Cypen & Cypen
JUNE 10, 2010
Stephen H. Cypen, Esq., Editor
1. MUNICIPALITY BANKRUPTCY: More than fifteen years have passed since the 1994 bankruptcy filing by Orange County, California, so municipality bankruptcy has not been at the fore. However, with the recent bankruptcy of Vallejo, California (see C&C Newsletters for September 11, 2008, Item 13; March 19, 2009, Item 1; July 9, 2009, Item 5 and September 10, 2009, Item 8), the issue has reemerged. Besides, in contract negotiations, many municipalities are playing the “B” card, either expressly or by implication.
The first municipal bankruptcy legislation was enacted in 1934 during the Great Depression. Although Congress took care to draft the legislation so as not to interfere with the sovereign powers of the states guaranteed by the Tenth Amendment to the Constitution, the Supreme Court held the 1934 Act unconstitutional as an improper interference with the sovereignty of the states. Congress enacted a revised Municipal Bankruptcy Act in 1937, which was upheld by the Supreme Court. The law has been amended several times since 1937. In the more than 70 years since Congress established a federal mechanism for the resolution of municipal debts, there have been about 500 municipal bankruptcy petitions filed.
Purpose of Municipal Bankruptcy
The purpose of chapter 9 is to provide a financially-distressed municipality protection from its creditors while it develops and negotiates a plan for adjusting its debts. Reorganization of the debts of a municipality is typically accomplished either by extending debt maturities, reducing the amount of principal or interest, or refinancing the debt by obtaining a new loan.
Although similar to other chapters in some respects, chapter 9 is significantly different in that there is no provision in the law for liquidation of the assets of the municipality and distribution of the proceeds to creditors. Such a liquidation or dissolution would undoubtedly violate the Tenth Amendment to the Constitution and the reservation to the states of sovereignty over their internal affairs. Indeed, due to the severe limitations placed upon the power of the bankruptcy court in chapter 9 cases (required by the Tenth Amendment and the Supreme Court's decisions in cases upholding municipal bankruptcy legislation), the bankruptcy court generally is not as active in managing a municipal bankruptcy case as it is in corporate reorganizations under chapter 11. The functions of the bankruptcy court in chapter 9 cases are generally limited to approving the petition (if the debtor is eligible), confirming a plan of debt adjustment and ensuring implementation of the plan. As a practical matter, however, a municipality may consent to have the court exercise jurisdiction in many of the traditional areas of court oversight in bankruptcy, in order to obtain the protection of court orders and eliminate the need for multiple forums to decide issues.
Only a "municipality" may file for relief under chapter 9. The term "municipality" is defined in the Bankruptcy Code as a "political subdivision or public agency or instrumentality of a State." The definition is broad enough to include cities, counties, townships, school districts, and public improvement districts. It also includes revenue-producing bodies that provide services that are paid for by users rather than by general taxes, such as bridge authorities, highway authorities and gas authorities.
The Bankruptcy Code sets forth four additional eligibility requirements for chapter 9:
With reference to requirement number 1 above, back in the 1930s, Florida enacted legislation entitled “Authority to Accept Benefits of Bankruptcy,” which now appears as Section 218.01, Florida Statutes. That section provides that for the purpose of rendering effective the privilege and benefits of any amendments to the bankruptcy laws of the United States that may be enacted for relief of municipalities, taxing districts and political subdivisions, the Florida Legislature gives its assent to, and accepts provisions of, any such bankruptcy laws that may be enacted by the Congress of the United States for benefit and relief of municipalities, taxing districts and political subdivisions, at discretion of the governing authorities thereof, may institute, conduct and carry out, by any appropriate bankruptcy procedure that may be enacted into the laws of the United States for purpose of conferring upon municipalities, taxing districts and political subdivisions, relief by proceedings in bankruptcy in the federal courts. We understand that nearly one-half of the states have enacted conditional or unconditional authorization for such use of the federal Bankruptcy Code.
Commencement of the Case
Municipalities must voluntarily seek protection under the Bankruptcy Code. They may file a petition only under chapter 9. A case under chapter 9 concerning an unincorporated tax or special assessment district that does not have its own officials is commenced by the filing of a voluntary petition by such district's governing authority or the board or body having authority to levy taxes or assessments to meet the obligations of such district.
A municipal debtor must file a list of creditors. Normally, the debtor files the list of creditors with the petition. However, the bankruptcy court has discretion to fix a different time if the debtor is unable to prepare the list of creditors in the form and with the detail required by the Bankruptcy Rules at the time of filing.
Assignment of Case to a Bankruptcy Judge
One significant difference between chapter 9 cases and cases filed under other chapters is that the clerk of court does not automatically assign the case to a particular judge. The chief judge of the court of appeals for the circuit embracing the district in which the case is commenced designates the bankruptcy judge to conduct the case. This provision was designed to remove politics from the issue of which judge will preside over the chapter 9 case of a major municipality, and to ensure that a municipal case will be handled by a judge who has the time and capability of doing so.
Notice of Case/ Objections/ Order for Relief
The Bankruptcy Code requires that notice be given of the commencement of the case and the order for relief. The Bankruptcy Rules provide that the clerk, or such other person as the court may direct, is to give notice. The notice must also be published at least once a week for three successive weeks in at least one newspaper of general circulation published within the district in which the case is commenced and in such other newspaper having a general circulation among bond dealers and bondholders as the court designates. The court typically enters an order designating who is to give and receive notice by mail, and identifying the newspapers in which the additional notice is to be published.
The Bankruptcy Code permits objections to the petition. Typically, objections concern issues like whether negotiations have been conducted in good faith, whether the state has authorized the municipality to file and whether the petition was filed in good faith. If an objection to the petition is filed, the court must hold a hearing on the objection. The court may dismiss a petition if it determines that the debtor did not file the petition in good faith or that the petition does not meet the requirements of law.
The automatic stay of the Bankruptcy Code is applicable in chapter 9 cases. The stay operates to stop all collection actions against the debtor and its property upon the filing of the petition. Additional automatic stay provisions are applicable in chapter 9 that prohibit actions against officers and inhabitants of the debtor if the action seeks to enforce a claim against the debtor. Thus, the stay prohibits a creditor from bringing a mandamus action against an officer of a municipality on account of a prepetition debt. It also prohibits a creditor from bringing an action against an inhabitant of the debtor to enforce a lien on or arising out of taxes or assessments owed to the debtor.
However, a chapter 9 petition does not operate to stay application of pledged special revenues to payment of indebtedness secured by such revenues. Thus, an indenture trustee or other paying agent may apply pledged funds to payments coming due or distribute the pledged funds to bondholders without violating the automatic stay.
Proofs of Claim
In a chapter 9 case, the court fixes the time within which proofs of claim or interest may be filed. Many creditors may not be required to file a proof of claim in a chapter 9 case. For example, a proof of claim is deemed filed if it appears on the list of creditors filed by the debtor, unless the debt is listed as disputed, contingent, or unliquidated. So, a creditor must file a proof of claim if the creditor's claim appears on the list of creditors as disputed, contingent or unliquidated.
Court's Limited Power
The Bankruptcy Code is designed to recognize the court's limited power over operations of the debtor.
The Bankruptcy Code limits the power of the bankruptcy court to interfere with (1) any of the political or governmental powers of the debtor; (2) any of the property or revenues of the debtor; or (3) the debtor's use or enjoyment of any income-producing property unless the debtor consents or the plan so provides. The law makes it clear that the debtor's day-to-day activities are not subject to court approval and that the debtor may borrow money without court authority. In addition, the court cannot appoint a trustee (except for limited purposes) and cannot convert the case to a liquidation proceeding.
The court also cannot interfere with the operations of the debtor or with the debtor's use of its property and revenues. This is due, at least in part, to the fact that in a chapter 9 case there is no property of the estate and thus no estate to administer. Moreover, a chapter 9 debtor may employ professionals without court approval, and the only court review of fees is in the context of plan confirmation, when the court determines the reasonableness of the fees.
The restrictions imposed are necessary to ensure the constitutionality of chapter 9 and to avoid the possibility that the court might substitute its control over the political or governmental affairs or property of the debtor for that of the state and the elected officials of the municipality.
Similarly, chapter 9 does not limit or impair the power of a State to control, by legislation or otherwise, a municipality in the exercise of the political or governmental powers of the municipality, including expenditures for such exercise, with two exceptions – a state law prescribing a method of composition of municipal debt does not bind any non-consenting creditor and any judgment entered under such state law does not bind a nonconsenting creditor.
Role of the U.S. trustee/bankruptcy administrator
In a chapter 9 case, the role of the U.S. trustee (or the bankruptcy administrator in North Carolina and Alabama) is typically more limited than in chapter 11 cases. Although the U.S. trustee appoints a creditors' committee, the U.S. trustee does not examine the debtor at a meeting of creditors (there is no meeting of creditors), does not have the authority to move for appointment of a trustee or examiner or for conversion of the case, and does not supervise the administration of the case. Further, the U.S. trustee does not monitor the financial operations of the debtor or review the fees of professionals retained in the case.
Role of Creditors
The role of creditors is more limited in chapter 9 than in other cases. There is no first meeting of creditors, and creditors may not propose competing plans. If certain requirements are met, the debtor's plan is binding on dissenting creditors. The chapter 9 debtor has more freedom to operate without court-imposed restrictions.
In each chapter 9 case, however, there is a creditors' committee that has powers and duties that are very similar to those of a committee in a chapter 11 case. These powers and duties include selecting and authorizing the employment of one or more attorneys, accountants or other agents to represent the committee; consulting with the debtor concerning administration of the case; investigating the acts, conduct, assets, liabilities and financial condition of the debtor; participating in the formulation of a plan; and performing such other services as are in the interest of those represented.
Intervention/Right of Others to be Heard
Powers of the Debtor
Due to statutory limitations placed upon the power of the court in a municipal debt adjustment proceeding, the court is far less involved in the conduct of a municipal bankruptcy case (and in the operation of the municipal entity) while the debtor's financial affairs are undergoing reorganization. The municipal debtor has broad powers to use its property, raise taxes and make expenditures as it sees fit. It is also permitted to adjust burdensome non-debt contractual relationships under the power to reject executory contracts and unexpired leases, subject to court approval, and it has the same avoiding powers as other debtors. Municipalities may also reject collective bargaining agreements and retiree benefit plans without going through the usual procedures required in chapter 11 cases.
A municipality has authority to borrow money during a chapter 9 case as an administrative expense. This ability is important to the survival of a municipality that has exhausted all other resources. A chapter 9 municipality has the same power to obtain credit as it does outside of bankruptcy. The court does not have supervisory authority over the amount of debt the municipality incurs in its operation. The municipality may employ professionals, without court approval, and the professional fees incurred are reviewed only within the context of plan confirmation.
As previously noted, the court may dismiss a chapter 9 petition, after notice and a hearing, if it concludes the debtor did not file the petition in good faith or if the petition does not meet the requirements of chapter 9. The court may also dismiss the petition for cause, such as for lack of prosecution, unreasonable delay by the debtor that is prejudicial to creditors, failure to propose or confirm a plan within the time fixed by the court, material default by the debtor under a confirmed plan or termination of a confirmed plan by reason of the occurrence of a condition specified in the plan.
Treatment of Bondholders and Other Lenders
Different types of bonds receive different treatment in municipal bankruptcy cases. General obligation bonds are treated as general debt in the chapter 9 case. The municipality is not required to make payments of either principal or interest on account of such bonds during the case. The obligations created by general obligation bonds are subject to negotiation and possible restructuring under the plan of adjustment.
Special revenue bonds, by contrast, will continue to be secured and serviced during the pendency of the chapter 9 case through continuing application and payment of ongoing special revenues. Holders of special revenue bonds can expect to receive payment on such bonds during the chapter 9 case, if special revenues are available. The application of pledged special revenues to indebtedness secured by such revenues is not stayed as long as the pledge ensures that a lien of special revenues is subordinate to the operating expenses of the project or system from which the revenues are derived.
Bondholders generally do not have to worry about the threat of preference liability with respect to any prepetition payments on account of bonds or notes, whether special revenue or general obligations. Any transfer of the municipal debtor's property to a noteholder or bondholder on account of a note or bond cannot be avoided as a preference (an unauthorized payment to a creditor made while the debtor was insolvent).
Plan for Adjustment of Debts
The Bankruptcy Code provides that the debtor must file a plan. The plan must be filed with the petition or at such later time as the court fixes. There is no provision in chapter 9 allowing creditors or other parties in interest to file a plan. This limitation is required by the Supreme Court's pronouncements, which interpreted the Tenth Amendment as requiring that a municipality be left in control of its governmental affairs during a chapter 9 case. Neither creditors nor the court may control the affairs of a municipality indirectly through the mechanism of proposing a plan of adjustment of the municipality's debts that would in effect determine the municipality's future tax and spending decisions.
The standards for plan confirmation in chapter 9 cases are a combination of statutory requirements. The court must confirm a plan if the following seven general conditions are met:
Section 943(b)(1) requires as a condition for confirmation that the plan comply with the provisions of the Bankruptcy Code made applicable by sections 103(e) and 901(a) of the Bankruptcy Code. The most important of these for purposes of confirming a plan are those provisions of 11 U.S.C. § 1129 (i.e., § 1129(a)(2), (a)(3), (a)(6), (a)(8), (a)(10)) that are made applicable by 11 U.S.C. § 901(a). Section 1129(a)(8) requires, as a condition to confirmation, that the plan has been accepted by each class of claims or interests impaired under the plan. Therefore, if the plan proposes treatment for a class of creditors such that the class is impaired (i.e., the creditor's legal, equitable, or contractual rights are altered), then that class's acceptance is required. If the class is not impaired, then acceptance by that class is not required as a condition to confirmation. Under 11 U.S.C. § 1129(a)(10), the court may confirm the plan only if, should any class of claims be impaired under the plan, at least one impaired class has accepted the plan. If only one impaired class of creditors consents to the plan, plan confirmation is still possible under the "cram down" provisions of 11 U.S.C. § 1129(b). Under "cram down," if all other requirements are met except the § 1129(a)(8) requirement that all classes either be unimpaired or have accepted the plan, then the plan is confirmable if it does not discriminate unfairly, and is fair and equitable.
The requirement that the plan be in the "best interests of creditors" means something different under chapter 9 than under chapter 11. Under chapter 11, a plan is said to be in the "best interest of creditors" if creditors would receive as much under the plan as they would if the debtor were liquidated. Obviously, a different interpretation is needed in chapter 9 cases because a municipality's assets cannot be liquidated to pay creditors. In the chapter 9 context, the "best interests of creditors" test has generally been interpreted to mean that the plan must be better than other alternatives available to the creditors. Generally speaking, the alternative to chapter 9 is dismissal of the case, permitting every creditor to fend for itself. An interpretation of the " best interests of creditors" test to require that the municipality devote all resources available to the repayment of creditors would appear to exceed the standard. The courts generally apply the test to require a reasonable effort by the municipal debtor that is a better alternative for its creditors than dismissal of the case.
Parties-in-interest may object to confirmation, including creditors whose claims are affected by the plan, an organization of employees of the debtor and other taxpayers, as well as the Securities and Exchange Commission.
A municipal debtor receives a discharge in a chapter 9 case after (1) confirmation of the plan; (2) deposit by the debtor of any consideration to be distributed under the plan with the disbursing agent appointed by the court; and (3) a determination by the court that securities deposited with the disbursing agent will constitute valid legal obligations of the debtor and that any provision made to pay or secure payment of such obligations is valid. Thus, the discharge is conditioned not only upon confirmation, but also upon deposit of the consideration to be distributed under the plan and a court determination of the validity of securities to be issued.
There are two exceptions to the discharge in chapter 9 cases. The first is for any debt excepted from discharge by the plan or order confirming the plan. The second is for a debt owed to an entity that, before confirmation of the plan, had neither notice nor actual knowledge of the case.
At any time within 180 days after entry of the confirmation order, the court may, after notice and a hearing, revoke the order of confirmation if the order was procured by fraud.
Florida State Provisions
The State of Florida has enacted Chapter 218, Part V, Florida Statutes, known as the “Local Governmental Entity, Charter School, Charter Technical Career Center, and District School Board Financial Emergencies Act.” The law is designed to promote fiscal responsibility of local governmental entities; assist local governmental entities in providing essential services without interruption and in meeting their financial obligations; and assist local governments to improve local financial management procedures. If the Governor determines that a local entity needs state assistance to resolve or prevent a “financial emergency,” among other things, the Governor may establish a financial emergency board to oversee activities of the local governmental entity. If a financial emergency board is established for a local governmental entity, the Governor shall appoint board members and select a chair. And, most relevant to this article, a local governmental entity may not seek bankruptcy protection without the prior approval of the Governor.
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