Selling Assets in Chapter 15 Matters: Practical Considerations in Cross- Border Insolvencies

Asset sales under § 363 of the U.S. Bankruptcy Code [1] have become a critical component of the bankruptcy practitioner’s arsenal, and a preferred avenue of monetizing a debtor’s assets.

The process is generally straightforward, and the Bankruptcy Code provides the framework of how sales should proceed. U.S. practitioners have become well versed in the § 363 sale process and how to address recurring issues; however, chapter 15 of the Bankruptcy Code [2] adds an additional layer of complexity that must be observed and resolved carefully.

When the U.S. adopted chapter 15, it codified the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (“Model Law”). [3] Chapter 15 aimed to facilitate U.S. recognition of foreign insolvency proceedings and increase international cooperation among courts in cross-border insolvency cases. [4] However, the Model Law is a generic template for countries around to world to incorporate into their existing

insolvency laws. [5] Therefore, chapter 15’s adoption has created both conflicts and gaps as to how practitioners utilize the Bankruptcy Code to aid and facilitate cross-border insolvencies.

This article highlights how the application of and compliance with § 363 is an example of these conflicts and gaps, and it provides some thoughts on what to look out for and how to address some of these issues.

First: Is Relief Under § 363 Available?

Chapter 15 proceedings fork into two paths: one for foreign main proceedings and the second for foreign non-main proceedings. [6] Under § 1520 of the Bankruptcy Code, foreign main proceedings automatically obtain rights under a number of other Bankruptcy Code sections immediately upon recognition. [7] Section 1520, however, only applies to foreign main proceedings; foreign non-main proceedings do not receive any sort of automatic applications.

One of the sections automatically applied to foreign main proceedings is the right to sell property under § 363. [8] Therefore, if your proceeding is a foreign main proceeding, you are automatically entitled to utilize § 363 wherever and whenever appropriate.

Although § 363 is not automatically applied to non-main proceedings, it is still available, but it requires additional steps. Specifically, once a foreign non-main proceeding is recognized, relief must be sought from the court to authorize the application of § 363 to the proceedings. This request for relief is presented to the court under § 1521. Once the court grants the requested relief, the § 363 sale process becomes available to the non-main proceeding.

Section 1521 is a broad section of chapter 15 that allows the court, upon recognition of the proceedings, to provide additional relief to the foreign representative subject to limitations of the Bankruptcy Code and U.S. laws. [9] As such, the section can be used to utilize other provisions of the Bankruptcy Code that are not explicitly adopted or automatically applied in chapter 15, if that is necessary to assist the foreign representative.

Second: Which Assets Can Be Sold, and Which Court Approves the Sale?

Section 541 of the Bankruptcy Code is largely inapplicable in a chapter 15 proceeding. [10] An estate is never created in a typical chapter 15 proceeding. Section 363 contemplates the sale of property of the estate, so which assets are allowed to be sold under § 363 in chapter 15 proceedings? [11]

Section 1520’s adoption of § 363 modifies the section so that it applies to transfers of any interest of the debtor in property that is within the territorial jurisdiction of the U.S. to the same extent that the section would apply to property of an estate. [12] Therefore, the assets that can be sold under chapter 15 appear to be broader than in other bankruptcy contexts because it is not limited to the estate. Could this mean that a foreign representative could sell property of the debtor in the U.S., even if the debtor would have claimed it exempt, if the case were a domestic case? To date, there do not appear to be any cases deciding this point.

In Fairfield Sentry, [13] the Second Circuit analyzed what chapter 15 means by “transfer of an interest of the debtor in property that is within the territorial jurisdiction of the United States.” [14] Fairfield Sentry LLC was a BVI investment fund that filed customer claims in the SIPA liquidation of the Bernard L. Madoff Investment Securities LLC (BLMIS). Fairfield Sentry invested approximately 95 percent of its assets with BLMIS when Bernard Madoff’s Ponzi scheme became public. [15] As a consequence, Fairfield Sentry was placed into liquidation in the BVI in 2009, and in 2010 the U.S. Bankruptcy Court for the Southern District of New York recognized the foreign main proceeding. [16]

Fairfield Sentry ultimately decided it would sell the SIPA claims and entered into an agreement with Appellee Farnum Place, LLC to sell the claims for 31.125 percent of their value. [17] However, days after the parties entered into the agreement, the trustee for the BLMIS liquidation announced that he had entered into a settlement agreement that would increase the value of Fairfield Sentry’s SIPA claims from 32 percent to 50 percent of the total amount claimed. [18]

This substantial increase created tension between Fairfield Sentry’s liquidators and Farnum. The liquidators sought to cancel the sale, and

Farnum sought to enforce it. The BVI court approved the sale over the liquidators’ objections, but instructed the liquidators to question the U.S.

Bankruptcy Court as to whether § 363 applied and whether the section required disapproval of the sale. [19] Thereafter, the U.S. Bankruptcy Court rejected the liquidators’ application for disapproval of the proposed sale, and the district court affirmed.

However, the Second Circuit reversed the decisions of the lower courts on appeal, finding that the “property” in this case was the SIPA claims and that the SIPA claims were located in New York, “where the property could be assigned or transferred,” [20] and therefore that § 363 applied. The Second Circuit made clear that a bankruptcy court’s “principal responsibility … is to secure for the benefit of creditors the best possible bid,” and the sale of the SIPA claims was ultimately disapproved. [21]

Fairfield Sentry solidified that § 363 applies in chapter 15 whenever the asset to be sold is within the U.S. Moreover, Fairfield Sentry also set a line on the extent that comity will have in chapter 15 proceedings, and § 363 sales in particular. The Second Circuit rejected Farnum’s arguments that deference to the BVI decision was required, and the opinion makes clear that the court of the jurisdiction where the asset to be sold is located is the court with the ultimate approval of the sale.

Third: How Do I Give Notice, and Where Are Objections Heard?

One of the trickiest portions of utilizing § 363 in chapter 15 proceedings may be complying with the procedural requirements of the sale — specifically, notice to creditors and the hearing requirement. [22]

Whereas a creditor matrix is easily accessible in domestic bankruptcy proceedings, it is not always the case in cross-border proceedings. Chapter 15 does not require any schedules, a creditor matrix or a claims register. A chapter 15 case requires nothing more than an application, statement identifying the foreign proceedings, and evidence of the existence of the foreign proceeding and appointment of the foreign representative. [23]

In addition to the lack of traditionally relied-upon creditor information, some foreign jurisdictions make it difficult to locate the necessary creditor information. Also, the foreign representative might not always be the trustee of the foreign main proceedings, and therefore might not have direct access to the list of creditors. Every foreign jurisdiction is unique, and there are many factors that could lead to delays in utilizing § 363 in chapter 15 proceedings. You must prepare as best as possible to avoid any such delays.

Complicating matters further, sometimes the notice requirements in the foreign main jurisdiction might not comply with the requirements of the U.S. How, then, does one go about notifying the creditors, and what is considered sufficient notice?

In In re Banco Santos S.A., [24] a chapter 15 case filed in the Southern District of Florida, Hon. Laurel M. Isicoff addressed the issue of notice in the context of approving a settlement in a chapter 15 proceeding, which may be applied in the context of a § 363 sale. There were two separate instances where notice was required in Banco Santos. In the first instance, the foreign representative requested a bar order in favor of certain settling parties, and in the second instance, the foreign representative did not. [25] The court considered the nature and implications and the requests of the foreign representative for each instance. In the first instance (which requested a bar order), the court determined that directly mailing to each creditor in Brazil would be required, and in the second instance (which did not require a bar order), the court determined that notice via publication in the Brazilian Gazette, which is sufficient under Brazilian law, was sufficient despite the fact that notice by publication is generally insufficient in domestic proceedings. [26]

Judge Isicoff highlights in Banco Santos that in a chapter 15, the court has the ability and duty to look at the requests made and the nature and implications of the requests before making a determination. Ultimately, the more burdensome the request, the more stringent the notice requirement should be.

Similar to Fairfield Sentry, the property and assets to be sold in Banco Santos were located within the territory of the U.S. Therefore, to ensure compliance with the notice and hearing requirements of § 363, Judge Isicoff conditionally approved the pending sale and ordered any objections thereto be filed in the U.S. Judge Isicoff also ordered the foreign representative to request an order in the foreign main proceedings instructing any creditor with an objection to file them in the U.S. [27] This process created a simplified procedure to obtain approval of a sale while consolidating all objections into the appropriate jurisdiction.

Fourth: Who Can Assist in the Sales Process?

More often than not, professional persons need to be retained to assist in a sales process (an appraiser, auctioneer, realtor, etc.). The Bankruptcy Code lays out a clear process for how to go about hiring professional persons, and provides limitations on their compensation. [28] However, none of the relevant sections, including §§ 329 and 330, were adopted in chapter 15.

What recourse does the foreign representative have in situations where they enter into a bad deal with a professional person? Is the court then authorized to disapprove any agreements or appointments?

Ideally, § 1521 would allow the court to adopt any section of the Bankruptcy Code necessary, but what happens in a situation where the appointment of a professional person and their compensation is approved in the foreign main jurisdiction, but the appointment and compensation (while acceptable in the foreign main jurisdiction) would normally be considered unconscionable in the U.S.? It follows that the rationale in Fairfield Sentry will also apply here, but this is another situation that has not yet been challenged.

There are many benefits to the adoption of the Model Law through chapter 15, and utilization of chapter 15 has been steadily increasing since the chapter was enacted. This article addresses some of the methods of dealing with the gaps and conflicts created by chapter 15 and the general requirements of the Bankruptcy Code in the context of § 363 sales, although the dueling nature of two insolvency proceedings arising in two separate jurisdictions necessitates that bankruptcy practitioners be twice as diligent in their cases.

[1] Title 11 of the U.S. Code (the “Bankruptcy Code”). [2] 11 U.S.C. §§ 1501-1532.
[3] 11 U.S.C. § 1501.
[4] See generally 11 U.S.C. § 1501.
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[5] See www.uncitral.org/uncitral/en/uncitral_texts/insolvency/1997Model.html .
[6] “Foreign main proceeding” means a foreign proceeding pending in the country where the debtor has the center of its main interests. 11
U.S.C. § 1502 (4).
“Foreign non-main proceeding” means a foreign proceeding, other than a foreign main proceeding, pending in a country where the debtor has an establishment. 11 U.S.C. § 1502 (5).
[7] See generally 11 U.S.C. § 1520.
[8] 11 U.S.C. § 1520(a)(2)-(3).
[9] See 11 U.S.C. § 1507(a); see also § 1521(a)-(b).
[10] Section 541 is only discussed in chapter 15 in relation to concurrent proceedings and in authorizing a representative of a domestic bankruptcy to act abroad; see 11 U.S.C. §§ 1528 (commencement of a case after recognition of foreign main proceeding) and 1505 (authorization to act in foreign country).
[11] 11 U.S.C. § 363(b)(1). (the “trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate…” (emphasis added); see also infra footnote 14.
[12] 11 U.S.C. § 1520(a)(2).
[13] In re Fairfield Sentry Ltd., 768 F.3d 239 (2d Cir. 2014).
[14] See Fairfield Sentry, 768 F.3d at 244; see also § 1520(a)(2).
[15] Id. at 241.
[16] Id.
[17] Id. at 242.
[18] Id.
[19] Id. at 243.
[20] Id. at 244.
[21] Fairfield Sentry, 768 F.3d at 246-47, quoting In re Fin. News Network Inc., 980 F.2d 165, 169 (2d Cir. 1992). [22] 11 U.S.C. § 363(b)(1) (“The trustee, after notice and a hearing, may use, sell, or lease…”) (emphasis added). [23] 11 U.S.C. § 1515.
[24] In re Banco Santos S.A., Case No. 10-47543-BKC-LMI.
[25] Banco Santos, Case No. 10-47543-BKC-LMI [D.E. 170, 184, 185].
[26] Id.
[27] Id. [D.E. 170, 185].
[28] 11 U.S.C. §§ 327, 328.

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