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Potential Chilling Effect Not Enough to Deny Right to Credit Bid

In Official Committee of Unsecured Creditors of Motors Liquidation Co. v. JP Morgan Chase Bank, N.A. (In re Motors Liquidation Co.), No. 13-2187 (2d Cir. Jan. 21, 2015), the Second Circuit Court of Appeals held that a clerical error rendered a syndicate of lenders, including JP Morgan, unsecured on a $1.5 billion loan to GM. A syndicate of lenders made loans to GM in two transactions: one in which GM was given $300 million in exchange for liens on twelve pieces of real estate, and another in which GM was given $1.5 billion in exchange for security interests in a large number of GM's assets, including all of GM's equipment and fixtures at forty-two facilities throughout the U.S. As the $300 million loan reached maturity, GM contacted Mayer Brown, GM's counsel, and JP Morgan, the secured party of record, and explained that GM sought to repay the loan and release the liens on its property. Mayer Brown drafted a release. The release also mistakenly terminated JP Morgan's security interests under the $1.5 billion loan. Mayer Brown, JP Morgan, and its counsel, Simpson Thacher & Bartlett LLP, did not notice the error, and the release was filed with the authorization of JP Morgan. When GM filed for chapter 11 relief, its official committee of unsecured creditors brought an action to determine whether the release effectively terminated JP Morgan's interests under the $1.5 billion loan. The Second Circuit ruled that it did, holding that even though JP Morgan did not subjectively intend to release its interests under the $1.5 billion loan, the objective act of filing the release with JP Morgan's authorization was sufficient to terminate JP Morgan's interests. This error terminated JP Morgan's interests in GM's equipment and fixtures at forty-two facilities throughout the U.S., rendering JP Morgan an unsecured creditor in GM's bankruptcy case.

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