A highly significant ruling involving fraudulent transfers recently decided by the Eleventh Circuit could have a far-reaching impact on distressed lending and investing.   In Senior Transeastern Lenders v. Official Committee of Unsecured Creditors (In re TOUSA, Inc.), 2012 WL 1673901 (11th Cir. May 15, 2012), the Eleventh Circuit Court of Appeals reversed the district court and upheld the bankruptcy court’s ruling that liens granted by TOUSA’s subsidiaries to lenders constituted fraudulent transfers. In general terms, a fraudulent transfer is a conveyance by a debtor of property to a third party to place intentionally that asset out of reach of a creditor or creditors, or a conveyance made by the debtor to a third party for less than reasonably equivalent value, which conveyance was made while the debtor was insolvent or caused the debtor to become insolvent.  

TOUSA, a Florida company, and its subsidiaries were once one of the largest homebuilders in the country. TOUSA had borrowed large amounts of money during the boom years prior to the collapse in the housing market. TOUSA defaulted on its loans to its original lenders, with whom TOUSA reached a settlement with those lenders in the amount of $421 million. TOUSA borrowed $500 million of new money to pay the $421 million settlement. In conjunction with the new $500 million loan, certain of TOUSA’s subsidiaries guaranteed the new loans and provided security interests in their assets. None of those subsidiaries, however, received any of the proceeds from the new loans.

Less than six months after the new loans, TOUSA and most of its subsidiaries filed for protection under Chapter 11 of the Bankruptcy Code. The Unsecured Creditors Committee in those cases filed a lawsuit to avoid the liens and guarantees made by TOUSA’s subsidiaries, arguing that the subsidiaries’ guarantees and liens provided to the new lenders constituted fraudulent transfers because the subsidiaries did not receive reasonably equivalent value in exchange. In ruling for the Creditors’ Committee that the subsidiary liens and guarantees should be avoided, the Eleventh Circuit rejected the argument of the lenders that the subsidiaries received indirect value from providing the liens and guarantees because the new loans enabled the subsidiaries to avoid defaulting on bond and bank obligations. 

The Eleventh Circuit’s decision in TOUSA could have serious implications in the distressed financing industry.  Transactions involving debtors with subsidiaries will need to be structured to avoid the TOUSA fraudulent transfer problems.  TOUSA could chill the availability of rescue financing for distressed entitities, although the full implications of the decision will not be known for some time.