Butner v. United States

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1 Property of the Estate Read pages in the Treatise. Bankruptcy BANKRUPTCY LAW: PRINCIPLES, POLICIES, AND PRACTICE, 3d ed. Chapter 3 PROPERTY OF THE ESTATE A. OVERVIEW [Read pages in Treatise, Code 541(a)] B. INCLUSIONS IN THE ESTATE [Read pages in Treatise] Butner v. United States 440 U.S. 48 (1979) JUSTICE STEVENS delivered the opinion of the Court. A dispute between a bankruptcy trustee and a second mortgagee over the right to the rents collected during the period between the mortgagor's bankruptcy and the foreclosure sale of the mortgaged property gave rise to the question we granted certiorari to decide. That question is whether the right to such rents is determined by a federal rule of equity or by the law of the State where the property is located. On May 14, 1973, Golden Enterprises, Inc. (Golden), filed a petition for an arrangement under Chapter XI of the Bankruptcy Act. In those proceedings, the bankruptcy judge approved a plan consolidating various liens on North Carolina real estate owned by Golden. As a result, petitioner acquired a second mortgage securing an indebtedness of $360,000. Petitioner did not, however, receive any express security interest in the rents earned by the property. On April 18, 1974, the bankruptcy judge granted Golden's motion to appoint an agent to collect the rents and to apply them as directed by the court. The order of appointment provided that the money should be applied to tax obligations, payments on the first mortgage, fire Page 122

2 insurance premiums, and interest and principal on the second mortgage. There is no dispute about the collections or payments made pursuant to that order. The arrangement plan was never confirmed. On February 14, 1975, Golden was adjudicated a bankrupt, and the trustee in bankruptcy was appointed. At that time both the first and second mortgages were in default. The trustee was ordered to collect and retain all rents "to the end that the same may be applied under this or different or further orders of [the bankruptcy] [c]ourt." After various alternatives were considered, the properties were ultimately sold[,] reducing the estate's indebtedness to petitioner from $360,000 to $186,000. As of the date of sale, a fund of $162, had been accumulated by the trustee pursuant to the February 14 court order that he collect and retain all rents. On December 1, 1975, petitioner filed a motion claiming a security interest in this fund and seeking to have it applied to the balance of the second mortgage indebtedness. The bankruptcy judge denied the motion, holding that the $186,000 balance due to petitioner should be treated as a general unsecured claim. The District Court reversed. It recognized that under North Carolina law, a mortgagor is deemed the owner of the land subject to the mortgage and is entitled to rents and profits, even after default, so long as he retains possession. But the court viewed the appointment of an agent to collect rents during the arrangement proceedings as tantamount to the appointment of a receiver. This appointment, the court concluded, satisfied the state-law requirement of a change of possession giving the mortgagee an interest in the rents; no further action after the adjudication in bankruptcy was required to secure or preserve this interest. The Court of Appeals reversed and reinstated the disposition of the bankruptcy judge. The court acknowledged that the agent appointed to collect rents before the bankruptcy was equivalent to a state-court receivership, but held that the adjudication terminated that relationship. Because petitioner had made no request during the bankruptcy for a sequestration of rents or for the appointment of a receiver, petitioner had not, in the court's view, taken the kind of action North Carolina law required to give the mortgagee a security interest in the rents collected after the bankruptcy adjudication. One judge dissented. I We did not grant certiorari to decide whether the Court of Appeals correctly applied North Carolina law. Our concern is with the proper interpretation of the federal statutes governing the administration of bankrupt estates. Specifically, it is our purpose to resolve a conflict between the Third and Seventh Circuits on the one hand, and the Second, Fourth, Sixth, Eighth, and Ninth Circuits on the other, concerning the proper approach to a dispute of this kind. The courts in the latter group regard the question whether a security interest in property extends to rents and profits derived from the property as one that should be resolved by reference to state law. In a few States, sometimes referred to as "title States," the mortgagee is automatically entitled to possession of the property, and to a secured interest in the rents. In most States, the mortgagee's right to rents is dependent upon his taking actual or constructive possession of the property by means of a foreclosure, the appointment of a receiver for his benefit, or some similar legal proceeding. Because the applicable law varies from State to State, the results in federal bankruptcy proceedings will also vary under the approach taken by most of the Circuits. Page 123

3 The Third and Seventh Circuits have adopted a federal rule of equity that affords the mortgagee a secured interest in the rents even if state law would not recognize any such interest until after foreclosure. Those courts reason that since the bankruptcy court has the power to deprive the mortgagee of his state-law remedy, equity requires that the right to rents not be dependent on state-court action that may be precluded by federal law. Under this approach, no affirmative steps are required by the mortgagee--in state or federal court--to acquire or maintain a right to the rents. We agree with the majority view. II The constitutional authority of Congress to establish "uniform Laws on the subject of Bankruptcies throughout the United States" would clearly encompass a federal statute defining the mortgagee's interest in the rents and profits earned by property in a bankrupt estate. But Congress has not chosen to exercise its power to fashion any such rule. The Bankruptcy Act does include provisions invalidating certain security interests as fraudulent, or as improper preferences over general creditors. Apart from these provisions, however, Congress has generally left the determination of property rights in the assets of a bankrupt's estate to state law. 9 Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding. Uniform treatment of property interests by both state and federal courts within a State serves to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving "a windfall merely by reason of the happenstance of bankruptcy." Lewis v. Manufacturers National Bank, 364 U.S. 603, 609. The justifications for application of state law are not limited to ownership interests; they apply with equal force to security interests, including the interest of a mortgagee in rents earned by mortgaged property. The minority of courts which have rejected state law have not done so because of any congressional command, or because their approach serves any identifiable federal interest. Rather, they have adopted a uniform federal approach to the question of the mortgagee's interest in rents and profits because of their perception of the demands of equity. The equity powers of 9 The Federal Constitution, Article I, 8, gives Congress the power to establish uniform laws on the subject of bankruptcy throughout the United States. In view of this grant of authority to the Congress it has been settled from an early date that state laws to the extent that they conflict with the laws of Congress, enacted under its constitutional authority, on the subject of bankruptcies are suspended. While this is true, state laws are thus suspended only to the extent of actual conflict with the system provided by the Bankruptcy Act of Congress. Sturges v. Crowninshield, 4 Wheat. 122, 4 L. Ed. 529; Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed "Notwithstanding this requirement as to uniformity the bankruptcy acts of Congress may recognize the laws of the state in certain particulars, although such recognition may lead to different results in different States. For example, the Bankruptcy Act recognizes and enforces the laws of the states affecting dower, exemptions, the validity of mortgages, priorities of payment and the like. Such recognition in the application of state laws does not affect the constitutionality of the Bankruptcy Act, although in these particulars the operation of the act is not alike in all the states." Stellwagen v. Clum, 245 U.S. 605, 613. Page 124

4 the bankruptcy court play an important part in the administration of bankrupt estates in countless situations in which the judge is required to deal with particular, individualized problems. But undefined considerations of equity provide no basis for adoption of a uniform federal rule affording mortgagees an automatic interest in the rents as soon as the mortgagor is declared bankrupt. In support of their rule, the Third and Seventh Circuits have emphasized that while the mortgagee may pursue various state-law remedies prior to bankruptcy, the adjudication leaves the mortgagee "only such remedies as may be found in a court of bankruptcy in the equitable administration of the bankrupt's assets." Bindseil v. Liberty Trust Co., 248 F. 112, 114 (CA3 1917). It does not follow, however, that "equitable administration" requires that all mortgagees be afforded an automatic security interest in rents and profits when state law would deny such an automatic benefit and require the mortgagee to take some affirmative action before his rights are recognized. What does follow is that the federal bankruptcy court should take whatever steps are necessary to ensure that the mortgagee is afforded in federal bankruptcy court the same protection he would have under state law if no bankruptcy had ensued. This is the majority view, which we adopt today. The rule of the Third and Seventh Circuits, at least in some circumstances, affords the mortgagee rights that are not his as a matter of state law. The rule we adopt avoids this inequity because it looks to state law to define the security interest of the mortgagee. At the same time, our decision avoids the opposite inequity of depriving a mortgagee of his state-law security interest when bankruptcy intervenes. For while it is argued that bankruptcy may impair or delay the mortgagee's exercise of his right to foreclosure, and thus his acquisition of a security interest in rents according to the law of many States, a bankruptcy judge familiar with local practice should be able to avoid this potential loss by sequestering rents or authorizing immediate statelaw foreclosures. Even though a federal judge may temporarily delay entry of such an order, the loss of rents to the mortgagee normally should be no greater than if he had been proceeding in a state court: for if there is a reason that persuades a federal judge to delay, presumably the same reason would also persuade a state judge to withhold foreclosure temporarily. The essential point is that in a properly administered scheme in which the basic federal rule is that state law governs, the primary reason why any holder of a mortgage may fail to collect rent immediately after default must stem from state law. III Recognizing that the bankruptcy frustrated petitioner's right to take possession of the mortgaged property and thereby to establish his right to rents as a matter of North Carolina law, the Court of Appeals assumed that a request to the bankruptcy judge for sequestration of rents, for the appointment of a receiver, or for permission to proceed with a state-court foreclosure would have satisfied the state-law requirement. Since none of these steps was taken during the bankruptcy, the Court of Appeals held that petitioner had no right to the rents. The dissenting judge in the Court of Appeals, as well as the District Judge, felt that the action taken during the arrangement proceedings, coupled with informal requests for abandonment of the property during the bankruptcy, was sufficient to comply with North Carolina law. Neither of these judges, however, based his analysis on the federal rule followed in the Third and Seventh Circuits. They merely disagreed with the majority about the requirements of North Carolina law. Page 125

5 In this Court the parties have argued the state-law question at great length, each stressing different aspects of the record. We decline to review the state-law question. The federal judges who deal regularly with questions of state law in their respective districts and circuits are in a better position than we to determine how local courts would dispose of comparable issues. The judgment is affirmed. Questions Does the Court in Butner appropriately account for the procedural problems a mortgagee faces in a bankruptcy proceeding? The Court avowedly does not want a mortgagee to be better off because of the happenstance of bankruptcy; under the Court s approach, is it possible to argue that a mortgagee is instead worse off? Board of Trade of City of Chicago v. Johnson 264 U.S. 1 (1924) CHIEF JUSTICE TAFT delivered the opinion of the Court. We have brought this cause before us by certiorari to review the action of the Circuit Court of Appeals of the Seventh Circuit in affirming upon petition to review a decree of the District Court for the Northern District of Illinois in a summary proceeding dealing with the membership of a bankrupt in the Chicago Board of Trade. The District Court, finding that the membership was property and under the rules of the board passed to the trustee in bankruptcy free of all claims of the members, ordered that it be held for transfer and sale for the benefit of the general creditors. Wilson F. Henderson, the bankrupt, a citizen of Chicago, was admitted to membership in the Board of Trade in 1899, and for many months prior to March 1, 1919, was president and one of the principal stockholders in a corporation known as Lipsey & Co., and actively engaged in making contracts on its behalf for present and future delivery of grain on the Board of Trade. In March, 1919, Lipsey & Co. became insolvent and ceased to transact business, being then indebted to 30 or more members of the exchange on its contracts in an aggregate amount of more than $60, The rules [of the Board] provide that, if the corporation is accepted as a party to a contract and fails to comply with any of its obligations under the rules, its officers, as members, are subject to the same discipline as if they had failed to comply with an obligation of their own. The rules further provide that a member, if he has paid all assessments and has no outstanding claims held against him by members, and the membership is not in any way impaired or forfeited, may, upon payment of a fee of $250, transfer his membership to any person eligible to membership, approved by the board, after 10 days' posting, both of the proposed transfer and of the name of the substitute. No rule exists giving to the Board of Trade or its members the right to compel sale or other disposition of memberships to pay debts. The only right of one member against another in securing payment of an obligation is to prevent the transfer of the membership of the debtor member by filing objection to such transfer with the directors. The membership of Henderson was worth $10,500 on January 24, 1920, when the petition in bankruptcy was filed against him. All assessments then due had been paid, and the membership Page 126

6 was not in any way impaired and forfeited. On May 1, 1919, Henderson had posted on the bulletin of the exchange a notice and application for a transfer of his membership.... [H]owever, 5 days after the petition in bankruptcy was filed, members, creditors of Lipsey & Co. on its defaulted contracts signed by Henderson, lodged with the directors objections to the transfer. Under paragraph a, section 70, of the Bankrupt Law of July 1, 1898, the trustee takes the title of the bankrupt (3) to powers which he might have exercised for his own benefit and (5) to property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him. Petitioners insist that the membership is not property within (5). The Supreme Court of Illinois, from which state this Board of Trade derives its charter, has held in Barclay v. Smith, 107 Ill. 349, that the membership is not property, or subject to judicial sale, basing its conclusion on the ground that it cannot be acquired, except upon a vote of ten directors, and cannot be transferred to another, unless the transfer is approved by the same vote, and that it cannot be subjected to the payment of debts of the holder by legal proceedings. It is not possible to reconcile Barclay v. Smith with the decisions of this court. In Hyde v. Woods, 94 U. S. 523, the bankrupt was a member of the San Francisco Stock and Exchange Board, a voluntary association with an elective membership, and with a right in each member to sell his seat subject to an election by the directors of the vendee as a member. This court held the membership to be an incorporeal right and property, which would pass to the trustee of the bankrupt, subject to the rules of the board, which required first the payment of all debts due to the members. In Sparhawk v. Yerkes, 142 U. S. 1, the conclusion in Hyde v. Woods was reaffirmed in respect of seats in the Stock Exchanges of New York and Philadelphia. Congress derives its power to enact a bankrupt law from the federal Constitution and the construction of it is a federal question. Of course, where the Bankrupt Law deals with property rights which are regulated by the state law, the federal courts in bankruptcy will follow the state courts; but when the language of Congress indicates a policy requiring a broader construction of the statute than the state decisions would give it, federal courts cannot be concluded by them. Counsel for petitioners urges that the Hyde, Sparhawk, and Page Cases differ from the one before us, in that the rules of the associations there under consideration provided specifically for a sale of the seat and a preferred distribution of the proceeds to the creditor members, whereas here there is no sale provided for at all at the instance of the board or its members who are creditors. Their only protection is in the power to prevent a transfer as long as the member's obligations to them are unperformed. We do not think this makes a real difference in the character of the property which the member has in his seat. He can transfer it or sell it, subject to a right of his creditors to prevent his transfer or sale till he settles with them, a right in some respects similar to the typical lien of the common law defined as a right in one man to retain that which is in his possession belonging to another till certain demands of him, the person in possession, are satisfied. This brings us to the merits. The District Court ordered the transfer and sale of the seat free from all the claims and objections of the petitioners. The objections of most of the petitioners herein were filed within 5 days after the petition in bankruptcy, and the board never has acted on the application for transfer. The objections are therefore valid. Nor is there any weight to the argument that as the preference claims of petitioners were not asserted until after bankruptcy proceedings were begun, the transfer to the trustee was rendered Page 127

7 free from their objection. Such a claim was negatived in Hyde v. Woods, supra. The preference of the member creditors is not created after bankruptcy. The lien, if it can be called such, is inherent in the property in its creation, and it can be asserted at any time before actual transfer. Indeed, the danger of bankruptcy of the member is perhaps the chief reason, and a legitimate one, for creating the lien. We think, therefore, that the District Court and the Circuit Court of Appeals erred on the merits of the case. The claims of the petitioners amount to more than $60,000, and these must be satisfied before the trustee can realize anything on the transfer of the seat for the general estate. The decrees of the Circuit Court of Appeals and the District Court are reversed, and the case is remanded to the District Court, to proceed in conformity with this opinion. Question In Chicago Board of Trade, the seat was worth $10,500 and other members of the Board had claims of $60,000 against the bankrupt. Did the Court actually hold: that the seat was not property, and thus did not become part of the bankruptcy estate at all? that the seat was property of the bankruptcy estate, and thus could be sold for $10,500, free of member claims? that the seat was property of the bankruptcy estate, but first had to be used to pay off the $60,000 in member claims, meaning no value remained for the other creditors? The principles of Butner and Chicago Board of Trade are not always easy for courts to apply. Consider the following case, involving the debtor s season basketball tickets. PER CURIAM: Abele v. Phoenix Suns Limited Partnership (In re Harrell) 73 F.3d 218 (9 th Cir. 1996) Robert P. Abele, bankruptcy trustee ("Trustee"), appeals from the district court's order reversing in part and vacating in part two bankruptcy court orders permitting the Trustee to sell the debtor's Phoenix Suns ("Suns") regular season tickets, playoff tickets, and the opportunity to renew season tickets. Before this court, the Trustee argues that the district court erred in concluding that the opportunity to renew season tickets is not a property right under Arizona law. We affirm the district court's judgment because we conclude that the opportunity to renew season tickets is not a property right under Arizona law. I. Page 128

8 The Suns generally permit season ticket holders to purchase playoff tickets and to renew their season tickets for the following year. The Suns, however, make it clear in written notices sent to season ticket holders each year that the "opportunity [to renew season tickets] is a privilege granted by the SUNS and may be withdrawn in the SUNS' discretion." The Suns' written policy further states that, "[w]hile the SUNS will exercise reasonable efforts to maintain renewal privileges, season ticket holders are not guaranteed this opportunity." II.. 11 U.S.C. 541(a)(1) provides that commencement of a bankruptcy case creates an estate which includes "all legal or equitable interests of the debtor in property as of the commencement of the case." Although section 541(a)(1) is broadly worded, it does not define the terms "property" or "interest in property." Instead, section 541(a) "merely defines what interests of the debtor are transferred to the estate. It does not address the threshold questions of the existence and scope of the debtor's interest in a given asset." Since the Bankruptcy Code itself does not determine the existence and scope of a debtor's interest in property, these threshold issues are properly resolved by reference to state law. Butner v. United States, 440 U.S. 48, 55 (1979)... Accordingly, we must look to Arizona law to determine whether the opportunity to renew season tickets is a property interest. Under Arizona law, a mere expectation of renewal of an interest in property is not a property right. In State ex rel. Miller v. Gannett Outdoor Co. of Arizona, Inc., 164 Ariz. 578, 795 P.2d 221 (App.1990), the Arizona Court of Appeals held that a lessee's expectation of continued lease renewals was not a property interest for which the lessee must be compensated when the underlying land is taken by condemnation by the state. The court emphasized the importance of the fact that "the lessor maintained the right not to renew the arrangement at the end of the term in any given year " 795 P.2d at A mere expectation, or even probability, that the lease will be renewed based upon past practice and present good relations between landlord and tenant, is not a legal right of renewal. It is nothing more than a speculation on chance. Id. 795 P.2d at Accord Whiteco Indus. v. City of Tucson, 168 Ariz. 257, 812 P.2d 1075 (Ct. App.1990) (expectancy of renewal of billboard lease is not a compensable property interest). In reaching its decision, the Gannett court cited Emery v. Boston Terminal Co., 178 Mass. 172, 59 N.E. 763 (1901), in which Chief Justice Holmes stated: Changeable intentions [to renew a lease] are not an interest in land... They added nothing to the tenant's legal rights... Even if such intentions added to the salable value of the lease, the addition would represent a speculation on a chance, not a legal right. Gannett, 795 P.2d at 223. In Gannett, the court noted the similarities between a license and the renewal interest asserted by the lessee: Like a license, the interest asserted by [the lessee] was not a fixed right that could be asserted against any other. It is of no moment that the landlord would continue to agree to the yearly leases. [The lessee] was powerless to stop the landlord from declining to renew a new year-long lease. Page 129

9 Id. 795 P.2d at 225. The Gannett court's reasoning is equally applicable to the question whether the revocable opportunity to renew season tickets is a property interest. Like the landlord in Gannett, the Suns are not contractually obligated to renew a season ticket holder's account each year. Although season ticket holders are generally awarded the opportunity to renew, there is no guarantee that the Suns will extend the offer. Season ticket holders are powerless to stop the Suns from declining to do so. Moreover, even if the high probability of renewal of season tickets does add to the salable value of a season ticket account, "the addition would represent a speculation on chance, not a legal right." Id. 795 P.2d at 223. We agree with the district court that, under Arizona law, a season ticket holder's expectation of renewal of season tickets is not a property right. The Trustee's reliance on the bankruptcy court's decision in In re I.D. Craig Service Corp., 138 B.R. 490 (Bankr.W.D.Pa.1992) is misplaced. In that matter, the bankruptcy court looked to the Third Circuit's interpretation of Pennsylvania law in In re Nejberger, 934 F.2d 1300 (3rd Cir.1991) in holding that a trustee could sell renewal rights for season tickets to watch the Pittsburgh Steelers play football. Id. at 495. Here, the bankruptcy court was required to apply Arizona law. As discussed above, under Arizona law the debtor's revocable opportunity to renew season tickets is not a property right. Therefore, the bankruptcy court erred in holding that the Trustee could sell the debtor's revocable opportunity to renew the season tickets. Questions 1. Is the reasoning of Harrell consistent with Butner and Chicago Board of Trade in its reliance on state law in defining the property to which the bankruptcy estate succeeds? 2. Is the opinion consistent with 541(c)(1)(A)? 3. Should it matter whether the bankruptcy trustee could sell the season ticket renewal expectancy to a hopeful purchaser for cold hard cash? 4. If a sale were permitted, what rights would the purchaser acquire? 5. Given the court s holding, who gets to renew the season tickets? 6. Would you rather watch the Phoenix Suns play basketball or the Pittsburgh Steelers play football? Which would you pay more for? Can you believe the Steelers won Super Bowl XL? And XLIII? Go Cowboys. Page 130

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