In In re Woodbridge Grp. of Companies, LLC, No. BR 17-12560-BLS, 2019 WL 4305444 (D. Del. Sept. 11, 2019), the United States District Court for the District of Delaware affirmed an opinion by Bankruptcy Judge Kevin Carey, and held that a proof of claim will be expunged if the note and loan agreement underlying the claim prohibit assignment and provide that assignment without consent will be “null and void.”
Prior to the bankruptcy, the debtor issued three promissory notes (collectively, the “Notes”) to two individuals. Each Note contained the following anti-assignment clause:
“No Assignment. Neither this Note, the Loan Agreement of even date … nor all other instruments executed or to be executed in connection therewith (collectively, the ‘Collateral Assignment Documents’) are assignable by [the Noteholder] without the [debtor’s] written consent and any such attempted assignment without such consent shall be null and void.”
In connection with each Note, the Noteholders and the debtor executed a Loan Agreement (collectively, the “Loan Agreements”). Each Loan Agreement also contained an anti-assignment clause:
“This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided, however, that the [Noteholder] shall not assign, voluntarily, by operation of law or otherwise, any of [their] rights hereunder without the prior written consent of [the debtor] and any such attempted assignment without such consent shall be null and void[.]”
Notwithstanding the anti-assignment provisions in the Notes and Loan Agreements, a Noteholder and a claims purchaser, Contrarian, executed an Evidence of Transfer of Claim (the “Transfer Notice”) pursuant to which the Noteholder purportedly “sold, transferred, and assigned” to Contrarian all of their “right, title and interest in and to the [Noteholder’s] claim … against the [Debtor].”
Thereafter, Contrarian filed a proof of claim against the debtor based on the Transfer Notice (the “Claim”). The debtor then filed a claim objection asserting that because the Debtors did not consent to the assignment to Contrarian, the putative assignment reflected in the Transfer Notice is unenforceable against the debtor and, thus, the Claim must be disallowed pursuant to Bankruptcy Code section 502(b)(1). In its response to the Claim Objection, Contrarian argued that the anti-assignment provisions were unenforceable under Delaware law, that the Debtors' breach of the Notes and Loan Agreements renders the clauses unenforceable, and that section 9-408(a) of the UCC overrides the anti-assignment provisions.
On appeal, the claim purchaser argued that disallowance of the claim violated a policy of “free assignability” allegedly contained in Bankruptcy Rule 3001(e), dealing with the transfer of claims.
Regarding the alleged policy, the District Court quoted the Bankruptcy Court opinion, stating: “I am aware of no provision in the Bankruptcy Code or of any overarching bankruptcy policy which impairs the Court’s authority to determine and enforce applicable non-bankruptcy law concerning contract provisions which may restrict transfers of claims.” In re Woodbridge Group of Companies LLC, 590 B.R. 99, 103 (Bankr. D. Del. 2018).
Adopting Judge Carey’s analysis, the District Court illuminated the difference between prohibiting the right or prohibiting the power to assign. Quoting Judge Carey, the District Court said there must be “express language that any such subsequent assignment will be void or invalid” before the contract clause “prohibits the power to assign.” Id. at 103-104 (quoting Southeastern Chester County Refuse Authority v. BFI Waste Services of Pennsylvania LLC, 2017 WL 2799160 at *5 (Del. Super. Ct. June 27, 2017)).
If a contract “limits a party’s right to assign instead of the power to do so, the assignment is valid and enforceable but generates a breach of contract action that the non-assigning party may bring against the party assigning its interest.” Id.
Because the Note and Loan Agreement contained clear language making an unauthorized assignment null and void, the District Court said that the Bankruptcy Court correctly ruled that the transfer of the claim was invalid because the contract barred the power to assign, not just the right to assign.
The claim purchaser also contended that the debtor’s breach of the Notes and Loan Agreement made the anti-assignment provision unenforceable. Quoting Judge Carey once again, the District Court said it is “axiomatic” that the debtor’s breach did not give more rights to the claim purchaser than it had before the breach.
Finally, the claim purchaser argued that UCC § 9-408(a) made the anti-assignment clause unenforceable. The District Court agreed with Judge Carey’s “well-reasoned conclusion” that § 9-408(a) “applies only to transactions that grant a security interest in a promissory note, not to outright sales of promissory notes.”