IN RE LTV STEEL CO. 274 B.R. 278 (2001) CASE BRIEF

IN RE LTV STEEL CO.

274 B.R. 278 (2001)

NATURE OF THE CASE: Abbey (D) made an emergency motion for modification of an interim order that permitted LTV (P) to use cash assets that are claimed to be cash collateral in which D has an interest.

FACTS: P and 48 of its subsidiaries filed voluntary petitions for relief under Chapter 11. P previously filed a voluntary Chapter 11 petition in 1986. P successfully emerged from Chapter 11 on June 28, 1993. This issue stems from a series of financial transactions that P executed after its previous reorganization. The transaction is an asset-backed securitization or structured financing ('ABS'). These transactions are designed to permit a debtor to borrow funds at a reduced cost in exchange for a lender securing the loan with assets that are transferred from the borrower to another entity. By structuring the transactions in this manner, the lender hopes to ensure that its collateral will be excluded from the borrower's bankruptcy estate in the event that the borrower files a bankruptcy petition. P and D entered into an ABS transaction in October 1994. P created a wholly-owned subsidiary known as LTV Sales Finance Co. ('Sales Finance'). P then entered into an agreement with Sales Finance which purports to sell all of Ps right and interest in its accounts receivables ('receivables') to Sales Finance on a continuing basis. D then agreed to loan Two Hundred Seventy Million Dollars ($270,000,000.00) to Sales Finance in exchange for Sales Finance granting D a security interest in the receivables. In 1998, P entered into another ABS financing arrangement. P created LTV Steel Products, LLC ('Steel Products'), another wholly-owned subsidiary. P entered into an agreement with Steel Products which purports to sell all of P's right, title and interest in its inventory to Steel Products on a continuing basis. Chase Manhattan and several other banking institutions then agreed to loan Thirty Million Dollars ($30,000,000.00) to Steel Products in exchange for a security interest in Steel Products' inventory. D is not involved in this ABS facility, and it had no interest in pre-petition inventory allegedly owned by Steel Products. Neither Sales Finance nor Steel Products is a debtor in this proceeding. P filed a motion with the Court on December 29, 2000 seeking an interim order permitting it to use cash collateral. This cash collateral consisted of the receivables and inventory that are ostensibly owned by Sales Finance and Steel Products. D was not present at the cash collateral hearing. D had actual notice of the hearing by email and a telephone call. P had given advance notice of its intention to file for bankruptcy protection to Chase Manhattan, D's agent, in the week prior to December 29, 2000. Chase Manhattan was present at the December 29, 2000 hearing. The Court determined that entry of the interim order was necessary to permit P to continue business operations, that the interests of D and all other creditors who had an interest in the cash collateral were adequately protected by the order, and that entry of the order was in the best interests of the estate and creditors of the estate. D now asks the Court to modify the interim cash collateral order nunc pro tunc. There are four issues before the Court. These are: 1) the procedural basis for D's motion; 2) whether the circumstances surrounding the December 29, 2000 hearing deprived D of its right to due process; 3) whether the interim order should be modified because the cash collateral was not property of P's estate; and 4) whether the interim order failed to adequately protect D's interest in the collateral.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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