June 26, 2017

Tenth Circuit: Guarantors May Be Liable for More than Loan Amount in Bankruptcy

The Tenth Circuit Court of Appeals issued its opinion in In re Gentry: FB Acquisition Property I, LLC v. Gentry on Tuesday, December 8, 2015.

Susan and Larry Gentry are the sole shareholders, officers, and directors of Ball Four Inc., a sports complex in Adams County. In 2005, Ball Four received a $1.9 million loan from FirsTier Bank, which was secured with various Ball Four assets and personally guaranteed by the Gentrys. After four years, Ball Four stopped making payments to FirsTier. FirsTier initiated foreclosure proceedings, and Ball Four filed for Chapter 11 bankruptcy. Ball Four proposed a reorganization plan that provided for the bank’s lien to be paid in full. Ball Four’s plan was approved in 2011.

Meanwhile, the Colorado Division of Banking closed FirsTier and the FDIC was appointed as receiver. The FDIC assigned its rights to SIP, and in December 2014 SIP was replaced by FB Acquisition.

In October 2010, one month after Ball Four filed for bankruptcy, FirsTier sued the Gentrys in Colorado state court to collect the guarantees. The Gentrys filed their Chapter 11 case in November 2011. The Gentrys filed disclosures and an amended plan, asserting that the Gentrys’ liability on the 2005 loan would be satisfied by Ball Four. The bankruptcy court confirmed the Gentrys’ plan in 2013.

FB Acquisition appealed two decisions of the bankruptcy court to the Tenth Circuit: first, that the Gentry plan was feasible, and second, that under the plan language, the Gentrys’ liability mirrors Ball Four’s liability. The Tenth Circuit first addressed the feasibility of the Gentry plan. Although FB Acquisition argued the Gentry plan did not offer a reasonable assurance of success, the Tenth Circuit noted that even though the bankruptcy court’s findings were brief, they were sufficient to satisfy a clear error inquiry.

The Tenth Circuit next addressed FB Acquisition’s contention that the bankruptcy court erred in limiting the Gentrys’ liability to the amount that Ball Four owed. The Tenth Circuit disagreed with the bankruptcy court’s evaluation of the Gentrys’ liability. The bankruptcy court found no provisions in the loan contract creating a greater obligation for the Gentrys than that owed by Ball Four, but the Tenth Circuit found three. Because the bankruptcy court misunderstood its duty to confer liability for the entirety of the debt on the guarantors, the Tenth Circuit remanded for the bankruptcy court to determine the amount of FB Acquisition’s claims under the guarantees. The Tenth Circuit noted the bankruptcy court should also reevaluate the feasibility of the plan.

The bankruptcy court’s ruling was affirmed in part, reversed in part, and remanded for further proceedings.

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