           Case: 14-11473   Date Filed: 01/23/2015   Page: 1 of 19


                                                                     [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11473
                       ________________________

         D.C. Docket Nos. 9:13-cv-80635-KMM; 09-bkc-38395-EPK

IN RE: FFS DATA, INC.,

                                                                        Debtor.

       _____________________________________________________

IBERIABANK,

                                                           Plaintiff - Appellant,

                                  versus

BRADFORD GEISEN,
FFS DATA, INC.,



                                                       Defendants - Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (January 23, 2015)
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Before TJOFLAT, JILL PRYOR and COX, Circuit Judges.

JILL PRYOR, Circuit Judge:

      This appeal concerns the proper interpretation of a release of claims in the

bankruptcy reorganization plan of appellee FFS Data, Inc. (“FFS”). Appellant

Iberiabank appeals the district court’s decision affirming the bankruptcy court’s

order that Iberiabank’s claims against appellee Bradford Geisen were released.

After careful consideration of the briefs and record, and with the benefit of oral

argument, we affirm.

                         I.    FACTUAL BACKGROUND

      In June 2007, Iberiabank’s predecessor made a $10.6 million loan (the

“Loan”) to Siena Realty Associates, LLC (“Siena”). Mr. Geisen and FFS, among

others, guaranteed the Loan, which was additional funding for a build out of the

building FFS leased from Siena. Mr. Geisen, president and 100% shareholder of

FFS, owned a 48% interest in Siena. The Loan was secured by a mortgage on real

property owned by Siena. In December 2009, FFS filed for Chapter 11 bankruptcy

protection. Shortly before FFS filed for bankruptcy, Siena was in default for

nonpayment of the Loan. Based on FFS’s guaranty, Iberiabank became a general

unsecured creditor in FFS’s bankruptcy. Iberiabank filed a claim in the bankruptcy

proceeding for approximately $10.6 million, the full amount of the outstanding

Loan guaranteed by FFS. FFS filed its original Chapter 11 plan of reorganization


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on April 22, 2010. On October 13, 2010, FFS circulated a draft amended

reorganization plan.

      The next day, Iberiabank entered into a forbearance agreement concerning

the Loan with Siena, Mr. Geisen, and the other guarantors of the Loan. Iberiabank

agreed to forbear from exercising its remedies with respect to the Loan and the

guaranties for 90 days to provide Siena and the guarantors an opportunity to sell

the real property with the mortgage securing the Loan for approximately $5.4

million. If the property sold, Iberiabank would be permitted to proceed with an

action against the guarantors for any remaining deficiency.

      Two days later, on October 16, 2010, FFS filed its amended reorganization

plan (the “Plan”) with the bankruptcy court. To resolve their dispute over the

amount of Iberiabank’s claim, FFS and Iberiabank entered into a Settlement

Agreement on November 12, 2010. The Settlement Agreement provided

Iberiabank with an allowed Class 6 general unsecured claim for $2 million. The

Settlement Agreement did not mention Iberiabank’s claims against Mr. Geisen or

Mr. Geisen’s personal obligations. The bankruptcy court approved the Settlement

Agreement in December 2010. Under the Plan, Mr. Geisen contributed $750,000

to the bankruptcy estate and agreed to release more than $1 million in unsecured

claims held against the estate. In addition, BG Funding, Inc., an entity Mr. Geisen

owned in part, used a $1 million tax refund to purchase a secured claim against the


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bankruptcy estate and then agreed to concessions on the secured claim, which

allowed the bankruptcy estate to provide payouts to some unsecured creditors. In

return, the creditors agreed to a “general release of Bradford Geisen” in § 8.13 of

the Plan:

       8.13 Discharge of Debtor and Insider

             In exchange for releasing the Insider Claims 1 totaling
       $1,000,817.30, and providing the New Value Payment, 2 all holders of
       Claims agree to a general release of Bradford Geisen.

              . . . [T]he rights afforded herein shall be in exchange for and in
       complete satisfaction, discharge and release of Claims and Equity
       Interests of any nature whatsoever . . . against the Debtor and Debtor
       In Possession, the Estate, any of the assets or properties under the
       Plan, or its officer and/or director, Bradford Geisen. Except as
       otherwise provided herein, (i) on the Effective Date, all such claims
       against the Debtor and its officer and/or director, Bradford Geisen,
       and Equity Interest in the Debtor shall be satisfied, discharged, and
       released in full, and (ii) all persons shall be precluded and enjoined
       from asserting against the Reorganized Debtor, its successors, its
       assets or properties, or its officer and/or director Bradford Geisen any
       other or further Claims or Equity Interests based upon any act,
       omission, transaction or other activity of any kind or nature that
       occurred prior to the Confirmation Date . . . .

Debtor’s Am. Plan of Reorganization 30, In re FFS Data, Inc., No. 09-38395

(Bankr. S.D. Fla. Oct. 16, 2010), ECF No. 243.




1
 “Insider Claims” refers to various unsecured claims, held by Mr. Geisen and two other related
entities, which Mr. Geisen released. Debtor’s Am. Plan of Reorganization 8.
2
 The “New Value Payment” refers to the $750,000 that Mr. Geisen contributed to the
bankruptcy estate. Id. at 9.
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       Section 8.15 of the Plan released a narrower set of claims relating to the

Debtor, bankruptcy, or Plan against the Released Parties, 3 which included the

Debtor and related persons and affiliates:

       8.15 Release by Holders of Impaired Claims

              This Plan . . . is a full and final settlement compromise of all the
       Claims and causes of action . . . that the Debtor holders of Claims
       against the Debtor and Equity Interest in the Debtor may have against
       any of the Released Parties pursuant to Sections 1123(b)(3) and (6) of
       the Bankruptcy Code and Bankruptcy Rule 9019. In consideration of
       the obligations of the Debtor and the Reorganized Debtor under this
       Plan . . . and Bradford Geisen’s agreement to release the Insider
       Claims totaling $1,000,817.30, and providing the New Value
       Payment, the Debtor and each holder of a Claim against or Equity
       Interest in the Debtor shall be deemed to forever release, waive, and
       discharge all Claims . . . against the Released Parties . . . in any way
       relating to the Debtor, the Chapter 11 case or the conduct thereof, of
       this Plan.

Id. at 31 (emphasis omitted).

       Iberiabank did not attend the confirmation hearing or object to the Plan. On

March 21, 2011, the bankruptcy court entered an order confirming the Plan. No

party appealed the confirmation order.

        In July 2012, Iberiabank commenced collection efforts in state court against

the Loan’s six individual guarantors, including Mr. Geisen, because a deficiency

remained when the collateral securing the Loan was sold. Mr. Geisen responded


3
 “Released Parties” includes “the Debtor and each of its respective current and former directors,
officers, employees, representatives, members, affiliates, agents, counsel, financial advisors, and
professionals.” Id. at 10.
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that the Plan released him from his personal guaranty of the Loan. On March 29,

2013, Iberiabank reopened the bankruptcy case and moved for a determination that

its claims against Mr. Geisen were not released. After a hearing, the bankruptcy

court denied Iberiabank’s motion. The bankruptcy court held that “every creditor

of FFS was, in effect, giving a general release to Bradford Geisen, who is the

debtor’s principal.” Tr. of Mar. 18, 2013 Hr’g 32, In re FFS, ECF No. 871.

Sitting as an appellate court, the district court affirmed the bankruptcy court’s

decision. Iberiabank now appeals to this Court.

                          II.   STANDARD OF REVIEW

      When reviewing an order of the district court entered in its role as an

appellate court reviewing the bankruptcy court’s decision, this Court independently

examines the factual and legal determinations of the bankruptcy court, applying the

same standards of review as the district court. IBT Int’l, Inc. v. Northern (In re

Int’l Admin. Servs., Inc.), 408 F.3d 689, 698 (11th Cir. 2005). Generally, we

review de novo any determinations of law, whether by the bankruptcy court or

district court, and review the bankruptcy court’s factual findings for clear error. Id.

When reviewing a bankruptcy court’s interpretation of its own order, however,

“our reluctan[ce] to disturb a bankruptcy court’s judgment in this context is akin to

the reluctance we exhibit when exercising abuse of discretion review. Finova

Capital Corp. v. Larson Pharmacy Inc. (In re Optical Techs., Inc.), 425 F.3d 1294,


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1300 (11th Cir. 2005) (internal quotation marks omitted). Unless it clearly abused

its discretion, “a bankruptcy court’s interpretation of its own order is entitled to

substantial deference.” Id. at 1302-03.

                                    III.    DISCUSSION

       Iberiabank presents two interrelated issues on appeal. First, Iberiabank

argues that the release of Mr. Geisen under § 8.13 of the Plan does not extend to its

claim against Mr. Geisen based on his personal guaranty. Second, Iberiabank

argues that the confirmation order should not be afforded res judicata effect

because, under a line of Fifth Circuit cases, the release in § 8.13 is not sufficiently

specific. We begin by addressing Iberiabank’s argument that the Plan did not

release Mr. Geisen from his obligations under the guaranty.

                                                 A.

       The Court follows principles of contract interpretation to interpret a

confirmed plan of reorganization. See Official Creditors Comm. v. Stratford of

Tex., Inc. (In re Stratford of Tex., Inc.), 635 F.2d 365, 368 (5th Cir. Jan. 1981).4

“[T]he plain meaning of a contract’s language governs its interpretation” under

general contract principles. Slater v. Energy Servs. Grp. Int’l, Inc., 634 F.3d 1326,




4
 This Court adopted as binding precedent all Fifth Circuit decisions issued prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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1330 (11th Cir. 2011). 5 “A contract term is ambiguous if ‘reasonably susceptible

to more than one interpretation.’” Orkin Exterminating Co. v. FTC, 849 F.2d

1354, 1360 (11th Cir. 1988) (quoting Fabrica Italiana Lavorazione Materie

Organiche, S.A.S. v. Kaiser Aluminum & Chem. Corp., 684 F.2d 776, 780 (11th

Cir. 1982)). An interpretation giving “reasonable meaning to all provisions of a

contract is preferred to one which leaves a part useless or inexplicable.” Doe v.

Princess Cruise Lines, Ltd., 657 F.3d 1204, 1218 (11th Cir. 2011) (citing Golden

Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Ass’n, 117 F.3d

1328, 1338 (11th Cir. 1997)).

       The first sentence of § 8.13 of the Plan states that “all holders of Claims

agree to a general release of Bradford Geisen.” Debtor’s Am. Plan of

Reorganization 30. Section 8.13 goes on to provide that “all such claims,” that is,

“Claims and Equity Interests of any nature whatsoever . . . against the Debtor and

its officer and/or director, Bradford Geisen[,] . . . shall be satisfied, discharged, and

released in full . . . .” Id. It further states that “all Persons shall be precluded and

enjoined from asserting” against the Debtor or Mr. Geisen any claims “based upon

any act or omission, transaction or other activity . . . that occurred prior to the

5
  Mr. Geisen argues (and the district court decided) that in interpreting confirmed plans, courts
should apply state law contract principles. Although this Court has not previously held that state
law contract principles apply, we need not decide whether to apply state law contract principles
or federal common law principles because they do not conflict here. See, e.g., Equity Lifestyle
Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1242 (11th Cir. 2009) (“In
interpreting a contract under Florida law, we give effect to the plain language of contracts when
that language is clear and unambiguous.”) (internal quotation marks omitted).
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Confirmation Date.” Id. The plain language of § 8.13 thus unambiguously

provides a “general release” of Mr. Geisen for “all . . . claims” by “all Persons”

based upon any event prior to the Plan’s confirmation. Id. Our inquiry should end

here. See Slater, 634 F.3d at 1330.

       Nonetheless, Iberiabank argues that the phrase “its officer and/or director”

means that the release is limited to claims brought against Mr. Geisen in his

capacity as an officer and/or director of FFS. Iberiabank further contends that

construing § 8.13 as a general release renders this phrase meaningless.

       Reading § 8.13 as a release only of claims against Mr. Geisen in his capacity

as an officer and/or director of FFS is improper for two reasons. First, such an

interpretation conflicts with the plain “general release” of “all . . . claims”

language. Construing § 8.13 as something less than a “general release,” as

Iberiabank urges, renders this language, particularly the first sentence of § 8.13,

meaningless.6 The first sentence further explains that the consideration for the

general release is Mr. Geisen’s release of Insider Claims worth over $1 million and

his $750,000 New Value Payment to the estate. Debtor’s Am. Plan of

Reorganization 30. Nothing in that first sentence or paragraph suggests that all



6
  Because we find § 8.13 to be clear and unambiguous, we do not consider extrinsic evidence to
determine its meaning. See Hashwani v. Barbar, 822 F.2d 1038, 1040 (11th Cir. 1987) (“[T]he
introduction of parol or extrinsic evidence to aid in the interpretation of a contract is prohibited,
unless the contract is ambiguous.”); Uranksy v. First Fed. Savings & Loan Assoc., 684 F.2d 750
(11th Cir. 1982).
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claim holders agreed to release Mr. Geisen only for claims against him in his

capacity as an officer or director of FFS. The “officer and/or director” phrase,

which appears in a separate, subsequent paragraph of § 8.13, also does not contain

any limiting language or reference to claims against Mr. Geisen solely in his

capacity as an officer/director of FFS. To the contrary, § 8.13 refers to “all” claims

“of any nature whatsoever.” Id. Moreover, the underlining of the phrase does not

change its meaning. It merely draws attention to the fact that Mr. Geisen, the

individual being released, is an insider with respect to FFS. We agree with the

district court and the bankruptcy court that the phrase “its officer and/or director”

should be read as “merely descriptive of Geisen’s role at FFS.” Iberiabank v.

Geisen, No. 13-cv-80635-KMM, slip op. at 6 (S.D. Fla. Mar. 4, 2014).

      Second, if the release were read as limited to claims against Mr. Geisen

solely in his capacity as an “officer and/or director” of FFS, § 8.15 would cover

such claims, rendering § 8.13 superfluous. Section 8.15 releases a broader group

of parties related to FFS for a narrower class of claims—claims relating to FFS, the

bankruptcy case, or the Plan. Section 8.15 defines “Released Parties” as “the

Debtor and each of its respective current and former directors, officers, employees,

representatives, members, affiliates, agents, counsel, financial advisors, and

professionals.” Debtor’s Am. Plan of Reorganization 10. Section 8.15 necessarily

encompasses claims against Mr. Geisen in his official capacity because he is the


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Debtor’s “former officer [or] director,” and such claims necessarily would “relat[e]

to the Debtor . . . .” Id. at 31. Section 8.13 therefore becomes “useless or

inexplicable” if read so as to release only claims against Mr. Geisen in his capacity

as “officer and/or director” of FFS. See Princess Cruise Lines, 657 F.3d at 1218.

      Our interpretation of § 8.13 as a general release of all claims against Mr.

Geisen is preferred because “a document should be read to give effect to all its

provisions and to render them consistent with each other.” Mastrobuono v.

Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 (1995); see Restatement (Second)

of Contracts § 203(a) (1981) (“[A]n interpretation which gives a reasonable,

lawful, and effective meaning to all the terms is preferred to an interpretation

which leaves a part unreasonable, unlawful, or of no effect.”). Because the

released claims in § 8.13 are not limited to claims relating to FFS, the bankruptcy,

or the Plan, § 8.13 is not redundant of § 8.15. To give effect to all of the terms in

these sections of the Plan, we conclude that § 8.13 is a general release of all claims

against Mr. Geisen, which include claims arising out of his personal guaranty of

the Loan.

                                             B.

      Iberiabank next urges us to follow cases from the Fifth Circuit to conclude

that the release in § 8.13 is not sufficiently specific to have res judicata effect.

First, we examine the Supreme Court’s and our own precedent regarding the res


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judicata effect of bankruptcy orders, and then we examine the line of Fifth Circuit

cases Iberiabank suggests we adopt.7

       Res judicata bars litigation of claims that were or could have been raised in a

prior action. Kaiser Aerospace & Elecs. Corp. v. Teledyne Indus., Inc. (In re Piper

Aircraft), 244 F.3d 1289, 1296 (11th Cir. 2001). For res judicata to apply, “(1) the

prior decision must have been rendered by a court of competent jurisdiction; (2)

there must have been a final judgment on the merits; (3) both cases must involve

the same parties or their privies; and (4) both cases must involve the same cause of

action.” Id. A bankruptcy court’s confirmation order that is final and no longer

subject to appeal becomes “res judicata to the parties and those in privity with

them.” Travelers Indemnity Co. v. Bailey, 557 U.S. 137, 152 (2009) (quotation

omitted); In re Optical, 425 F.3d at 1300-02. Confirmation orders that satisfy the

requirements for res judicata are given preclusive effect. See Wallis v. Justice

Oaks II, Ltd. (In re Justice Oaks II, Ltd.), 898 F.2d 1544, 1549-50 (11th Cir. 1990);

see also In re Optical, 425 F.3d at 1300-01. A reorganization plan that is



7
  FFS and Mr. Geisen contend that Iberiabank’s res judicata argument is waived because
Iberiabank did not raise it before the district court or bankruptcy court. The Federal Rules of
Bankruptcy Procedure require a party appealing a bankruptcy court ruling to serve a statement of
the issues to be presented on appeal. Fed. R. Bankr. P. 8006. “An issue that is not listed
pursuant to this rule and is not inferable from the issues that are listed is deemed waived and will
not be considered on appeal.” Snap-On Tools, Inc. v. Freeman (In re Freeman), 956 F.2d 252,
255 (11th Cir. 1992) (internal quotation marks omitted). While Iberiabank uses the term res
judicata for the first time in its briefing in this Court, the substance of the issue is clearly
inferable from Iberiabank’s arguments below, which rely upon the same cases.
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incorporated into a confirmation order has the same res judicata effect. See id. at

1300.

        In Travelers Indemnity Co. v. Bailey, the Supreme Court recognized the

finality of bankruptcy court orders and their res judicata effect, holding that they

cannot be collaterally attacked. 557 U.S. at 137. The Court examined the res

judicata effect of a complex reorganization plan that provided payment to holders

of asbestos-related claims. Id. at 140. The “cornerstone” settlement of the

reorganization plan provided that insurers paid $770 million to the bankruptcy

estate, $80 million of which came from the petitioner, Travelers Insurance. Id. at

141. In return for this payment, the creditors released the insurers “from any and

all Policy Claims,” settlement terms that were incorporated into a 1986 order

confirming the reorganization plan. Id. at 141-42. When plaintiffs began bringing

asbestos-related actions against Travelers a decade later, Travelers asked the

bankruptcy court to enjoin the lawsuits based on the release in the 1986 order. Id.

at 143. Because the order “became final on direct review,” the Supreme Court

held it was “res judicata to the parties and those in privity with them, not only as to

every matter which was offered and received to sustain or defeat the claim or

demand, but as to any other admissible matter which might have been offered for

that purpose.” Id. at 152 (internal quotation marks omitted).




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      Similarly, in In re Optical, this Court held that a third-party lessee was

barred from collaterally attacking a bankruptcy confirmation order. 425 F.3d at

1294. The Chapter 11 debtor-lessor leased kiosks to the third-party lessees and

assigned those leases to finance companies. Id. at 1297-98. The third-party

lessees argued that the confirmation order impermissibly modified their leases with

the finance companies. Id. at 1300. This Court found the terms in the

confirmation order to be “plain on their face” and thus enforced the order. Id. at

1304. We explained that challenges to the bankruptcy court’s jurisdiction “could

have been raised by appellants at the time of confirmation,” but were not; thus, the

confirmation order had res judicata effect. Id.

      Iberiabank attempts to distinguish Bailey and In re Optical on the ground

that Iberiabank does not contend the bankruptcy court lacked subject matter

jurisdiction to enter the order releasing Mr. Geisen’s guaranty. Even assuming

Iberibank is not challenging whether the bankruptcy court had subject matter

jurisdiction, the res judicata analysis of Bailey and In re Optical still controls. In

Bailey, the Supreme Court rejected an argument that a less stringent res judicata

standard applied when there was a collateral attack challenging the bankruptcy

court’s subject matter jurisdiction. See Bailey, 557 U.S. at 152 (explaining the

bankruptcy court’s order was not “less preclusive because the attack is on the

Bankruptcy Court’s conformity with its subject-matter jurisdiction”). However,


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neither Bailey nor In re Optical supports Iberiabank’s argument that a less

stringent res judicata analysis applies when a party on collateral attack raises an

issue other than subject matter jurisdiction. Instead, if the four requirements of res

judicata are met here, res judicata bars us from taking any action beyond the

interpretation of the confirmation order’s terms. As discussed above, we conclude

that under principles of contract interpretation, the confirmed Plan contained a

“general release” that released claims based on Mr. Geisen’s guaranty of the Loan.

Thus, as in In re Optical, this case is not truly about res judicata, but, rather, the

interpretation of a reorganization plan. 425 F.3d at 1301. Because Iberiabank

challenges the res judicata effect of the confirmation order based on the fourth

prong of the res judicata test, however, we next must consider whether the claims

at issue involve the same cause of action covered by the confirmation order.

      This Court has previously explained that “[c]laims are part of the same cause

of action when they arise out of the same transaction or series of transactions.” In

re Justice Oaks II, 898 F.2d at 1551. The bankruptcy court’s confirmation order

and Iberiabank’s suit on the guaranty arise out of the same series of transactions

related to the Loan. Iberiabank was a creditor in the bankruptcy case because its

predecessor made the Loan to Siena, and, as a result of Siena’s default, Iberiabank

had an unsecured claim against the Debtor, FFS, as guarantor. In the guaranty suit,

Iberiabank sued the guarantors of the Loan other than FFS. The confirmed Plan


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resolved Iberiabank’s claims against FFS and, as we have concluded, released Mr.

Geisen from his guaranty on the Loan. Although Iberiabank claims that Mr.

Geisen’s guaranty was never discussed as part of the bankruptcy, the FFS guaranty

was at issue in the bankruptcy, and the two guaranties applied to the same

underlying Loan. Additionally, FFS, Mr. Geisen, and Siena were all closely

related. 8 There is little question, then, that the suit against Mr. Geisen based on the

guaranty claim meets the same transaction requirement.

       In a final attempt to avoid the res judicata effect of the release in the

confirmation order, Iberiabank urges this Court to adopt a test from the Fifth

Circuit. In three cases decided prior to Bailey, the Fifth Circuit applied an

additional factor to the res judicata analysis in cases interpreting bankruptcy

confirmation plans that release third-party guarantors. In this narrow class of

cases, the Fifth Circuit held that bankruptcy orders are entitled to res judicata effect

only if the release of the third-party guarantor is “sufficiently specific.” FOM P.R.

S.E. v. Dr. Barnes Eyecenter Inc., 255 F. App’x 909, 911, 912 (5th Cir. 2007). In

Republic Supply Co. v. Shoaf, the Fifth Circuit held that a confirmed reorganization

plan expressly providing for the release of a third-party guarantor had a res judicata

effect. 815 F.2d 1046, 1053 (5th Cir. 1987). The Fifth Circuit examined the

language of the release in the confirmed plan, which released all claims against a

8
 As noted above, Siena was FFS’s landlord; Mr. Geisen was president and 100% shareholder of
FFS and 48% owner of Siena.
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group of guarantors but was not a general release. Id. at 1048. The Fifth Circuit

concluded that the claims arose out of the same transaction because the

confirmation order included a release extinguishing the claim against the guarantor

that was the subject of the appeal. Id. at 1053-54.

      In In re Applewood Chair Co., the Fifth Circuit applied Shoaf, holding that

“the res judicata effect of an approved reorganization plan” depended on the

substance of the release. Applewood Chair Co. v. Three Rivers Planning & Dev.

Dist. (In re Applewood Chair Co.), 203 F.3d 914, 918 (5th Cir. 2000). Without

discussing whether the release in the plan and the suit on the guaranty involved the

same cause of action or arose out of the same transaction, the Fifth Circuit held

that res judicata did not apply because the release was not specific enough to

release the personal guaranties of the company president and his wife, who was a

shareholder of the debtor. Id. at 919. The court held that a release of the personal

guaranties was not “enumerated or approved by the bankruptcy court.” Id.

      In the third case, the Fifth Circuit determined that the release of the third-

party guarantor fell somewhere between the releases in Shoaf and Applewood but

was sufficiently specific to have a res judicata effect. FOM, 255 F. App’x at 909.

The Fifth Circuit held the release to be sufficiently specific because it was an

integral and necessary part of the bankruptcy plan itself, rather than “simply




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boilerplate language.” Id. at 912. The release also specifically identified the

released party and the claims to be released. Id.

      We decline to adopt the test from the Fifth Circuit, a test that was articulated

in cases decided prior to the Supreme Court’s opinion in Bailey. In Bailey, the

Supreme Court held that allowing collateral attacks on a bankruptcy court’s order

“cannot be squared with res judicata and the practical necessity served by that

rule.” 557 U.S. at 145. And, as this Court has stated, creditors cannot later “raise

objections to the actual terms of the [reorganization plan] or the confirmation

order, as these were deemed waived when they failed to object to the

confirmation.” In re Optical, 425 F.3d at 1301.

      Even if we were to apply the Fifth Circuit’s test, however, we would

conclude that the release was sufficiently specific to release Mr. Geisen. To

determine whether a release of a third-party guarantor is sufficiently specific, the

Fifth Circuit considers factors including whether the creditor would have known he

was releasing the third-party guarantor, whether the release identifies the released

parties, whether the release identifies the released claims, and whether the release

of those claims was an integral part of the bankruptcy order. See FOM, 255

F. App’x at 912; Applewood, 203 F.3d at 919; Shoaf, 815 F.2d at 1050.

      Here, the release clearly identifies Mr. Geisen, stating that “all holders of

Claims agree to a general release of Bradford Geisen.” Debtor’s Am. Plan of


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Reorganization 30. The release states that it is a “general release” of “all . . .

claims” of “any nature whatsoever,” which certainly would encompass the

guaranty. Id. Iberiabank argues that the release is not specific enough because it

does not expressly reference the guaranty. In FOM, however, the Fifth Circuit

held that a release of “all claims” need not specify that it is releasing a guaranty.

FOM, 255 F. App’x at 912. The release of Mr. Geisen’s guaranty was also an

integral part of the bankruptcy order and the Plan because Mr. Geisen received the

release as consideration for his release of over $1 million in claims held against the

debtor and his personal contribution of $750,000 to the bankruptcy estate.

Although Iberiabank argues that the dollar value of the consideration it received

was minimal, Mr. Geisen unquestionably provided value to the estate and the

creditors. The release was therefore an integral part of the Plan, regardless of the

value of the consideration to any individual creditor.

                                         IV.

      For the foregoing reasons, we affirm the district court’s judgment.

      AFFIRMED.




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