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In Re Yellowstone Mountain Club: Equitable Subordination to Police Inequitable Conduct by Non-Insider Creditors Marina Montes

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In Re Yellowstone Mountain Club: Equitable Subordination to Police Inequitable Conduct by Non-Insider Creditors Marina Montes NORTH CAROLINA BANKING INSTITUTE Volume 14 | Issue 1 Article 20 2010 In Re Yellowstone Mountain Club: Equitable Subordination to Police Inequitable Conduct by Non-Insider Creditors Marina Montes Follow this and additional works at: http://scholarship.law.unc.edu/ncbi Part of the Banking and Finance Law Commons Recommended Citation Marina Montes, In Re Yellowstone Mountain Club: Equitable Subordination to Police Inequitable Conduct by Non-Insider Creditors, 14 N.C. Banking Inst. 495 (2010). Available at: http://scholarship.law.unc.edu/ncbi/vol14/iss1/20 This Notes is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Banking Institute by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. In re Yellowstone Mountain Club: Equitable Subordination to Police Inequitable Conduct by Non-Insider Creditors I. INTRODUCTION [C]reditors who cause debtors' financial ruin should not be allowed to use the courts as their collection agents. The United States courts should not be enforcers for loan sharks. The Bankruptcy Code currently gives courts that power to equitably subordinate creditors who act improperly. But... it is applied inconsistently. Equitable subordination provides bankruptcy courts with the authority to place the first lien position of a self-enriching secured creditor in an inferior position to that of other secured or unsecured creditors.2 Historically, bankruptcy judges have been reluctant to use their power to subordinate3 a secured creditor's unjust claims in circumstances where they are not• • fiduciaries.5 For purposes of this Case Comment, a non-insider refers to any creditor that does not have fiduciary obligations. 1. Abusive Credit CardPractices and Bankruptcy: Hearing Before the Subcomm. on the Judiciary,111th Cong. (2009) (testimony of Adam Levitin, Associate Professor of Law, Georgetown University Law Center). 2. See ELIZABETH WARREN, CHAPTER 11: REORGANIZING AMERICAN BUSINESSES, 123-24 (Vicki Been et al. eds., Aspen Publishers 2008). 3. Throughout this Case Comment the terms subordinate and equitably subordinate will be used interchangeably. 4. See e.g., Philip V. Martino, Equitable Subordination of Non-Insider Claims, DLA PIPER PUBL'N, May 2007, http://www.dlapiper.com/equitablesubordination_ non-insider_claims/ ("Equitable subordination is typically applied when a fiduciary misuses his position to the disadvantage of other creditors, or a third party controls the debtor to the disadvantage of other creditors, or a third party actually defrauds other creditors."). 5. The term insider in this Case Comment includes officers, directors and shareholders of a debtor that have fiduciary duties. NORTH CAROLINA BANKING INSTITUTE [Vol. 14 The recent interim order in In re Yellowstone Mountain Club, LLC (Yellowstone) 6 suggests that courts may be more inclined to subordinate claims of secured creditors, including non- insiders, who have engaged in predatory lending practices.7 This Case Comment examines the doctrinal difficulties in applying equitable subordination as a remedy when the relationship, specifically between a creditor and the debtor, does not give rise to a fiduciary duty. In May 2009, in Yellowstone, a Bankruptcy Court for the District of Montana subordinated the $232 million secured first lien position of Credit Suisse Group AG (Credit Suisse) on a luxurious ski resort to that of its unsecured creditors because Credit Suisse's commercial loan was so "overreaching and self- serving that they shocked the conscience of the court.",8 Judge Ralph B. Kirscher ruled in favor of the unsecured creditors, specifying Credit Suisse's "naked greed" and "predatory lending practices" as misconduct that warranted equitable subordination.9 This novel application of equitable subordination caught the attention of lenders (and their attorneys) concerned that their first lien positions may be subordinated due to predatory creditor misconduct. ° Thus, lenders fear that they are at greater risk for loss where once they thought they were secured.I 6. See Credit Suisse v. Official Comm. of Unsecured Creditors (In re Yellowstone Mountain Club, LLC), No. 08-61570-11, Adv. No. 09-00014, 2009 WL 3094930 (Bankr. D. Mont. May 12, 2009) (partial and interim order). 7. See In re Yellowstone Mountain Club LLC-The Pitfalls of "Equitable Subordination"for the Unwary Lender, WHITE & CASE BANK FIN., June 2009, http:// www.whitecase.com/alert-in-re-yellowstone-mountain-club-lcthe-pitfalls-of-eq uitable-subordination-for-the-unwary-lender-06-04-2009/ [hereinafter Unwary Lender] (PDF available at link). 8. In re Yellowstone Mountain Club, LLC, No. 08-61570-11, at *8-10. 9. Id. at *9; see Diane Davis, Credit Suisse's 'Predatory Loan' Shocks Conscience of Court; Results in Subordination, 21 BANKR. L. REP. (BNA) 760, 760- 62, June 4, 2009. 10. See Unwary Lender, supra note 7, at 2; Bankruptcy Court Equitably Subordinates Claim of Non-Insider Senior Lender, CHOATE HALL & STEWART LLP, June 8, 2009, http://www.choate.com/media/pnc/2/media.1982.pdf [hereinafter Non- InsiderSenior Lender] (recognizing the unusual ruling in In re Yellowstone). 11. Unwary Lender, supra note 7, at 2; see MARK RABINOWITZ & MATHEW ROTENBERG, PROBLEMS RESULTING FROM IMPROPER LENDER CONDUCr DURING THE WORKOUT, Bus. WORKOUTS MANUAL §8:26, available at Westlaw BUSWORK § 8:26 (Matthew W. Kavanaugh, Donald Lee Rome, & Randye B. Soref eds., 2009) (noting that subordinated claims are not necessarily disallowed). 2010] IN RE YELLOWSTONE MOUNTAIN CLUB The doctrine of equitable subordination is founded on the principleb a t thatcny k r creditor u .misconduct12 disadvantages other creditors in bankruptcy proceedings. Courts have labeled creditor misconduct as "inequitable conduct" that results in injury to other creditors. Bankruptcy courts apply the doctrine in an effort to promote fairness and justice 4 but inconsistently define the boundaries of inequitable conduct." This Case Comment will argue that Judge Kirscher correctly subordinated Credit Suisse's first lien position to that of Yellowstone Club's other creditors. 6 Part II of this Case Comment presents the facts and procedural history of Yellowstone and explainsCt r eS d i s s e sthe •court's 17 rationale in equitably subordinating Credit Suisse's claim. Part III explains how the application of 12. E.g., ROBERT E. GINSBERG, ROBERT D. MARTIN & SUSAN V. KELLEY, GINSBERG & MARTIN ON BANKRUPTCY §10.11 (Aspen Publishers, Inc. 2009) [hereinafter BANKRUPTCY §10.11] ("Equitable subordination gives the bankruptcy court broad powers to undo inequality in the claim position of a creditor that will produce injustice or unfairness to other creditors with respect to distribution of the bankruptcy estate."); See generally Wendell H. Adair et al., Equitable Subordination: A Powerful Remedy, J. CORP. RENEWAL, Oct. 1, 2000, http://www.turnaround.org/ Publications/Articles.aspx?objectlD=1352 ("Typically, the actions of certain creditors have a negative impact upon the rights of other creditors and there are few responsive legal remedies available to an affected creditor."). 13. E.g., Adair et al., supra note 12. 14. Martino, supra note 4 ("Equitable subordination under section 510(c) is designed to 'undo or offset any inequity in the claim position of a creditor that will produce injustice or unfairness to other creditors in terms of the bankruptcy results."'(citing In re Kreisler,331 B.R. 364, 380 (N.D. Ill. 2005))). 15. WARREN, supra note 2, at 126. 16. See generally Mara Der Hovanesian & Dean Foust, Why This Real Estate Bust is Different, BUS. WK., Nov. 5, 2009, at 46, available at http://www.business week.com/magazine/content/09_46/b4155042792563.htm ("Some lenders may have drummed up business for themselves, enticing borrowers with more money than they needed. Consider Credit Suisse's $375 million loan to the Yellowstone Club in Big Sky, Mont., one of the starkest examples of poor underwriting in recent memory."). But see Jo Ann J. Brighton et al., Yellowstone: New Standardfor Lender Liability in Today's Economic Climate, AM. BANKR. J. 28, Sept. 28, 2009, available at WL 28- SEP Am. Bankr. Inst. J. 28 (disagreeing with the subordination of Credit Suisse's claim because they did not have a fiduciary duty to Yellowstone Club and that it is universally expected for a lender to act in its own self interest in bankruptcy proceedings); Ken Rathburn, "Kreisler or Yellowstone?" The Reach of the Equitable Subordination Doctrine, BANK. AND FIN. L. REPORT, August 21, 2009, http:// www.bankingandfinancelawreport.com/2009/08/articles/bankruptcy/kreisler-or-yell owstone-the-reach-of-the-equitable-subordination-doctrine/ (acknowledging that In re Yellowstone is an "outlier" case because of its unique facts). 17. See infra Part II, pp. 498-504. The application of equitable subordination will be examined in relation to commercial bankruptcy filings. The Administrative Office NORTH CAROLINA BANKING INSTITUTE [Vol. 14 equitable subordination in Yellowstone differs from the traditional equitable subordination cases. 8 Additionally, Part III explains why courts underuse subordination as a remedy where parties are non-insiders.' 9 Part IV argues for the use of equitable subordination in circumstances where non-insider creditors engage in underwriting misconduct and considers the possible implications that Yellowstone can have on non-insiders.' ° II. YELLOWSTONE: A BANKRUPTCY COURT'S CRITICAL EYE
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