collateral as to which JPMorgan and the Lenders would remain secured. But while the value of the other collateral would need to be determined at a later time, the consequences of invalidation of the Main Term Loan UCC–1 are enormous, and the Committee's desire to secure even partial summary judgment under the present circumstances is understandable.
It is initially tempting to regard the consequences of all UCC filings the same and as absolute (or, as one court put it, though under an earlier statutory regime, “dramatic and final”),
or to speak, in general terms, of parties living with their mistakes—with the result that JPMorgan and the Lenders would suffer the consequences of this extraordinary set of events. But having focused on the changes in UCC Article 9 that were put in place in 2001, and the more thoughtful caselaw and commentary, the Court believes that it cannot view the matter in such simplistic terms. The issues instead turn on the UCC's express requirement for authorization to terminate an initial financing statement, and on what is required to constitute the requisite authorization. Under the present Article 9, a UCC termination statement is not necessarily “dramatic and final.” And all mistakes are not the same. That a termination statement filing was made is only the start—and not the end—of the judicial inquiry.
Crestar Bank v. Neal (In re Kitchin Equip. Co. of Virginia, Inc.), 960 F.2d 1242, 1247 (4th Cir.1992) (“ Kitchin Equipment ”). While the holding in Kitchin Equipment (a 2–1 decision) was not necessarily incorrect (since Kitchin Equipment involved action by the secured creditor itself, and did not involve a secured creditor's authorization of acts by another), Kitchin Equipment 's very general statements can no longer be regarded as applicable to situations requiring secured creditor authorization after the 2001 amendments to UCC Article 9. Similarly, statements in later caselaw that quoted Kitchin Equipment without considering the effect of the 2001 amendments are of questionable reliability. See discussion beginning at page 60 below.
Under Article 9 of the UCC as it was amended in 2001, the termination of a UCC–1 is ineffective unless it has been authorized. The issue here presented—which the UCC then leaves to caselaw—is what is required to constitute “authorization” for the filing of a termination statement when someone other than the secured party files the termination statement on the secured party's behalf.
In much of its argument, the Committee states the issue differently—speaking in terms of the effects of mistakes and contending that UCC filings that mistakenly terminate security interests are legally effective. See Comm. Partial SJ Br. 11–14; Comm. SJ Opp. 4; Comm. Partial SJ Reply 15–16. For reasons addressed below, the Court believes that under the UCC as amended in 2001, that misstates the issue.
As principles underlying the determination of the motions here, the Court concludes, for reasons set forth below:
(1) When an agent acts on behalf of a secured lender principal to terminate an initial financing statement with respect to a financing, to be effective the termination must be authorized by the secured lender principal; and
(2) to determine whether authorization has been granted, the court must consider indicia identified in non-UCC agency law—including (importantly here) that to be so authorized, the agent must believe (and though the distinction does not matter under the facts here, reasonably believe) that the principal intended for the agent to terminate the initial financing statement for that particular financing.
A matching of file numbers by itself is not enough when other indicia lead to a contrary conclusion. And when the agent knows that the secured creditor principal does not intend to bring an initial financing statement to an end (by reason of one or more of the documents that embody the authorization, or by other means), and the agent itself believes that it was not so authorized, the requisite authorization cannot be found.
Applying those principles to the undisputed facts here, the lack of the requisite belief on the part of GM that it was authorized to terminate the Main Term Loan UCC–1 is ultimately conclusive—though the remaining indicia lead to the same conclusion. The undisputed facts here (including, most significantly, the statements in the document the parties used to embody the nature and scope of JPMorgan's authorization, and the consistent testimony of all of the personnel acting for JPMorgan and GM) conclusively establish that JPMorgan intended to grant, and granted, authority to GM to terminate UCC–1s only with respect to the Synthetic Lease. As importantly or more so, this was GM's belief as well. While it is undisputed that JPMorgan knew in advance of GM's counsel's intent to file a UCC–3 which showed the “Initial Financing Statement File # ” of a UCC–1 that in fact was the initial financing statement on the Term Loan (and JPMorgan at least arguably consented to the filing), in the absence of belief by GM that actions to terminate the Main Term Loan UCC–1 were authorized, the Court cannot find that JPMorgan authorized the termination of the initial financing statement for that unrelated facility.
Accordingly, JPMorgan's motion for summary judgment must be granted, and the Committee's motion for partial summary judgment must be denied. The bases for the Court's decision follow.
Facts
To avoid further lengthening this decision, record citations are limited to quotations and the most significant matters. The parties' very detailed and often very technical presentations of the facts in their affidavits and Rule 7056–1 Statements have been compressed and restated to more clearly tell the story.
Though the parties advance diametrically opposed legal conclusions, the material facts are not in dispute.
Being mindful of the Second Circuit's admonitions that summary judgment should be awarded sparingly when matters involving state of mind are involved, see, e.g., Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir.1984), the Court considered whether it should deny summary judgment in favor of each side for that reason. Neither side contended that such was necessary or even appropriate here, and ultimately the Court agrees. Here, there is no issue as to the principal's and agent's states of mind. The beliefs of all of the participants involved on behalf of both sides to the transaction at the time—each of JPMorgan and GM—were confirmed by affidavit, deposition testimony, or both. There was nothing in the record to support a contrary conclusion.
A. Synthetic Lease Origination
In October 2001, GM entered into the Synthetic Lease, by which GM obtained up to approximately $300 million in financing from a syndicate of financial institutions. The proceeds were used for the acquisition of (and construction on) several pieces of real estate. The Synthetic Lease was documented by, among other things, a Participation Agreement dated as of October 31, 2001 (the “Participation Agreement”).
Parties to the Participation Agreement were GM, as Lessee (and Construction Agent); Auto Facilities Real Estate Trust 2001–1 (the “Trust”), as Lessor; Wilmington Trust Company (“Wilmington Trust”), as Trustee; certain named entities, as “Investors”; other named entities, as “Backup Facility Banks”; an entity called “Relationship Funding Company, LLC”; and Chase Manhattan Bank (to which JPMorgan was successor), as Administrative Agent.
GM's obligations under the Synthetic Lease were secured by liens on an original 12 pieces of real estate (the “Properties”) identified in the Synthetic Lease documentation. To perfect security interests in the Properties, UCC–1s were filed in the counties in which such Properties were located. UCC–1s were also filed with the Delaware Secretary of State.
JPMorgan was one of the backup facility banks, and, as noted (and more importantly for the purposes of this controversy), the administrative agent for the Synthetic Lease. JPMorgan's Richard W. Duker (“Duker”) acted on behalf of JPMorgan with respect to it.
In connection with the Synthetic Lease, GM was represented by the law firm of Mayer Brown LLP (“Mayer Brown”), and JPMorgan was represented by the law firm of Simpson Thacher & Bartlett LLP (“Simpson Thacher”).
B. Term Loan Origination
About five years later, in November 2006, GM and its then-subsidiary Saturn Corporation (“Saturn”) entered into a 7–year senior secured term loan facility—the Term Loan—from a different syndicate of financial institutions. Once more, JPMorgan was administrative agent.
The Term Loan provided GM with approximately $1.5 billion in financing. It was a transaction wholly unrelated to the Synthetic Lease.
In connection with the Term Loan, JPMorgan was represented by law firms different from that which had acted for JPMorgan in connection with the Synthetic Lease. This time, JPMorgan was represented by Cravath Swaine & Moore and, later, Morgan, Lewis & Bockius (“Morgan Lewis”).
Documents executed in connection with the Term Loan included a “Term Loan Agreement” and a “Collateral Agreement.” Duker, who was also involved in the Synthetic Lease transaction, was a signatory to the Term Loan Agreement on behalf of JPMorgan as administrative agent.
Under the Collateral Agreement, the Lenders took security interests in a massive amount of collateral (“Term Loan Collateral”)—including, among other things, all of GM's equipment and fixtures at 42 facilities throughout the United States. Upon the closing of the Term Loan, JPMorgan caused the filing of a total of 28 UCC–1 initial financing statements to perfect the Lenders' security interests in the Term Loan Collateral—two of which (one for GM and one for Saturn)
were filed with the Delaware Secretary of State. The one filed in Delaware for GM— i.e., the Main Term Loan UCC–1—bore filing number “6416808 4.”
The other 26 were localized fixture filings, in the various counties in the United States where fixture collateral was located.
C. Synthetic Lease Termination
The Synthetic Lease would mature on October 31, 2008, approximately seven years after it was put in place.
In an email dated September 30, 2008, a GM representative informed Robert Gordon (“Gordon”), a real estate partner at Mayer Brown, GM's counsel, who was then responsible for the Synthetic Lease, that GM planned to repay the amount due under the Synthetic Lease. GM requested that Mayer Brown “prepare the documents necessary for [JPMorgan and the Lenders] to be paid off for the obligations on that synthetic lease and to release their interest in those properties.”
Gordon assigned this work to Ryan Green (“Green”), a Mayer Brown real estate associate. Green was to draft the documents necessary for “the termination and payoff of the synthetic lease.”
Gordon Dep. 6 (Callagy Decl. Exh. 4); 9/30/08 Sundaram Email (Callagy Decl. Exh. 12).
Gordon also asked Green to “put together [a] checklist draft”—referring to a checklist of the required documents for the release and transfer of the Synthetic Lease Properties, including “an initial draft of a brief checklist of required documents for the release and transfer.”
Gordon Dep. 12.
10/1/08 Gordon Email (Callagy Decl. Exh. 12).
The documents prepared by Green included three documents and one batch of UCC–3s:
(1) an agreement with respect to the termination of Synthetic Lease obligations and related documentation (the “Synthetic Lease Termination Agreement”);
(2) a closing checklist (the “Synthetic Lease Closing Checklist”);
(3) UCC–3s, and
(4) a letter agreement embodying instructions to an escrow agent with respect to the Synthetic Lease termination (the “Synthetic Lease Escrow Agreement”).
The next day, October 1, GM likewise informed JPMorgan's Duker of GM's intent to pay off the amounts due under the Synthetic Lease. As of that time, the balance to be repaid on the Synthetic Lease was about $150 million.
1. The Synthetic Lease Termination Agreement
Two weeks later, on October 15, 2008, Green circulated the Synthetic Lease Termination Agreement to Simpson Thacher, among others, in draft form.
The Synthetic Lease Termination Agreement stated, among other things (as circulated on October 15, and also in its final form), that the Administrative Agent (JPMorgan) and Lessor (the Trust) were thereby releasing all of their liens against the “Properties” that had been created by the operative agreements which were coming to an end, and that they acknowledged that such liens were released. The Synthetic Lease Termination Agreement then went on to provide, as relevant here:
(ii) [T]he Administrative Agent and the Lessor do hereby
...
(x) [ sic.; seemingly should be z] authorize Lessee to file a termination of any existing Financing Statement relating to the Properties.
Synthetic Lease Termination Agreement (Duker Aff. Exh. L) (reformatted for readability). The second paragraph of the Synthetic Lease Termination Agreement, which was paraphrased in the preceding paragraph, and from which the quoted language was taken, stated in full:
In consideration of ONE DOLLAR ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby confessed and acknowledged, the undersigned, each of which is a party to one or more of the agreements identified as the Operative Agreements, hereby agree that (i) each of such Operative Agreements and any Commitment thereunder is hereby terminated and is discharged and of no further force or effect as of the date hereof, and (ii) the Administrative Agent and the Lessor do hereby (x) release all of their Liens and Lessor Liens against the Properties created by the Operative Agreements, (y) acknowledge that such Liens and Lessor Liens are forever released, satisfied and discharged and (x) [ sic.; seemingly should be z] authorize Lessee to file a termination of any existing Financing Statements relating to the Properties.
Id. (emphasis added).
Importantly, the words “Financing Statement” and “Properties” as used in the quoted language were capitalized defined terms. The next paragraph of the Synthetic Lease Termination Agreement told the reader where to look for definitions of capitalized terms that did not otherwise appear. It referred the reader to an earlier document, defined as the “Participation Agreement,” that had been entered into back in October 2001 when the Synthetic Lease was put into place.
The Participation Agreement, in turn, listed the 12 particular pieces of real property that originally were collateral under the Synthetic Lease.
Annex A to the Participation Agreement (captioned “Rules of Usage and Definitions”) provided definitions for the key words “Financing Statements”
See 1/6/2003 Participation Agreement First Amendment (Duker Aff. Exh. E) at JPMCB–STB–00000918–920 exh. A (six warehouses in Bolingbrook, IL; Reno, NV; Denver, CO; Ontario, CA; Brandon, MS; and Charlotte, NC, respectively; a transmission parts distribution center in Indianapolis, IN; two parking decks in Detroit, MI; an engine plant in Flint, MI; an office building in Grand Blanc, MI; and a vacant parcel of land in Detroit, MI).
Annex A provided:
“Financing Statements” means, collectively, the Lessor Financing Statements and the Lessee Financing Statements.
Participation Agreement Annex A (Duker Aff. Exh. B) at 17 (emphasis by italics added; underlining, to signify defined terms that would thereafter be used, in original). It additionally provided definitions for the two terms used there:
“Lessor Financing Statements” means UCC financing statements made by Lessor, as debtor, and Administrative Agent, as secured party, appropriately completed and executed for filing in the appropriate state and county offices in the State where the applicable Property is located and the State of Delaware.
Id. at 26 (underlining, to signify defined terms that would thereafter be used, in original).
“Lessee Financing Statements” means UCC financing statements made by Lessee, as debtor, and Lessor, as secured party, appropriately completed and executed for filing in the appropriate state and county offices in the State in which each Property is located and the State of Delaware, as the same shall be assigned to the Administrative Agent on behalf of the Secured Parties pursuant to such Lessee Financing Statements.
Id. (underlining, to signify defined terms that would thereafter be used, in original). It should be recalled that as used in the Participation Agreement, the “Lessor” was Auto Facilities Real Estate Trust 2001–1; the “Lessee” was GM, and the Administrative Agent was Chase, the predecessor to JPMorgan. Id. at 3, 26.
—later referred to as the “Financing Statements” and “Properties” in the Synthetic Lease Termination Agreement's second subparagraph (x).
Annex A provided:
“Property” or “Properties” means either individually or collectively, as the case may be, each parcel of Land (including all Appurtenant Rights attached thereto) or, in the case of Land subject to a Ground Lease, the ground leasehold estate to be acquired by the Lessor pursuant to the provisions of the Participation Agreement, as more particularly described in the Requisition and the Memorandum of Lease and Supplement with respect to such Land, together with all of the Improvements at any time located on or under such Land, or multiple parcels of Land with Improvements, as the context may require.
Id. at 35 (emphasis by italics added; underlining, to signify defined terms that would thereafter be used, in original).
The Synthetic Lease Termination Agreement was later executed by GM, JPMorgan and the other parties to the Synthetic Lease termination on or about October 30, 2008, the effective date of the closing of the payoff.
2. The Synthetic Lease Closing Checklist
With assistance from his colleagues at Mayer Brown, Green drafted a closing checklist. It was entitled:
CLOSING CHECKLIST
General Motors: Release of Properties from JPMorgan
Chase Synthetic Lease
CLOSING DATE: October 31, 2008.
Synthetic Lease Closing Checklist, 10/15/08 Green Email Attachment (Callagy Decl. Exh. 15).
The word “Properties” as used in the Closing Checklist title was capitalized, but because it was part of a title, it is unclear whether “Properties” as used there was intended to be as defined in the Participation Agreement, which was the underlying source for definitions in the Synthetic Lease Termination Agreement. But whether or not it was so intended, it still specified what “Properties” were covered: properties from “JPMorgan Chase Synthetic Lease,” as contrasted to any others.
In order to determine what types of documents should be included on the Synthetic Lease Closing Checklist, Green “looked through a copy of the participation agreement. That's the main document for the [Synthetic Lease] and it contained a description of how to unwind and the relevant documents.”
The record indicates, without dispute, that Green's intent—and only intent—was to list the documents that would release Synthetic Lease facility collateral.
Green Dep. 8 (Callagy Decl. Exh. 2).
The Synthetic Lease Closing Checklist listed several dozen closing documents relating to the Properties, including various UCC–1s that needed to be terminated for each property.
Under Section 5 of the Synthetic Lease Closing Checklist, entitled “General Documentation,” three UCC–1s that had been filed in Delaware were listed for termination:
Synthetic Lease Closing Checklist.
Termination of UCCs (central, DE filings) Blanket-type financing statements as to real Property and related collateral located in Marion County, Indiana (file number 2092532 5, file date 4/12/02 and file number 2092526 7, file date 4/12/02) financing statement as to equipment, fixtures and related collateral located at certain U.S. manufacturing facilities (file number 6416808 4, file date 11/30/06).
Id. at 4.
The three UCC–1 filing numbers listed on the Synthetic Lease Closing Checklist were derived from a UCC search Green had requested that a Mayer Brown paralegal, Michael Perlowski, perform. Working from a prior search for UCC–1 financing statements recorded against GM (and without knowledge of the underlying transactions that had involved those filings, or, for that matter, the purpose of his undertaking),
Perlowski identified several UCC–1 financing statements in response to Green's request. Perlowski was not aware of the specific transaction on which Green was working.
Perlowski Dep. 10–11, 40–41 (Callagy Decl. Exh. 1).
Two of the UCC–1 financing statements Green listed on the Synthetic Lease Closing Checklist had been filed in connection with the Synthetic Lease. But the third UCC–1 financing statement he listed, with filing number 6416808 4, did not relate to the Synthetic Lease transaction. Instead, this third UCC–1 financing statement, bearing file number 6416808 4, was the Main Term Loan UCC–1.
Id.
Green circulated a draft of the Synthetic Lease Closing Checklist to GM as well as Simpson Thacher, counsel for JPMorgan, on October 15, 2008. That same day, Duker of JPMorgan received drafts of the Synthetic Lease Closing Checklist from GM and Simpson Thacher. Green circulated updated, but largely similar, drafts of the Synthetic Lease Closing Checklist to Simpson Thacher, among others, later on October 15, and again on October 21, 2008. The subject lines for each of Green's e-mails attaching the drafts of the Synthetic Lease Closing Checklist stated that they related to the “GM/JPMorgan Chase—Synthetic Lease.”
10/15/2008 Sundaram Email (Callagy Decl. Exh. 13); 10/15/2008 Merjian Email (Callagy Decl. Exh. 15); 10/15/2008 Merjian Ledyard Email (Callagy Decl. Exh. 16); 10/21/2008 Merjian Ledyard Email (Callagy Decl. Exh. 17).
The drafts of the Synthetic Lease Closing Checklist identified the Main Term Loan UCC–1 as a “financing statement as to equipment, fixtures and related collateral located at certain U.S. manufacturing facilities (file number 6416808 4, file date 11/30/06).” They made no mention of the words “Term Loan.” The “file date 11/30/06” appearing adjacent to “file number 6416808 4” on the Synthetic Lease Closing Checklist substantially corresponds to the November 29, 2006 date of the Term Loan Agreement, though no one involved recognized that at the time, because everyone believed they were working on the Synthetic Lease transaction. No one at Mayer Brown involved in drafting the Synthetic Lease Closing Checklist and no one at Simpson Thacher or JPMorgan who reviewed and/or received the Synthetic Lease Closing Checklist recognized that “file number 6416808 4, file date 11/30/06” was unrelated to the Synthetic Lease.
3. The Unrelated UCC–3
Another Mayer Brown paralegal, Stewart Gonshorek (“Gonshorek”), was tasked with drafting the UCC–3 termination statements for the unwinding of the Synthetic Lease. One of the UCC–3s that he drafted was the Unrelated UCC–3.
Under section 10 of a draft of the Unrelated UCC–3, a section entitled “OPTIONAL FILER REFERENCE DATA”, Gonshorek typed in “Matter No. 00652500.”
“Matter No. 00652500” was an internal Mayer Brown client-matter number, relating exclusively to Mayer Brown's representation of GM in connection with the Synthetic Lease and its repayment.
Draft Unrelated UCC–3 Email Attachment (Callagy Decl. Exh. 16) at JPMCB–STB–00000206.
Gonshorek prepared the Unrelated UCC–3 to “terminate the UCC in connection with the synthetic lease becoming unwound.”
But the Unrelated UCC–3 showed, on its Line 1a, under “Initial Financing Statement File # ,” “6416808 4 on 11.30.06.”
Gonshorek Dep. 20.
The “Initial Financing Statement File # ” was that of the Main Term Loan UCC–1.
Unrelated UCC–3 (Fisher Decl. Exh. X).
But the Unrelated UCC–3 never used the words “Term Loan,” or any synonym for such.
Further down on the Unrelated UCC–3, it had a Line 9, “Name of Secured Party of Record Authorizing this Amendment,”
on which “JPMORGAN CHASE BANK, AS ADMINISTRATIVE AGENT,” was typed in. But the Unrelated UCC–3 did not have a granting clause— i.e., a clause by which authorization was granted—nor did it have a place for signature by JPMorgan, the party said to have authorized the amendment.
Id. The remainder of Line 9 continued: “(name of assignor, if this is an Assignment). If this is an Amendment authorized by a Debtor which adds collateral or adds the authorizing Debtor, or if this is a Termination authorized by a Debtor, check here [ ] and enter name of DEBTOR authorizing this Amendment.”
While the UCC–3 Gonshorek prepared referenced the Main Term Loan UCC–1 by its filing number and date (6416808 4 on 11.30.06), Gonshorek intended to terminate only a UCC financing statement related to the Synthetic Lease.
The Committee does not contend (nor did it introduce evidence) to the contrary.
Gonshorek Dep. 20.
On Wednesday, October 15, 2008, Green circulated by email to Simpson Thacher's Merjian and counsel for Wilmington Trust, among others (and along with an updated checklist and drafts of most of the other closing documents), the draft UCC–3 termination statements that had been prepared by Gonshorek—including the draft Unrelated UCC–3.
The subject line of Green's e-mail enclosing the draft documents was “GM/JPMorgan Chase–Synthetic Lease (Auto Facilities Real Estate Trust 2001–1)”;
the documents attached to Green's email included nearly a hundred pages of draft documents, including ten draft UCC–3 termination statements. But Green did not attach copies of any of the UCC–1 initial financing statements whose file numbers corresponded to the file numbers referenced on the ten draft UCC–3s that were circulated. Nor, once again, did anything in Green's email or enclosures mention the words “Term Loan.”
10/15/2008 Merjian Ledyard Email.
Green had concluded his October 15 email with a line “Please contact me with any questions or comments you may have.” On Friday, October 17, 2008, Simpson Thacher's Merjian responded, also by email, stating “Nice job on the documents” before continuing with “[m]y only comment,” and going on to state what that comment (which did not relate to the UCC–3s) was.
10/17/2008 Merjian Email (Fisher Decl. Exh. T).
4. The Synthetic Lease Escrow Agreement
Incident to the Synthetic Lease repayment, the parties utilized LandAmerica (the “Title Company”) to serve as an escrow agent, recording agent and title insurance issuer. As a general matter, the Title Company would receive payment from GM and documents executed by the various parties, after which the Title Company would act in accordance with written instructions (executed by counsel for GM, JPMorgan, and the Trust)
calling for the Title Company to close the transaction, cause the documents it had received to be recorded and delivered, and disburse the funds in accordance with the instructions it had received.
Signatures by counsel for GM, JPMorgan and the Trust were followed by a signature block for the Title Company, in a different form. It said:
The undersigned acknowledges receipt of these recording instructions and agrees to proceed in strict accordance therewith.
(block caps in original converted to ordinary text for readability).
The instructions were embodied in the Synthetic Lease Escrow Agreement, which in each of its draft and final form
was an 8–page letter agreement addressed to LandAmerica, which was likewise referred to as “the Title Company,” as a defined term, in the Synthetic Lease Escrow Agreement.
So far as the Court can tell, there were no material differences in the Synthetic Lease Escrow Agreement as between its draft as initially circulated by GM counsel Mayer Brown and its execution version. If there were any changes at all, in fact, neither the Committee nor JPMorgan has called the Court's attention to them.
On October 24, 2008, by email addressed to the Title Company's William Wineman; Simpson Thacher's Mardi Merjian, and counsel for Wilmington Trust (the trustee for the Trust), Green circulated a draft of the Synthetic Lease Escrow Agreement, seeking review and any comments.
The subject line of that email stated: “RE: GM/JPMorgan Chase–Synthetic Lease (Auto Facilities Real Estate Trust 2001–1).”
Synthetic Lease Escrow Agreement, 10/24/2008 Wineman Email Attachment (Callagy Decl. Exh. 18).
As Mayer Brown's Gordon testified, the purpose of the Synthetic Lease Escrow Agreement was to arrange for the payoff of the Synthetic Lease.
Id.
Gordon Dep. 20.
Again as a general matter, the Synthetic Lease Escrow Agreement listed 47 different documents that would be delivered to the Title Company (defined in that letter as “Escrow Documents”), which, after conditions precedent to closing were satisfied, would be delivered, recorded or otherwise handled by the Title Company in accordance with the instructions set forth in the Synthetic Lease Escrow Agreement.
The “Re” line of the Synthetic Lease Escrow Agreement was very lengthy, running on for 15 lines. It described the Synthetic Lease Escrow Agreement's subject as:
Termination of that certain Participation Agreement dated as of October 31, 2001, among General Motors Corporation (“GM”), as Lessee and Construction Agent, Auto Facilities Real Estate Trust 2001–1 (“Trust”), as Lessor, Wilmington Trust Company (“Trustee”), as Trustee, the Persons named therein as Investors, the Persons named therein as Backup Facility Banks, Relationship Funding Company, LLC, and JPMorgan Chase Bank (“Agent”), as Administrative Agent, as amended (the “Participation Agreement”) and release of all liens related thereto including liens relating to the following properties: (i) the SPO Headquarters Building located in Grand Blanc, Michigan (the “Grand Blanc Property”); (ii) the GM Powertrain L6 Engine Plant in Flint, Michigan (the “Flint Property”); (iii) the Franklin Deck in Detroit, Michigan (the “Franklin Deck”); (iv) the River East Parking Deck in Detroit, Michigan (the “River East Deck”); and (v) Parcel 6/C in Detroit, Michigan (“Parcel 6/C”) (the Grand Blanc Property, the Flint Property, the Franklin Deck, the River East Deck and Parcel 6/C herein are each a “Property” and, collectively, the “ Properties ”).
Synthetic Lease Escrow Agreement at 1 (bold face, for defined terms, in original; emphasis by italics added).
Specifically, it provided that its undersigned attorneys represented GM, the Agent, JPMorgan, and the Trustee in connection with that transaction, and that the Title Company had agreed to issue title insurance policies with respect to the Properties. It further stated that “[t]his letter constitutes escrow and recording instructions in connection with the Transaction.”
Id.
It then listed the 47 documents or categories of documents that were being delivered to the Title Company, of which the second was “Termination of UCC Financing Statements (File Numbers 2092532 5, 2092526 7, and 6416808 4) (the ‘General UCC Terminations').”
The Synthetic Lease Escrow Agreement then continued:
Id. (bold face, for defined term, in original).
When all of the conditions precedent to closing set forth in Section A below have been met, you are instructed to close this transaction and disburse the Funds (as defined below) as directed in Section B below and to release from escrow and deliver, record or to otherwise handle the Escrow Documents in accordance with Section C below.
Id. at 4.
The third of the General UCC Terminations (relating to UCC financing statement 6416808 4) was the Unrelated UCC–3, which referenced the Main Term Loan UCC–1. But while the Unrelated UCC–3 was listed as one of the documents to be delivered to the Title Company, it was not listed as one of the documents to be recorded.
Rather, the Title Company was instructed to deliver it (along with others) to GM's counsel, Mayer Brown.
See id. at 5–6. Section C began:
As soon as possible after the release of the Funds pursuant to Section B above, you are instructed to record (or file, as applicable) the documents below (the “Recording Documents”) with the appropriate recording office in the applicable state in the following order as to each Property:
Id. at 5 (bold face, for defined term, in original). It then listed the Recording Documents, which were 23 of the 47 documents that were to be delivered to the Title Company. Neither the Unrelated UCC–3, nor any of the other General UCC Terminations, was one of those Recording Documents.
Id. at 6 (as set forth at the beginning of Section D, “Immediately following closing, any extra original documents and copies of all Escrow Documents shall be forward to the counsel for GM, except for those documents which have been forwarded to the recorder's office (in which case certified copies of the foregoing shall be forwarded to the counsel for GM).”).
When asked if he had any comments to the draft Synthetic Lease Escrow Agreement circulated on October 24, 2008, Simpson Thacher's Merjian replied “it was fine.”
10/27/2008 Merjian Email (Fisher Decl. Exh. V).
5. The Synthetic Lease Transaction Payoff
GM repaid the amount due on the Synthetic Lease transaction on October 30, 2008. Thereafter, but on the same day, Mayer Brown transmitted the Unrelated UCC–3 to a third-party vendor to cause the filing of the Unrelated UCC–3 with the Delaware Secretary of State. The Unrelated UCC–3 had no place for a signature by JPMorgan, and it was not signed by JPMorgan.
See Appendix A.
6. GM's Understanding
Each of the participants on the GM side understood that he was acting only with respect to the Synthetic Lease. None had the understanding that he or she was acting with respect to the Term Loan, or was authorized to do so. Gordon stated, in a declaration, that “GM was not authorized by the Termination Agreement to terminate any financing statement related to the Term Loan Agreement,”
and testified to the same effect at his deposition.
Gordon Aff., 6/19/09 Email Attachment (Callagy Decl. Exh. 11).
Gordon's more junior colleague at Mayer Brown, Green, had the same belief.
See Gordon Dep. 66.
See Green Dep. 99.
Similarly, GM's Debra Homic Hoge (the GM business person with responsibility for the Synthetic Lease), stated that GM was not authorized by the Synthetic Lease Termination Agreement, nor did GM believe it had any authority, to terminate any UCC–1 related to the Term Loan. She further stated that GM had not granted Mayer Brown authority to do so.
Hoge Aff. ¶ 11.
Every deponent in this adversary proceeding (on the JPMorgan side or the GM side) first learned that the Unrelated UCC–3 actually related to the Term Loan only in June 2009, after GM had filed its chapter 11 petition. Before that time, none of them even realized that they had a filed a UCC–3 relating to the Term Loan.
See Green Dep. 88–89; Perlowski Dep. 40–41; Gonshorek Dep. 47–48; Hoge Aff. ¶ 12.
D. Subsequent Events
GM filed its chapter 11 case on June 1, 2009. Approximately two weeks later, Morgan Lewis (which by this time was acting for JPMorgan in connection with the Term Loan and the GM bankruptcy) discovered that Mayer Brown had caused a UCC–3 termination statement to be filed in October 2008 related to the Term Loan.
About three weeks after GM's chapter 11 case was filed, this Court gave final approval to GM's preliminarily approved postpetition financing, commonly referred to in the bankruptcy community as “DIP Financing.” The approval was documented in a lengthy order, dated June 25, 2009 (the “DIP Financing Order”). Among many other things, the DIP Financing Order authorized the repayment of the Term Loan.
On June 30, 2009, as authorized under the DIP Financing Order, the amount then outstanding under the Term Loan (just under $1.5 billion, viz., $1,481,656,507.70) was repaid out of the proceeds of the $33 billion in DIP financing.
After the repayment, JPMorgan authorized the filing of UCC–3s with respect to the Term Loan, including one with respect to the Main Term Loan UCC–1.
To the extent that the Committee might be successful in this adversary proceeding, the amount paid to JPMorgan and the Lenders would be subject to recapture, as provided in the final DIP Financing Order when the payoff of the Term Loan was authorized. In that event, after the return of the amount previously paid on what was thought to be a duly secured claim, the Lenders would still have a claim for the Term Loan debt, but would have only an unsecured claim, sharing pari passu with the many billions of dollars of other unsecured claims in GM's chapter 11 case.
One month later, the Committee filed its complaint in this adversary proceeding.
Discussion
I.
Summary Judgment Standards
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The moving party bears the initial burden of showing that the undisputed facts entitle it to judgment as a matter of law.
.Fed.R.Civ.P. 56(a), made applicable to this adversary proceeding by Fed. R. Bankr.P. 7056; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court notes that Rule 56 was amended in December 2010. By order of the Supreme Court, the amendment governs “insofar as just and practicable, [in] all proceedings ... pending.” Supreme Court Order of April 28, 2010. The amended Rule applies to this motion, but the Court also notes that the substantive standard for summary judgment has not been altered. Advisory Committee Notes to December 2010 Amendment to Rule 56 (“The standard for granting summary judgment remains unchanged.”).
Then, if the movant carries this initial burden, the non-moving party must set forth specific facts to show that there are triable issues of fact, and cannot rely on pleadings containing mere allegations or denials.
See Rodriguez v. City of New York, 72 F.3d 1051, 1060–61 (2d Cir.1995); Ferrostaal, Inc. v. Union Pacific R.R. Co., 109 F.Supp.2d 146, 148 (S.D.N.Y.2000) (“The initial burden rests on the moving party to demonstrate the absence of a genuine issue of material fact....”).
See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Kittay v. Peter D. Leibowits Co., Inc. ( In re Duke & Benedict, Inc.), 265 B.R. 524, 529 (Bankr.S.D.N.Y.2001) (“[T]he nonmoving party must set forth specific facts that show triable issues, and cannot rely on pleadings containing mere allegations or denials.”).
In determining a summary judgment motion, it is well settled that the court should not weigh the evidence or determine the truth of any matter, and must resolve all ambiguities and draw all reasonable inferences against the moving party.
A fact is material if it “might affect the outcome of the suit under the governing law.”
See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (summary judgment is appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party”); Virgin Atlantic Airways Ltd. v. British Airways PLC, 257 F.3d 256, 262 (2d Cir.2001); Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir.2001) (“We ... constru[e] the evidence in the light most favorable to the non-moving party.”).
An issue of fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
See Anderson, 477 U.S. at 248, 1 S.Ct. 2505.
The standards for determining a summary judgment motion apply equally to cases, like the instant one, in which each side moves for summary judgment.
Id.
Bronx Household of Faith v. Board of Educ. of City of New York, 492 F.3d 89, 96 (2d Cir.2007) (citing Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir.2001)); In re Magnesium Corp. of America, 460 B.R. 360, 364–66 (Bankr.S.D.N.Y.2011) (also considering cross-motions for summary judgment).
II.
Choice of Law
Choice of law is not a material concern here.
The issues here are governed, at least in the first instance, by the Uniform Commercial Code, which does not differ in its content as between Delaware and New York—the two states whose law JPMorgan and the Committee have principally addressed.
Under UCC § 1–102(2)(c) (as enacted in each state), one of the “[u]nderlying purposes” of the UCC is to “make uniform the law among the various jurisdictions.” Thus both sides agree, as does the Court, that while strictly speaking, it is the Delaware version
The Main Term Loan UCC–1 and the Unrelated UCC–3 were each filed in Delaware, as was required because GM was a Delaware corporation, which thus was deemed to be “located” in Delaware by reason of its organization there under UCC §§ 9–301 and 9–307. Thus, strictly speaking, Delaware law governs the perfection of JPMorgan's security interest, the effect of perfection or nonperfection, and the priority of JPMorgan's security interest in collateral. SeeUCC § 9–301(1).
The Term Loan documentation had a New York choice of law provision. But while it would govern matters of enforcement or interpretation of that agreement as between JPMorgan and GM, it would not govern the matters just described.
of the UCC that applies here, the Court can (and should) look to decisions from any state or federal courts considering comparable provisions, without regard to the jurisdictions in which those courts sit.
.6 Del. C. § 9–101 et seq. It became effective in Delaware on July 1, 2001, the day that had been recommended as the effective date by the National Conference of Commissioners on Uniform State Laws, which was also the day (presumably for that reason) that the revised Article 9 became effective in New York.
Similarly, as intended by the UCC's drafters,
law other than UCC Article 9—here, principles of agency—must be applied interstitially to fill gaps in the statute. Once again, the Court believes that strictly speaking, the law of Delaware is the most appropriate to use to fill gaps in the Delaware UCC—particularly since the purpose of that use is to determine the effectiveness of termination statements, and continuing validity of initial financing statements, filed in Delaware. But the two sides here have relied principally on cases decided under New York law and on discussion of generally accepted legal principles, such as those in various versions of the Restatement of Agency. More importantly, they have not identified any respects in which the Delaware law of agency differs from that of any other jurisdiction in which a court considered similar issues. Thus the Court considers whatever caselaw is available—from a variety of jurisdictions around the country—from any courts that have addressed similar issues, or are asserted to have done so.
See n. 83 below.
III.
Effectiveness of the Unrelated UCC–3
It is undisputed that JPMorgan, on behalf of its lending syndicate, at least initially had a duly perfected security interest with respect to its collateral—including, as relevant here, all of the equipment and fixtures at the 42 GM properties covered under the Main Term Loan UCC–1. Thus, if that duly perfected security interest did not come to an end, JPMorgan and the Lenders continued to have a security interest in all of those assets as of the time GM filed its chapter 11 case—the time at which the Lenders' continued rights to their secured status is measured.
The Court here must decide whether the perfection of JPMorgan's Term Loan security interest came to an end before that time.
The Committee properly notes (Comm. Partial SJ Br. 10) that if a security interest is unperfected as of the time of the petition, it will be trumped by the statutory lien of a trustee or debtor in possession under section 544 of the Bankruptcy Code. But that is not debated by JPMorgan. The issue here is rather whether or not the Lenders' previously perfected lien remained so.
In that connection, JPMorgan does not dispute that a termination statement that referred to the Main Term Loan UCC–1 by number was filed. JPMorgan also recognizes that each of GM and JPMorgan knew or was on notice of the initial financing statement filing number to which the Unrelated UCC–3 referred, though neither was aware that it actually related to the Main Term Loan UCC–1.
But conversely, the Committee does not dispute that neither of the counsel for GM or JPMorgan, nor either of their respective clients, intended to terminate the Main Term Loan UCC–1, or would have filed (or permitted to be filed) the Unrelated UCC–3 if they had known that the filing of that document would have any effect on the Main Term Loan UCC–1.
The Committee effectively bases its argument on the contention (one of law) that JPMorgan's and GM's undisputed intent does not matter.
See Comm. SJ Opp. 12 (“Of course, if JPMorgan had analyzed and appreciated the consequences of the UCC filing, it never would have permitted Old GM's counsel to cause the Term Loan Termination Statement to be filed.”).
Determination of the issues here starts with interpretation of the Uniform Commercial Code, whose Article 9 governs security interests. Article 9 was amended in 2001, in respects highly relevant here. Since its 2001 amendment, Article 9 no longer requires the execution of a UCC–3 termination statement by the secured party. Instead, such a filing may be made without any signature, and by anyone, provided that the filing has been authorized by the secured party. Importantly, there now is no automatic consequence by reason of the filing of a termination statement. The fact that a termination statement has been filed does not by itself mean that the initial statement came to an end. It all depends on whether the termination of the underlying initial financing statement was authorized. If the requisite authorization was lacking, the termination was ineffective.
Since the termination statement here was filed not by JPMorgan, but by GM on JPMorgan's behalf, the resolution of this controversy turns on whether GM was authorized, as part of the payoff of the Synthetic Lease, to terminate JPMorgan's security interest on the unrelated Term Loan. On the undisputed facts, the Court concludes that GM's authority to terminate initial financing statements was limited to the measures that related to the paid off Synthetic Lease, and that JPMorgan did not authorize the release of its security interest on the wholly unrelated Term Loan.
A. The Requirement for Authorization
After the 2001 amendments to the Uniform Commercial Code, three sections of UCC Article 9, which came into being in 2001,
are particularly relevant. The first, UCC § 9–509(d),
See Harry C. Sigman, The Filing System Under Revised Article 9, 73 Am. Bankr.L.J. 61, 70–71 (1999) (“ Sigman ”).
(d) Person entitled to file certain amendments.—A person may file an amendment other than an amendment that adds collateral covered by a financing statement or an amendment that adds a debtor to a financing statement only if:
(1) the secured party of record authorizes the filing; or
(2) [inapplicable under the facts here].
The second, UCC § 9–510(a),
(a) Filed record effective if authorized.—A filed record is effective only to the extent that it was filed by a person that may file it under Section 9–509.
The third, UCC § 9–513(d),
(d) Effect of filing termination statement.— Except as otherwise provided in Section 9–510, upon the filing of a termination statement with the filing office, the financing statement to which the termination statement relates ceases to be effective.
(emphasis added).
Thus, under UCC § 9–513(d), the filing of a termination statement generally causes the initial financing statement to which the termination statement relates to no longer be effective. But because UCC § 9–513's effect is “except as otherwise provided in [UCC § ] 9–510,” one must then look to UCC § 9–510, which requires one to look to § 9–509 to ascertain whether there has been authorization.
A termination statement (filed by means of a UCC–3) is one kind of financing statement—one that is an amendment to an initial financing statement (filed by UCC–1).
UCC §§ 9–509(d), 9–510(a) and 9–513(d) thus collectively provide that a termination statement is effective only to the extent that the secured party of record authorizes it—and that if the termination statement has not been duly authorized, it is ineffective.
.UCC § 9–102(39) (6 Del. C. § 9–102(39)), one of UCC Article 9's many definitions, defines a “financing statement.” That section provides:
“Financing statement” means a record or records composed of an initial financing statement and any filed record relating to the initial financing statement.
(emphasis added). Similarly, UCC § 9–102(79) (6 Del. C. § 9–102(79)), another of UCC Article 9's definitions, defines a “termination statement.” That section provides:
“Termination statement” means an amendment of a financing statement which:
(A) identifies, by its file number, the initial financing statement to which it relates; and
(B) indicates either that it is a termination statement or that the identified financing statement is no longer effective.
Failures to focus on the distinction between an “initial financing statement” and a “financing statement,” and on the fact that a “termination statement” is one kind of a “financing statement,” have introduced error into the caselaw, most significantly in one of the cases relied upon by the Committee, Roswell Capital Partners LLC v. Alternative Construction Technologies, 2010 U.S. Dist. LEXIS 90695, 2010 WL 3452378 (S.D.N.Y. Sep. 1, 2010), aff'd by summary order on other grounds, 436 Fed.Appx. 34 (2d Cir.2011) (“ Roswell ”). See discussion at page 69 below.
And that is so irrespective of the extent to which the public records tell the world that the initial financing statement is no longer in effect.
See, in addition to UCC §§ 9–509 and 9–510, Official Comment 3 to UCC § 9–502, as enacted in Delaware and elsewhere. It provides, in relevant part:
The fact that this Article does not require that an authenticating symbol be contained in the public record does not mean that all filings are authorized. Rather, Section 9–509(a) entitles a person to file an initial financing statement, an amendment that adds collateral, or an amendment that adds a debtor only if the debtor authorizes the filing, and Section 9–509(d) entitles a person other than the debtor [ sic.; query whether it should say “secured party of record”] to file a termination statement only if the secured party of record authorizes the filing. Of course, a filing has legal effect only to the extent it is authorized. See Section 9–510.
6 Del. C. § 9–502 cmt. 3 (emphasis added).
In its opening brief on its motion for partial summary judgment, the Committee argues that “the filing of a termination statement renders ineffective the financing statement to which the termination relates and causes the subject lien to become unperfected.” Comm. Partial SJ Br. 9. For its failure to address the critical requirement of authorization, and the exception expressly articulated in UCC § 9–513(d), that statement is an overly general, and consequentially inaccurate, statement of the present law. See discussion at page 60 below.
Pre–2001 caselaw that the Committee argues supports such a generalization, see, e.g., In re Silvernail Mirror & Glass, Inc., 142 B.R. 987 (Bankr.M.D.Fla.1992) (“ Silvernail ”), analyzed the issues under a different statutory scheme, and cannot be relied on in instances where the changes in the UCC matter. Language in other post–2001 decisions upon which the Committee relies, Peoples Bank of Kentucky, Inc. v. U.S. Bank, N.A. (In re S.J. Cox Enterprises, Inc.), 2009 Bankr.LEXIS 4573, 2009 WL 939573 (Bankr.E.D.Ky. Mar. 4, 2009) (“ S.J.Cox ”), and Roswell, each of which quoted or cited the pre–2001 decisions while failing to consider their continuing vitality in light of the 2001 changes in the UCC, suffer from the same deficiency. For further discussion of the Court's belief that it should not rely on these cases, see page 60 et seq. below.
As Harry Sigman, one of the members of the drafting committee for Revised Article 9, explained:
Revised Article 9 makes explicit another concept that is implicit under current law—the fact that a filing is on the public record doesn't guarantee that it is effective. For example, ... a termination statement that bears a forged secured party signature is not effective simply because it gets onto the public record. Revised Article 9 states that a filed record is “effective” only to the extent that its filing is authorized.
Sigman, n. 67 above, 73 Am. Bankr.L.J. at 71.
Similarly, as stated in a treatise on the UCC:
A filed record, whether it is an initial financing statement or an amendment, is effective only if it is filed by a person who may file it under the rules of revised Section 9–509 [Rev]. Except in the case of agricultural liens, only a filer who is authorized by the right party may file a record. In the case of an initial financing statement or an amendment adding collateral or adding a debtor, the authorization (actual or deemed) must come from the debtor. In the case of other amendments, authorization must come from the secured party of record.
The fate of a record filed by someone other than a person given the power to do so under revised Section 9–509[Rev] is quite clear. Such a filing is ineffective. Thus, if a secured party files an initial financing statement without actual or deemed authorization of the debtor, that financing statement is ineffective. The same is true for a termination statement not authorized by the secured party of record.
Hawkland's Uniform Commercial Code Series (“ Hawkland ”) § 9–510:2[Rev] (2012) (emphasis added).
Roswell has language, arguably dictum, to the contrary. For a discussion of this Court's inability to agree with Roswell in this and other respects, see the discussion beginning at page 64 below.
After the Uniform Law Commissioners and the American Law Institute (“ALI”) promulgated the revised Article 9 of the UCC that was enacted in 2001, they formed a review committee in 2008 to consider whether further changes or clarifications should be made.
In connection with proposed further amendments to UCC Article 9 (one of which, by means of amendment to UCC § 9–518, would allow secured parties to file an optional, and non-binding, “information statement” providing notice that one who filed a termination statement or other financing statement lacked authority to do so), the Uniform Law Commissioners and ALI noted, in a proposed addition to the Official Comment to UCC § 9–518, that it would have “no legal effect.” “Its sole purpose [was] to provide some limited public notice that the efficacy of a filed record is disputed.”
See their report, reprinted in Hawkland Art. 9 [Rev.] App. C.
They observed that because it would have “no legal effect, a secured party of record—even one who is aware of the unauthorized filing of a record—[had] no duty to file one.” They went on to say:
Id.
If the person that filed the record was not entitled to do so, the filed record is ineffective, regardless of whether the secured party of record files an information statement. Likewise, if the person that filed the record was entitled to do so, the filed record is effective, even if the secured party of record files an information statement.
Id. (italics in original, used to indicate an addition, deleted).
Just as searchers bear the burden of determining whether the filing of [an] initial financing statement was authorized, searchers bear the burden of determining whether the filing of every subsequent record was authorized.
Id. (italics in original, used to indicate an addition, deleted; apparent omitted text added in brackets).
B. Was Authorization Granted?
It is clear, then, that a filed record is effective only to the extent its filing is authorized. But the critical term “authorizes” is not defined in the UCC—in the “Definitions and Index of Definitions” section of Article 9 (UCC § 9–102),
the “General Definitions” at the beginning of the UCC ( UCC § 1–201)
which generally apply to all of the UCC's Articles, or anywhere else. That was not inadvertent. The drafters were aware that the Revised Article 9 would be silent with respect to what constitutes the required authorization (and any standards for determining that issue), and contemplated that law outside UCC Article 9 would decide it.
Thus textual analysis, with which the Court normally begins any matter of statutory construction, is of limited utility here.
See Official Comment 3 to UCC § 9–509 (6 Del. C. § 9–509 cmt. 3) (“Law other than this Article, including the law with respect to ratification of past acts, generally determines whether a person has the requisite authority to file a record under this section.”); accordUCC § 9–502 cmt. 3 (6 Del. C. § 9–502 cmt. 3) (same).
In that connection, a third provision of the UCC—one of its “General Provisions,” which did not come into place in 2001, but rather has been in place since its inception—is consistent with the consideration of agency law to decide when appropriate authority has been granted. That provision, UCC § 1–103(b) (6 Del. C. § 1–103(b)) provides, in relevant part:
Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause supplement its provisions.
(emphasis added).
With “authorizes” not having been statutorily defined, the Court turns, as the drafters of the UCC contemplated, to the principal area of the law addressing situations where one is authorized to act on behalf of another—the law of agency.
Analysis of authority to act in agency law has traditionally involved consideration of “actual” authority; “apparent” authority;
Neither the Committee nor JPMorgan suggests that there is any relevant statutory law in this regard. The principles emerge from caselaw, and caselaw-driven authorities such as the Restatement of Agency.
and “ratification” of the agent's acts. Though under the facts here, the latter two of those doctrines are inapplicable, the Court considers them in turn.
Another type, “implied” authority, which is a species of actual authority, is discussed at page 58 below.
1. Actual Authority
As articulated in caselaw, “[a]ctual authority exists when an agent has the power ‘to do an act or to conduct a transaction on account of the principal which, with respect to the principal, he is privileged to do because of the principal's manifestation to him.’ ”
Likewise, as set forth in the current Restatement:
Hidden Brook Air, Inc. v. Thabet Aviation Intern., Inc., 241 F.Supp.2d. 246, 260 (S.D.N.Y.2002) (“ Hidden Brook Air ”) (under New York law) (quoting Minskoff v. American Exp. Travel Related Servs. Co., 98 F.3d 703, 708 (2d Cir.1996) (making reference to the 1958 Restatement (Second) of Agency (the “ Restatement Second ”), and thus general principles of law)).
An agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal's manifestations to the agent, that the principal wishes the agent so to act.
Restatement (Third) of Agency (“ Restatement ”) § 2.01 (2006); see also id. § 3.01 (“Actual authority, as defined in § 2.01, is created by a principal's manifestation to an agent that, as reasonably understood by the agent, expresses the principal's assent that the agent take action on the principal's behalf.”).
Actual authority is created by “direct manifestations” of that grant of authority which come from the principal to the agent.
“[T]he extent of the agent's actual authority is interpreted in the light of all the circumstances attending these manifestations, including the customs of business, the subject matter, any formal agreement between the parties, and the facts of which both parties are aware.”
Demarco v. Edens, 390 F.2d 836, 844 (2d Cir.1968) ( “ Demarco ”); Peltz v. SHB Commodities, Inc., 115 F.3d 1082, 1088 (2d Cir.1997) (“ Peltz ”) (quoting Demarco ); Highland Capital Management LP v. Schneider, 607 F.3d 322, 327 (2d Cir.2010) (“ Highland Capital Management ”) (quoting Peltz ). Though Demarco and the approximately ten other decisions with identical language all appear to have been decided under New York law, the Court has no reason to believe that Delaware law would be any different in this respect.
See also Restatement Second § 7 (cited by Demarco court) (“Authority is the power of the agent to affect the legal relations of the principal by acts done in accordance with the principal's manifestations of consent to him.”) (emphasis added); Restatement § 1.03 (“A person manifests assent or intention through written or spoken words or other conduct.”); id. cmt. a (“Actual authority as defined in § 2.01 requires a manifestation from the principal to the agent. The scope of actual authority, addressed in § 2.02, is based upon, although not wholly defined by, the principal's manifestation to the agent. A manifestation of assent by the principal is requisite to creating actual authority under § 3.01.”).
Demarco, 390 F.2d at 844;Peltz, 115 F.3d at 1088 (quoting Demarco ); Highland Capital Management, 607 F.3d at 327 (quoting Peltz ).
Importantly for reasons that follow, “[t]he focal point for determining whether an agent acted with actual authority is the agent's reasonable understanding at the time the agent takes action.”
As stated in the current Restatement:
Restatement, § 2.01 cmt. c.
An agent does not have actual authority to do an act if the agent does not reasonably believe that the principal has consented to its commission.... Lack of actual authority is established by showing either that the agent did not believe, or could not reasonably have believed, that the principal's grant of actual authority encompassed the act in question. This standard requires that the agent's belief be reasonable, an objective standard, and that the agent actually hold the belief, a subjective standard.
Restatement, § 2.02 cmt. e.
Thus (presumably because of the requirement that the agent actually hold the belief, a subjective standard),
testimony of the alleged agent concerning the agent's belief as to his or her authority is a common means to prove or disprove the existence and scope of authority. Cases in this district and elsewhere have repeatedly considered the agent's testimony as to his understanding of his authority in determining whether actual authority existed.
Id.
See Merex A.G. v. Fairchild Weston Systems, Inc., 810 F.Supp. 1356, 1369 (S.D.N.Y.1993), aff'd by summary order,54 F.3d 765 (2d Cir.), cert. denied,516 U.S. 915, 116 S.Ct. 302, 133 L.Ed.2d 208 (1995) (court relied on testimony of alleged agent, a market manager, when he stated that he informed the plaintiff Merex that he had no authority to bind the defendant Fairchild); Playboy Enterprises, Inc. v. Dumas, 960 F.Supp. 710, 721 (S.D.N.Y.1997) (“There is no evidence suggesting that any of the [accountant agents alleged to have been authorized in the transaction in question] believed that it had the authority to bind Nagel to a work for hire agreement. In fact, what evidence there is shows that the agents believed that such action was outside of the limited scope of their agency.”); Yolton v. El Paso Tennessee Pipeline Co., 668 F.Supp.2d 1023, 1041 (E.D.Mich.2009) (relying on testimony by union representative that he knew that the union lacked the authority to modify employees' vested retirement benefits); Big Bear Import Brokers, Inc. v. LAI Games Sales, Inc., 2010 U.S. Dist. LEXIS 18604, at *12, 2010 WL 729208, at *4 (D.Ariz. Mar. 2, 2010) (defendant LAI introduced undisputed evidence that agent Hughes did not have authority to enter into purchase agreement, and that at the time he signed it, he knew he did not have such authority, based on Hughes' admission that “he had a feeling that he was not allowed to enter the purchase agreement”); Lone Star Heat Treating Co. v. Liberty Mutual Fire Insurance Co., 233 S.W.3d 524, 531 (Tex.App.–Houston [14th Dist.] 2007) (on summary judgment motion, relying on uncontroverted affidavit of employee when he swore that nobody had told him that he was authorized to take actions in question).
In another case, Opp v. Wheaton Van Lines, Inc., 231 F.3d 1060 (7th Cir.2000), where there was an issue as to whether one Richard Opp had authority to act as an agent, the Seventh Circuit found significant the absence of any testimony from Mr. Opp. See id. at 1064–65 (“And the record contains no testimony from Mr. Opp. Because the record provides no counter-affidavits that establish an explicit agency relationship between Ms. and Mr. Opp, we must accept Ms. Opp's affidavit as true and conclude that she never explicitly granted Mr. Opp the authority to limit the carriers' liability.”).
Thus the Court must overrule the Committee's objection to the statements in affidavits and deposition testimony of Mayer Brown and GM personnel that they were not authorized to terminate the Main Term Loan UCC–1. The Committee's objection, premised on the contention that each was expressing an impermissible legal conclusion, mischaracterizes the statements' substance. Though the Mayer Brown and GM personnel sometimes spoke in conclusory terms, each was in substance expressing his or her understanding or belief that Mayer Brown and GM personnel had not been so authorized. That is exactly what the Restatement says should be the factual predicate for the “subjective standard” prong of the legal conclusion. See page 33 & n. 91 above (“Lack of actual authority is established by showing ... that the agent did not believe ... that the principal's grant of actual authority encompassed the act in question. This standard requires that ... the agent actually hold the belief, a subjective standard.”). With the witnesses providing their understandings and beliefs, the Court can draw its own legal conclusions.
Here the Committee argues that JPMorgan (through its counsel, Simpson Thacher) granted actual authority to GM (through GM's counsel, Mayer Brown) to terminate the Main Term Loan UCC–1, as a consequence of JPMorgan's alleged authorization to file the Unrelated UCC–3. The Committee bases its actual authority arguments, in substance, on the communications between JPMorgan and its counsel, on the one hand, and GM and its counsel, on the other, that took place before the Unrelated UCC–3 was filed. Upon consideration of those communications, however—with a focus on the manifestations of the authority JPMorgan granted to GM (and, in particular, “the customs of business, the subject matter, any formal agreement between the parties, and the facts of which both parties are aware”),
and, to a lesser extent, on the caselaw—the Court concludes that JPMorgan did not grant actual authority to terminate the Main Term Loan UCC–1.
See page 32 & nn. 88–89 above.
(a) The Authority Indicia
The underlying facts—as contrasted to conclusions that flow from them—are not in dispute. The parties agree, as does the Court, that the documents that are most significant in analyzing JPMorgan's manifestations of the authority it gave to GM are four particular documents:
(1) the Synthetic Lease Termination Agreement;
(2) the Synthetic Lease Closing Checklist;
(3) the Unrelated UCC–3; and
(4) the Synthetic Lease Escrow Agreement.
With respect to each of these documents, the Court considers it appropriate to ask two questions: was it an authorization, and, if so, an authorization of what? With respect to the first and fourth of those documents (the Synthetic Lease Termination Agreement and the Synthetic Lease Escrow Agreement), the Court finds a grant of authorization to do something.
But with respect to each of the four documents (including the first and the fourth), the Court finds no grant of authority to terminate the Main Term Loan UCC–1 (nor does it find a failure to object to any such document to be an authorization), and the Court finds the lack of the requisite authority to be particularly clear when the totality of the surrounding circumstances is considered.
With respect to the other two documents (the Synthetic Lease Closing Checklist and the Unrelated UCC–3), the Court cannot even find that.
(1) The Synthetic Lease Termination Agreement
Of the four key documents, the Synthetic Lease Termination Agreement was by far the most specific in defining the nature of GM's authority to file termination statements. That agreement, which is quoted in full above,
stated, in its most significant part:
See n. 18 above.
the Administrative Agent and the Lessor do hereby ... authorize Lessee to file a termination of any existing Financing Statements relating to the Properties.
That plainly is an authorization. It also tells the reader exactly what has been authorized.
The key words “Financing Statements” and “Properties” in the preceding quoted language were capitalized and defined terms. They took their meaning from the Participation Agreement, entered into back in October 2001, which had listed the particular pieces of real property that originally were collateral under the Synthetic Lease.
“Properties” as there used thus meant the Properties (as defined in the Participation Agreement) that were still collateral under the Synthetic Lease.
“Properties” as there used did not include the very different collateral for the Term Loan. Similarly, “Financing Statements,” by reason of the defined terms in the Participation Agreement, referred to the “Lessor Financing Statements” and “Lessee Financing Statements” that had been filed in connection with the Synthetic Lease, which had been executed by the “Lessor” (the Auto Facilities Real Estate Trust 2001–1); the “Lessee” (GM); and the “Administrative Agent” (JPMorgan).
See n. 21 above.
Once again, they did not include unrelated initial financing statements (most significantly, the Main Term Loan UCC–1) with respect to the Term Loan, nor any that had been filed with respect to any other financing.
See n. 20 above, quoting the original definitions.
The Synthetic Lease Termination Agreement can be read in only one way: that Administrative Agent JPMorgan authorized Lessee GM to file terminations of existing financing statements only with respect to the specific properties that were the subject of the Synthetic Lease. The Synthetic Lease Termination Agreement plainly was an authorization to terminate initial financing statements—but only those that it specified. It was not an authorization to bring the Main Term Loan UCC–1 to an end.
(2) The Synthetic Lease Closing Checklist
The second of the four potentially relevant documents is the Synthetic Lease Closing Checklist—a six-page listing of several dozen documents, prepared by GM's counsel Mayer Brown, that would be executed in connection with the payoff of the Synthetic Lease, some of which would also be filed. The Court is satisfied that personnel from Simpson Thacher and JPMorgan received and reviewed the Synthetic Lease Closing Checklist, and voiced no objection to it. But the Court cannot find an authorization on the part of JPMorgan, by reason of that receipt, review, or failure to protest, to file or terminate anything, and especially cannot find an authorization to terminate the Main Term Loan UCC–1.
Preliminarily, the Synthetic Lease Closing Checklist did not say that it was, nor was it, an authorization to do anything. It did not by its terms invite or call for (or even mention) an authorization from JPMorgan with respect to the documents that were listed upon it, and JPMorgan did not execute it. In each of these respects, it was quite different than the Synthetic Lease Termination Agreement discussed above. Plainly, the Synthetic Lease Closing Checklist was sent to Simpson Thacher and JPMorgan for comment. And one can infer that if Simpson Thacher or JPMorgan had any objection or protest (or even comments), Mayer Brown would refrain from action, at least pending further discussion. But the Synthetic Lease Closing Checklist did not purport to be, nor was it, an authorization of any kind.
Because the Court cannot find the Synthetic Lease Closing Checklist to be an authorization at all, the Court need not address the second question that must be asked: “an authorization of what?” If the Court were required to answer that question, however, it would answer it in the same way that it answered that question for the Synthetic Lease Termination Agreement, as discussed above.
The Synthetic Lease Closing Checklist identified itself as relating to the “Release of Properties from JPMorgan Chase Synthetic Lease.” It made no mention of the Term Loan, nor of any financing other than the Synthetic Lease. Assuming, arguendo, that failure to protest to the filing of the listed documents could be deemed to be an authorization, it could only be read as an authorization for what it described—the properties remaining under the Synthetic Lease.
For those same reasons, the Court is unpersuaded that Simpson Thacher's Merjian's statement, “Nice job on the documents,” preceding the one comment he had relating to Synthetic Lease matters, should be deemed to be an authorization of any kind, or, if one reaches the issue, an authorization to terminate the Main Term Loan UCC–1.
It is true, of course, that embodied in the Synthetic Lease Closing Checklist was the number of a UCC–1 which those involved with this case now know to be the Main Term Loan UCC–1. But nobody knew that at the time. Nobody knew that the Main Term Loan UCC–1 would be affected in any way—or more importantly, intended by the Synthetic Lease Closing Checklist to achieve such an end.
It also is true, of course, that by reference to each UCC–1 filing number that was mentioned in the Synthetic Lease Closing Checklist, one could find the original UCC–1 to which the checklist referred; then discern to what the UCC–1 related; and then decide whether or not to authorize the termination of that UCC–1, even if it related to a wholly unrelated transaction. But the failure to have engaged in such an exercise cannot be found to be an authorization.
(3) The Unrelated UCC–3 Itself
The third of the four documents potentially relevant to this inquiry is the draft of the UCC–3 itself. Based on the content of the draft Unrelated UCC–3; its delivery to Simpson Thacher and JPMorgan before its filing; and Simpson Thacher's asserted approval of it (or at least Simpson Thacher's failure to object to its filing), the Committee contends that the Unrelated UCC–3 itself constitutes authorization for the termination of the Main Term Loan UCC–1.
See Comm. Partial SJ Br. 14 (“The draft of the Term Loan Termination Statement [ i.e., the Unrelated UCC–3] indicated that the effectiveness of the Term Loan Financing Statement is terminated and identified JPMorgan as the secured party of record authorizing the termination.”).
Once again, however, the Court cannot find an authorization here, or conclude, assuming arguendo that the draft UCC–3 was an authorization, that it was an authorization to terminate the Main Term Loan UCC–1. With respect to the first of those issues, the UCC–3 did not call for the signature of the secured party principal. Nor did it have a granting clause or use granting language—such as the “hereby ... authorize” which appears in the Synthetic Lease Termination Agreement. GM's filling in of a box listing JPMorgan as “Secured Party of Record Authorizing this Amendment” could not reasonably be regarded as a substitute for this. Nor could the UCC–3, executed solely by GM, reasonably be deemed to be a grant of authority by JPMorgan.
Then, assuming arguendo that the draft UCC–3 could be deemed to be an authorization of something, it cannot be found to be an authorization to terminate the Main Term Loan UCC–1. The Unrelated UCC–3 did not, as the Committee argues, “indicate[ ]that the effectiveness of the Term Loan Financing Statement is terminated....”
It made no reference to the Term Loan other than as might be ascertained by looking at the number listed under “Initial Financing Statement File # ” and then following through on an inquiry to discern the file number's significance.
See n. 99 above.
Addressing one of the important premises for its arguments here, the Committee argues that:
In this case, the Term Loan Termination Statement [ i.e., the Unrelated UCC–3] stated unambiguously that the Term Loan Financing Statement was terminated with respect to the security interest of JPMorgan, the secured party of record authorizing its filing.
See Comm. Partial SJ Br. 13. But that is not quite correct. The words “Term Loan Financing Statement” or “Term Loan” never appeared on the Unrelated UCC–3. The Committee's argument rests on what might have been learned in the multi-step inquiry process if any of Simpson Thacher, JPMorgan, Mayer Brown or GM had engaged in one.
Since a draft of the Unrelated UCC–3 was included amongst the documents that were sent to Simpson Thacher, the Court is inclined to agree with the Committee that when Simpson Thacher's Merjian stated, “Nice job on the documents,” just preceding the one comment he had relating to Synthetic Lease matters, the Unrelated UCC–3 was covered under that remark to no lesser degree than the other documents in the pile. But for the reasons above, that generalized remark still cannot be deemed to be an authorization of any kind, or, if one reaches the issue, an authorization to terminate the Main Term Loan UCC–1. In the absence of an indication that Merjian knew that there was a document that could affect the Main Term Loan UCC–1 in the batch he received, or that Merjian intended that a UCC–3 in that batch terminate the Main Term Loan UCC–1—and, of course, when neither JPMorgan nor GM had the belief that the Main Term Loan UCC–1 would be affected in any way—the Court cannot find Merjian's comment to constitute an authorization to terminate that wholly unrelated document.
(4) The Synthetic Lease Escrow Agreement
The fourth and last of the documents that are asserted to have potential relevance is the Synthetic Lease Escrow Agreement. As with the Synthetic Lease Termination Agreement, the Synthetic Lease Closing Checklist, and the Unrelated UCC–3, the Court considers this document at two levels: again, whether was it an authorization at all, and, if so, an authorization of what.
At the first level, the Court concludes that the Synthetic Lease Escrow Agreement was indeed an authorization—to authorize the Title Company to act to implement the letter's joint directions. But the Synthetic Lease Escrow Agreement was not a grant of an authorization to file UCC–3s. The Court so concludes because (1) the UCC–3s were not amongst the documents that were to be recorded or filed under that agreement, and (2) it was the intention of JPMorgan, GM, and the other parties to the Synthetic Lease Termination Agreement to embody any authorization JPMorgan might grant within that document instead.
At the second level, the Court concludes, once again, that assuming, arguendo, that the Synthetic Lease Escrow Agreement was intended to constitute a second (and seemingly redundant) basis for authority to terminate UCC–1s, the Synthetic Lease Escrow Agreement was an authorization to terminate UCC–1s only with respect to the Synthetic Lease. It still could not be regarded as an authorization to terminate the Main Term Loan UCC–1.
Here, with respect to whether the Synthetic Lease Escrow Agreement was an authorization at all, the Court concludes that it was—though to the Title Company, not to GM or Mayer Brown. In fact, Mayer Brown, on behalf of GM, was one of the three entities granting the authorization—not the entity being authorized.
With respect to what the Synthetic Lease Escrow Agreement authorized, it authorized the Title Company to record or file specified documents ( i.e., the 23 Recording Documents),
but not all of the 47 Escrow Documents.
See n. 45 above.
The remainder (which included the Unrelated UCC–3) were simply to be returned to Mayer Brown.
See page 19 above.
See n. 46 above.
Significantly, the Synthetic Lease Escrow Agreement, which by its terms gave instructions to the Title Company, did not give Mayer Brown instructions or authority to do anything. Nor, especially, did it give Mayer Brown any instructions concerning what Mayer Brown should do with the Escrow Documents that the Title Company would not file, but instead would only forward to Mayer Brown—including, as relevant here, the Unrelated UCC–3.
In its briefing and at oral argument on these motions, see Comm. SJ Opp. 6 n. 6, Comm. Partial SJ Reply 11, and Arg. Tr. at 31–32 (ECF # 63), the Committee asked rhetorically, in substance, if the remainder of the Escrow Documents were not being returned for filing, what were they returned for? Certainly the filing of at least some of them was foreseeable—though many more documents were to be returned than were, or could be, filed. But the fact remains that the Synthetic Lease Escrow Agreement embodied no authority for GM to do anything with respect to documents so returned, whether the filing of any of them was foreseeable or not.
Finally, the Synthetic Lease Escrow Agreement described itself as relating to the Participation Agreement, i.e., to the Synthetic Lease.
It made no mention of the Term Loan.
See nn. 38 and 39 above.
For all of these reasons, the Court cannot find the Synthetic Lease Escrow Agreement to be a source of authority for GM or Mayer Brown to have filed anything, including, especially, anything affecting the Term Loan.
(5) “All Circumstances Attending [Principal's] Manifestations” to Agent
As noted above,
actual authority is created by “direct manifestations” coming from the principal to the agent. “[T]he extent of the agent's actual authority is interpreted in the light of all the circumstances attending these manifestations, including the customs of business, the subject matter, any formal agreement between the parties, and the facts of which both parties are aware.”
See page 32, above.
The direct manifestations, and all of the circumstances attending them, likewise cause this Court to conclude that termination of the Main Term Loan UCC–1 was not authorized.
Demarco, 390 F.2d at 844;accord Peltz, 115 F.3d at 1088;Highland Capital Management, 607 F.3d at 327.
When the Unrelated UCC–3 was filed, there was one, and only one, “direct manifestation[ ]” of the authority granted to GM by JPMorgan here. That was the Synthetic Lease Termination Agreement, the only document embodying a grant of authority to GM. The “direct manifestation[ ]” of GM's authority to terminate initial financing statements (which granted authority with respect to the “Financing Statements” relating to the “Properties,” each of which was a defined term in the Synthetic Lease Termination Agreement), came from the Synthetic Lease Termination Agreement, and nowhere else. Having provided the necessary grant of authority in one place (in very express terms), there was no need to express it again, and the Court can find no evidence of an intent to say it again, either in the same terms or different ones. The other asserted manifestations of authority to GM, as argued by the Committee, were not at all “direct,” if they could be regarded as manifestations at all.
The Court then considers “the customs of business, the subject matter, any formal agreement between the parties, and the facts of which both parties were aware.” No expert testimony, or other evidence, was offered as to the “customs of business,” so the Court lacks evidence of that character upon which to rely. But there is a fair amount of evidence in the record as to the remaining factors, as to which there are no disputed issues of fact, and it all points the same way.
The “subject matter” of the transaction was, as nearly every relevant document expressly stated, the termination of the Synthetic Lease. In all of the emails and underlying documents, there was no mention, before the filing of the Unrelated UCC–3, of the Term Loan or of any intent to affect the Term Loan in any way. The affidavits and deposition testimony were wholly consistent. Nobody at GM, JPMorgan, Mayer Brown or Simpson Thacher ever regarded the subject matter of the transaction as anything other than the Synthetic Lease. The Committee effectively asks the Court to conclude that JPMorgan granted authorization to GM to take action with respect to a wholly different subject matter—a wholly unrelated $1.5 billion loan—without any of the participants in the Synthetic Lease payoff ever mentioning that along the way.
Looking at any “formal agreement between the parties,” the Court comes to the same conclusion. The only formal agreement between the parties with respect to authority to file the Unrelated UCC–3, as discussed above in the Court's discussion of direct manifestations from principal to agent, was the Synthetic Lease Termination Agreement—with respect to which the grant of authority was explicit, and equally explicit with respect to what it covered. Other documents relied upon by the Committee as sources of authorization here were not agreements. They provide no basis for the Court to conclude that JPMorgan and GM agreed to trump or supplement the one formal agreement between the parties that expressly addressed the matter of authority.
The Committee asserts that the Synthetic Lease Termination Agreement does not say that it is the sole source of authority to GM, and that it lacked an integration clause—and thus that the Committee is not foreclosed from relying on other documents as sources of authority. Comm. SJ Opp. 9 n. 9; Comm. Partial SJ Reply 14–15. The Court agrees with the Committee that it is not so foreclosed, and has assumed, consistent with Demarco, Peltz and similar cases, that if there were any other formal agreements likewise speaking to a grant of authority, the Court should consider them as well. For these reasons, the Court has reviewed, with some care, what the Synthetic Lease Closing Checklist, the Unrelated UCC–3, and the Synthetic Lease Escrow Agreement said (even though not all of them were agreements between JPMorgan and GM), along with earlier formal agreements between JPMorgan and GM. Ultimately, however, the documents that the Committee wishes the Court to consider fall considerably short of granting additional or different authority, especially when two of the three of them are not agreements at all. Also, when considering the circumstances in the aggregate, it is appropriate to give the most specific document the greatest weight.
Other, earlier, formal agreements between the parties reinforce that conclusion. When the Term Loan was put into place in 2006, its documentation had provisions to protect the liens securing the Term Loan. Under one such provision, the Term Loan Collateral could not be eliminated unless the Term Loan was fully paid off.
Under another, GM covenanted to maintain the perfection of the security interests in the Term Loan Collateral.
Collateral Agreement § 7.13 (Duker Aff. Exh. H).
And under another, the Term Loan Lenders' perfected security interests could not be released “without the written consent of each Lender.”
Collateral Agreement § 4.03.
These too were elements of formal agreements between the parties that must be considered when determining whether JPMorgan authorized the termination of the Lenders' Term Loan liens as a consequence of the inferences the Committee asks the Court to draw here.
Term Loan Agreement § 10.01 (Duker Aff. Exh. G).
Consideration of “the facts of which both parties are aware” likewise supports JPMorgan's contention that it did not grant authority to terminate the Main Term Loan UCC–1. Here neither principal (JPMorgan) nor agent (GM) believed or understood that JPMorgan authorized GM to terminate the Main Term Loan UCC–1. Their understandings were to the contrary. Nor were they even aware that a UCC–3 referencing an initial financing statement for the Term Loan had been filed until long after the Unrelated UCC–3's filing, or of any extrinsic facts that would cause either to believe that GM should be terminating the Main Term Loan UCC–1. As an additional one of the factors to be considered under Demarco, Peltz, and similar cases, “the facts of which both parties were aware” require the Court to conclude that no authorization was given.
Finally consideration of all of the circumstances in the aggregate compels a finding that authority to terminate the Main Term Loan UCC–1 was not granted. Stepping back from the more detailed analysis above, the Court sees the transaction as the payoff of a real estate financing under which the parties intended to bring the real estate financing liens to an end, without any intention to affect anything else. Neither GM nor JPMorgan intended, or believed, that their documents would affect anything else—and, more to the point, thought JPMorgan had authorized GM to affect anything else. A document now known to have related to the unrelated Term Loan was mistakenly filed by Mayer Brown. Even with delivery of a draft of that document to Simpson Thacher in advance, and Simpson Thacher's failure to protest, the mistaken filing by Mayer Brown of that document—in the absence of recognition by either Mayer Brown or Simpson Thacher that the initial financing statement filing number appearing on it would, upon further investigation, lead to a reference to the Term Loan—does not equate to an authorization by JPMorgan or Simpson Thacher for the termination of JPMorgan's Term Loan liens. This too compels a ruling by this Court that when authorizing termination of UCC–1s with respect to the Synthetic Lease, JPMorgan did not give actual authority to GM to terminate the Main Term Loan UCC–1.
(6) Understanding of the Agent
There is, in addition, one more reason why the Court cannot find termination of the Main Term Loan UCC–1 to have been authorized. That is the understanding of the agent.
As discussed above,
an agent does not have actual authority to do an act if the agent does not reasonably believe that the principal has consented to its commission. Here no one on the GM side had any belief, reasonable or otherwise, that GM had been authorized to terminate JPMorgan's security interests with respect to the Term Loan.
See page 33 & n. 91 above.
If Mayer Brown or GM had actually believed that either had been authorized by JPMorgan to terminate a wholly unrelated $1.5 billion financing, this would be a different case, requiring the Court to then consider whether such a belief was reasonable.
But that is not an issue here, because every individual on the GM side unequivocally expressed his or her belief that GM had not been so authorized. And because, as the Restatement makes clear, a belief (and indeed, a reasonable belief) by the agent that he or she has been authorized is essential to a finding of actual authority—and that is lacking here—the Court cannot find that GM or Mayer Brown had actual authorization. Quite apart from the conclusion that flows from the multi-indicia analysis dictated by Demarco, Peltz and similar cases, that is ultimately conclusive.
See Restatement § 2.02 cmt. e. Though under the facts here, any such belief, if it existed, would be absurd, the Court is uncertain whether the absurdity of the agent's belief can be decided on a summary judgment motion when reasonableness is at issue. That issue need not be decided here, of course, because those on the GM side did not have a belief that JPMorgan had authorized the termination of its security interest on the unrelated Term Loan, reasonable or otherwise.
Here the “actual authority” that the Committee asks the Court to find is ultimately based on the results of an investigative process that never happened. It is not based on anything JPMorgan said or signed, or that GM believed. It rather is the result of a logical syllogism resulting from Simpson Thacher's failure to protest when it saw GM's draft UCC–3 listing a particular initial financing statement filing number, when if Simpson Thacher, Mayer Brown, or either of their clients had investigated and tracked down the referenced UCC–1, and then investigated further to ascertain the financing to which that UCC–1 related, they would have discovered that the UCC–1 in question related not to the Synthetic Lease but rather to the Term Loan. That is not a proxy for actual authority, which requires the reasonable belief by the agent that it has been authorized to act in the respect at issue.
For all of these reasons, the Court concludes that GM and Mayer Brown lacked actual authority to cause JPMorgan's Main Term Loan UCC–1 to come to an end.
The Committee also relies on “implied authority,” which is a species of actual authority. Because the Committee asserts this as a separate contention, the Court considers it as such, and deals with it below. See page 58 below.
(b) Helpful Caselaw
Because the consideration of indicia of a grant of authority is fact-driven, caselaw dealing with grants of authority in connection with the filing of other UCC–3s is not as helpful as it otherwise might be. But there are a few cases worthy of consideration.
In the Negus–Sons bankruptcy case,
the bankruptcy court held that secured party authorization was required to file a UCC–3, and that this authorization had been provided. The Eight Circuit Bankruptcy Appellate Panel, and then the Eighth Circuit, affirmed—finding that the bankruptcy court's decision was “supported by the record,” though “the strongest basis for affirming” was an alternate one, that the secured party was paid off with respect to the remainder of its collateral.
See Lange v. Mutual of Omaha Bank (In re Negus–Sons, Inc.), 2011 Bankr.LEXIS 2378, 2011 WL 2470478 (Bankr.D.Neb. June 20, 2011) (“ Negus–Sons–Bankruptcy ”), aff'd, 460 B.R. 754 (8th Cir. BAP 2011) (“ Negus–Sons–BAP ”), aff'd on opinion of BAP, 701 F.3d 534 (8th Cir.2012) ( per curiam ).
There a secured party, Mutual of Omaha Bank (the “Bank”), had liens on a variety of collateral, some of which the Bank intended to keep and some of which it intended to release. But a Bank employee carelessly placed language in a loan payoff letter provided to a new lender, Wells Fargo Equipment Finance, stating that “[u]pon receipt of payoff all liens will be released.”
Based on this language, and its earlier request for authorization for a release of the security interest “in all the collateral,” Wells Fargo Equipment Finance filed a termination statement on the Bank's behalf. While the Bank claimed that it intended only to release its security interest in the collateral for which payment was received, the bankruptcy court ruled that the broad language in the Bank's responding letter authorized the filing of the termination statement.
Negus–Sons–Bankruptcy, 2011 Bankr.LEXIS 2378, at *12, 2011 WL 2470478, at *5 (emphasis added).
The Bank contended that its authorization was more limited, referring only to its equipment collateral and not its entire security interest. See 2011 Bankr.LEXIS 2378, at *9–10, 2011 WL 2470478, at *4. The Negus–Sons–Bankruptcy court found that contention inconsistent with the request from Wells Fargo Finance to which the Bank was responding. The request provided, in relevant part:
This letter is to confirm that upon receipt of funds from Wells Fargo Equipment Finance, Inc. for the entire payoff of all accounts that you agree to terminate your security interest in all the collateral with all the companies listed above and forward all titles to the following address:
...
We have prepared an amendment to your UCC filing(s) to effectuate these terminations. Please indicate your consent to the filing of these amendments, and your authorization for us to file them on your behalf, by signing in the space provided below....
Id. (emphasis added).
The bankruptcy court's decision in Negus–Sons–Bankruptcy, which the BAP implicitly found not to be clearly erroneous,
is in any event easily distinguishable. The bankruptcy court found that authorization to terminate the liens with respect “to all of the collateral with all the companies listed above” was sought, and that authorization for the release of “all liens” was expressly granted by the Bank. The Bank did not limit its release of liens to those on particular assets.
The BAP stated that “[t]he record supports the bankruptcy court's determination that Wells Fargo had the authority to terminate [the] financing statements.” Negus–Sons–BAP, 460 B.R. at 757. But it went on to say that it could affirm on the basis that the termination of the financing statements was unnecessary, because of payment in full of the remaining indebtedness before the bankruptcy, taking pains to say “we can affirm on any ground supported by the record.” Id. at 757 n. 9. And it later found that the alternative ground was “the strongest basis for affirming the bankruptcy court's determination that Mutual of Omaha no longer has a security interest in the Property.” Id. at 758. It is fair to infer that the B.A.P. found the bankruptcy court's factual finding of authority not to be clearly erroneous, but not to have been strongly supported.
The BAP also stated that in light of its rulings, it did “not need to address the more general question of whether unauthorized termination statements are effective,” id. at 757, though it went on to say that it was hesitant to endorse the holding in Roswell, which “appears to be contrary to the plain language of the Uniform Commercial Code.” Id. at 757 n. 10;see also this Court's discussion of Roswell, beginning at page 64 below.
Other cases involving termination of UCC–1s by entities acting (albeit without authority) on behalf of secured lenders, S.J. Cox and Roswell, are in this Court's view erroneously decided, and thus are inappropriate for discussion in this context. The Court addresses them below, in the context in which the Committee relies upon them, beginning at pages 61 and 64, respectively.
But while not fully on point as a factual matter (and while they engage in a factual analysis somewhat less structured than the one this Court has undertaken, pursuant to Demarco, Peltz and similar cases) the decisions by the bankruptcy and district courts in the A.F. Evans bankruptcy
are nevertheless instructive. The bankruptcy court in A.F. Evans–Bankruptcy understandably started with the statutory scheme of UCC §§ 9–509(d), 9–510 and 9–513. It then engaged in a fact-driven analysis to ascertain whether the requisite authority had been granted—ultimately concluding that authority to terminate the liens on two items of collateral did not extend to a third, even though a termination statement that covered the third as well had been filed. The A.F. Evans–District court affirmed.
See Official Committee of Unsecured Creditors v. City National Bank, N.A. (In re A.F. Evans Co.), 2009 Bankr.LEXIS 2473, 2009 WL 2821510 (Bankr.N.D.Cal. July 14, 2009) (“ A.F.Evans–Bankruptcy ”), aff'd2011 U.S. Dist. LEXIS 51628, 2011 WL 1832963 (N.D.Cal. May 13, 2011) (“ A.F.Evans–District ”).
The A.F. Evans cases involved a situation, like this one, in which a creditors' committee, on behalf of the debtor's unsecured creditor community, was jousting with a secured lender over the validity of the secured lender's lien. As here, the secured creditor City National Bank (“City Bank”) originally had a lien on the debtor's interests in three partnerships. When interests in two of the partnerships were sold, the debtor had asked City Bank to release its liens on those two partnership interests (in exchange for a cash payment to City Bank), leaving only the third under City Bank's original lien. City Bank agreed. To facilitate the closing of the sale of those two partnerships, the debtor there (analogous to GM here) sent City Bank (analogous to JPMorgan here) proposed escrow instructions directed to the debtor and to a title company, First American Title Insurance Co. (“First American”), along with two proposed UCC–3s checking the box for deletion of collateral (the two partnerships being sold) but not the box for termination. The proposed instructions (analogous in many respects to the Synthetic Lease Termination Agreement here) included an exhibit containing a description of the collateral to be released upon payment to City Bank. The descriptions were limited to the two partnerships being sold, and did not include any reference to the third.
See 2009 Bankr.LEXIS 2473, at *2–3, 2009 WL 2821510, at *1.
City Bank then caused the instructions to be sent to First American, accompanied by those two UCC–3s, which, again, would release collateral from the scope of the original UCC–1 but not terminate it. But thereafter, someone (presumably at First American, though no finding was made as to who the “someone” was) mistakenly checked an additional box on the UCC–3s, this time the box providing for termination,
and caused the UCC–3s to be filed. The A.F. Evans creditors' committee then argued, as here, that the filing of the UCC–3s with their “termination” box checked caused City Bank to lose its priority as a secured lender.
See 2009 Bankr.LEXIS 2473, at *5, 2009 WL 2821510, at *2.
The A.F. Evans–Bankruptcy court rejected that contention. After going through California's versions of UCC §§ 9–509(d), 9–510(a) and 9–513(d),
it recognized that the termination of City Bank's security interest would be effective only to the extent such had been authorized. It then recognized, as this Court has, that in “determining what a secured party did or did not authorize” within the meaning of UCC 9–509(d), “law other than the Commercial Code may determine the issue.”
See 2009 Bankr.LEXIS 2473, at *6, 2009 WL 2821510, at *3. The California versions of those provisions, Cal. Comm.Code §§ 9509(d), 9510(a), and 9513(d), were the standard uniform provisions, identical except in numbering to those in Delaware.
And it did not quarrel with the general agency principle that principals are bound by the acts of their agents acting within the scope of their authority, and that First American had the authority to act with respect to the two partnerships with respect to which City Bank had agreed to release its liens. But the A.F. Evans–Bankruptcy court found that terminating City Bank's lien on the third partnership was beyond the scope of the authority City Bank had granted. It followed from this that City Bank “was not bound by First American's unauthorized modification to the UCC–3, if indeed the modification was by First American.”
.2009 Bankr.LEXIS 2473, at *8, 2009 WL 2821510, at *3, citing the Official Comment to UCC § 9–509, quoted above at n. 83.
.2009 Bankr.LEXIS 2473, at *10, 2009 WL 2821510, at *4.
As the Committee here correctly observes, A.F. Evans–Bankruptcy is not the same as this case in the respect that the documents City Bank reviewed and approved in that case showed nothing wrong, and were changed thereafter. But in a key respect, it is highly relevant to what we have here. The A.F. Evans–Bankruptcy court did not equate the authority City Bank had granted to file UCC–3s with respect to identified collateral (two of the three partnerships) to authority to make filings generally. Rather, it measured the agent First American's authority by looking at the exact authority that City Bank had granted, and found authority to that extent and nothing more. As the A.F. Evans–Bankruptcy court explained (referring to City Bank by the acronym “CNB”):
Therefore, First American was not CNB's agent, except for the limited purpose of handling the closing of the escrow for the debtor's sale to the buyer of the Westgate and Greenery partnership interests. And First American was not acting within the scope of its very limited authority from CNB when it recorded a UCC–3 Amendment statement in a form other than that which CNB had authorized.
Id. (emphasis added).
The decision in A.F. Evans–District, which expressly dealt with this contention on appeal, and affirmed the bankruptcy court with respect to it, was to the same effect. On appeal, the A.F. Evans creditors' committee argued that City Bank gave First American broad authorization to file any “appropriate amendments” to City Bank's UCC–1, and that First American was acting as City Bank's agent in all matters relating to City Bank's security interest in the debtor's property.
But the A.F. Evans–District court looked at the context in which the grant of authority had been given, and in particular, City Bank's release with respect to those two particular partnerships.
A.F. Evans–District, 2011 U.S. Dist. LEXIS 51628, at *13–14, 2011 WL 1832963, at *5.
It concluded that “[t]he bankruptcy court reasonably construed such instruction to mean that the only ‘appropriate amendments' authorized by CNB were amendments that relinquished CNB's interest in the two properties identified therein.”
Id. (“City National Bank hereby releases all of its right, title and interest in [Westgate and Greenery] and authorizes the filing of appropriate amendments to [the] UCC Financing Statement....”).
Id. (emphasis added).
As applied to this case, each of A.F. Evans–Bankruptcy and A.F. Evans–District support finding authority for GM to terminate UCC–1s with respect to the “Properties”— i.e. the “Properties” that were the subject of the Synthetic Lease—but not for anything else.
A.F. Evans–Bankruptcy is also noteworthy for its view that it should not rely on two decisions upon which the Committee relies here, by the Ninth Circuit BAP and Ninth Circuit, respectively, in Koehring Co. v. Nolden ( In re Pacific Trencher & Equipment, Inc.), 27 B.R. 167 (9th Cir. BAP 1983) (“ Pacific Trencher ”), aff'd735 F.2d 362 (9th Cir.1984). While the A.F. Evans–Bankruptcy court found the Pacific Trencher decisions distinguishable because in A.F. Evans, boxes that had been checked on the UCC–3s sent mixed signals, the A.F. Evans–Bankruptcy court also found the Pacific Trencher decisions distinguishable (consistent with this Court's views as to those cases, see page 61 below) that the mistake in Pacific Trencher was made by the secured party itself (and did not involve an unauthorized act by an agent), and that the Pacific Trencher cases were decided prior to the 2001 UCC amendments' enactment of UCC §§ 9–509 and 9–510, which specifically address the effect of an unauthorized filing. See A.F. Evans–Bankruptcy, 2009 Bankr.LEXIS 2473, at *11–13, 2009 WL 2821510, at *5.
2. Apparent Authority
Apparent authority is different from actual authority. Apparent authority arises from the written or spoken words or other conduct which, reasonably interpreted, cause a third party to believe that the principal consents to have an act done on the principal's behalf by the person purporting to act for him.
Hidden Brook Air, 241 F.Supp.2d. at 261.
Apparent authority is the power held by an agent or other actor to affect a principal's legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations.
Apparent authority does not in itself carry the consequences of actual authority with respect to the rights and duties that apply to the relationship between agent and principal.
Restatement § 2.03.
Id. cmt. a.
Unlike actual authority, which considers manifestations from the principal to the agent from the perspective of the agent, apparent authority considers the conduct of the principal, and as the principal's conduct is interpreted by a third party.
“Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction.”
Minskoff v. American Exp. Travel Related Services Co., Inc., 98 F.3d 703, 708 (2d Cir.1996) (“Apparent authority, then, is normally created through the words and conduct of the principal as they are interpreted by a third party, and cannot be established by the actions or representations of the agent.”).
The agent cannot by his own acts imbue himself with apparent authority.
Hallock v. State of New York, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178 (1984) (“ Hallock ”); FDIC v. Providence College, 115 F.3d 136, 140 (2d Cir.1997) (“ Providence College ”) (quoting Hallock ).
Hallock, 64 N.Y.2d at 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178.
As with manifestations of actual authority made to agents,
a principal's manifestations of apparent authority made to third parties must be understood in context.
See page 32 & n. 89 above.
Apparent authority may result under any set of circumstances under which it is reasonable for a third party to believe that an agent has authority, so long as the belief is traceable to manifestations of the principal.
Restatement § 2.03 cmt. c (“A principal's conduct does not occur in a vacuum. A third party's reasonable understanding of the principal's conduct will reflect general business custom as well as usage that is particular to the principal's industry and prior dealings between the parties.”).
Restatement § 2.03 cmt. c.
Importantly, the inquiry requires the belief of an actual third party, who has acted in reasonable reliance on the principal's representations as to the agent's authority.
See Providence College, 115 F.3d at 140 (“The inquiry therefore centers on the ‘words or conduct of the principal ... communicated to a third party ... that give rise to the appearance and belief that the agent ... possesses authority to enter into a transaction....’ ”) (quoting Hallock ); In re Kollel Mateh Efraim, LLC, 334 B.R. 554, 560 (Bankr.S.D.N.Y.2005) (“Apparent authority consists of two elements: (1) a manifestation by the principal that the agent has authority and (2) reasonable reliance on that manifestation by the person dealing with the agent.”).
Though the distinction ultimately does not matter here, it also is the case that the third party must rely on manifestations as to the existence of authority from the principal—not the agent. See Hallock, 64 N.Y.2d at 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 (“The agent cannot by his own acts imbue himself with apparent authority.”).
Here the Court finds the doctrine of apparent authority simply to be inapplicable. There here were no statements to third parties with respect to the Term Loan upon which a finding of apparent authority could be made.
3. Ratification
The Committee further contends that the filing of the Unrelated UCC–3 was ratified by JPMorgan,
and hence that the termination of the Main Term Loan UCC–1 should be held to have been valid under the agency doctrine of ratification. Once more, however, the Court is unable to agree.
Comm. SJ Opp. 18–19; Comm. Partial SJ Reply 13.
As set forth in the Restatement, “ratification is the affirmance of a prior act done by another, whereby the act is given effect as if done by an agent acting with actual authority.”
A person ratifies an act by (a) manifesting assent that the act shall affect the person's legal relations, or (b) conduct that justifies a reasonable assumption that the person so consents.
Restatement § 4.01(1); see also Holm v. C.M.P. Sheet Metal, Inc., 89 A.D.2d 229, 232, 455 N.Y.S.2d 429, 432 (4th Dept.1982) ( “ Holm ”) (“Ratification is the express or implied adoption of the acts of another by one for whom the other assumes to be acting, but without authority.”).
While silence may, in some circumstances, act as the ratification of a prior act, “[t]he intent required for ratification ‘must be clearly established and may not be inferred from doubtful or equivocal acts or language.’ ”
Restatement § 4.01(2).
Adelphia Recovery Trust v. HSBC Bank USA, 634 F.3d 678, 693–94 (2d Cir.2011) (under New York law) (citing Chemical Bank, 169 F.3d at 128) (under New York law).
Additionally, an important prerequisite to a finding of ratification is full knowledge by the principal of the facts relevant to whether the transaction should be ratified. As stated in the Restatement, “[a] person is not bound by a ratification made without knowledge of material facts involved in the original act when the person was unaware of such lack of knowledge.”
Ratification requires that the principal have actual knowledge of material facts.
Restatement § 4.06
As stated by New York's Appellate Division, Fourth Department, “[t]he act of ratification, whether express or implied, must be performed with full knowledge of the material facts relating to the transaction, and the assent must be clearly established and may not be inferred from doubtful or equivocal acts or language.”
Id. cmt. b. This actual knowledge is in contrast to “notice” as used in the Restatement, which includes not just knowledge of a fact, but also reason to know the fact, having received an effective notification of the fact, or there existing circumstances under which a person “should know” the fact to fulfill a duty owed to another person. See Restatement § 1.04(4).
Many federal court decisions in this circuit and district, some applying New York law and others applying general principles of common law, similarly note the knowledge requirement, with some affirmatively emphasizing it.
Holm, 89 A.D.2d at 233, 455 N.Y.S.2d at 432.
See, e.g., Rodonich v. House Wreckers Union Local 95, 817 F.2d 967, 973 (2d Cir.1987) (“Under general principles of common law, ‘ratification can only occur when the principal, having knowledge of the material facts involved in a transaction, evidences an intention to ratify it.’ ”) (emphasis added); Banque Arabe Et Internationale D'Investissement v. Maryland Nat. Bank, 850 F.Supp. 1199, 1213 (S.D.N.Y.1994) (“To ratify the unauthorized act of an agent, a principal must have full and complete knowledge of all the material facts of the transaction.”) (emphasis added); Prisco v. State of New York, 804 F.Supp. 518, 523 (S.D.N.Y.1992) (“Ratification of the acts of an agent only occurs where the principal has full knowledge of all material facts and takes some action to affirm the agent's actions.”) (emphasis added); Cooperative Agricole Groupement De Producteurs Bovins De L'Ouest v. Banesto Banking Corp., 1989 U.S. Dist. LEXIS 8368, at *50, 1989 WL 82454, at *16 (S.D.N.Y. July 19, 1989) (“ Cooperative Agricole ”) (“Ratification requires knowledge by the principal of the material facts of a transaction, coupled with the retention of benefits.... In other words, ratification requires acceptance by the principal of the benefits of an agent's acts, with full knowledge of the facts, in circumstances indicating an intention to adopt the unauthorized arrangement.”) (emphasis added), aff'd without opinion,904 F.2d 35 (2d Cir.1990); Orix Credit Alliance v. Phillips–Mahnen, Inc., 1993 U.S. Dist. LEXIS 7071, at *73, 1993 WL 183766, at *4 (S.D.N.Y. May 26, 1993) (“ Orix ”) (“[R]atification occurs when a principal, having knowledge of the material facts in a transaction, evidences an intention to affirm or adopt the transaction of his agent through his acts or words.”) (emphasis added).
Then, the Second Circuit has required the acceptance of the benefits of a transaction as an additional element beyond the requisite knowledge.
See Monarch Insurance Co. of Ohio v. Insurance Corp. of Ireland Ltd., 835 F.2d 32, 36 (2d Cir.1987); see also Cooperative Agricole, 1989 U.S. Dist. LEXIS, at *50, 1989 WL 82454, at *16.
Here three elements necessary to establish a ratification by JPMorgan are missing. First, since ratification requires affirmance of a “prior act,”
no facts here establish that JPMorgan did anything to affirm any of the key prior acts (most significantly, the filing of the Unrelated UCC–3, and any termination of the Main Term Loan UCC–1) after such acts took place.
Restatement § 4.01(1).
Secondly, the knowledge requirement here has not been satisfied. Assuming, arguendo, that JPMorgan engaged in the necessary affirmance, it did so without knowledge of what it had done, and even without knowledge that it “was unaware of such lack of knowledge.”
As of the time of the filing of GM's chapter 11 case, nobody at Simpson Thacher or JPMorgan (or though it does not matter with respect to this requirement, Mayer Brown or GM) knew that a termination statement with respect to the Term Loan had been filed. In fact, lacking such knowledge, JPMorgan and GM acted thereafter (including, most significantly, by effecting the paydown of the Term Loan, which was appropriate if, but only if, the Term Loan was then secured) believing that the Term Loan was fully secured.
Restatement § 4.06.
Third, the acceptance of benefits requirement also has not been satisfied here. While JPMorgan benefitted from GM's fulfillment of its duties under the Synthetic Lease, there was no comparable benefit at the time with respect to the Term Loan.
Thus the Court is unable to find a ratification here.
C. The Committee's Other Arguments
The Court then considers other arguments put forward by the Committee to the extent they have not been addressed above.
1. Implied Authority
In one of its briefs,
the Committee further argues that GM “implicitly” authorized the filing of the Unrelated UCC–3, and thus that GM had “implied” authority to terminate the Main Term Loan UCC–1. The Court is unable to agree.
See Comm. SJ Opp. 11.
Implied authority is a species of actual authority, the latter of which can be express or implied.
Express authority is “[a]uthority delegated to [an] agent by words which expressly authorize him to do a delegable act.”
See Nationwide Life Ins. Co. v. Hearst/ABC–Viacom Entertainment Services, 1996 U.S. Dist. LEXIS 6729, at *22, 1996 WL 263008, at *8 (S.D.N.Y. May 17, 1996) (“ Nationwide ”); Hidden Brook Air, 241 F.Supp.2d at 260.
It is “authority distinctly, plainly expressed, orally or in writing.”
Nationwide, 1996 U.S. Dist. LEXIS 6729, at *22, 1996 WL 263008, at *8.
Implied authority, by contrast, is not expressly granted. Rather, it exists when necessary or appropriate to accomplish the agent's express responsibilities, or when the agent reasonably believes that the action in question is required to accomplish the principal's objectives. As explained in the Restatement:
Id. (quoting 1979 version of Black's Law Dictionary ); Hidden Brook Air, 241 F.Supp.2d at 261 (same, quoting Nationwide ).
“Implied authority” is often used to mean actual authority either (1) to do what is necessary, usual, and proper to accomplish or perform an agent's express responsibilities or (2) to act in a manner in which an agent believes the principal wishes the agent to act based on the agent's reasonable interpretation of the principal's manifestation in light of the principal's objectives and other facts known to the agent.
Restatement § 2.01 cmt. b. The two circumstances are not mutually exclusive. Id.; see also Vig v. Deka Realty Corp., 143 A.D.2d 185, 187, 531 N.Y.S.2d 633, 634 (2d Dept.1988), leave to appeal denied,73 N.Y.2d 708, 540 N.Y.S.2d 1003, 538 N.E.2d 355 (1989) (“While the president of a corporation may have implied authority to do necessary acts within the scope of his usual and ordinary duties, he does not possess such authority as to unusual or extraordinary events.”) (emphasis added).
A few decisions, sometimes relying on the 1958 Restatement Second, which preceded the present Restatement, describe implied authority as existing “where the acts or representations of a principal lend the appearance of authority to the agent.” See Nationwide, 1996 U.S. Dist. LEXIS 6729, at *22–23, 1996 WL 263008, at *8. That definition, in the Court's view, is imprecise and overly broad, inappropriately blending separate concepts that (coupled with other factors, most significantly instilling a belief in a third party) define implied authority, on the one hand, and apparent authority, on the other. Particularly since the issuance of the present Restatement, “implied authority,” as the quotations from the present Restatement make clear, is better thought of as the additional authority necessary to implement actual authority otherwise granted, or that the agent reasonably believes to exist.
Here, by way of example, after JPMorgan had authorized GM to file UCC–3s with respect to the Synthetic Lease Properties, GM or its counsel had implied authority to retain and direct a UCC filing service to file the Synthetic Lease Properties' UCC–3s. But GM did not have implied authority to do tasks other than those that were appropriate to accomplish the tasks, with respect to the Synthetic Lease Properties, for which GM had been expressly authorized— i.e., to implement the authority GM had otherwise been granted. GM was not authorized to act except with respect to the Synthetic Lease Properties, and filing the Unrelated UCC–3 was not “necessary,” “usual” or “proper” to bring the UCC–1s with respect to the Synthetic Lease Properties to an end.
At the end of its implied authority argument, the Committee states that “this case concerns an uncontested agency relationship between JPMorgan and Old GM, pursuant to which Old GM was authorized to make UCC filings on behalf of JPMorgan.” Comm. SJ Opp. 15 n. 12. That statement, while technically true, suffers from its excessive breadth, and a failure to state other uncontested, and critical, facts. GM was authorized “to make UCC filings” only with respect to the “Financing Statements” relating to the “Properties”—which, as discussed above, were those with respect to the Synthetic Lease alone. See the Synthetic Lease Termination Agreement and its definitional cross-references, quoted at nn. 18–21 above.
Similarly, if GM had reasonably believed that it was expressly authorized to bring the Main Term Loan UCC–1 to an end, GM likely, if not plainly, would have had implied authority to take measures to accomplish that end. But again, GM did not have such a belief. There was no actual authority—even authority that GM perceived to exist—to terminate the Main Term Loan UCC–1. For these reasons, the Court cannot find the implied authority doctrine to be applicable here.
2. “UCC Filings that Mistakenly Terminate a Security Interest Are Legally Effective.”
Recurring themes in the Committee's briefs are very broad statements (in one instance, as a topic heading)
that “the filing of a termination statement renders ineffective the financing statement to which the termination relates and causes the subject lien to become unperfected,”
See Comm. Partial SJ Br. 11–14 (“Even If Mistaken, The Term Loan Termination Statement is Legally Effective”); see also Comm. SJ Opp. 4 (“JPMorgan acknowledges, as it must, the consistent authority holding that UCC filings that mistakenly terminate a security interest are legally effective.”); Comm. Partial SJ Reply 15–16 (“[A] termination statement that is filed by mistake, like the Term Loan Termination Statement at issue in this case, is legally effective.”).
and, especially, that “UCC filings that mistakenly terminate a security interest are legally effective.”
Comm. Partial SJ Br. at 9.
Broad statements of that character are unhelpful, and by their excessive breadth unsatisfactorily describe the applicable law.
See n. 160 above.
Because the Committee's contentions rest on (1) cases involving entities that made the UCC filings themselves; (2) cases that predated the 2001 amendments to UCC Article 9; and (3) cases that while decided after the 2001 amendments to the UCC, relied on the earlier authority without focusing on the fact that the UCC had changed (or some combination of those deficiencies), the Court is not in a position to accept the Committee's broad statements as properly descriptive of the law, or to consider the underlying cases as relevant to the controversy here.
In the first category are the cases relied upon by the Committee involving erroneous filings by the secured party itself—the Fourth Circuit's decision in Kitchin Equipment;
the Ninth Circuit BAP's and Ninth Circuit's decisions in Pacific Trencher;
See n. 9 above.
the bankruptcy court decisions in Silvernail,
See n. 132 above.
See n. 74 above.
Rock Hill National Bank v. York Chemical Industries, Inc. (In re York Chemical Industries, Inc.), 30 B.R. 583 (Bankr.D.S.C.1983) ( “ York Chemical ”).
and the decision of the Kansas Court of Appeals in J.I. Case.
In re Hampton, 2001 Bankr.LEXIS 2060, 2001 WL 1860362 (Bankr.M.D.Ga. Jan. 2, 2001) (“ Hampton ”).
In each of these, under the UCC's pre–2001 statutory scheme, the secured party had itself signed the termination statement and caused it to be filed.
J.I. Case Credit Corp. v. Foos, 11 Kan.App.2d 185, 717 P.2d 1064 (1986) (“ J.I.Case ”).
See Kitchin Equipment, 960 F.2d at 1244–46;Pacific Trencher, 27 B.R. at 168;Silvernail, 142 B.R. at 988–90;York Chemical, 30 B.R. at 585;Hampton, 2001 Bankr.LEXIS 2060, at *2 & n. 1, 2001 WL 1860362, at *1 & n. 1;J.I. Case, 11 Kan.App.2d at 186, 717 P.2d at 1065–66.
In the second category—cases that predated the 2001 amendments—are each of the above as well. Because they were decided under the pre–2001 statutory scheme (and also because the termination statements were filed by the secured parties themselves), none had occasion to consider the authorization requirement.
In the third category are Roswell and S.J. Cox.
The events they addressed took place after the 2001 amendments to the UCC, but they quoted language from the earlier cases in the first two categories without addressing the changes in the UCC. Though they involved the filing of termination statements by agents, they decided those cases as if they were governed by the former statutory scheme, and this Court respectfully must decline to follow them.
See n. 74 above.
S.J. Cox, a 2009 bankruptcy court decision, involved an adversary proceeding for wrongful termination of an initial financing statement, under the post–2001 statutory scheme. Here, unlike the earlier cases discussed above (where the termination statement had been filed by the secured party), a termination statement potentially ending an entity's security interest in the debtor's farm equipment was filed by someone else—by an employee of “Kentucky Bank” (previously known as “Peoples Bank of Sandy Hook, Kentucky”) with respect to the plaintiff Peoples Bank of Kentucky, Inc., a different entity.
The plaintiff Peoples Bank of Kentucky sued Kentucky Bank for wrongfully terminating the former's initial financing statement, and the S.J. Cox court ruled in the plaintiff's favor
.2009 Bankr.LEXIS 4573, at *1–2, 2009 WL 939573, at *1.
—seemingly accepting defendant Kentucky Bank's first argument that “priority among the Movants must be determined before its liability can be established,” but then rejecting Kentucky Bank's second argument that Peoples Bank's first priority status was unaffected by the supposed “ ‘release’ of the [initial] Financing Statement.”
.2009 Bankr.LEXIS 4573, at *15, 2009 WL 939573, at *6.
.2009 Bankr.LEXIS 4573, at *13–14, 2009 WL 939573, at *5 (quotation marks surrounding “release” in original).
This Court agrees with the S.J. Cox court that the filing of a termination statement there was unauthorized. And this Court also agrees that priority among the respective secured creditors had to be determined before deciding whether one of them was civilly liable for wrongful termination of another's security interest—and thus that it was necessary to determine whether the plaintiff Peoples Bank's first priority interest was affected at all. But this Court cannot agree with the remainder of the S.J. Cox conclusions, and especially its analysis.
Puzzlingly, the S.J. Cox court, when first considering the “Effect of termination of the Financing Statement,”
quoted and considered the Kentucky equivalents of UCC §§ 9–509(a)
.2009 Bankr.LEXIS 4573, at *8, 2009 WL 939573 at *3.
(a provision that addresses who may file an initial financing statement, an amendment that adds collateral, and an amendment that adds a debtor, but which does not involve terminations of initial financing statements at all); 9–511 (addressing who is a secured party of record); and 9–513 (addressing a secured party's duty to cause a termination statement to be filed after no obligations from the debtor to the secured party remain)—and those alone. Oddly, the S.J. Cox court never mentioned the Kentucky equivalents of UCC §§ 9–509(d) and 9–510(a),
.Ky.Rev.Stat. § 355.9–509(1).
quoted and addressed at length starting at page 27 above, two of the three provisions that address the requirement for authorization for financing statement amendments
.Ky.Rev.Stat. §§ 355.9–509(4) and 355.9–510, respectively.
—and that provide, expressly, that amendments may be filed only when the secured party of record authorizes them, and that amendments are effective only to the extent that they have been filed by a person who has been so authorized.
It did quote UCC § 9–513, Ky.Rev.Stat. § 355.9–513, in part, including quotation of UCC § 9–513(d), Ky.Rev.Stat. § 355.9–513(4), but failed to take note of the clause at the beginning of that subsection, “[e]xcept as otherwise provided in KRS 355.9–510 [UCC § 9–510].”
Additionally (perhaps by reason of its failure to consider UCC §§ 9–509(d) and 9–510), the S.J. Cox court incorrectly stated that “these provisions” (presumably the provisions of the UCC that it had quoted) “make it clear that the only party authorized to file a termination statement is the secured party of record.”
And the S.J. Cox court went on with a broad statement, in reliance on Silvernail and Kitchin, that “[t]he termination of a financing statement, even if mistaken, releases the secured creditor's lien against the debtor's property”
S.J. Cox, 2009 Bankr.LEXIS 4573, at *10–11, 2009 WL 939573, at *4.
—without noting that each of Silvernail and Kitchin involved a termination by the secured creditor itself (and not a third party); that the UCC had been amended in 2001 after Silvernail and Kitchin; and that UCC §§ 9–509(d) and 9–510 made authorization a sine qua non to a valid termination. The S.J. Cox court proceeded to reach the conclusions it did by reliance on the very different Silvernail and Kitchin, including Kitchin 's broad (and now overly broad) statement that a termination statement's “effect on a security interest is dramatic and final.”
.2009 Bankr.LEXIS 4573, at *11, 2009 WL 939573 at *4.
The S.J. Cox court concluded that a cause of action had been established for unauthorized termination of a UCC–1 when, because the termination was unauthorized, it should have held that there was no termination at all.
Likewise, a UCC treatise has observed that S.J. Cox was incorrectly decided. See Hawkland § 9–509:4[Rev] n0.50 (“court seems to hold, incorrectly, that the filing actually terminated the financing statement”).
Puzzlingly, the Committee here contends that S.J. Cox is “on point” and relies on it.
But for the reasons stated above, the Court does not believe that it should do so.
See Comm. Partial SJ Reply 17–18.
Roswell, in contrast, plainly reached the right bottom line, and indeed was affirmed (on the first of its two rationales) by the Second Circuit.
But in articulating a second rationale for its decision, the Roswell court expressed thoughts with which this Court, once again, cannot agree.
Though the second rationale was addressed by each side in its briefing to the Second Circuit, the Circuit did not speak to the second rationale, upon which the Committee here relies.
Roswell involved an action by several secured lenders, for whom Roswell Capital Partners was collateral agent (the “Roswell Lenders”), to foreclose on the assets of their borrower Alternative Construction Technology, Inc. (referred to in the decision by the acronym “ACT”). The Roswell Lenders' effort to foreclose was opposed not by their borrower ACT, but rather by assertedly secured competing lenders—an individual, James Beshara, and his sole proprietorship, JMB Associates (referred to in the decision by the acronym “JMB,” but here, for greater clarity, as the “JMB Lenders”).
Roswell, 2010 U.S. Dist. LEXIS 90695, at *1, 2010 WL 3452378, at *1.
The JMB Lenders extended secured credit to ACT, with respect to which they had duly filed UCC–1s, but thereafter (in June 2006) they exercised a contractual right to convert their debt into equity, and took equity in their borrower ACT instead.
After the value of the equity had gone down, in July 2008, the JMB Lenders exercised another contractual right they had, to return their shares and reinstate the debt obligation. But in the meantime (in July 2007), one or more UCC–3s were filed by ACT
.2010 U.S. Dist. LEXIS 90695, at *5–8, 2010 WL 3452378, at *2–3.
to terminate the JMB Lenders' earlier security interest, and the Roswell Lenders extended their secured credit and filed UCC–1s after the filing of those UCC–3s.
.2010 U.S. Dist. LEXIS 90695, at *21, 2010 WL 3452378, at *7.
The Roswell court ruled that the equity conversion extinguished the JMB Lenders' security interest, and with it, the JMB Lenders' lien.
When the JMB Lenders' debt was extinguished after the conversion to equity, there was no longer an obligation to secure. And a “security interest [could not] exist without a debt.”
.2010 U.S. Dist. LEXIS 90695, at *18–19, 2010 WL 3452378, at *6.
That conclusion was affirmed by a summary order of the Second Circuit, which stated, in its succinct decision, that “because the equity conversion extinguished the debt obligation, and a security interest cannot survive the debt's extinguishment, when JMB converted its debt to equity shares in ACT, any security interest it had in the collateral was also extinguished.”
.2010 U.S. Dist. LEXIS 90695, at *18, 2010 WL 3452378, at *6.
Roswell Capital Partners LLC. v. Beshara, 436 Fed.Appx. 34, 35–36 (2d Cir.2011).
But in a portion of its decision that was not endorsed by the Circuit on appeal, the Roswell court went on to set forth a second rationale for its conclusion, which was unnecessary to support Roswell 's plainly correct result.
The Committee relies on that second rationale. But that rationale included several elements with which this Court cannot agree.
The discussion of the second rationale began “[w]hile JMB's failure to show that it had any enforceable security interest in the Collateral at the time the Plaintiffs filed their UCC–1 financing statements in July 2007 permits summary judgment to be awarded to the Plaintiffs, the parties dispute as well the validity and effect of ACT's filing ... of the UCC–3.” Roswell, 2010 U.S. Dist. LEXIS 90695, at *21, 2010 WL 3452378, at *7. That would at least arguably suggest that the second rationale was dictum. See Willis Management (Vermont), Ltd. v. United States, 652 F.3d 236, 243 (2d Cir.2011) (a statement in a footnote in an earlier Second Circuit opinion “was not essential to the Court's holding because it was offered in the alternative and therefore it is dictum that is not binding on us”).
Roswell 's second rationale has been described in a UCC treatise as “troubling dictum.” Hawkland § 9–510:2[Rev] at n. 1.50. But the Court does not need to decide whether or not it was dictum, because district court decisions are not binding on bankruptcy courts, except with respect to any district court mandate pursuant to an appeal.
In the second part of its legal analysis, captioned “JMB's UCC–1 Financing Statement is Ineffective,” the Roswell court considered an additional contention by the Roswell Lenders: that ACT's filing of a UCC–3 termination statement had canceled the JMB Lenders' previously filed UCC–1s. Deciding the matter with reference to the Florida UCC (which conformed to the UCC generally), the Roswell court rejected the JMB Lenders' contention “that the termination statement was ineffective because [the JMB Lenders] did not authorize ACT to file it.”
The Roswell court stated, in that connection:
Roswell, 2010 U.S. Dist. LEXIS 90695, at *21, 2010 WL 3452378, at *7.
Even if the termination statement was not authorized by JMB, it nonetheless extinguished any perfected security interest JMB had in the Collateral.
And it declined to consider a factual argument with respect to whether authorization was lacking, stating that:
.2010 U.S. Dist. LEXIS 90695, at *25, 2010 WL 3452378, at *8.
This argument need not be considered given that even if the UCC–3 termination statement was unauthorized, it nonetheless extinguished any perfected security interest JMB held in the Collateral after the conversion.
.2010 U.S. Dist. LEXIS 90695, at *25 n. 15, 2010 WL 3452378, at *8 n. 15.
Unlike the court in S.J. Cox, the Roswell court made reference to the proper statutory provisions, including the Florida equivalents of UCC §§ 9–509 and 9–510,
discussed at length above. But it then proceeded with a caselaw-driven analysis without reference to what textual analysis of those two provisions (along with UCC § 9–513, which the Roswell court did not address) would require. In that connection, it relied on S.J. Cox (which had been issued in reliance on the wrong provisions of the UCC, and which had ignored UCC §§ 9–509(d) and 9–510), and on Kitchin Equipment, Silvernail and Pacific Trencher (each of which, as noted above, involved filings by the secured party itself, and was decided under the pre–2001 statutory scheme).
.Fla. Stat. §§ 679.509 and 679.510, respectively.
More specifically, the Roswell court repeated S.J. Cox 's statements (each based on pre–2001 law) that “[t]he termination of a financing statement, even if mistaken, releases the secured creditor's lien against the debtor's property,”
and that a “termination statement's effect on a security interest is dramatic and final.” And it went on to say that:
.2010 U.S. Dist. LEXIS 90695, at *22–23, 2010 WL 3452378, at *7 (emphasis in original).
This clear rule accords with the policy of the UCC. Potential creditors must be able to rely on termination statements filed in the public record, even if they were filed in error or without authorization.
It thereafter continued with the statements quoted above to the effect that even if the UCC–3 termination statement was unauthorized, it nonetheless extinguished any perfected security interest the JMB Lenders had in their collateral.
Id. (emphasis added).
Like others,
this Court is unable to agree. These conclusions cannot be squared with the provisions of UCC §§ 9–509(d), 9–510 and 9–513(d), and UCC § 9–502's Official Comment 3, which provides that a “filing has legal effect only to the extent it is authorized.”
See Negus–Sons–BAP, 460 B.R. 754, 757 n. 10 (“We are also hesitant to endorse the holding in [ Roswell ], relied on by the Trustee, that a termination statement filed by a third party is effective regardless of whether it was authorized.... Roswell's holding appears to be contrary to the plain language of the Uniform Commercial Code.”); AEG Liquidation Trust v. Toobro N.Y. LLC, 32 Misc.3d 1202(A), 2011 N.Y. Misc. LEXIS 3041, at *27 n. 1, 2011 WL 2535035, at *9 n. 1 (Sup.Ct.N.Y.Co.Commer.Div. Jun. 24, 2011) (“ Toobro ”) (“For these reasons [which are discussed beginning at page 70 below], the court declines to follow the SDNY Court's analysis in Roswell Capital.”); Hawkland § 9–510:2[Rev] at n. 1.50 (describing Roswell conclusions as “troubling,” though regarding them as dictum).
The Roswell court further stated that “[t]he UCC therefore places the burden of monitoring for potentially erroneous UCC–3 filings on existing creditors, who are aware of the true state of affairs as to their security interests, rather than potential creditors who will not be in a position know whether a termination statement was authorized or not.”
And it rejected, in a footnote, the JMB Lenders' argument that because the UCC adopted “notice filing”—a system contemplating further inquiry to determine the scope of a security agreement—subsequent lenders like the Roswell Lenders would have to further investigate the filing of the UCC–3 termination statement to determine the true status of the JMB Lenders' security interests.
.2010 U.S. Dist. LEXIS 90695, at *23–24, 2010 WL 3452378, at *7.
However in this respect also, the Court cannot agree. “Notice filing” is indeed the regime under the UCC, as recognized in the UCC's Official Comments,
and less directly by the Second Circuit in its Credit Bancorp decision.
As stated in Official Comment 2 to UCC § 9–502, which addresses the sufficiency of a financing statement:
This section adopts the system of “notice filing.” ...
The notice itself indicates merely that a person may have a security interest in the collateral indicated. Further inquiry from the parties concerned will be necessary to disclose the complete state of affairs.
As Official Comment 2 makes clear, documents of record may be insufficient to ascertain “the complete state of affairs,” but UCC Article 9 only requires information sufficient to engage in further inquiry. When the authorization underlying a previously filed termination statement matters to a subsequent lender (as it usually will), the lender can simply include any necessary further inquiry as part of its due diligence.
SEC v. Credit Bancorp, Ltd., 386 F.3d 438, 454 (2d Cir.2004) (“ Credit Bancorp ”).
Roswell was cited approvingly with respect to “notice filing” in a recent North Carolina case, Ward v. Bank of Granite (In re Hickory Printing Group, Inc.), 479 B.R. 388 (Bankr.W.D.N.C.2012) ( “ Hickory Printing ”). This Court would not differ with the Hickory Printing result that is most relevant here ( i.e., that the filing of a UCC–3 by the secured lender's employee was authorized, and thus that it terminated the bank's security interest in debtor collateral) since the Hickory Printing court considered UCC §§ 9–509(d), 9–510(a), and 9–513(d) as part of its analysis; the UCC–3 was filed by an employee of the secured creditor itself; and the secured creditor admitted that the UCC–3 filing was authorized. See479 B.R. at 396–97 (bank's employee “filed hundreds of termination statements, followed her normal (and apparently approved) procedures when filing the Termination Statement, and intended to terminate the Original Financing Statement”; “by the summary judgment hearing, the Bank was willing to concede that, while it was a mistake, the Termination Statement was authorized”). However, the Court cannot concur with Hickory Printing 's endorsement of Roswell 's “notice filing” analysis, see id. at 398, and its endorsement of Roswell 's statements as to burdens on the part of secured creditors to maintain their perfected liens, see id. at 404, for the reasons stated above. Nor can the Court agree with the overly broad language in Hickory Printing based on Kitchin Equipment, Pacific Trencher, York Chemical, and Silvernail.
In cases like Hickory Printing (but unlike the one here) where the UCC–3 is filed by the secured party itself, and not by a debtor or other third party (and thus where authorization is not at issue), pre–2001 cases may still have vitality. But they do not support the “notice filing” conclusions the Roswell court reached, and the Hickory Printing court endorsed.
Then, the Roswell court believed, erroneously in this Court's view, that notice filing applies only to UCC–1s. Rejecting the JMB Lenders' contentions (based on the UCC's Official Comments and Credit Bancorp ), that because the UCC had adopted notice filing, the Roswell Lenders were required to further investigate the filing of the UCC–3, the Roswell court stated:
The problem with JMB's argument is that Credit Bancorp and the Official Comments refer only to “financing statements,” and not to termination statements.
But the Court believes the Roswell conclusion that flowed from that to be incorrect. As noted above,
.2010 U.S. Dist. LEXIS 90695, at *24 n. 14, 2010 WL 3452378, at *7 n. 14.
a “termination statement” is one kind of a “financing statement.” The term “financing statement,” as defined in UCC § 9–102(39), includes not just an “ initial financing statement”
See page 28 & n. 72 above.
(which may be what the Roswell court had in mind), but also “any filed record relating to the initial financing statement.”
Emphasis added.
Finally, if there were a duty on the part of secured lenders to monitor their UCC filings to protect them from improper termination, one must ask what would a secured lender do if it discovered anything? By then, under the Roswell rationale, termination of the secured lender's security interest—which by Roswell 's reasoning would have taken place even if unauthorized—would already have transpired.
The Roswell court seemed to believe that a provision of the UCC imposing civil liability for unauthorized filings, seeUCC § 9–625, Fla. Stat. § 679.625, would provide a satisfactory remedy for unauthorized termination. See 2010 U.S. Dist. LEXIS 90695, at *22, 2010 WL 3452378, at *7. This is in substance a policy view rather than an element of statutory interpretation or application, but to the extent it is relevant, the Court is reluctant to agree with it. More than a few of the disputes in federal district courts and the commercial divisions of state courts, and a huge number of the disputes in bankruptcy courts, are disputes between creditors jousting for priority. Each of Roswell, Toobro, Negus–Sons and this case is a good example. In many cases, the debtor or other unauthorized filer would be unable to make the secured lender whole for the resulting damages if an unauthorized filing were deemed to be effective, leaving the secured lender without an effective remedy. Each of Roswell, Negus–Sons and this case is a good example of that as well.
The concerns this Court voiced with respect to Roswell 's second rationale were shared in Toobro. In relevant part, in the context of a New York CPLR 3211 motion to dismiss, Toobro too involved a need to determine the relative priority of two competing secured lenders, there American Equities Group Inc. (referred to in the decision as “AEG,” but referred to here, for greater clarity, as “American Equities”) and Signature Bank—each of which had extended credit to Ahava Diary Products Corp. (“Ahava Dairy”), initially in 1996 (under a secured factoring agreement) in the case of American Equities,
and in 2005 in the case of Signature Bank.
.2011 N.Y. Misc. LEXIS 3041, at *3–4, 2011 WL 2535035, at *1.
Each lender had duly filed UCC–1s. But in between those two dates, in 2002, an “unknown party,”
.2011 N.Y. Misc. LEXIS 3041, at *4, 2011 WL 2535035, at *3.
allegedly without authorization and knowledge of American Equities, had filed UCC–3s purporting to terminate the first lender American Equities' liens. The Toobro court was required to determine the lenders' respective priorities.
.2011 N.Y. Misc. LEXIS 3041, at *5, 2011 WL 2535035, at *2.
The Toobro court did so by reference to UCC §§ 9–509(d) and 9–510.
It ruled, based on the allegation that “AEG as the secured party did not authorize the filing of the termination statements,”
.2011 N.Y. Misc. LEXIS 3041, at *19–27, 2011 WL 2535035, at *8–9.
that “the termination statements ... were ineffective under Section 9–510.”
.2011 N.Y. Misc. LEXIS 3041, at *19–27, 2011 WL 2535035, at *9.
Thus the financing statements to which they related remained in effect.
.2011 N.Y. Misc. LEXIS 3041, at *24, 2011 WL 2535035, at *9.
.2011 N.Y. Misc. LEXIS 3041, at *24, 2011 WL 2535035, at *9.
The Toobro court then addressed Roswell, in a lengthy footnote, disagreeing with Roswell for much the same reasons this Court has done so.
The Toobro court noted that the cases Roswell cited in support of its analysis were interpreting earlier versions of Article 9.
.2011 N.Y. Misc. LEXIS 3041, at *25 n. 1, 2011 WL 2535035, at *9 n. 1.
It also differed with Roswell 's “notice filing” analysis, for the same reasons this Court does.
Id.
It then closed this element of its discussion by saying that for these reasons, it “declines to follow” the Roswell analysis.
The Toobro court stated, in this connection:
In Roswell Capital, the SDNY court considered but distinguished the “notice filing” comment of UCC § 9–502 stating that it “refer[s] only to financing statements,' and not to termination statements.” See 2010 LEXIS 90695 *24, n. 14. This distinction is inconsistent with the definitions of “financing statement” and “termination statement” under Article 9. SeeUCC §§ 9–102(39), (79).... Since a termination statement is a record “relating to the initial financing statement,” it is part of a “financing statement” as this term is defined by the UCC. SeeUCC § 9–102(39). Consequently, the “notice filing” comment of UCC § 9–502 applies to termination statements.
Id.
Id. Toobro 's holding was approved in a UCC treatise. See Hawkland § 9–510:2 at n. 1.50 (“court correctly held that termination statement filed by a person not authorized to do so by secured party was ineffective to terminate financing statement even though it might mislead searchers; court declined to follow troubling dictum to the contrary in [ Roswell ]”).
For these reasons, the Court is unable to agree that there is a general principle of law that “UCC Filings that Mistakenly Terminate a Security Interest Are Legally Effective.” The question is rather whether they have been authorized. That issue must be addressed in the manner this Court addressed it above. For the reasons there set forth, the requisite authority was lacking.
The Court need not lengthen this decision further by specifically addressing any of the other contentions raised by the Committee on these motions. The Court has canvassed them and satisfied itself that no material points other than those it has specifically addressed were raised and require discussion. To the extent those points were not expressly addressed in this decision, they must be rejected.
Similarly, in light of its conclusions, the Court does not need to address JPMorgan's constructive trust argument, or any of the other bases upon which JPMorgan asserted that it should prevail.
IV.
Certification to Circuit
On rare occasions, a direct appeal from a bankruptcy court to the court of appeals makes sense. In the Court's view, this is one of those occasions where the Circuit might want to consider that as an option.
In that connection, 28 U.S.C. § 158 grants a court of appeals jurisdiction to hear appeals from final judgments of the bankruptcy court under certain circumstances. First the bankruptcy court (acting on its own motion or on the request of a party to the judgment), or all the appellants and appellees acting jointly, must certify that
(i) the judgment, order, or decree involves a question of law as to which there is no controlling decision of the court of appeals for the circuit or of the Supreme Court of the United States, or involves a matter of public importance;
(ii) the judgment, order, or decree involves a question of law requiring resolution of conflicting decisions; or
(iii) an immediate appeal from the judgment, order, or decree may materially advance the progress of the case or proceeding in which the appeal is taken....
Then the court of appeals decides whether it wishes to hear the direct appeal.
Id.; see also In re General Motors Corp., 409 B.R. 24, 27 (Bankr.S.D.N.Y.2009) (the “ Sale Appeal Certification Decision ”) (“The Circuit does not have to take the appeal, however, and can decide whether or not to do so in the exercise of its discretion.”).
In this case, the Court considers each of the three bases for a certification to be present.
With respect to the first prong, the decision here is one of law based on undisputed facts, presented to the Court on cross motions for summary judgment, as to which there is no controlling decision by the Second Circuit (or any Circuit), the Delaware Supreme Court, the New York Court of Appeals, or the highest court of any other state. Though the size of the amount in controversy here, and its effect upon thousands of GM creditors, may be regarded as personal to them, the underlying legal issues are important, as are their potential effect, going forward, on secured lending.
With respect to the second prong, available authorities, while helpful to a point, came nowhere close to addressing a factual situation of this nature. The issues were complicated by broad language in the caselaw, much of which, in this Court's view, should no longer be regarded as having validity in cases involving UCC filings by an entity other than the secured party. Though the Court believes that the authorities may be harmonized, in part, and many may be distinguished on their facts, broad language in many of those cases required resolution of conflicting decisions. The Court has declined to follow the reasoning of the second rationale of Roswell, which, if it were regarded as anything other than dictum, would result in a conflict between lower courts in the Second Circuit.
With respect to the third prong, the Court believes that an immediate appeal from the judgment in this adversary proceeding is likely to advance the progress of the GM case. The outcome of this controversy may have a material impact on unsecured creditor distributions, and will obviously have a material effect on secured creditor distributions. A second level of appeal (which would otherwise be likely, given the stakes of the controversy) would have a foreseeable adverse effect on the timing and finality of creditor distributions.
In one of its earlier decisions in the GM case, see the Sale Appeal Certification Decision, 409 B.R. at 27–29, this Court denied certification to the Circuit of its order approving GM's section 363 sale after this Court's decision in In re General Motors Corp., 407 B.R. 463 (Bankr.S.D.N.Y.2009) (the “ 363 Sale Decision ”), stay pending appeal denied,2009 WL 2033079 (S.D.N.Y.2009) (Kaplan, J.), appeal dismissed and aff'd, 428 B.R. 43 (S.D.N.Y.2010) (Buchwald, J.) and 430 B.R. 65 (S.D.N.Y.2010) (Sweet, J.), appeal dismissed, No. 10–4882–bk (2d Cir. July 28, 2011)—even though, as the subsequent history of the 363 Sale Decision indicates, it ultimately did go up to the Circuit.
This Court did so because while GM's well-being and that of its suppliers, as a business matter, had substantial public importance, the legal issues were not particularly debatable. The 363 Sale Decision was a straightforward application of controlling authority in the Second Circuit (if not also elsewhere)—including five published decisions of the Second Circuit on the 363 Sale issue, and the Circuit's oral affirmance of Chrysler (on a direct appeal) on the successor liability issue. See Sale Appeal Certification Decision, 409 B.R. at 28–29;363 Sale Decision, 407 B.R. at 489 & n. 39.
Here, by contrast, the Court had much less in the way of available caselaw—and none from the Circuit—with which to work. Also, though the Court is mindful of its earlier statement in the Sale Appeal Certification Decision that appellate courts “review judgments, not statements in opinions,” 409 B.R. at 28, and its view that this should be taken into account when deciding whether the necessary conflict exists to warrant certification, here both sides, and the Court, were required to work with statements in the conflicting authority for lack of any better alternative.
Conclusion
The Court concludes, based on the undisputed facts and under the applicable law, that JPMorgan did not authorize the termination of the UCC–1 with respect to the Term Loan, and that anything JPMorgan said or did in connection with the payoff of the Synthetic Lease was not effective in bringing the UCC–1 securing the Term Loan to come to an end.
JPMorgan's motion for summary judgment is granted. The Committee's motion for partial summary judgment is denied. Pursuant to Fed.R.Civ.P. 58 (made applicable to this adversary proceeding by Fed. R. Bankr.P. 7058), the Court is today entering a separate standalone judgment consistent with its first ruling, denying the relief sought by the Committee in its complaint. The Court is also today entering an order with respect to the underlying cross-motions, which includes a decretal paragraph, consistent with the Court's second ruling, denying the Committee's motion for partial summary judgment.
The Court is certifying its judgment for direct appeal to the Second Circuit.