      Case: 14-10768             Document: 00513017501   Page: 1   Date Filed: 04/23/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                          No. 14-10768                             FILED
                                                                               April 23, 2015
                                                                              Lyle W. Cayce
In the Matter of: R. L. ADKINS CORPORATION,                                        Clerk

                 Debtor

------------------------------

BAKER HUGHES OILFIELD OPERATIONS, INCORPORATED,

                 Appellant

v.

HARVEY L. MORTON, Liquidating Trustee,

                 Appellee




                      Appeal from the United States District Court
                           for the Northern District of Texas


Before REAVLEY, JONES, and ELROD, Circuit Judges.
REAVLEY, Circuit Judge:
        Baker Hughes Oilfield Operations, Inc. (Baker Hughes) an undersecured
creditor in this bankruptcy proceeding appeals the refusal to allow it to
promote its unsecured claim to secured status claim under Bankruptcy Code
§ 1111(b)(2). Both the bankruptcy court and the district court have rejected
that claim and we affirm.
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                                          No. 14-10768
                                          Background
        Baker Hughes and other creditors filed a petition for involuntary
Chapter 7 bankruptcy against R. L. Adkins, Corp. in July 2011 and the case
was converted into a Chapter 11 proceeding in August.                   Scott Oils, Inc.
proposed to purchase the mineral properties of the debtor and filed its Second
Amended Plan of Organization on December 27, 2012. The Plan proposed the
sale of substantial mineral interests, some 90 mineral leases and several wells,
to Scott Oils “pursuant to Bankruptcy Code Section 363,” in exchange for over
3.4 million dollars.
        The Plan recognized that Baker Hughes had a lien on four of these
mineral leases and one well (Teeter #1H). The full claim of Baker Hughes in
the Teeter well is shown to be $321,506.28 but only a secured $38,753.22
interest. Four other creditors are shown to have secured interests in the Teeter
well.       On March 4, 2013 Baker Hughes filed for an election pursuant to
§ 1111(b) 1 to have its claim treated as secured to the full extent. Scott Oils
replied by pointing to the terms of the statute that denies the election where
“such property is sold under § 363 of this title or is to be sold under the Plan.”
§ 1111(b)(1)(B)(ii).
        Several days of hearing on confirmation of the Plan were held in April of
2013 and the Plan was confirmed on May 10, 2013. Baker Hughes did not
appear at the hearing on confirmation and has not objected or appealed any
act or decision of the bankruptcy court prior to the confirmation. Nor was the
confirmation appealed.             Following the confirmation, Baker Hughes has
pursued its Section 1111 claim and argued that either it had the right to make
a credit bid at the sale of the collateral or be granted election sought under
§ 1111(b).


        1   The text of Sec. 1111 is in the Appendix.
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                                   No. 14-10768
                                     Analysis
      The Supreme Court has ruled that debtors may not sell their property
free of liens without allowing a lienholder to credit bid. RadLAX Gateway
Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065 (2012). Baker Hughes
contends that it has been denied that right.
      The Plan at section 6.1 provides that “the Trustee shall sell to Scott Oils
all leasehold interests listed on Exhibit A … free and clear of all liens, claims
and encumbrances and pursuant to Bankruptcy Code § 363.” Section 363(k)
grants the credit bid right to the creditor and reads:
      At a sale under subsection (b) of this section of property that is
      subject to a lien that secures an allowed claim, unless the court for
      cause orders otherwise the holder of such claim may bid at such
      sale, and, if the holder of such claim purchases such property, such
      holder may offset such claim against the purchase price of such
      property.

      The Plan appears to provide that the sale pursuant to § 363 gives the
secured creditors the right to credit bid. However, Baker Hughes reads 6.1 of
the Plan to address only the bulk sale itself and has the effect of denying the
right to credit bid in the sale of the collateral of Baker Hughes. To support this
reading of the law, Baker Hughes says it is the responsibility of the Trustee to
make arrangements for the sale if the right is recognized. There were fifteen
secured creditors here. The Trustee should be given notice from a creditor who
wants to have a credit bid of collateral. Baker Hughes has never sought a
credit bid, and there is no bidding without belief that the value of the collateral
is higher than that of the lien.
      Any uncertainty Baker Hughes had about the meaning of the Plan, and
whether it had been denied the right to credit bid, could have been easily
resolved at the hearing on confirmation or by objection or even appeal.
Actually, it was resolved by the confirmation order which provided: “the Plan

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                                 No. 14-10768
provides for the sale, subject to § 363(k) of the Bankruptcy Code, of property
that is subject to the lien securing such claims.” This was a binding final
judgment not appealed. See Republic Supply Co. v. Shoaf, 815 F.2d 1046 (5th
Cir. 1987).
      Because Baker Hughes had the right to credit bid a sale of its secured
interest and failed to exercise it and because Section 1111 denies its election,
the bankruptcy and district courts correctly rejected the claim.
      The Judgment is AFFIRMED.




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                                           No. 14-10768


                                            APPENDIX
                                          11 U.S.C. § 1111

§ 1111 Claims and interests

    (a) A proof of claim or interest is deemed filed under section 501 of this title for any claim or
interest that appears in the schedules filed under section 521(a)(1) or 1106(a)(2) of this title, except
a claim or interest that is scheduled as disputed, contingent, or unliquidated.

   (b)(1)(A) A claim secured by a lien on property of the estate shall be allowed or disallowed
under section 502 of this title the same as if the holder of such claim had recourse against the
debtor on account of such claim, whether or not such holder has such recourse, unless--
          (i) the class of which such claim is a part elects, by at least two-thirds in amount and
     more than half in number of allowed claims of such class, application of paragraph (2) of
     this subsection; or
          (ii) such holder does not have such recourse and such property is sold under section 363
     of this title or is to be sold under the plan.

       (B) A class of claims may not elect application of paragraph (2) of this subsection if--
           (i) the interest on account of such claims of the holders of such claims in such property
     is of inconsequential value; or
           (ii) the holder of a claim of such class has recourse against the debtor on account of such
     claim and such property is sold under section 363 of this title or is to be sold under the plan.

    (2) If such an election is made, then notwithstanding section 506(a) of this title, such claim is
a secured claim to the extent that such claim is allowed.




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                                        No. 14-10768
JONES, Circuit Judge, specially concurring:
       I concur in the judgment only because Baker Hughes’s practical position
seems at odds with its claim to having been “denied” a right to credit bid. Given
the nature of Baker Hughes’s liens, exercising a credit bid on one or any of the
wells would not have been feasible. After all, the appellant’s claim arises from
materialmen’s liens for services on four of the debtor’s leases and one well.
Baker Hughes was in a situation like that of a third lien creditor on real
property, who might theoretically credit bid at a foreclosure sale but is highly
unlikely to do so because he would have to pay off the senior liens before he
could take possession. In these circumstances, I believe Baker Hughes is
trying to take advantage of the bankruptcy court’s error in failing to rule on
the § 1111(b) election before it confirmed the Chapter 11 Plan. The argument
that Baker Hughes waived its § 1111(b) election by failing to pursue it at the
confirmation hearing is persuasive.
       The majority unwisely steps beyond this narrow holding, however, when
they appear to conclude that the bulk sale of the debtor’s assets, which occurred
outside a public auction and included multiple assets burdened by multiple
liens, nevertheless protected a secured creditor's right to credit bid.                     The
majority so holds only because the reorganization plan and confirmation order
both perfunctorily incant § 363 of the Bankruptcy Code, 1 and the Supreme
Court holds that a secured creditor has a statutory right to credit bid against
a proposed sale of its collateral in order to confirm a “cramdown” plan.
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, __ U.S. __, 132 S. Ct.



       1  11 U.S.C. § 363(b) authorizes a debtor in possession or trustee to sell property of the
estate “other than in the ordinary course of business.” If however, the property is subject to
a lien securing an allowed claim, “unless the court for cause orders otherwise the holder of
such claim may bid at such sale, and . . . may offset such claim against the purchase price of
such property.” Id. § 363(k). Together, these provisions enable a secured creditor to credit
bid as it might at a foreclosure sale.
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                                  No. 14-10768
2065, 2073 (2012) (“Because the RadLAX debtors may not obtain confirmation
of a Chapter 11 cramdown plan that provides for the sale of collateral free and
clear of the Bank’s lien, but does not permit the Bank to credit-bid at the sale,
we affirm the judgment of the Court of Appeals.”). In my view, the majority’s
holding, if extended beyond the facts before us, begs a very serious question
about the implementation of credit bidding and therefore the protection of the
secured creditor’s rights.
      The Bankruptcy Code allows alteration of the property rights of secured
creditors evidenced in liens against a debtor’s property, but only against the
backdrop that if a secured creditor chooses, it may decline to participate in the
case and its lien will then “ride through” bankruptcy unaffected. Dewsnup v.
Timm, 502 U.S. 410, 417, 112 S. Ct. 773, 778 (1992); Long v. Bullard, 117 U.S.
617, 620-21, 6 S. Ct. 917, 918 (1886); see also In re Ahern Enter., Inc., 507 F.3d
817, 820-22 (5th Cir. 2007) (discussing cases). Generally, a secured creditor
finds it necessary to participate by filing a proof of claim and then negotiating
with the debtor or attempting to foreclose its lien. Material to the case at hand,
the secured creditor’s rights are protected against elimination of its property
rights by § 363, which governs property sales outside the ordinary course of
business, and by the statutory criteria for confirming a reorganization plan
over the creditor’s objection (“cramdown”). See 11 U.S.C. § 1129(b)(2)(A). As
noted above, both of these provisions authorize sales “free and clear” of the
liens only if the secured creditor has a chance to credit bid at the foreclosure or
sale, to take back the collateral, and thus to preserve the benefit of its bargain.
      The secured creditor's rights are further enhanced by § 1111(b), a
provision that allows the creditor under certain circumstances to have its claim
for the entire debt placed on the collateral. Normally, the secured creditor
would have a claim against the debtor bifurcated into (a) a secured claim to the
extent of the value of the collateral and (b) an unsecured deficiency claim.
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                                      No. 14-10768
11 U.S.C. § 506(a)(1).         The § 1111(b)(2) election waives any unsecured
deficiency claim but ensures essentially that the debtor must resolve the
secured claim for the maximum value from the collateral. 2 This provision was
enacted because Congress recognized that under the former Bankruptcy Act, a
non-recourse creditor could be placed at the mercy of (notoriously variable)
judicial valuations of secured real property, both losing its right to foreclose
and suffering an unfair diminution in its claim. See In re Matrix Dev. Corp.,
No. 08-32798, 2009 WL 2169717, at *2-3 (Bankr. D. Ore. 2009); 7 ALAN N.
RESNICK AND HENRY J. SOMMER, COLLIER ON BANKRUPTCY ¶ 111.03[1][a]
(16th ed. 2015).
       But Congress wrote § 1111(b) to empower both non-recourse and
recourse creditors if the provision otherwise allows them to utilize the election.
By its terms, however, the 1111(b) election is unavailable to recourse creditors
where the liened “property is sold under section 363 of this title or is to be sold
under the plan.” 11 U.S.C. § 1111(b)(1)(B)(ii). This is because, as has been
explained above, secured creditors are assured of being able to credit bid for
their collateral and retain the benefit of their bargain under either of those
provisions. See In re Waterways Barge P’ship, 104 B.R. 776, 780-83 (N.D. Miss.
1989).
       That the law affords these protections does not, however, mean that
attaching the statutory labels to a debtor’s proposed collateral sale is enough
to deprive a recourse secured creditor like Baker Hughes of the § 1111(b)
election.   In implying otherwise, I believe the majority begs the ultimate




       2In technical terms, the debtor must provide that the present value of payments under
the plan at least equals the amount of the secured portion of the claim (11 U.S.C. § 506(a)),
and that the total payments under the plan equal the full amount of the allowed claim.
11 U.S.C. § 1129(a)(7)(B); § 1129(b)(2)(A)(i)(II).
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                                     No. 14-10768
question whether the proposed sale actually effectuates a credit bid. Consider
the following hypotheticals:
       1. A debtor proposes to reorganize by a bulk sale of its
          manufacturing plant and assets to a third party. Separate liens
          exist on the facility, its machines, inventory, and the real
          property. This transaction could ensnare first lien secured
          creditors on the various pieces of collateral such that none could
          effectively credit bid for its discrete interest.

       2. A real estate developer in Chapter 11 could propose selling
          several tracts, each with a separate lien, to one purchaser for a
          fixed price. Although the developer formulaically defines the
          sale as falling under § 363, no single secured creditor could
          protect its lien with a credit bid against the total package.

       3. A debtor proposes to sell real property secured by liens “under
          the plan” “in the ordinary course of business” following
          reorganization but without any specifics for dates, prices, or
          methods of sale. The right to credit bid in connection with the
          plan is defeated.

       In sum, § 1111(b) itself offers no guidance as to what constitutes a sale
“under § 363” or “under the plan.” See Matrix Dev. Corp., 2009 WL 2169717,
at*2-3. All of these transactions could contradict the mutually reinforcing
goals of §§ 363(k), 1111(b) and 1129(b)(2)(A) to protect secured creditors from
the risks of erroneous judicial property valuations. Although few courts have
tackled the implications of the credit bid requirements, they have generally
sided with secured creditors and allowed § 1111(b)(2) elections in similar
cases. 3


       3 See Matrix Dev. Corp., 2009 WL 2169717, at *8 (§ 1111(b) election available where
sales “under the plan” were indefinite and not substantially contemporaneous with
confirmation); Waterways Barge P’ship, 104 B.R. at 782 (creditor was eligible to make
§ 1111(b) election where proposed plan prevented credit bid, but chose not to do so); H&M
Parmely Farms v. Farmers Home Admin., 127 B.R. 644, 646-650 (D.S.D. 1990) (creditor
entitled to § 1111(b) election where sales “under the plan” went forward without credit bid
opportunity).
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                                        No. 14-10768
       I do not need to paint with a broad brush by offering definitive answers
to the hypotheticals.         Further, because of waiver, it is not necessary to
determine whether, if properly analyzed, the election was correctly denied to
Baker Hughes in the complex lien circumstances here. What it means to be a
“sale under 363” or “under the plan” must be decided according to the
transaction’s ability to foster credit bidding. Courts should not over-read the
majority opinion here to thwart such determinations.
       Three points will assure proper development of the creditors’ statutory
protections. First, when a creditor timely asserts an § 1111(b) election to which
objection is made, the court must settle the issue before the confirmation
hearing. See, e.g., Matrix Development, 2009 WL 2169717, at *1. The court’s
decision will, after all, decisively affect the valuation to be placed on a
particular creditor’s secured claim and thus the requisites for plan
confirmation.      (Had the court done so in this case, it could have spurred
negotiation or plan revisions or at least shed important factual light on the
controversy.) Second, a secured creditor should be permitted to elect treatment
under § 1111(b)(2) if the terms of the sale under § 363 or “under the plan” are
found wanting in protection of its credit bid rights.                  Third, mindful that
RadLAX as well as § 363(k) mandate the availability of credit bidding, prudent
bankruptcy courts routinely order transparent, broadly publicized auction of
debtors’ assets that test the market for valuations as well as secured creditors’
sincerity about credit bidding. 4 Such practices are to be commended.



       4  In re Bigler L.P., No. 09-38188, (Bankr. S.D. Tex. 2010), ECF No. 353 (order granting
debtor’s motion for entry of an order (A) approving bidding and notice procedures related to
sale(s) of substantially all of the debtor’s assets; and (B) scheduling a hearing to consider the
sale(s)) and In re ATP Oil & Gas Corp., No. 12-36187, (Bankr. S.D. Tex. 2013), ECF No. 1272
(order, inter alia, (A) approving (i) bidding procedures; (ii) bid protections; and (iii) auction
procedures), are good examples. Such orders, in contrast to the order here, also contain
extensive provisions for credit bidding:

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                                        No. 14-10768
       I concur in the judgment.




       7. Right to Credit Bid

       At the Auction, any Qualified Bidder who has a valid, stipulated lien on any
       Shelf Asset(s) (a “Credit Bidder”) shall have the right to credit bid all or a
       portion of the value of such Credit Bidder’s claims within the meaning of
       Section 363(k) of the Bankruptcy Code; provided that, a Credit Bidder shall
       have the right to credit bid its claim only with respect to the collateral by which
       such Credit Bidder is secured; provided further that, for purposes of the
       Qualified Bid, the Credit Bidder’s claim shall be deemed to have the value it
       possesses on the date of the Auction (or otherwise established by the
       Bankruptcy Court).

 ATP Oil & Gas Corp., No. 12-36187, ECF No. 1272 (Exhibit 1 to order, inter alia, (A)
approving (i) bidding procedures; (ii) bid protections; and (iii) auction procedures); see also
Third Amended Plan of Reorganization, In re Houston Reg’l Sports Network, No. 13-35998,
(Bankr. S.D. Tex. 2014), ECF No. 772 (containing two and a half pages of directions for a
public auction of secured assets and specific protection of § 1111(b) election).
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