In re Residential Capital, LLC

508 B.R. 851, 2014 WL 1613421, 2014 Bankr. LEXIS 1817, 59 Bankr. Ct. Dec. (CRR) 112
United States Bankruptcy Court, S.D. New York·Decided April 22, 2014·No. Case No. 12-12020 (MG) Jointly Administered·Published·Cited by 5 cases

Opinion

MEMORANDUM OPINION AND ORDER GRANTING CITIBANK’S MOTION FOR DEFAULT INTEREST AND COUNSEL FEES AND EXPENSES

MARTIN GLENN, UNITED STATES BANKRUPTCY JUDGE

The Bankruptcy Code entitles overse-cured creditors to postpetition interest, but the Code does not describe how to calculate it. As an oversecured creditor, Citibank seeks postpetition interest at the default rate governed by its contract (the “Agreement”) with two Debtor entities. The ResCap Liquidating Trust (the “Trust”) opposes the contract default rate, arguing that it is inequitable because it would harm unsecured creditors and because Citibank was protected in the bankruptcy and was adequately compensated both before and during the bankruptcy. The parties agree that the right to postpe-tition interest does not arise from the contract itself; the right arises from the Bankruptcy Code. The parties have stipulated to the facts and seek a decision without the necessity of an evidentiary hearing. See Stipulated Facts in Connection with the Motion of Citibank, N.A for an Order (I) Determining That It Is Entitled to Post-Petition Interest on its Oversecured MSR Facility Claims at the Contractual Default Rate, and (II) Directing Debtors to Pay Such Interest as Well as Citibank’s Due and Unpaid Counsel Fees and Expenses, dated March 17, 2014 (“Stip.,” ECF Doc. # 6658).

In determining the interest to be awarded to an oversecured creditor, two guiding principles apply: (1) courts in this circuit apply a rebuttable presumption that the contract default rate applies; and (2) a court has only limited discretion — which it should exercise “sparingly” — to modify the [854]*854contract interest rate. Case law has identified non-exclusive factors to consider in exercising this discretion. The factors do not all point in one direction here. For the reasons explained below, the Court concludes that Citibank should recover postpetition interest at the contract default rate, but only after the loan’s maturity date. For the period between the Debtors’ bankruptcy filings and the loan’s maturity date, interest at the contract non-default interest rate — already paid to Citibank — is appropriate.

Citibank also seeks to recover the unpaid portion of its legal fees and expenses in pursuing default interest at the contract rate. The Agreement provides that Citibank is entitled to recover its fees and expenses, most of which were paid by the Debtors during the case; at some point the Debtors stopped paying, so Citibank now seeks to recover the unpaid balance. Because Citibank’s Motion was pursued in good faith, its request to recover attorneys’ fees and expenses that were not previously reimbursed is GRANTED, subject to the Trust having an opportunity to review and challenge the reasonableness of the requested fees and expenses.

I. BACKGROUND

On May 14, 2012 (the “Petition Date”), each of the Debtors filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. Before the Petition Date, Citibank entered into a revolving credit facility (the “MSR Loan Facility”) with GMAC Mortgage, LLC (“GMACM”) as borrower and Residential Capital, LLC (“ResCap,” and together with GMACM the “Obligors”) as guarantor, evidenced by the Agreement. (Stip. ¶ 2.) That MSR Loan Facility allowed GMACM to borrow up to $700 million, secured by mortgage servicing rights (“MSRs”) for loans in Fannie Mae and Freddie Mac securitization pools. (Id. ¶¶ 2-3.) Loan proceeds provided GMACM with financing to fund the origination or acquisition of mortgage loan servicing rights for Fannie- and Freddie-funded home mortgage loans. The MSR Loan Facility was subject to acknowledgment agreements by Citibank with Fannie and Freddie, providing that Fannie and Freddie could terminate their servicing contracts with GMACM without cause at any time and transfer the servicing rights for the underlying loans. (Id. ¶¶4-6.) These MSRs only retained value as collateral as long as Fannie and Freddie did not terminate servicing contracts for GMACM to service the underlying mortgages.

Originally, the MSR Loan Facility had a maturity date of August 31, 2010 (id. 117), but the parties amended the Agreement ten times, extending the maturity date and making other changes. (Id. ¶¶ 9-10.) The last amendment (“Amendment Ten”) extended the maturity date until May 30, 2012 — after the Petition Date. (Id. ¶ 10.) Citibank was paid an extension fee for each extension, ranging from $104,166.67 for a ten-day extension to $3,687,500 for an eleven-month extension. (Id. ¶ 9.) Amendment Ten extended the maturity date by two months, for which the Obligors paid Citibank a $3,160,000 extension fee. (Id. ¶ 11.) The parties entered into Amendment Ten understanding that the Obligors were preparing to file bankruptcy petitions. (Id. ¶ 12.) If, as the parties contemplated, bankruptcy petitions were filed, they understood the loans would probably not be repaid at maturity, but agreed that any order approving the sale of the collateral “shall provide for the repayment of Loans with proceeds of Collateral received by the Borrower from such sale.... ” (Id.) The substantial extension fee for Amendment Ten no doubt recognized that the loans in all likelihood were going to remain outstanding for more than two months while the Debtors marketed their [855]*855assets and obtained necessary approvals for the sales (including from the Court).

The original Agreement established a non-default interest rate of LIBOR plus six percent, and a default rate that was four percent higher. (Id. ¶ 8.) Amendment Ten increased the non-default interest rate to LIBOR plus eight and one-half percent; the default rate still added four percent to the non-default rate. (Id. ¶ 11.) The original MSR Loan Facility provided a $700 million loan commitment, but the commitment was reduced over the course of the amendments. (See id. Exs. C-2, C-4, C-5, C-9, C — TO.) Amendment Ten reduced the commitment from $800 million to $158 million. (Id. ¶ 11.) Before Amendment Ten, the outstanding balance under the MSR Loan Facility was $282 million; as part of Amendment Ten, the Obligors repaid $124 million, reducing the outstanding balance to $158 million. (Id.)

On the Petition Date, the outstanding principal balance under the MSR Loan Facility was approximately $152 million. (See id. ¶ 36.) Despite the many amendments to the Agreement, one provision relevant to this Motion never changed (including in Amendment Ten): the filing of a bankruptcy petition always constituted an event of default. (Id. ¶¶ 12-13; id. Exs. C-l-C-10.) Therefore, filing the bankruptcy petitions was an event of default. (Id. ¶ 15.) Additionally, Citibank was not repaid on the May 30, 2012 maturity date, and that was also an event of default. (Id. ¶ 15.)

After the Petition Date, Citibank entered into an agreement allowing the Debtors to use Citibank’s cash collateral. (Id. ¶¶ 16-17.) The Court approved that agreement on an interim basis on May 15, 2012 (ECF Doc. # 79), and on a final basis on June 20, 2013 (the “Citibank Order,” ECF Doc. #471). The Citibank Order included a finding that “Citibank is overse-cured and, accordingly, is entitled to interest and fees with respect to the Prepetition [MSR Loan Facility] Obligations in accordance with the Prepetition [Agreement].” (Id. ¶ G(iv).) No party challenged that finding within the 120-day challenge period. (Stip.

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In re Residential Capital, LLC, 508 B.R. 851, 2014 WL 1613421, 2014 Bankr. LEXIS 1817, 59 Bankr. Ct. Dec. (CRR) 112 (N.Y. 2014).

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