Substance over Form in the Bankruptcy Courts

Under the Bankruptcy Code, whether a lease is a true lease or a disguised security agreement also has serious consequences. If a lease is a true lease, and the debtor in possession has need of the equipment or other leased property, the lessor is entitled to receive all the payments due under the contract. If a lease is not a true lease but is a disguised security agreement, the lender is only entitled to the lesser of what is owed and the property's value, which could be significantly less than the totality of the lease payments. The balance will be treated as a general unsecured claim. Further, the creditor will only be entitled to the value of the collateral if it perfected its lien. If it did not perfect, its entire claim will be treated as a general secured claim (which is why informational filings of UCC-1 forms are recommended in lease transactions). Even if it did perfect, payment could be delayed until a plan is confirmed and even then stretched out over the length of the plan as opposed to the terms required by the original contract. For these reasons, usually the debtor will argue that the lease is a disguised security agreement, and the creditor will argue that the lease is a true lease.

18 minute read June 29, 2005 at 11:22 AM

By

Pamela Kohlman Webster