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Exploring the Outer Limits of ' 363(f) Clearance

By Peter J. Roberts

Bankruptcy offers an attractive platform for the sale of assets because it is injected with a statutory prerogative allowing for the clearance of third- party interests. Specifically, ' 363(f) of the Bankruptcy Code permits the sale of bankruptcy estate property 'free and clear of any interest [of any other entity] in such property' provided that certain conditions are satisfied. See 11 U.S.C. ' 363(f) (2007).

Notwithstanding that grant of authority, however, the Bankruptcy Code does not specifically define the phrase 'any interest in such property' or otherwise specify the scope of interests that the phrase is intended to cover. Therefore, as the Fourth Circuit has noted, 'the precise boundaries of the phrase likely will be defined only as the courts continue to apply it to the facts presented in the cases brought before them.' UMWA 1992 Benefit Plan v. Leckie Smokeless Coal Co. (In re Leckie Smokeless Coal Co.), 99 F.3d 573, 582 (4th Cir. 1996).

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