Beeler v. Jewell (In re Stanton)

Opinion by Judge KLEINFELD; Dissent by Judge GOULD. OPINION KLEINFELD, Circuit Judge: This is a bankruptcy case turning on hen priorities. Facts International Factors, Inc., in whose shoes Harrison Jewell now stands, financed Fleet Manufacturing. Fleet was a corporation. Kevin and Maryann Stanton, husband and wife, owned all the shares. International Factors took a security interest in Fleet’s property in 1994, with several continuing financing arrangements. That same year, the Stantons personally guaranteed Fleet’s obhgations to International Factors. Fleet got a big order from K-Mart, and needed more financing than in the past to make what K-Mart had ordered. As a condition of increasing its advances to Fleet Manufacturing, International Factors obtained a second mortgage on the Stantons’ house. Later that year, the Stantons (but not Fleet) went bankrupt and filed a September 30, 1994 petition for Chapter 11 bankruptcy. International Factors continued to advance funds to Fleet on the pre-existing hen on the Stan-tons’ house. On May 11, 1996, the bankruptcy proceeding was .converted to Chapter 7. The bankruptcy trustee sold the Stantons’ house, and International Factors sought to attach the proceeds of the sale, based on the hen created by its deed of trust. On September 26, 1996, the trustee filed this action, seeking to avoid International Fac [941] tors’ lien. Both sides filed motions for summary judgment. The bankruptcy court granted the trustee’s motion, on the theory that the Stan-tons had encumbered estate assets without court authority when Fleet took on more debt after the Stantons filed for bankruptcy.1 The Bankruptcy Appellate Panel reversed, with one judge dissenting.2 The BAP held that the Stantons encumbered their house before the bankruptcy, and further financing of Fleet after the Stan-tons filed for bankruptcy did not amount to creation of a new lien. We affirm the decision of the BAP. Analysis We review a bankruptcy court’s decision to grant a motion for summary judgment de novo.3 1. The Trustee’s Appeal The Stantons owned all the stock of Fleet, but there has been no finding and no contention that Fleet was a sham or alter ego or that the corporate veil ought to be pierced for any reason. Thus for purposes of this appeal, Fleet is a separate person from the Stantons. The Stantons went bankrupt, not Fleet Manufacturing. The trustee in bankruptcy sold the Stan-tons’ house. This appeal is a dispute between the trustee in the Stantons’ bankruptcy and the factor over which is entitled to the proceeds from that sale. The trustee’s theory was that it was entitled to avoid International Factors’ mortgage lien on the house, because the lien secured advances International Factors made to Fleet after the Stantons’ bankruptcy petition. The Bankruptcy Appellate Panel correctly ruled that the hen could not be avoided, because it was created when the Stantons mortgaged their house, not when the advances were made, and Fleet did not need court approval to advance additional money after the Stan-tons filed for bankruptcy, because the advances were to Fleet, which did not file for bankruptcy. The trustee argues that the automatic stay provision, 11 U.S.C. § 362, applied and prohibited the factor’s advances to Fleet.4 Violation of the automatic stay is a serious business, exposing the violator in some circumstances to punitive damages and sanctions for contempt.5 Banks and other lenders may well tremble at the notion that they and possibly their officers could face such severe sanctions if they lend money to a corporation one of whose shareholders has gone bankrupt. Many close corporations, such as small manufacturers and professional practices, secure debt with shareholders’ property as well as corporate property. Shareholders some [942] times go bankrupt while the corporation continues as a financially healthy business. Section 362(a)(4) does not apply. That subsection stays any “act to create, perfect or enforce any hen against property of the estate.”6 A loan of money to a debtor not in bankruptcy does none of those things, as the Bankruptcy Appeals Panel majority stressed.7 A business relationship of stock ownership does not ipso facto extend the automatic stay to non-bankrupts. The lien against the Stantons’ house was created when they gave the factor a second mortgage, prior to the bankruptcy filing. That was a conveyance of an interest in real property, namely, a lien. The subsequent advances merely affected how much money the hen secured. As the Bankruptcy Appellate Panel recognized, 11 U.S.C. § 364(c) is therefore beside the point. It enables the trustee in bankruptcy to encumber assets of the estate with court approval.8 The reason this is beside the point is that the Stantons’ house was encumbered before the bankruptcy, and International Factors did not lend any money to the Stantons. As the Bankruptcy Appellate Panel observed, following the Stantons’ Chapter 11 petition, the bankruptcy estate included the house “subject to the existing hens, which included the hen created by the prepetition trust deed.”9 International Factors thus loaned the money to a going, non-bankrupt corporation in which the Stantons owned stock. Fleet did not need court approval to incur debt because Fleet was not in bankruptcy. The Stantons would have needed court approval to incur additional secured debt, but they did not incur any additional secured debt. Were we to hold that Fleet needed court approval, we would be piercing the corporate veil, and there is no justification for piercing it.10 The factor’s hen on the house did not arise anew each time the factor made an advance. The deed of trust secures “any and all indebtedness of ... Fleet Manufacturing Company, Inc .... incurred at any time in the future.” Factors have traditionally used such boilerplate future advances clauses because they are practical.11 Osborne has a particularly lucid explanation of the practicalities: There are many transactions in which business desirability is heavily on the side of a mortgage securing not only a presently created or preexisting debt but future obhgations as well ... [such as] fluctuating current balances under hnes of credit established with the mortgagee .... The mortgagor saves interest [943] on the surplus until ready to use it and escapes the burden of proper investment of it for the interim. He also avoids the expense and inconvenience of refinancing the mortgage so as to include the additional needed sum, or, in the alternative, of executing second and later mortgages for each new advance with attendant higher interest rates and financing charges. ... The mortgagee, on his part, minimizes the bother and costs of frequent financing (which even though not borne by him tend to discourage borrowing)_ [T]he conveyance of the interest in the property, made when the transaction is first entered into, is not a piecemeal affair but is intended to stand as security from the outset for the entire performance by the mortgagor of this one promise.12 If it were correct that Washington law refused recognition to the traditional future advances clauses, and treated each subsequent advance as a new lien, a different analysis would apply. But as the Bankruptcy Appellate Panel correctly held, Washington law is to the contrary. John M. Keltch, Inc. v. Don Hoyt, Inc.13 holds that “a mortgage for future advances becomes an effective lien as to subsequent encumbrances from the time of its recor-dation, rather than from the time when each advance is made.”14 This does not necessarily mean that International Factors wins all the marbles. Under John M. Keltch15 and under National Bank of Washington v. Equity Investors, Inc.,16 it would matter that the factor had discretion whether to make the subsequent advances to Fleet, and was not obligated to do so. National Bank of Washington holds that “where the advances of promised loan moneys are, under an agreement to lend money, largely optional ... liens attaching prior to an optional advance would thus be superior to it.”17 This does not mean that when International Factors loaned money to Fleet after the Stantons went bankrupt, a new lien was created on the Stantons’ house. If National Bank of Washington is still good law, it would mean that when these optional advances to Fleet were made, the factor’s lien on the house, to the extent of these subsequent advances, was junior to the priority of intervening claims. National Bank of Washington thus would affect the priority of an optional lien but would not change the existence of the lien itself. Following a 1973 amendment to the hen priority statute in the mechanics’ lien chapter, it may be that National Bank of Washington is either limited in the mechanics’ hen context or entirely abrogated.18 But the parties neither briefed this issue nor addressed it in their argument to us. We thus need not reach the question whether any advances made post-petition [944] are subordinate to intervening claims, and we leave that to the bankruptcy court to determine if necessary on remand. The factor’s lien preexisted the bankruptcy. No one violated the automatic stay provision. Neither the factor nor Fleet manufacturing needed court permission for the factor to advance additional money to Fleet. To hold otherwise would allow the bankruptcy of a corporation’s shareholder to clog the going business of the corporation and its creditors. The bankruptcy at most affected the priority of the factor’s security interest, but not its existence.19 2. The Factors’ Cross-Appeal The Bankruptcy Appellate Panel remanded to the bankruptcy court for a determination of how much of the sale proceeds from the Stantons’ house should go to each party. International Factors cross-appeals this remand on the ground that the amount they were owed on the date of the bankruptcy filing exceeded the sale proceeds, so they should get all the proceeds and no remand is needed. The BAP held that because the bankruptcy court did not address the validity of International Factors’ hen under § 506(d), it would not make that determination for the first time on appeal. The BAP remanded, advising the bankruptcy court to address not only the §§ 502 and 506 arguments but also “other claims that remain unresolved.”20 Despite Jewell’s argument to the contrary, because the bankruptcy court did not make these determinations in the first instance, the remand was not erroneous. AFFIRMED. Footnotes [1] Beeler v. Stanton (In re Stanton), 239 B.R. 222, 235 (Bankr.E.D.Wash.1999) ("Stanton I”). [2] Stanton II, 248 B.R. at 831. [3] Paulman v. Gateway Venture Partners III, L.P. (In re Filtercorp, Inc.), 163 F.3d 570, 578 (9th Cir.1998). [4] See 11 U.S.C. § 362(a) (1994). [5] 11 U.S.C. § 362(h) (1994) ("An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.”); 11 U.S.C. § 105(a) (1994) ("The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.”); see also Computer Communications, Inc. v.Codex Corp. (In re Computer Communications, Inc.), 824 F.2d 725, 731 (9th Cir.1987); United States v. Arkison (In re Cascade Roads, Inc.), 34 F.3d 756, 767 (9th Cir.1994). [6] 11 U.S.C. § 362(a)(4) (1994). [7] Stanton II, 248 B.R. at 829("Here, Debtors, in their role as trustee, were not seeking to obtain credit or incur debt. Indeed, the factoring agreement between [the factor] and Fleet and the perfection of [the factorl’s lien rights had all occurred prepetition. Therefore,[the factor]'s postpetition advances to Fleet did not constitute the extension of credit to Debtors or the incurrence of debt by Debtors. Instead, [the factor] provided credit to Fleet, which effectively increased the encumbrance on the Property in accordance with [the factor's contractual rights and perfected lien on the Property.”). [8] 11 U.S.C. § 364(c) (1994). [9] Stanton II, 248 B.R. at 827. [10] The dissent suggests that the bankruptcy court should not have “permitted Fleet to incur additional debt secured by liens on debtors' estate under § 364(c).” Dissent at 13929 (emphasis added). As the BAP recognized, this suggestion elides the important point that neither Fleet nor the factor had the right to bring a § 364(c) request as a trustee in the Stantons' bankruptcy proceeding. See Stanton II, 248 B.R. at 829-30. [11] See 2 Grant Gilmore, Security Interests in Personal Property, § 35.2 (1965); George Osborne, Mortgages §§ 113, 114 (2d ed.1970). [12] Osborne, Mortgages §§ 113,114. [13] 4 Wash.App. 580, 483 P.2d 135 (1971). [14] Id. at 136. [15] Id. [16] 81 Wash.2d 886, 506 P.2d 20 (1973) (en banc). [17] Id. at 29. [18] See RCW 60.04.226. Compare Comment, Mechanics’ Liens: The “Stop Notice” Comes to Washington, 49 Wash. Law Review 685 (1974) (in the case of mechanics liens, the optional advances rule no longer applies); arid William B. Stoebuck, 18 Wash. Pract. Real Estate: Transactions § 17.25 (2002 Pocket Part) ("On its face, the section is not limited to construction mortgages, but, because it was originally enacted as a package with the stop-notice statute, which specifically applies to construction lenders, it might be argued that future-advances mortgages for other purposes are not within its intent.”). [19] The dissent says “debtors' continued use of their house as collateral for Fleet's debts on new advances resulted in their incurring new and increased liability”, Dissent at 13928, and "they could not encumber [their house] after filing for bankruptcy without obtaining court approval.” Dissent at 946 n. 4. Once people have mortgaged their house, it really isn’t up to them whether to "continue use of their house as collateral.” It already is collateral. The Stantons did not "encumber” it after filing for bankruptcy. They encumbered it prior to bankruptcy, when they gave the factor a lien on it. The Stantons didn’t do anything affecting the lien after bankruptcy and the factor didn’t do anything without court approval to create or perfect the lien (it had already been created and perfected before the bankruptcy). The factor loaned Fleet, a separate person from the Stantons, more money after bankruptcy, which affected the amount secured by the preexisting lien. [20] Stanton 17, 248 B .R. at 831.