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Secured Creditor’s Right to Credit Bid Capped

The United States Bankruptcy Court for the Eastern District of Virginia held that a secured creditor’s right to credit bid was capped because of, among other things, its aggressive tactics. The case involved the purchase of a $50 million secured loan originally made by Branch Banking and Trust to Free Lance-Star, a family-owned publishing, newspaper, radio and communications company. DSP Acquisition, LLC was formed by a Sandton Capital Partners, a private equity fund, to execute on its loan-to-own strategy. After finding that DSP did not have lien on all of the assets it proposed to credit bid on, and that DSP’s “overly zealous loan-to-own strategy” had a negative impact on the auction process, the In re Free Lance-Star Publ’g Co., 2014 Bankr. LEXIS 1611 (Bankr. E.D. Va. Apr. 14, 2014) court capped DSP’s right to credit bid at $13.9 million, significantly less than the $39 million that DSP claimed. In its analysis, the court recognized the important safeguard provided to secured creditors by 11 U.S.C. 363(k), but also stated that credit bidding was “not an absolute right.” The combination of DSP’s inequitable conduct and less than fully-secured lien status led the court to conclude that limiting its credit bid would best serve the bidding process and ultimately increase the realized value for the assets.

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