Crédit Agricole Corporate & Investment Bank New York Branch v. American Home Mortgage Holdings, Inc.

637 F.3d 246, 2011 WL 522945
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 16, 2011
Docket09-4295
StatusPublished
Cited by22 cases

This text of 637 F.3d 246 (Crédit Agricole Corporate & Investment Bank New York Branch v. American Home Mortgage Holdings, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crédit Agricole Corporate & Investment Bank New York Branch v. American Home Mortgage Holdings, Inc., 637 F.3d 246, 2011 WL 522945 (3d Cir. 2011).

Opinions

OPINION OF THE COURT

SLOVITER, Circuit Judge.

If we can avoid preoccupation with the dazzling number of monetary digits involved in this case (the contractual repo price of almost $1.2 billion, the Purchaser’s claim totaling in excess of $478 million, and the parties’ damages calculations that are nearly $500 million apart), the issue before us is limited to a determination of the meaning of the statutory phrase requiring damages to be measured based on a “commercially reasonable determinante ] of value.” It is an issue of statutory construction such as those routinely faced by federal courts, although it appears to be an issue of first impression.

I.

Factual and Procedural History

Appellees American Home Mortgage Holdings, Inc., American Home Mortgage Investment Corp., American Home Mort[248]*248gage Acceptance, Inc., AHM SV, Inc.,1 and American Home Mortgage Corp. (collectively, “Debtor”), and Appellant Calyon New York Branch (“Calyon”),2 as Administrative Agent (the “Purchasers”), are parties to a Repurchase Agreement (the “Repurchase Agreement”), dated November 21, 2006, covering a portfolio of home mortgages.

A repurchase agreement, often referred to as a “repo agreement,” is defined in § 101(47) of the Bankruptcy Code as “an agreement, including related terms,” that (1) “provides for the transfer of one or more ... mortgage loans, [or] interests in mortgage related securities or mortgage loans[;]” (2) “against the transfer of funds by the transferee of such ... mortgage loans, or interests[;]” (3) “with a simultaneous agreement by such transferee to transfer to the transferor thereof ... mortgage loans, or interests [in mortgage related securities or mortgage loans;]” (4) “at a date certain not later than 1 year after such transfer or on demand[;]” (5) “against the transfer of funds[.]” In simple words, the purchaser of an asset promises to sell it back at the time fixed or when asked. Repurchase Agreements are among the transactions governed by § 562 of the Bankruptcy Code which was enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. No. 109-8, § 910, 119 Stat. 23, 184 (2005), described by Congress as “a comprehensive package of reform measures pertaining to both consumer and business bankruptcy cases.” H.R.Rep. No. 109-31, at 2 (2005).

Pursuant to the 2006 Repurchase Agreement, Calyon purchased approximately 5,700 mortgage loans with an original unpaid principal balance of just under $1.2 billion. The mortgage properties were located in all fifty states of the United States. The portfolio was principally comprised of adjustable rate mortgages and pay option adjustable rate mortgages, as well as a small portion of Government conforming loans and second lien loans.

Sometime before August 1, 2007, the Debtor defaulted on some of its obligations under the Repurchase Agreement. Calyon served the Debtor with a notice of default and accelerated the Repurchase Agreement on August 1, 2007 (the “Acceleration Date”). Section 562 of the Bankruptcy Code covers the timing for measurement of damages in the event of acceleration. Because of the acceleration of the Agreement, the Debtor became obligated to repurchase the mortgage loans at the Repurchase Price which, on the Acceleration Date, was $1,143,840,204.36. The Debtor filed its voluntary petition for Chapter 11 relief under the Bankruptcy Code on August 6, 2007, and the case was assigned to Christopher S. Sontchi, a Bankruptcy Judge from the District of Delaware.

Calyon filed four identical proofs of claim against four different debtors for an amount that exceeded the total Repurchase Price. One year later, the Debtor filed its objections to the claims, seeking either to disallow them or reduce them pursuant to § 562 of the Bankruptcy Code.3 Section 562, which addresses the [249]*249timing for the measurement of damages in connection with repurchase and other agreements, provides in relevant part:

(a) [I]f a ... repo participant ... liquidates, terminates, or accelerates such contract or agreement, damages shall be measured as of the earlier of—
(1) the date of such rejection; or
(2) the date or dates of such liquidation, termination, or acceleration.
(b) If there are not any commercially reasonable determinants of value as of any date referred to in paragraph (1) or (2) of subsection (a), damages shall be measured as of the earliest subsequent date or dates on which there are commercially reasonable determinants of value.

11 U.S.C. § 562 (emphasis added).

The parties stipulated to four possible valuation dates of the Loan Portfolio: August 1, 2007 (the Acceleration Date), September 30, 2007 (before the Debtor sold another large Loan Portfolio), January 30, 2008 (after the Bankruptcy Court’s decision in In re Am. Home Mortg., Inc., 379 B.R. 503 (Bankr.D.Del.2008), declaring that the agreement constituted a repurchase agreement within the meaning of the Code), and August 15, 2008 (the earliest date that Calyon claimed it could obtain a reasonable market or sale price for the Loan Portfolio).

The Repurchase Price on September 30, 2007 remained $1,143,840,204.36, the same as that on the Acceleration Date. By January 30, 2008, Calyon had received payments on the mortgage loans, reducing the Repurchase Price to $1,070,933,296.54. As of August 15, 2008, the Repurchase Price had been further reduced to $994,416,230.32. Although the parties agreed on the stipulated dates, they vigorously disagree as to the methodology for the measurement of damages, and consequently to the amount of damages.

In objecting to Calyon’s claims, the Debtor argued that a “commercially reasonable determinant of value,” namely the Discounted Cash Flow (“DCF”) method, existed on the Acceleration Date and that § 562(a) accordingly fixed the measurement of Calyon’s damages as of that date. The Debtor claimed that using that valuation methodology, the value of the Loan Portfolio exceeded the Repurchase Price and that therefore Calyon lacked a deficiency claim as of the Acceleration Date.

Not surprisingly, Calyon contested this interpretation, arguing that the only appropriate valuation methodology under § 562 is the market or sale value of the Loan Portfolio, and that because the mortgage market was dysfunctional on the Acceleration Date, there were no “commercially reasonable determinants of value” as of that date. Calyon asserted that, pursuant to § 562(b), the earliest possible date that market or sale value could be determined was August 15, 2008, and that as of that date the market or sale value of the Loan Portfolio was less than the Repurchase Price and resulted in a deficiency claim of $478,493,165.28 when the Loan Portfolio was valued on a servicing retained basis. As the Bankruptcy Court had previously explained:

Mortgage loans can be bought and sold on either a “servicing retained” or a “servicing released” basis. In a servicing retained sale of a mortgage loan, the [250]*250seller of the loan retains the right to designate the mortgage loan servicer.

379 B.R. at 510.4

Free access — add to your briefcase to read the full text and ask questions with AI

Related

TAKIEDINE v. 7-ELEVEN, INC.
E.D. Pennsylvania, 2022
Ruthellen W. Rickerson
W.D. Pennsylvania, 2021
In re Bush
593 B.R. 600 (M.D. Tennessee, 2018)
Mericle v. Jackson National Life Insurance Co.
193 F. Supp. 3d 435 (M.D. Pennsylvania, 2016)
MRL Development I, LLC v. Whitecap Investment Corp.
823 F.3d 195 (Third Circuit, 2016)
Trunzo v. Citi Mortgage
43 F. Supp. 3d 517 (W.D. Pennsylvania, 2014)
McElwee v. Scarff Bros. (In re McElwee)
469 B.R. 566 (M.D. Pennsylvania, 2012)
In RE McELWEE
469 B.R. 566 (M.D. Pennsylvania, 2012)
Cbs Corporation v. FCC
Third Circuit, 2011
In Re Tribune Co.
464 B.R. 126 (D. Delaware, 2011)
CBS Corp. v. Federal Communications Commission
663 F.3d 122 (Third Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
637 F.3d 246, 2011 WL 522945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/credit-agricole-corporate-investment-bank-new-york-branch-v-american-ca3-2011.