Judge Kevin J. Carey, Chief Judge of the Delaware Bankruptcy Court, issued a decision recently in the S-Tran Holdings bankruptcy that addresses whether letters of credit constitute property of the bankruptcy estate. The Court’s decision in S-Tran Holdings is worth review as letters of credit are a common part of a debtor’s pre and post-petition financing. Recent decisions hold that certain components of letters of credit (such as the proceeds drawn from the letter of credit) are estate property, while other components (like the collateral pledged for the letter of credit) are not estate property. S-Tran explains why. (A copy of the decision in S-Tran is available here).
The debtor in S-Tran sued its insurer in an effort to recover the proceeds from a letter of credit and a cash deposit, both held by the insurer. In order for the insurer to provide coverage to S-Tran, S-Tran had to provide a $477,000 cash deposit and letters of credit totaling $3.5 million. A week prior to S-Tran’s bankruptcy filing, the debtor’s insurer drew on portions of the letter of credit to pay third parties and placed the remaining proceeds from the letter of credit in a loss reserve account. After filing for bankruptcy, S-Tran demanded the insurer return the proceeds from the letters of credit, however, the insurer refused.
Whether Letter’s of Credit are Property of the Estate
The Court in S-Tran did not have to look far for case law regarding the treatment of letters of credit in the bankruptcy context. In 2006, Judge Walsh issued an opinion in Oakwood Homes recognizing the “well established” rule that letters of credit, and the proceeds they generate, are not property of the estate. OHC Liquidation Trust v. Discover Re (In re Oakwood Homes Corp.), 342 B.R. 59, 67 (Bankr.D.Del. 2006). However, citing the Third Circuit, the court in Oakwood Homes also held that “the collateral pledged as a security interest for the letter of credit is [property of the estate].” Id., citing Int’l Fin. Corp. v. Kaiser Group Int’l Inc. (In re Kaiser Group Int’l Inc.) 399 F.3d 558, 566 (3d Cir. 2005)(citations omitted).
Applying Oakwood and Kaiser, the Court in S-Tran found that the issuers of the letters of credit paid S-Tran’s insurer the proceeds of the letters of credit, which the insurer then used to pay third parties and create a reserve account. “Because the letter of credit proceeds were not paid with or secured by the Debtors’ property, the fact that the proceeds were paid prior to the bankruptcy filing does not transform those entire proceeds into property of the estate.” S-Tran Holdings, et al., v. Protective Insurance Company, at *8, Adv. No. 07-51341, Oct. 5, 2009 (Bankr. D.Del.).
Like the debtor in Oakwood Homes, S-Tran sought to recover the proceeds from the letter of credit under section 542 of the Bankruptcy Code alleging claims for turnover of estate property. However, like the court in Oakwood Homes, the Court in S-Tran held that section 542 is a remedy that is available only for debtors seeking to recover what is acknowledged to be estate property. Section 542 is not appropriate, however, if a debtor seeks to recover claims that remain unliquidated or in dispute. Although S-Tran might have a claim for excess letter of credit proceeds, the Debtor cannot recover such excess under section 542 until the amount of the claim has been liquidated.