What Interest Rate Applies To A Secured Creditor's Claim in a Reorganization Bankruptcy?

Overview

In the context of Chapter 12 (farm) bankruptcy, unless a secured creditor agrees otherwise, the creditor is entitled to receive the value, as of the effective date of the plan, equal to the allowed amount of the claim.  Thus, after a secured debt is written down to the fair market value of the collateral, with the amount of the debt in excess of the collateral value treated as unsecured debt which is generally discharged if not paid during the term of the plan, the creditor is entitled to the present value of the amount of the secured claim if the payments are stretched over a period of years.

What does “present value” mean?  It means that a dollar in hand today is worth more than a dollar to be received at some time in the future.  It also means that an interest rate will be attached to that deferred income.  But, what interest rate will make a creditor whole? A recent decision by the Second Circuit Court of Appeals for the Second Circuit sheds some light on the issue.

Determining Present Value

Basically, present value represents the discounted value of a stream of expected future incomes.  That stream of income received in the future is discounted back to present value by a discount rate.  The determination of present value is highly sensitive to the discount rate, which is commonly express in terms of an interest rate.  Several different approaches have been used in Chapter 12 bankruptcy cases (and nearly identical situations in Chapters 11 and 13 cases) to determine the discount rate.  Those approaches include the contract rate – the interest rate used in the debt obligation giving rise to the allowed claim; the legal rate in the particular jurisdiction; the rate on unpaid federal tax; the federal civil judgment rate; the rate based on expert testimony; a rate tied to the lender’s cost of funds; and the market rate for similar loans.

In 2004, however, the U.S. Supreme Court, in, addressed the issue in the context of a Chapter 13 case that has since been held applicable in Chapter 12 cases.  Till v. SCS Credit Corporation, 541 U.S. 465 (2004).    In Till, the debtor owed $4,000 on a truck at the time of filing Chapter 13.  The debtor proposed to pay the creditor over time with the payments subject to a 9.5 percent annual interest rate.    That rate was slightly higher than the average loan rate to account for the additional risk that the debtor might default.  The creditor, however, argued that it was entitled to a 21 percent rate of interest to ensure that the payments equaled the “total present value” or were “not less than the [claim’s] allowed amount.”  The bankruptcy court disagreed, but the district court reversed and imposed the 21 percent rate.  The United States Court of Appeals for the Seventh Circuit held that the 21 percent rate was “probably” correct, but that the parties could introduce additional concerning the appropriate interest rate.  

On further review by the U.S. Supreme Court, the Court held that the proper interest rate was 9.5 percent.  That rate, the Court noted, was derived from a modification of the average national loan rate to account for the risk that the debtor would default.  The Court’s opinion has been held to be applicable in Chapter 12 cases.  See, e.g., In re Torelli, 338 B.R. 390 (Bankr. E.D. Ark. 2006); In re Wilson, No. 05-65161-12, 2007 Bankr. LEXIS 359 (Bankr. D. Mont. Feb. 7, 2007); In re Woods, 465 B.R. 196 (B.A.P. 10th Cir. 2012).   The Court rejected the coerced loan, presumptive contract rate and cost of funds approaches to determining the appropriate interest rate, noting that each of the approaches was “complicated, impose[d] significant evidentiary costs, and aim[ed] to make each individual creditor whole rather than to ensure the debtor’s payments ha[d] the required present value.”  A plurality of the Court explained that these difficulties were not present with the formula approach.  The Court opined that the formula approach requires that the bankruptcy court determine the appropriate interest rate by starting with the national prime rate and then make an adjustment to reflect the risk of nonpayment by the debtor.  While the Court noted that courts using the formula approach have typically added 1 percent to 3 percent to the prime rate as a reflection of the risk of nonpayment, the Court did not adopt a specific percentage range for risk adjustment.

Since the Supreme Court’s Till decision, the Circuit Courts have split on whether the appropriate interest rate for determining present value should be the market rate or a rate based on a formula.  In the most recent Circuit Court case on the issue, the Second Circuit held that a market rate of interest should be utilized if an efficient market existed in which the rate could be determined.  In re MPM Silicones, L.L.C., No. 15-1682(l), 2017 U.S. App. LEXIS 20596 (2nd Cir. Oct. 20, 2017).  In the case, the debtor filed Chapter 11 and proposed a reorganization plan that gave first-lien holders an option to receive immediate payment without any additional “make-whole” premium, or the present value of their claims by utilizing an interest rate based on a formula that resulted in a rate below the market rate.   The bankruptcy court confirmed the plan, utilizing the formula approach of Till.   The federal district court affirmed.  On further review, the appellate court reversed noting that Till had not conclusively specified the use of the formula approach in a Chapter 11 case.  The appellate court remanded the case to the bankruptcy court for a determination of whether an efficient market rate could be determined based on the facts of the case. 

Conclusion

The interest rate issue is an important one in reorganization bankruptcy.  The new guidance of the appropriate interest rate in a Chapter 11 is instructive.  That’s particularly true because of the debt limit of $4,153,150 that applies in a Chapter 12.  That limit is forcing some farmers to file Chapter 11 instead.  There is no debt limit in a Chapter 11 case.  Whether the Second Circuit’s recent decision will be followed by other appellate courts remains to be seen.  But, the market rate, as applied to an ag bankruptcy, does seem to recognize that farm and ranch businesses are subject to substantial risks and uncertainties from changes in price and from weather, disease and other factors.  Those risks are different depending on the type of agricultural business the debtor operates.  A market rate of interest would be reflective of those factors.