Menotte v. NLC Holding Corp. (In Re First NLC Financial Services, LLC)Menotte v. NLC Holding Corp. (In Re First NLC Financial Services, LLC)
ORDER: 1) DENYING DEFENDANTS BLUE BOY LIMITED PARTNERSHIP AND NSH VENTURES II, L.P.’S MOTION FOR SUMMARY JUDGMENT; AND 2) DENYING TRUSTEE’S MOTION FOR SUMMARY JUDGMENT
This mаtter came before the Court upon Blue Boy Limited Partnership (“Blue Boy”) and NSH Ventures II, L.P.’s (“NSH”) (collectively, the “Defendants”) Motion for Summary Judgment (“Defendants’ Motion”)(D.E.# 121), and upon Deborah C. Menotte, the Chapter 7 Trustee’s, (“Trustee” or “Plaintiff’) Motion for Summary Judgment (“Trustee’s Motion”) (D.E.# 119). The parties filed a Joint Statement of Undisputed Material Facts (“Joint Stipulation”) (D.E.# 135), as well as responses and replies to each other’s motions.
BACKGROUND
On January 18, 2008 (“Petition Dаte”), First NLC Financial Services, LLC (“First NLC” or “Debtor”), whose business was originating and selling prime
A. The Arguments of the Parties
The Defendants’ Motion raises a purely legal issue and argues that they are entitled to summary judgment as a matter of law. It is the Defendants’ position that under Eleventh Circuit law, the Court may not recharacterize as equity a non-shareholder loan made to a debtor. As discussed below, the Court does not agree with Defendants’ interpretation of the law and denies the Defendants’ Motion.
The Trustee’s Motion argues that the subject advances to the Debtor were never intended to be loans. The Trustee states that even though the transaction was documented with a loan agreement, in its most critical aspects- — -1) lack of evaluation of the Debtor’s capacity to repay, 2) whether interest or fee payments were invoiced or made, and 3) whether the parties truly expected repayments — the advances were not loans at all and that they should be recharacterized as equity. The Trustee maintains that she is entitled to summary judgment based upon two versions of re-characterization analysis: 1) because no disinterested lender would have extended credit at the time of the alleged loans; and 2) under a multi-factor test. For the reasons set forth below, the Court herewith denies the Trustee’s Motion.
B. The Joint Stipulation
The parties stipulatеd to the following facts regarding the transactions under scrutiny in this case. FBR, the ultimate parent of the Debtor, made between $200 million and $300 million in inter-company advances to the Debtor prior to July 25, 2007, so that the Debtor could meet its financial obligations. Debtor repaid only a small amount of these advances. During the first half of 2007, the frequency and magnitude of the inter-company advances increased. In early 2007, FBR sought to divest itself of a large portion of its ownership interest in First NLC. Starting in that time period, FBR pursued various strategic alternatives with regard to its investment in the Debtor, including a “144 a” offering, but these efforts did not come to fruition. In addition, FBR contacted more than 40 potential investors, and made presentations to many of them. Two investment firms prepared non-binding letters of intent to invest in First NLC, but
On July 25, 2007, FBR, FNLC Financial, Sun-affiliate NLC Holding, and the Debtor entered into a series of agreements including a Recapitalization Agreement and a Loan and Security Agreement (collectively, the “Agreements”). The Agreements provided for a two-stage, two-closings transaction. “Stage One” called for NLC Holding and FNLC Financial to lend $60 million and $15 million, respectively, to the Debtor. Promissory notes were issued to NLC Holding and FNLC Financial, and the сontemplated amounts were transferred to the Debtor. Sometime in August, 2007 FNLC Financial’s $15 million loan was converted to equity in order to satisfy regulatory requirements as to the Debtor’s net tangible book value. NLC Holding perfected its security interests and liens for itself, NSH, and Blue Boy by making the appropriate UCC-1 filings and entering into deposit control agreements with respect to each of the Dеbtor’s bank accounts. In various communications pri- or to the first closing, certain of the Defendants stated or indicated that if a first closing did not occur, there was a likelihood that First NLC would cease operations and be shut down. It was also stated or indicated that if a first closing occurred but a second closing did not occur, there was a risk that First NLC would cease operations аnd be shut down.
Under “Stage Two” of the transaction, the total amount of the loans, plus any capitalized interest and other amounts owing as part of the loans, was to be deemed repaid and converted to equity at a second closing. Pursuant to the Agreements, NLC Holding was authorized to assign and transfer to Neal Henschel and Jeffrey Henschel the right to participate in a pоrtion of its $60,000,000 advance to the Debt- or. On July 25, 2007, NLC Holding, First NLC, NSH, and Blue Boy entered into a Joinder to the Agreements pursuant to which NLC Holding assigned and transferred $1,000,000 of its advance to NSH, whose principal is Neal Henschel, and $5,000,000 of its advance to Blue Boy, whose principal is Jeffrey Henschel. The Debtor signed notes dated January 16, 2008 in the amounts of $1,000,000 and $5,000,000, in favor of NSH and Blue Boy respectively. Neither NSH, Blue Boy, Neal Henschel, nor Jeffrey Henschel was a shareholder of the Debtor when the parties entered into the Agreements and the Joinder. However, the Henschels owned shares in the Debtor’s ultimate parent company, FBR. Although not included in the Joint Stipulation, the Court notes that Neal Henschel stated that he served as the Debtor’s Chairman of the Board of Managers and Chief Executive Officer from the inception of the Debtor until some time around the Petition DateJNeal Henschel Dep. Tr. at 7-8)(D.E.# 129). Jeffrey Hen-schel indicated that he was President and Chief Operating Officer beginning some time in 2003.(Jeffrey Henschel Dep. Tr. at
The Joint Stipulation further notes that the Agreements identified eight conditions to be satisfied or waived before the second closing was to occur. These conditions included obtaining all of the mortgage licenses required to operate the business; obtaining consents of the Debtor’s landlords; and settlement of the Class Action Lawsuit. The Class Action Lawsuit was settled in December 2007. At least two regulatory licenses (Florida and Virginia) and one landlord’s consent had not been obtained when NLC Holding informed the Debtor that it would not proceed to the second closing. In January 2008, another affiliate of Sun, MTG Finance, LLC, purchased a portfolio of the Debtor’s loans with a face amount of approximately $96 million.
None of the Defendants demanded payment on the loans at any time between the first closing and the Petition Date, nor did the Debtor make any payments on the loans that the Trustee seeks to recharac-terize.
CONCLUSIONS OF LAW
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and 28 U.S.C. § 157(b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A).
I. The Summary Judgment Standard
Federal Rule of Civil Procedure 56(c), made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056(c), provides that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositiоns, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also
Celotex Corp. v. Catrett,
In considering a motion for summary judgment, “the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.”
Knight v. U.S. Fire Ins. Co.,
II. Defendants’ Motion Denied: Re-characterization is Not Limited to Shareholder Loans
At least five Circuit Courts of Appeal, including the Eleventh Circuit, recognize the power of bankruptcy courts to rechar-acterize debt as equity.
See Estes v. N & D Prop., Inc., (In re N & D Prop., Inc.),
“Recharacterization is appropriate where the circumstances show that a debt transaction was ‘actually [an] equity contribution [ ]
ab initio.’
”
AutoStyle Plastics,
269 F.3d at
747-48)(quoting In re Cold Harbor
Assocs.,
L.P.,
In recognizing the power of courts to recharacterize debt, the Eleventh Circuit stated the following test: “Shareholder loans may be deemed capital contributions in one of two circumstances: where the trustee proves initial under-capitalization or where the trustee proves that the loans were made when no other disinterested lender would have extended credit.”
N & D Prop.,
The Eleventh Circuit’s 1986 decision in
N & D Properties
has been recognized as arguably the first Circuit Court of Appeal opinion to endorse debt recharacterization in bankruptcy.
See
My Chi To & Matthew Siegel,
Debt Recharacterization Looks Back on a Good Year,
26 Am. BaNKrJnst. J. 1 (Feb.2007). It is important to note that
N & D Properties
was in fact a case involving a loan made to a debtor by one of its shareholders. Although the Eleventh Circuit stated a test for recharacterization of a shareholder’s loan in
N & D Properties,
this Court finds nothing in the opinion that would restrict recharacterization to only those loans made to a debtor by one of its shareholders. The Eleventh Circuit did not recharacterize the insider shareholder’s claim in
N & D Properties
because the trustee failed to prove his case.
Id.
at 733. However, the opinion noted the trustee’s concern that the shareholder might have engaged in a “scheme and device” to avoid the risks of business ownership.
Id.
This is substantively the same concern expressed in recharacterization opiniоns issued subsequently to
N & D Properties,
i.e. “whether the parties called an instrument one thing when in fact they
Although the Eleventh Circuit has not revisited recharacterization in the context of bankruptcy since
N & D Properties,
opinions from four Circuit Courts of Appeal and several lower courts have contributed to the development of this body of law. While many of these cases involve shareholder loans, some do nоt.
See e.g. SubMicron Sys.,
Since the decision in
N & D Properties,
courts considering claims for recharacteri-zation in the Eleventh Circuit have used both the
N & D Properties
test as well as various multi-factor tests involving more extensive sets of criteria.
Compare Diasonics Inc., v. Ingalls,
Courts in other circuits have also used varying multi-factor tests to determine re-characterization claims.
See e.g., Hedged-Inv. Assocs.,
While the Eleventh Circuit stated a standard for recharacterization of a shareholder loan in N & D Properties, it did not prohibit recharacterization of non-shareholder loans in аppropriate circumstances. There is likewise no prohibition to rechar-acterization of non-shareholder loans embodied in any of the various multi-factor tests applied in other Circuit Courts of Appeal and lower court recharacterization opinions. Defendants argue that they are entitled to summary judgment because no court in the Eleventh Circuit has evеr recharacterized a non-shareholder loan to a debtor. However, this circumstance speaks more to the facts unique to those particular cases than it does to the viability of Trustee’s claim for recharacterization in this case. Under appropriate circumstances, this Court has authority to rechar-acterize loans that are in substance equity, rеgardless of whether the putative lender was or was not a shareholder of the debtor at the time of the transaction. Therefore the Defendants’ Motion must be denied.
III. Trustee’s Motion is Denied Due to Disputed Issues of Fact
The Trustee maintains that she is entitled to summary judgment pursuant to either the
N & D Properties
test or any one of the multi-factor recharacterization
In
Lane,
a tax case, the Eleventh Circuit noted that “[i]n order for an advance of funds to be considеred a debt rather than equity, courts have stressed that a reasonable expectation of repayment must exist which does not depend solely on the success of the borrower’s business.”
In re Lane,
Whether the advances at issue were capital contributions or bona fide loans is a question of fact. In this matter the material facts relating to, among other things, the intent of the parties or if there existed a reasonable expectation of payment are disputed. The Defendants maintain that the Agreements reflect the intent of the parties which was that the debt would not become equity until the second closing occurred. The Court notes that the Trustee presented some documentary evidence regarding the parties’ intent to the contrary. The Trustee also advanced several arguments regarding the parties’ intent, including for example, that the Defendants’ failure to demand repayment shows that the advances were never intended to be bona fide loans. However, after drawing all reasonable inference in favor of the non-moving Defendants, the Court finds that there exist disputed issues of material fact precluding entry of summary judgment. Consequently, the Trustee’s Motion must be denied. A trial is therefore necessary
CONCLUSION
Fоr the reasons stated above, the Court denies the Defendants’ Motion because the law permits non-shareholder loans to be recharacterized in appropriate circumstances. The Court also denies the Trustee’s Motion because of the existence of disputed issues of material fact.
ORDER
The Court, having reviewed the Defendants’ Motion, the Trustee’s Motion, the рarties’ responsive pleadings, the Joint Stipulation, the applicable law, and being otherwise fully advised in the premises, hereby ORDERS AND ADJUDGES that:
1. Defendants’ Motion is DENIED.
2. Trustee’s Motion is DENIED.
Notes
. The Debtor is a wholly owned subsidiary of FNLC Financial, which is turn is a wholly owned subsidiary of FBR. See Decl. Of Thomas J. Allison, CRO, in Support of Chapter 11 Petition and Request for First Day Relief (Main Case No.: 08-10632, D.E.#21). FBR and FNLC Financial were each dismissed without prejudice as defendants in this adversary рroceeding. (D.E.#s 71,166). Defendant NLC Holding and the Trustee have reached a settlement for which they are currently seeking the Court’s approval. Defendants NLC Holding and FNLC Financial also filed a motion for summary judgment. The Court denied as moot both that motion, and the Trustee's Motion as to defendants FNLC Financial and NLC Holding, based upon the dismissal of FNLC Financial and the pending settlement between the Trustee and NLC Holding.(D.E.# 159).