“[T]he debtor … did not retain sufficient rights in the assigned rents under Michigan law for those rents to be included in the bankruptcy estate,” held the U.S. Court of Appeals for the Sixth Circuit on May 2, 2017. In re Town Center Flats LLC, 201 U.S. App. LEXIS 7733, *2 (6th Cir. May 2, 2017). Relying on Michigan law and the language of the relevant documents, the court reversed the bankruptcy court’s holding that gave the Chapter 11 debtor access to the assigned rents as operating funds during its reorganization.
The Sixth Circuit acknowledged the debtor’s asserted “policy concern that excluding the assigned rents from the estate would effectively foreclose Chapter 11 relief for companies like [the debtor here] that own single property and receive their sole stream of revenue from rents of that property.” Id. at *16. Courts continue to debate the issue.
Bankruptcy Code (“Code”) § 363(a) defines “cash collateral” to include not only “cash,” but also “rents, … subject to a security interest as provided in § 552(b) … whether existing before or after the commencement of a [bankruptcy] case … .” (emphasis added). Although Code § 552(a) generally provides that property acquired by the debtor after the commencement of a bankruptcy case is not subject to a lender’s pre-bankruptcy security interest or mortgage, § 552(b)(2) allows a lender’s pre-bankruptcy lien on rents to extend to post-bankruptcy rents. When the lender’s security interest or mortgage (i.e., lien) extends to post-bankruptcy rents, Code § 363(c)(2) bars the debtor or the trustee from using that “cash collateral” unless the lender “consents” or the court, after appropriate notice and hearing, “authorizes such use … .” The court may condition that use, though, on the debtor’s providing the lender with “adequate protection … against diminution in value of its collateral … .”). In re SCOPAC, 624 F.3d 274, 278 n.1 (5th Cir. 2010), relying on Code § 363(e).
Lenders often hold an absolute assignment of rents, however, not a mere lien. In so-called “title theory” states, the lender may have title to and exclusive ownership of post-bankruptcy rents depending on the terms of the assignment and the applicable state law. The Third Circuit, for example, has held that a debtor’s absolute assignment of rents transferred all rights and interests in the rents to the lender under New Jersey law. In re Jason Realty, L.P. 59 F. 3d 423, 427 (3d Cir. 1995) (finding that Chapter 11 debtor had no interest in any post-bankruptcy rents under New Jersey law and could not use them to fund its reorganization, even under the limitations imposed for the use of cash collateral; the U.S. Supreme Court has mandated “that we interpret the assignment as New Jersey courts would construe it outside the bankruptcy context”). First Fidelity Bank, N.A. v. Eleven Hundred Metroplex Assocs., 190 B.R. 510, 513 (S.D.N.Y. 1995) (Sotomayor, D.J.) (“assignments granted to the lenders absolute title to the rents under New Jersey law, not merely a security interest”; assignment was “virtually a carbon copy” of the assignment considered in Jason Realty); Sovereign Bank v. Schwab, 414 F.3d 450 (3d Cir. 2005) (applying Pennsylvania law, bank that enforced its rights under mortgage gained legal title to rents; rents were thus not part of debtor’s estate). Thus, when a court construes the assignment of rents to be absolute, neither the debtor nor a trustee will be able to use the rents, for the rents belong exclusively to the lender. See generally, K.R. Heidt, “The Effect of the 1994 Amendments on Commercial Secured Creditors,” 69 Am. Bankr. L.J. 395, 404 (1995).
In a “lien theory” state, however, a lender will not be entitled to possession of rents even if it holds legal title to the property. In re Millette, 186 F.3d 638, 644 n.10 (5th Cir. 1999) (In “title theory” states, mortgagee holds title to land from outset alone until debt satisfied; in “lien theory” states, the borrower holds title to land and mortgagee has lien; in “intermediate theory” states, the borrower maintains title to the property, but once the loan is in default, the mortgagee immediately receives title and right to possess the property); Commerce Bank v. Mountain View Village, Inc., 5 F.3d 34, 38 (3d Cir. 1993) (“The title theory [in Pennsylvania] permits the creditor to enter the land upon default, but in lien states, the creditor is required to foreclose or have a receiver appointed”). See In re Buttermilk Towne Center, LLC, 442 B.R. 558, 567 (BAP 6th Cir. 2010) (rents are part of debtor’s estate under Kentucky law; rent assignment language “isolated” in context of entire agreement; rents served only as “additional security”; assignment ended when underlying debt satisfied). In re Guardian Realty Group, 205 B.R. 1, 4 (D.D C. 1997) (in dicta, court disagreed with Jason Realty, and noted that in determining whether mortgages “constitute a mere security interest, or instead, ownership,” under Delaware law, courts “must look to the substance of state law rights, not merely the label that state law places on them.”); In re Princeton Square Associates, 201 B.R. 90, 95-96 (Bankr. S.D.N.Y. 1996) (in single-asset Chapter 11 real estate cases, debtor in possession should be permitted to use rents to maintain property even though rents had been assigned to lender prior to bankruptcy, constituting an absolute transfer of title under New Jersey law). Recent cases decided under New York law are split. CompareIn re Loco Realty Corp., 2009 WL 2883050 (Bankr. S.D.N.Y. June 25, 2009) (held, when debtor signed assignment of rent under New York law, debtor prevented from spending rent) and In re Soho 25 Retail, LLC, 2011 WL 1333084 (Bankr S.D.N.Y. Mar. 31, 2011) (held, rent not property of estate under New York law because debtor at most had revocable license to rent; thus unavailable to debtor); withIn re South Side House, Inc., 474 B.R. 391 (Bankr. E.D.N.Y. 2012) (held, assignment of rent under New York law was in nature of pledge for additional security only; debtor retained sufficient pre-bankruptcy interest sufficient to bring rent within estate).
The debtor owned a residential complex in Michigan subject to a $5.3-million mortgage “and an agreement to assign rents to the [mortgagee] in the event of default.” Id. at *2. Specifically, the debtor “irrevocably, absolutely, and unconditionally [agreed to] transfer, sell, assign, pledge and convey to [lender], its successors and assigns, all of the right title and interest of [the debtor] in … income of every nature of and from the [property], including, without limitation, minimum rents [and] additional
rents … .” Id. at *2-*3. The assignment purported to be a “present, absolute and executed grant of the powers herein granted to [lender],” while “granting a license to [the debtor] to collect and retain rents until an event of default, at which point the license would ‘automatically terminate without notice to [the debtor].’” Id. at *3. Of course, the rents were the debtor’s “only source of income.” Id.
When the debtor later defaulted, the lender sued in the Michigan State Court, seeking, among other things, foreclosure and the “appointment of a receiver to take possession of” the debtor’s property. Id. at *4. The debtor then filed a Chapter 11 petition, causing the lender to move for an order preventing the debtor “from using rents collected after the [Chapter 11] petition was filed.” In response, the debtor argued that it “would have no income to work with in its Chapter 11 reorganization plan if the rents were not part of the bankruptcy estate.” The bankruptcy court agreed, denied the lender’s motion, finding that the rents constituted cash collateral. Id. at *5. After the district court vacated the bankruptcy court’s decision, the Sixth Circuit agreed to dispose of the debtor’s appeal on the merits.
Federal courts, explained the Court of Appeals, must rely on state law to determine property rights and the extent to which a property interest is included within the debtor’s estate. Id. at *4-*5.
Assignment of Rents in Michigan
A relevant Michigan statute provides in pertinent part that an “assignment of rent shall be binding upon [the debtor] only in the event of default in the terms and conditions of [the] mortgage … .” Id. at *5. The Michigan statute also provides that the assignment of rents, “when so made, shall be a good and valid assignment of the rents to accrue under any lease or leases in existence or coming into existence during the period the mortgage is in effect … .” Id. at *6.
The Michigan Supreme Court, when construing this statute in another case, held that the lender stands “in the shoes of the mortgagor until the debt is paid, with all his rights to the rents and profits, as long as he, under the general law of mortgages could enjoy them.” Id. at *9, quoting Smith v. Mutual Benefit Life Ins. Co., 362 Mich. 114, 520 (1960). Moreover, the Michigan Court of Appeals held that a “prior perfected interest in assigned rents had priority over an interest held by a judgment creditor who sought to garnish rents.” Id. at *9, citing Otis Elevator Co. v. Mid-America Realty Investors, 206 Mich. App. 710 (Mich. Ct. App. 1994).
“Michigan courts have generally treated the assignment of rents as a transfer of ownership once the agreement has been completed and recorded and a default has occurred.” Id. at *9-*10. Relying on its analysis of Michigan law, therefore, the court found “that the Michigan Supreme Court would treat a completed assignment of rents as a transfer of ownership.” Id. at *10.
No Security Interest
The circuit court also rejected the debtor’s argument that the Michigan statute only gave the lender a security interest in the assigned rents. Id. at *11. The language of the underlying agreements broadly confirmed the irrevocable, absolute and unconditional transfer of the rents to the lender. The debtor clearly had “assigned the rents to the maximum extent permitted by Michigan law.” Therefore, reasoned the court, the debtor had transferred ownership “in the assigned rents to [the lender] before the bankruptcy petition was filed.” Id. at *12.
No Residual Interest
The court further rejected the debtor’s argument that it had retained a residual interest in the rents. Any restriction on the lender’s use of the rents did not give the debtor any vested rights, for the Michigan appellate courts have held that a debtor has no interest in the rents after the assignment, depriving the debtor-assignor of any residual property rights. Id. at *14.
Finally, the court’s holding “is in line with the majority of bankruptcy court decisions that have addressed this issue.” Id. at *15. Despite the negative impact of its holding on single-asset real estate debtors, the Sixth Circuit stressed that “Michigan law … is clear on the matter and governs despite other policy concerns.” Id. at *16.
Authored by Michael L. Cook.
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An absolute assignment of rents conceptually, if not by its very name, provides a mortgagee on an income producing property with the "absolute" right to rental income generated by the mortgaged property in the event of a default by the borrower. However, Tennessee's Bankruptcy Courts have given disparate treatment to the absolute assignment of rents in mortgage loan transactions. In order to create clear law and predictable outcomes, lenders should call upon the Tennessee legislature to craft a solution to the uncertainty caused by the conflicting court decisions.
The economic incentives on which an assignment of rents is based is nicely summarized as follows:
When a loan is secured by a mortgage or deed of trust on an income-producing property, such as an office building, shopping center, or apartment complex, rents are a significant part of the security of the loan, in addition to the land and improvements. Rents provide the funds necessary to pay for operating and maintaining the mortgaged property, and to make payments on the mortgage loan. After a default on the mortgage loan, a borrower, facing the possibility of losing the property to foreclosure, may apply rents to purposes unrelated to the property or the mortgage loan. The lender, on the other hand, wants rents collected after a default to be applied to operation and maintenance of the property or to the mortgage debt. Therefore, a lender wants the ability to control rents from the mortgaged property in the event of a default, and to this end will require the borrower to execute an assignment of rents at the loan closing.1
Given the status of the law today, a lender can no longer be certain that an assignment of rents will provide it with the ability to control rents from the mortgaged property after an event of default. Bankruptcy cases highlight this uncertainty.
When a borrower files bankruptcy the principal issue the lender faces is whether the post-petition rents generated by the debtor's business constitute "cash collateral" within the meaning of § 363 of the Bankruptcy Code. The lender expects that as a result having obtained an assignment of rents, the cash is not cash collateral because all rights to the rents generated by the debtor's business were "absolutely" assigned to the lender. The debtor, however, asserts that it retained some rights in the rents even after the assignment and thus the cash is simply cash collateral that the debtor can use in its bankruptcy case so long as the lender's interest is adequately protected. The determination of this issue depends on whether the assignment of rents at issue effectively transferred the rents absolutely to the lender or was merely a grant of a security interest in the rents. A lender with a separate loan document titled "Absolute Assignment of Rents" may believe this is a non-issue and that it will be permitted to control the rents. However, the Tennessee bankruptcy courts do not agree.
In 2010, the United States Bankruptcy Court for the Western District of Tennessee held that an assignment of rents was an absolute assignment rather than the grant of a security interest. The decision was affirmed by the District Court2. However, in 2011, on the other side of the State, the United States Bankruptcy Court for the Eastern District of Tennessee found that: "an assignment of rents absolute on its face will nevertheless be viewed as a security interest3." Exemplified by these decisions, Tennessee courts have for years ruled inconsistently as to whether an assignment of rents is absolute or for security.
A September 2012 hearing in the United States Bankruptcy Court for the Middle District of Tennessee was the impetus for writing on this topic. The Middle District found that an absolute assignment of rents was a grant of security and found the rents constituted property of the estate4. As a result, the post-petition rents generated by the debtor's business were determined to be cash collateral, and the debtor was permitted to use the rents after providing the lender adequate protection. After announcing his decision from the bench, the bankruptcy judge noted the existence of conflicting decisions interpreting absolute assignment of rents. The judge also acknowledged the difficulty lawyers faced in advising their clients on how an assignment of rents would be interpreted by the Bankruptcy Court. The judge further suggested that a legislative fix might be needed to give stakeholders more clarity and certainty on what rights parties have when they enter into an absolute assignment of rents.
As it exists today, the law interpreting absolute assignment of rents is uncertain and inconsistent. This will result in further litigation and expense for all parties. Eventually a trend will develop from court decisions that answers this question, but a judicial solution may result in a determination that an absolute assignment of rents is merely a security interest. A legislative fix will be more certain and can establish the parties' rights under an assignment of rents. A legislative fix could also save the parties and the court's expense and time by limiting future litigation on this issue. If lenders want certainty that they will be able to control a debtor's rents in a bankruptcy proceeding by virtue of obtaining an absolute assignment of rents then it is time to seek a legislative fix.
1 Still Crazy After All These Years: The Absolute Assignment of Rents In Mortgage Loan Transactions, 59 Fla. L. Rev. 487, 488-89 (July, 2007) (This article relies heavily on this law review article and its in depth discussion of this issue. A reader interested in a more in depth discussion of this issue will find this article informative.)
2 460 Tennessee Street, LLC v. Telesis Community Credit Union, 437 B.R. 306 (W.D. Tenn 2010).
3 In re Senior Housing Alternatives, Inc., 444 B.R. 386, 396 (Bankr. E.D. Tenn. 2011). (Noting at footnote 7, the existence of differing decisions).
4 In re Shreibman (Protective Life Ins. Co. v. Shreibman), Case No.: 12-05272 pending in the United States District Court for the Middle District of Tennessee
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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