                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-15-2007

In Re: Fed Mogul
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2423




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-2423


                      IN RE: FEDERAL-MOGUL GLOBAL INC.;
                              T & N LIMITED, Debtors

                       COMPUTER SALES INTERNATIONAL,
                                   INC.,

                                                 Appellant


                      Appeal from the United States District Court
                                for the District of Delaware
                          (D.C. Civil Action No. 03-cv-00346)
                     District Judge: Honorable Joseph H. Rodriguez


                                Argued November 28, 2006

                    Before: RENDELL and AMBRO, Circuit Judges
                              PRATTER,* District Judge

                               (Opinion filed March 15, 2007)

William F. Taylor, Jr. Esquire (Argued)
McCarter & English
919 North Market Street
P.O. Box 111
Wilmington, DE 19899

       Counsel for Appellant



   *
   Honorable Gene E.K. Pratter, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Melville W. Washburn, Esquire (Argued)
Sidley Austin
One South Dearborn Street
Chicago, IL 60603

Laura D. Jones, Esquire
James E. O’Neill, Esquire
Pachulski, Stang, Ziehl, Young, Jones & Weintraub
919 North Market Street
P.O. Box 8705, 17th Floor
Wilmington, DE 19801

       Counsel for Appellees


                                         OPINION


AMBRO, Circuit Judge

       We consider whether the Bankruptcy Court properly modified an equipment lease

under 11 U.S.C. § 365(d)(5)1 of the Bankruptcy Code by permitting proration of payment

obligations as of the date of rejection of the leases. For the reasons that follow, we

reverse.

                                             I.

       In October 2001, Federal-Mogul Corporation, a large automobile parts supplier,

and 156 of its U.S. and U.K. subsidiaries (collectively, “Federal-Mogul” or the

“Debtors”) filed for relief under Chapter 11 of the Bankruptcy Code. Since then, the



   1
    At the time of the Bankruptcy and District Courts’ opinions, the relevant section was
codified at 11 U.S.C. § 365(d)(10). Throughout this opinion, we refer to it at its current
location in the Code, § 365(d)(5).

                                              2
Debtors have continued to operate as debtors in possession.

       Computer Sales International (“CSI”) is a lessor of computer equipment. Its

customers purchase the equipment that they want from other vendors, and then they and

CSI execute a sale (to CSI) and lease-back (to the customers). In 1992, CSI and Federal-

Mogul entered into a Master Lease Agreement that set out the basic terms of all future

equipment leasing transactions. Between 1992 and 2001, Federal-Mogul leased hundreds

of pieces of equipment from CSI under some 70 leasing schedules. The Master Lease

Agreement provided for monthly rental payments, due in advance on the first day of each

month.

       In 2002, Federal-Mogul, as debtor in possession, negotiated a new computer

leasing arrangement with IBM. Consequently, Federal-Mogul requested the Bankruptcy

Court to allow it to approve the new leases and reject the CSI leases. Federal-Mogul

planned to replace over 4,200 pieces of equipment in 60 locations; because the process

would take a few months, it intended to minimize its costs by rejecting the leases in

piecemeal fashion as each individual item was replaced. CSI and other computer lessors

unsuccessfully opposed the motion. The Bankruptcy Court held a hearing and granted

permission to reject the CSI leases, “with such rejection taking effect upon the Debtors

giving notice to the applicable Computer Equipment Lessor” (the “2002 Order”).

       Upon obtaining court approval, Federal-Mogul began replacing the leases. When

it rejected a lease mid-month, it did not pay on the first of that month; rather, sometime

later it remitted a prorated payment to reflect the portion of the month up to the date of

                                              3
rejection. CSI objected and demanded payment for the entire month in which the lease

was rejected, arguing that the terms of the Master Lease Agreement still controlled and

that the entire monthly payment was due on the first of the month.

       Because the parties were unable to resolve this dispute between themselves, CSI

moved in the Bankruptcy Court to compel payment. The Bankruptcy Court held a

hearing in January 2003 and issued an Order (the “2003 Order”) denying the motion on

two grounds: (1) the terms of the 2002 Order allowing rejection stipulated that rent would

be prorated, and CSI waived any argument by not objecting to or appealing that Order;

and (2) equity supported modifying the terms of the Master Lease Agreement to allow

proration.

       The District Court affirmed on substantially similar grounds, and this appeal

followed.2

                                             II.

       Both the Bankruptcy and District Courts held that CSI waived any argument

against proration by not raising the issue before the Bankruptcy Court when Federal-

Mogul moved for permission to reject the CSI leases or by not appealing the 2002 Order.

The District Court found that proration was implicit both in the motion to reject and in the

Bankruptcy Judge’s Order, even if not explicitly stated in either, and that CSI’s motion

was, therefore, untimely. Computer Sales Int’l, Inc. v. Federal-Mogul Global, Inc. (In re


   2
    We have jurisdiction to review a district court’s resolution of an appeal of a final
order of a bankruptcy court under 28 U.S.C. §§ 158(d)(1) & 1291.

                                             4
Federal-Mogul Global, Inc.), 331 B.R. 160, 166 (D. Del. 2005).

       At issue here is whether the 2002 Order allowing rejection of the leases—which

was a final order appealable to the District Court under 28 U.S.C. § 158(a)(1)—also

decided the issue of proration. If it did, then the issue was decided in a final order that

could only be attacked through appeal, a motion to amend, or a motion for relief from

judgment. See 28 U.S.C. § 158(a)(1) (providing for appeal to the district court); Fed. R.

Civ. P. 59 & 60 (providing procedure for moving to amend a final order and moving for

relief therefrom, respectively); Fed. R. Bankr. P. 9023 & 9024 (adopting Fed. R. Civ. P.

59 & 60, respectively, into bankruptcy procedure). It is undisputed that CSI did none of

those things. On the other hand, if, in approving the rejection, the issue was not decided,

then the Bankruptcy and District Courts erred in concluding that it had been resolved in

the 2002 Order, and CSI had not waived the right to object to proration.

       In a paragraph of Federal-Mogul’s motion to reject the leases, entitled “Relief

Requested,” it requested permission to “reject” a number of leases “pursuant to section

365(a)” of the Bankruptcy Code. Nowhere in that paragraph did Federal-Mogul reference

proration, nor did it seek modification of its lease obligations under § 365(d)(5)3 with




   3
    Section 365(d)(5), discussed more fully below, requires a debtor to perform all of its
obligations under a lease of personal property until that lease is assumed or rejected. It
permits a court, however, to modify the obligations of the debtor after notice and a
hearing based on the “equities of the case.”

                                              5
respect to the timing or amount of monthly lease payments.4

       The Bankruptcy Court’s Judgment Entry for the 2002 Order states that “the

Debtors are authorized to reject each of the Rejected Master Lease Schedules pursuant to

11 U.S.C. § 365(a)[,] with such rejection taking effect upon the Debtors giving notice to

the applicable Computer Equipment Lessor . . . that all of the equipment subject to a

Rejected Master Lease Schedule has been replaced and either is available for shipment or

has been lost or disposed.” Upon CSI’s later challenge to the Debtors’ prorated

payments, the Bankruptcy Judge in 2003 nevertheless found the right to prorate implicit

(or, perhaps, explicit) in the 2002 Order: “[T]he order rejecting the lease[s] says that

they’re rejected the date we tell you they’re rejected, and the order, the motion

specifically said that means you get paid up to that date.” J.A. at 133.

       The District Court agreed with the Bankruptcy Court’s interpretation of the

motion. It referenced that the “Debtors will cease paying rent on an administrative basis

for the equipment” language, and stated:



   4
      In a section entitled “The Rejection of the Rejected Master Lease Schedules,”
Federal-Mogul sought “to have the rejections effective as of the date that the Debtors and
IBM return or make available to the Computer Equipment Lessors the equipment being
replaced.” The motion also states that “[o]nce the Debtors either ship or make the
equipment . . . available to the applicable Computer Equipment Lessor[,] . . . the Debtors
. . . will inform [them] that the particular schedule has been rejected as of that date, and
the Debtors will cease paying rent on an administrative basis for the equipment.”
Similarly, in its prayer for relief Federal-Mogul asked the Court to “authoriz[e] rejection
of the Rejected Master Lease Schedules effective on the date that the Debtors notify the
applicable Computer Equipment Lessor that all of the equipment contained on the Master
Lease Schedule has been replaced.”

                                              6
       Thus, CSI was sufficiently notified of Debtors’ desire to cease paying rent
       of [sic] the day the lease was rejected. Undeniably, the Master Lease
       required that Debtors make payment on the first of every month. Yet, CSI
       cannot idly stand-by when the Debtors make a request for an amendment to
       those terms in a motion to reject its lease. The payment terms and rejection
       process were the [rejection motion’s] raison d’etre. In addition, CSI’s
       failure to object to any aspect of this procedure is especially pronounced
       given the Bankruptcy Court’s mandate to consider equity in CSI’s Motion
       for Payment pursuant to 11 U.S.C. § 365(d)[(5)].

In re Federal-Mogul, 331 B.R. at 166.

       Section 365(d)(5) of the Bankruptcy Code states: “The trustee shall timely

perform all the [lease] obligations of the debtor . . . unless the court, after notice and a

hearing and based on the equities of the case, orders otherwise with respect to the

obligations or timely performance thereof.” This gives bankruptcy courts the power to

modify debtors’ lease obligations after notice and a hearing. It is not the same as the

§ 365(a) power to approve the debtor’s acceptance or rejection of unexpired leases, for,

unlike § 365(d)(5), § 365(a) does not give bankruptcy courts the power to amend lease

obligations. Cf. In re Univ. Med. Ctr., 973 F.2d 1065, 1075 (3d. Cir. 1992)

(“Assumption of the executory contract requires the debtor to accept its burdens as well

as permitting the debtor to profit from its benefits.”). To amend, a debtor must move

under § 365(d)(5) and give notice to the adverse party; the court must hear the issue, and

it must affirmatively order the modification.

       In this context, do references to rejections of leases as of a certain date mean that

the leases were amended such that the contracted-for lease payments were to be prorated

as of that date? We think not. Under In re Montgomery Ward, when a lease of real

                                                7
property is rejected under § 365(d)(3), all sums due pre-rejection under the terms of that

lease are owing irrespective of whether the sums otherwise can be prorated. Centerpoint

Properties v. Montgomery Ward Holding Corp. (In re Montgomery Ward Holding

Corp.), 268 F.3d 205, 209 (3d Cir. 2001). Put another way, proration of sums owing pre-

rejection can only be affected by modifying the lease to the extent the Bankruptcy Code

permits. See id.

       Against this background, we do not conclude that mere rejections of equipment

leases alter the obligation to pay the entire amount that came due on the first of the month

preceeding the rejections. Neither Federal-Mogul’s motion nor the Bankruptcy Court’s

2002 Order referenced § 365(d)(5);5 rather, the only relevant Code section referenced

was § 365(a), which (as noted) does not provide for the modification of lease obligations.

Moreover, given that modification requires “notice and a hearing” in which the Court

considers the equities involved, one would expect to see some discussion of those

equities in Federal-Mogul’s motion or in the hearing transcript. As the Bankruptcy Court

conceded, however, the subject did not come up. J.A. at 133 (statement of Newsome,

B.J.) (“[N]ot one sentence was argued about [the equities of proration].”).

       Thus, under § 365(d)(5) it was Federal-Mogul’s obligation to move the

Bankruptcy Court to allow it to modify its lease obligations and to stipulate what



   5
    We decline to decide that the vague phrase “Debtors will cease paying rent on an
administrative basis” in the Debtors’ motion meant that the contractual payment that
should have been paid on the first of the month was somehow retroactively altered.

                                             8
modifications it desired. Apparently Federal-Mogul desired, and the Court thought it

ordered, a modification to the lease that is not apparent on the face of the 2002 Order,

Federal-Mogul’s motion seeking that Order, or the transcript of the 2002 hearing. Under

these circumstances, construing the Bankruptcy Court’s order to deprive CSI of the

ability to litigate the issue of modification would play at cross-purposes with the burden-

shifting scheme that Congress has enacted.

       We recognize that “[w]e must give particular deference to the district court’s

interpretation of its own order.” In re Fine Paper Antitrust Litig., 695 F.2d 494, 498 (3d

Cir. 1982); see also WRS, Inc. v. Plaza Entm’t, Inc., 402 F.3d 424, 428 (3d Cir. 2005)

(stating that “great deference is given to a district court’s interpretation of its own

order”); Pittsburgh Terminal Corp. v. Balt. & Ohio R.R. Co., 824 F.2d 249, 254 (3d Cir.

1987) (quoting Fine Paper). We will not, however, give effect to an interpretation that is

not apparent from the text, particularly when doing so burdens a party’s substantive

rights. See DirecTV v. Leto, 467 F.3d 842, 847 (3d Cir. 2006).

       Therefore, we hold that the Bankruptcy Court erred in construing its order as

having provided for proration of payments due under the Master Lease Agreement. At a

minimum, debtors should make their requests to modify lease obligations explicit by

invoking the Court’s § 365(d)(5) authority and noting the equities that support

modification. Similarly, they should not conflate the § 365(a) power to assume or reject

with the § 365(d)(5) power to modify, as those powers are distinct.



                                               9
                                             III.

       Though both the Bankruptcy and District Courts believed that proration was

permitted as part of the 2002 Order, both proceeded to rule in the alternative. The

Bankruptcy Court concluded that the “equities of the case” supported modifying the

leases, and the District Court affirmed, thus permitting payments to be modified even if

that was not clear from the 2002 Order.

       In its 2003 Order, the Bankruptcy Court explained its reasons for allowing

modification as follows:

              Given the ample notice afforded the lessor that these leases would be
              rejected, the court find[s] it would be inequitable to allow the lessor
              [a] windfall by burdening the debtor’s estate of rent for the entire
              month on equipment the debtor used only for a portion thereof.


J.A. at 137. In affirming, the District Court stated:

              Despite the existence of a bargained-for lease, equity could sustain a
              decision to prorate the rents because the Debtor no longer had
              possession of the property. The rehabilitative purposes of the Code
              would also be served by allowing a proration of the rents in this case
              because more money would be available for reorganization and/or
              distribution to other unsecured creditors.


In re Federal-Mogul, 331 B.R. at 169.

       While we typically defer to a bankruptcy court’s discretionary decisions, see

Evans v. Buchanan, 555 F.2d 373, 378 (3d Cir. 1977) (en banc) (noting that we reverse

exercises of discretion “only when the judicial action is arbitrary, fanciful, or

unreasonable, or when improper standards, criteria, or procedures are used”), we cannot

                                              10
endorse its reasoning here because it failed to discuss a number of factors that, we

believe, cause the equities to weigh heavily against the Debtors.

       When it enacted § 365(d)(5), Congress sought to end the practice of debtors

gaining leverage by forcing lessors to move to compel payment each time they wanted a

lease obligation honored. See H.R. Rep. 103-835, at 50, reprinted in 1994 U.S.C.C.A.N.

3340, 3390. Here, the Debtors tried to do just that by failing to meet their obligations on

time and then asking for modification as a defense to CSI’s attempt to enforce the terms

of the lease. Thus, the procedural posture of the Debtors’ request cuts against them.

       Related to this point is that because the Debtors did not properly seek modification

until all of the leases had been rejected, they sought retroactive rather than prospective

modification. We note that CSI has urged us to follow the Fourth Circuit Court of

Appeals and hold that retroactive modification is prohibited by § 365(d)(5). See CIT

Communications Fin. Corp. v. Midway Airlines Corp. (In re Midway Airlines), 406 F.3d

229, 240 (4th Cir. 2005) (holding that § 365(d)(5) “does not allow a court to make an

equitable adjustment of the amount recoverable as an administrative expense when the

trustee fails to perform as required.”). But see In re Elder-Beerman Stores Corp., 201

B.R. 759, 764 (Bankr. S.D. Ohio 1996) ) (holding that bankruptcy courts should be

“reluctant” to accord retroactive relief, but not foreclosing that possibility in

“extraordinary circumstances”). We decline here to make a bright line rule, but we do

note that § 365(d)(5) is structured so that vigilant debtors should not need a retroactive



                                              11
remedy. The Debtors could have requested proration at the outset but did not; as noted,

proration was never raised explicitly in the 2002 Order or the motion seeking it.

       Next, the Debtors controlled the date of rejection. They could have rejected the

leases at or near the end of the month, and thus paid only for the time they possessed the

equipment. They did not avail themselves of this easier path, and we have no reason to

absolve them in these circumstances.

       Finally, there is nothing in this case inequitable about holding the Debtors to their

bargain. Cf. Stanziale v. FINOVA Capital Corp. (In re Tower Air, Inc.), 397 F.3d 191,

205 (3d Cir. 2005) (holding that there was nothing inequitable about giving an

undersecured creditor the benefit of its security interest despite the fact that the debtor’s

repairs had—many years prior to the bankruptcy—increased the value of the collateral).

Here, the Master Lease Agreement called for payment in advance on the first day of the

month. Rejection permitted the Debtors to cut short the lease, but the monthly contract

amount remained due. Equitable remedies are traditionally reserved for situations in

which the operation of law would render an unfair, unjust, or otherwise extreme result.

See Louis W. Epstein Family P’ship v. K-Mart Corp., 13 F.3d 762, 770 (3d Cir. 1994).

Simply noting in passing that modification will be convenient or provide minimally more

money for reorganization is not enough to rewrite the terms to which the parties agreed.

Yet the Debtors went no further, thus sealing our belief that they failed their burden of




                                              12
showing exceptional unfairness or burden to the estate.6

                                       * * * * *

       We hold that CSI did not waive its argument against proration of its equipment

leases because it is the Debtors’ burden to request—unambiguously—modifications of

personal property leases under § 365(d)(5). In addition, the equities in this case do not

support modification because of the Debtors’ dilatory conduct and their failure to provide

a compelling justification for their request.

       Therefore, we reverse the decision of the District Court and remand with

instructions to remand to the Bankruptcy Court for entry of judgment in favor of CSI.




   6
     CSI urges us to go further and hold that bankruptcy courts may never consider the
extent to which the leased property benefits the bankruptcy estate as one of the “equities
of the case.” We counter with a judicial maxim: “never” need never be invoked when we
can reach a result absent absolutes. CSI easily wins the equity battle on the facts of this
case without the need to determine what role “benefit to the estate” may or may not play
in future “equities of the case” inquiries. We need go no further.


                                                13
