In re Penrod

50 F.3d 459
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 22, 1995
DocketNo. 94-3072
StatusPublished
Cited by99 cases

This text of 50 F.3d 459 (In re Penrod) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Penrod, 50 F.3d 459 (7th Cir. 1995).

Opinion

POSNER, Chief Judge.

This appeal raises an issue of bankruptcy law that one might have supposed had been settled long ago. It is whether, when a plan of reorganization makes provision for the payment of a secured creditor’s claim but does not say whether the creditor’s security interest (lien) is extinguished, the security interest survives, in accordance with the old saw that “liens pass through bankruptcy unaffected.”

Hog farmers named Penrod executed a promissory note to Mutual Guaranty Corporation (actually to its predecessor, but we can ignore that detail) for $150,000, secured by the Penrods’ hogs. A year later, the Pen-rods filed for bankruptcy under Chapter 11, owing Mutual Guaranty $132,000. Mutual Guaranty filed a proof of claim in the bankruptcy proceeding. The Penrods, neither objecting to the claim nor questioning the validity of Mutual Guaranty’s lien, filed a plan of reorganization which designated Mutual Guaranty as a “Class 3 creditor” — in fact as the only Class 3 creditor. Class 3 creditors, the plan states, “will be paid in full, with interest at the rate of eleven percent (11%) per annum. Payments to this Class shall be paid on a monthly basis commencing sixty (60) days after Confirmation. Furthermore, said payments shall be based upon a seven (7) year amortization.” That is all that the plan, or the order confirming it, says about Mutual Guaranty’s interest.

Shortly after the plan went into effect, the Penrods’ hogs became infected with “pseudo-rabies” virus, a disease of the reproductive system that causes the females infected with it to miscarry. Hogs so stricken cannot be kept for breeding purposes; all they are good for is food (human food, we note with some anxiety). So the Penrods sold their hogs for slaughter — without remitting the proceeds to Mutual Guaranty, as the security agreement accompanying the promissory note had required. Mutual Guaranty brought suit in a state court to enforce a hen in the proceeds. The Penrods responded by asking the bankruptcy court to hold Mutual Guaranty in contempt for violating the order confirming the plan of reorganization, which the Penrods claim extinguished Mutual Guaranty’s hen. The bankruptcy court agreed that the hen had been extinguished and enjoined (the court’s term was “precluded,” but as far as we can tell it meant the same thing) Mutual Guaranty from attempting to enforce it. The district court affirmed.

A secured creditor can bypass his debtor’s bankruptcy proceeding and enforce his hen in the usual way, which would normally be by bringing a foreclosure action in a state court. This is the principle that hens pass through bankruptcy unaffected. Long v. Bullard, 117 U.S. 617, 620-21, 6 S.Ct. 917, 918, 29 L.Ed. 1004 (1886); Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992); In re James Wilson Associates, 965 F.2d 160, 167 (7th Cir.1992). If the creditor follows this route, the discharge in bankruptcy will not impair his hen. Dewsnup v. Timm, supra, 502 U.S. at 416-17, 112 S.Ct. at 778; In re Tarnow, 749 F.2d 464 (7th Cir.1984). Alternatively, he may decide to collect his debt in the bankruptcy proceeding, and to this end may file a proof of claim in that proceeding. 11 U.S.C. § 501(a). He will do this if he is underse-cured, for in that case merely enforcing his hen would not enable him to collect the en[462]*462tire debt owed him. His only chance of recovering any part of the amount by which the debt exceeds the value of the lien would be to share in the distribution of the debtor’s estate to the unsecured creditors. 11 U.S.C. § 506(a); In re Tarnow, supra, 749 F.2d at 465.

A secured creditor may be dragged into the bankruptcy involuntarily, because the trustee or debtor (if there is no trustee), or someone who might be liable to the secured creditor and therefore has an interest in maximizing the creditor’s recovery, may file a claim on the creditor’s behalf. 11 U.S.C. §§ 501(b), (c); In re Lindsey, 823 F.2d 189, 191 (7th Cir.1987). He may participate in the bankruptcy in order to try to get the automatic stay (11 U.S.C. § 362(d)) lifted to the extent of allowing him to enforce his hen; for the stay applies to the enforcement of hens. He may want to participate in the bankruptcy proceeding (and so may decide to file a claim) simply because he wants to make sure that the debtor’s estate is not administered in a way that will diminish the value, as distinct from threatening the existence, of his hen. In re CMC Heartland Partners, 966 F.2d 1143, 1147 (7th Cir.1992).

The secured creditor does not, by participating in the bankruptcy proceeding through filing a claim, surrender his hen. But this is not to say that the hen is sure to escape unscathed from the bankruptcy. We have mentioned the automatic stay. If the secured creditor’s claim is challenged in the • bankruptcy proceeding and the court denies the claim, the creditor will lose the hen by operation of the doctrine of collateral estop-pel. 11 U.S.C. § 506(d); In re Tarnow, supra, 749 F.2d at 465-66. He may be forced in the plan of reorganization to swap his hen for an interest that is an “indubitable equivalent” of the hen. 11 U.S.C. § 1129(b)(2)(A)(iii); In re James Wilson Associates, supra, 965 F.2d at 172. And in some circumstances he may even be compelled to surrender his hen without receiving anything in return. See 11 U.S.C. §§ 1126(d), 1129(a)(10), (b)(1). And, of course, he can consent to its discharge. The right is implicit in 11 U.S.C. § 1126, and is anyway obvious. It is a frequent element of a plan of reorganization, as we are about to see.

Nothing we have said so far is controversial, and we can take one more step without inviting controversy. A plan of reorganization can expressly preserve preexisting hens, such as that of Mutual Guaranty in this case. 11 U.S.C. § 1123(b)(1). Conversely, it can expressly abrogate some or all of those hens with the full consent of the lienholders; and this is common. A reorganization alters the capital structure of the bankrupt enterprise. Bondholders and other creditors, along with shareholders, exchange their notes, claims, and shares for new securities in the reorganized firm. For recent examples, see Sullivan & Long v. Scattered Corp.,

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Bluebook (online)
50 F.3d 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-penrod-ca7-1995.