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Split Ninth Circuit Requires Default Interest to Cure Default
A Chapter 11 debtor “cannot nullify a preexisting obligation in a loan agreement to pay post-default interest solely by proposing a cure,” held a split panel of the U.S. Court of Appeals for the Ninth Circuit on Nov. 4, 2016. In re New Investments Inc., 2016 WL 6543520, *3 (9th Cir. Nov. 4, 2016) (2-1). Reversing the bankruptcy court, the court's majority relied on a 1994 amendment of Bankruptcy Code § 1123(d) (” … the amount necessary to cure [a] default [under a reorganization plan] shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law.”) Id. at *2. In effect, the amended § 1123(d) overruled the Ninth Circuit's earlier holding that “a debtor who cures a default, thus 'nullify[ing] all consequences of' that default, may repay arrearages at the pre-default interest rate.” Id. at *5, quoting In re Entz-White Lumber & Supply, Inc., 850 F.2d 1338, 1342 (9th Cir. 1988). According to the Ninth Circuit, the “plain language of § 1123(d) compels” the result it reached. Id. at *3.
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