Potential Chilling Effect Not Enough to Deny Right to Credit Bid

The United States Bankruptcy Court for the Western District of Tennessee held that the mere fact a secured creditor's right to credit bid had a potential chilling effect on third-party bids was not, without more, sufficient cause to justify denying its right to credit bid in a sale of collateral under 363(k) of the Bankruptcy Code. In In re RML Development, Inc., No. 13-29244, 2014 Bankr. LEXIS 3024 (Bankr. W.D. Tenn. July 10, 2014), the debtor, RML Development, Inc., attempted to sell two residential apartment complexes in a 363 sale. The secured creditor, SPCP Group III CNI 1, LLC (Silverpoint) filed a motion to allow it to credit bid, asserting that it had a valid first mortgage security interest in these properties. Under 363(k) of the Bankruptcy Code, holders of secured allowed claims have the right to bid at 363 sales and to offset the purchase price by their secured claim. RML Development countered that Silverpoint's credit bidding rights should be limited due to a dispute over the amount of Silverpoint's claim. The Court found sufficient cause to limit Silverpoint's credit bidding rights to the undisputed portion of its claim because of allegations asserting a Ponzi scheme and breaches of fiduciary duty. The Court explained that credit bidding rights should be modified or denied only when equitable concerns give it cause, and because the Bankruptcy Code does not define cause, courts have the discretion to determine cause on a case-by-case basis. The Court held that modifying or denying credit bidding rights should be the "extraordinary exception" and not the norm.