Natl Energy & Gas v. Liberty Electric ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: NATIONAL ENERGY & GAS 
TRANSMISSION, INCORPORATED,
formerly known as PG&E National
Energy Group, Inc.,
Debtor.
NATIONAL ENERGY & GAS
TRANSMISSION, INC. (f/k/a PG&E
National Energy Group, Inc.);
NEGT ENERGY TRADING POWER, L.P.
(f/k/a PG&E Energy Trading Power,
L.P.),
Plaintiffs-Appellants,
 No. 06-1459
and
GAS TRANSMISSION NORTHWEST
CORPORATION,
Plaintiff,
v.
LIBERTY ELECTRIC POWER, LLC,
Defendant-Appellee,
JOHN L. DAUGHERTY, Trustee,
Trustee-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(8:05-cv-02531-PJM; 03-30459; AP-03-03104)
Argued: March 13, 2007
Decided: July 10, 2007
2 IN RE: NATIONAL ENERGY & GAS TRANSMISSION
Before SHEDD and DUNCAN, Circuit Judges, and
Samuel G. WILSON, United States District Judge for the
Western District of Virginia, sitting by designation.
Reversed by published opinion. Judge Shedd wrote the opinion. Judge
Wilson wrote an opinion concurring in the judgment. Judge Duncan
wrote a dissenting opinion.
COUNSEL
ARGUED: Steven Wilamowsky, BINGHAM & MCCUTCHEN,
L.L.P., New York, New York, for Appellants. Lawrence M. Handles-
man, STROOCK, STROOCK & LAVAN, New York, New York, for
Appellee. ON BRIEF: Jessica S. Etra, Matthew V. Wargin, WILL-
KIE, FARR & GALLAGHER, L.L.P., New York, New York; Ken-
neth Oestreicher, Susan J. Roberts, WHITEFORD, TAYLOR &
PRESTON, L.L.P., Baltimore, Maryland, for Appellants. Lisa Bittle
Tancredi, VENABLE, L.L.P., Baltimore, Maryland; Melvin A.
Brosterman, Harold A. Olsen, STROOCK, STROOCK & LAVAN,
New York, New York, for Appellee.
OPINION
SHEDD, Circuit Judge:
In this bankruptcy appeal, we must decide whether a creditor may
allocate a payment made by a non-debtor guarantor first to interest
then to principal, thus preserving the unpaid principal for collection
in bankruptcy. Because we find that the allocation of a payment in
this manner would permit the creditor to collect an amount otherwise
disallowed as post-petition interest, we reverse the judgment of the
district court which permitted collection of the additional amount.
I
National Energy & Gas Transmission Energy Trading Power, L.P.
("ET Power"), a debtor here, previously operated as an energy mar-
IN RE: NATIONAL ENERGY & GAS TRANSMISSION 3
keting and trading company. As such, it bought and sold electric
power, natural gas, coal, and other physical energy commodities. ET
Power also engaged in energy-based financial and hedging transac-
tions such as future contracts, swaps, options, and derivatives. As part
of its regular course of business, ET Power entered into an electricity
tolling agreement (the "Agreement") with Liberty Electric Power,
LLC ("Liberty"), an energy-generating company. Under the Agree-
ment, ET Power obtained an option to purchase energy from Liberty
in return for a monthly payment to Liberty as well as certain other
variable costs based on the actual amount of energy which ET Power
purchased. In essence, this permitted ET Power to provide natural gas
necessary to generate electricity and then to purchase the electricity
which was generated.
To back up its agreement with ET Power, Liberty obtained two
guarantees: one from National Energy & Gas Transmission, Inc.
("NEGT"), ET Power’s corporate parent (and also a debtor in this
bankruptcy); and one from Gas Transmission Northwest Corporation
("GTN"), a subsidiary of NEGT (and a non-debtor). Each guarantee
contained the same terms, and in each the respective guarantor guar-
anteed:
[A]s primary obligor and not merely as surety, the prompt
payment when due, in accordance with the terms of the
Agreement, of all amounts payable by [ET Power] under the
Agreement . . . including . . . Termination Payment . . . and
damage awards arising by reason of [ET Power’s] breach of
its performance obligations under the Agreement or other-
wise.
J.A. 98. Each guarantor’s liability was capped at $140 million.
On July 8, 2003, NEGT, ET Power, and other debtors filed a vol-
untary petition for relief under chapter 11 of the Bankruptcy Code and
a motion seeking to reject the Agreement.1 After ET Power and Lib-
1
As the remaining debtors are not parties to this appeal, we refer herein
to NEGT and ET Power as "the debtors." However, we note that the
bankruptcy court denied Liberty’s claim against NEGT, and Liberty does
not appeal this denial.
4 IN RE: NATIONAL ENERGY & GAS TRANSMISSION
erty consented, the bankruptcy court granted the motion rejecting the
Agreement. As a result of the rejection, Liberty sought $140 million
as a termination payment and approximately $5.4 million in unpaid
invoices. Liberty’s claim for $140 million proceeded to arbitration
pursuant to the terms of the Agreement, and an arbitration panel
awarded Liberty the full $140 million plus interest accruing from the
date of the Agreement’s rejection and continuing subsequent to the
arbitration award.2
During the pendency of the arbitration proceedings, NEGT agreed
to sell GTN to TransCanada Corporation. As part of the transaction,
$140 million was reserved in escrow to provide for any liability to
Liberty under the guarantee. After the arbitration award, the dispute
between Liberty and the debtors shifted back to the bankruptcy court,
while interest continued to accrue on the $140 million arbitration
award. To stop the accrual of interest, which had reached approxi-
mately $17 million, the parties agreed that Liberty should receive
immediate payment of the amount held in escrow after the GTN sale,
and the bankruptcy court approved this disbursal. Accordingly, Lib-
erty was paid $140 million from the GTN sale escrow in full and final
satisfaction of the GTN guarantee.
Upon receipt of payment from GTN, Liberty allocated the $140
million first to interest, then to principal. Meanwhile, Liberty contin-
ued to assert claims in bankruptcy against NEGT and ET Power for
$140 million each.3 Liberty reasoned that it could continue to assert
2
The debtors stipulated to the amounts owed pursuant to the unpaid
invoices, and these claims were not submitted to the arbitration panel.
Both the bankruptcy court and the district court allowed a claim for these
debts in the amount of $5,428,046, and the debtors do not contest this
claim on appeal. Thus, in reversing the district court’s order, we do not
reverse the allowance of this claim.
3
Liberty set forth ET Power’s approximate liabilities as: $140 million
in principal, $5.4 million in unpaid invoices, $16.8 million in interest on
the principal and invoice amounts, and $3.7 million in collection costs
and fees. Liberty recognized that it could not collect the $16.8 million in
interest from the debtors, and the invoice amount and collection costs
and fees are not at issue in this appeal. For simplicity, we focus on the
$140 million at issue here. Likewise, we recognize that Liberty actually
seeks to collect approximately $22 million from the estate but that
approximately $5 million of this amount (the unpaid invoices) is not at
issue. Thus, again for simplicity, we refer herein to the additional $17
million which Liberty seeks and which is now at issue.
IN RE: NATIONAL ENERGY & GAS TRANSMISSION 5
the full value of the award against the debtors, notwithstanding the
fact that it had already received payment of $140 million from GTN,
because the debtors remained jointly and severally liable until it
received full payment of the total debt. At the same time, Liberty rec-
ognized that it could not collect more than the approximately $17 mil-
lion needed to make it whole on ET Power’s debt. In seeking this
amount, Liberty contended that the amount did not represent disal-
lowed post-petition interest but rather unpaid principal — the interest
portion of the award having been paid by GTN.
The debtors objected to Liberty’s claims, arguing that the $17 mil-
lion which Liberty sought to collect had to constitute post-petition
interest because Liberty had already received $140 million from
GTN. Additionally, the debtors maintained that Liberty should not be
permitted to assert a claim for $140 million when it had received $140
million and currently was owed only an additional $17 million. Other-
wise, the judgment would not accurately reflect what Liberty was
owed.
The bankruptcy court agreed with Liberty’s position, allowing the
claim for $140 million against ET Power but providing that the "max-
imum amount of distribution payable to Liberty" would be limited to
the additional $17 million which it seeks to collect. J.A. 322. On
appeal to the district court, the bankruptcy court order was affirmed.
The debtors once again appeal. Because this appeal presents only
questions of law, our review is de novo. In re Bunker, 312 F.3d 145,
150 (4th Cir. 2002).
II
A.
We initially consider the debtors’ contention that the value of Lib-
erty’s claim must be reduced by the $140 million it received from
GTN in order to reflect accurately the amount currently owed to Lib-
erty. Because Liberty is currently owed only approximately $17 mil-
lion, the debtors argue its claim should be limited to this amount.
The debtors’ argument is foreclosed by the combination of Ivanhoe
Building & Loan Ass’n of Newark v. Orr, 295 U.S. 243 (1935), and
6 IN RE: NATIONAL ENERGY & GAS TRANSMISSION
New York law, which governs pursuant to the Agreement. In Ivan-
hoe, the Supreme Court held that a creditor need not deduct from his
claim in bankruptcy an amount received from a non-debtor third party
in partial satisfaction of an obligation. Thus, as a matter of bankruptcy
law, ET Power’s debt to Liberty is not reduced by the amount which
Liberty received from GTN. However, this merely leads to the ques-
tion of what the value of ET Power’s debt is, and New York law pro-
vides the answer to this question. See Travelers Cas. & Sur. Co. of
America v. Pacific Gas & Elec. Co., 127 S. Ct. 1199, 1205 (2007)
("[W]e have long recognized that the basic federal rule in bankruptcy
is that state law governs the substance of claims[.]") (internal punctu-
ation omitted).
New York law provides:
The amount or value of any consideration received by the
obligee from one or more of several obligors, or from one
or more of joint, or of joint and several obligors, in whole
or in partial satisfaction of their obligations, shall be cred-
ited to the extent of the amount received on the obligations
of all co-obligors to whom the obligor or obligors giving the
consideration did not stand in the relation of a surety.
N.Y. Gen. Oblig. L. § 15-103. Under this statute, whether GTN’s pay-
ment to Liberty must be deducted from ET Power’s obligation turns
on whether GTN was a surety or a co-obligor.
In Chemical Bank v. Meltzer, 712 N.E.2d 656 (N.Y. 1999), the
New York Court of Appeals concluded that the relationship between
the guarantor and the primary obligor must determine the guarantor’s
status as a co-obligor or a surety, notwithstanding language in the
contract purporting to render the guarantor a co-obligor. Using this
approach, the court found that a suretyship existed. The relationship
between ET Power and GTN is nearly identical to that of the guaran-
tor and primary obligor in Meltzer. Therefore, we conclude that,
despite language in the guarantee purporting to make GTN a co-
obligor, GTN was a surety for ET Power’s obligations to Liberty.
Accordingly, the value of ET Power’s debt to Liberty under state law
is not reduced by the $140 million received from GTN.
IN RE: NATIONAL ENERGY & GAS TRANSMISSION 7
B.
We next turn to the more fundamental question presented by this
appeal: whether the Bankruptcy Code bars Liberty from collecting the
$17 million it now seeks. Section 502(b)(2) of the Code provides that
a claim shall not be allowed "to the extent that. . . [it] is for unmatured
interest[.]" 11 U.S.C. § 502(b)(2). The purpose of this section is two-
fold: (1) the avoidance of unfairness among competing creditors, and
(2) the avoidance of administrative inconvenience. Bruning v. United
States, 376 U.S. 358, 362 (1964). As with all sections of the Code,
§ 502(b)(2) exists to guide the court in the administration of a bank-
ruptcy estate so "as to bring about a ratable distribution of assets
among the bankrupt’s creditors." Vanston Bondholders Protective
Committee v. Green, 329 U.S. 156, 161 (1946); see also In re A.H.
Robins Co., Inc., 972 F.2d 77, 82 (4th Cir. 1992) (noting that bank-
ruptcy court possesses "broad equity powers"). Indeed, § 502(b)(2)
itself reflects the equitable nature of the Code, and our application of
its bar on post-petition interest is to be guided by principles of equity.
Vanston Bondholders, 329 U.S. at 165 ("It is manifest that the touch-
stone of each decision on allowance of interest in bankruptcy . . . has
been a balance of equities between creditor and creditor or between
creditors and the debtor."). Thus, in applying § 502(b)(2), we have a
duty to "sift the circumstances surrounding any claim to see that
injustice or unfairness is not done in administration of the bankrupt
estate." Smith v. Robinson, 343 F.2d 793, 801 (4th Cir. 1965).4
In this case, Liberty seeks to collect $17 million from ET Power
notwithstanding the fact that it has already received the full value —
$140 million — of the debt which it was owed by ET Power on the
petition date. In so doing, Liberty classifies the additional $17 million
which it seeks as unpaid principal. It reaches this result by applying
GTN’s payment of $140 million first to interest then to principal.
Therefore, Liberty maintains that it is coming into bankruptcy to
assert a claim for, and to collect only the remaining portion of, the
$140 million which it was owed as of the petition date.
4
The Bankruptcy Code, of course, provides parameters within which
courts must exercise their equitable powers in administering an estate.
Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206 (1988).
8 IN RE: NATIONAL ENERGY & GAS TRANSMISSION
We believe that § 502(b)(2) prevents Liberty from collecting the
additional $17 million it seeks despite Liberty’s classification of that
amount as principal. On the date the debtors filed their bankruptcy
petition, the Agreement was effectively rejected and Liberty sustained
damages, although the value of the damages was then unknown and
disputed. Subsequently, through arbitration, Liberty’s damages were
determined to be $140 million. Thus, Liberty’s damages and ET
Power’s debt to Liberty on the petition date was $140 million, and by
the terms of § 502(b)(2), Liberty could not collect in bankruptcy any
additional amounts added due to the accrual of interest. Nicholas v.
United States, 384 U.S. 678, 682 (1966) ("[T]he accumulation of
interest on claims against a bankrupt estate is suspended as of the date
the petition in bankruptcy is filed."). This result is not altered simply
because Liberty holds a guarantee from a non-debtor third party.
Accordingly, the arbitration panel’s award of interest on the $140 mil-
lion in damages, while perhaps appropriate under the Agreement and
as a matter of non-bankruptcy law, is not collectable from the debtors
in bankruptcy by virtue of § 502(b)(2).
The § 502(b)(2) bar to collection of interest is not overcome by
Liberty’s classification of the $17 million it now seeks as principal.
Regardless of how Liberty classifies GTN’s payment for its own pur-
poses, we must "sift the circumstances surrounding" the claim to
determine the reality of the transaction for purposes of the bankruptcy
proceeding. Smith, 343 F.2d at 801. Because ET Power’s debt was
capped at $140 million by the filing of the bankruptcy petition and
because the debt was increased only by the accrual of interest pursu-
ant to the arbitration award, we view Liberty’s claim for an additional
$17 million as disallowed post-petition interest no matter how Liberty
chooses to classify it.5
5
Liberty claims that we must accept its classification of GTN’s pay-
ment as interest rather than as principal because bankruptcy proceedings
cannot affect the liability of a non-debtor on a debt. See, e.g., In re Stol-
ler’s, Inc., 93 B.R. 628, 635-36 (Bankr. N.D. Ind. 1988) (finding that
guarantors remained liable for post-petition interest as allowed by terms
of guarantee). Thus, Liberty argues that preventing it from collecting the
additional $17 million it seeks will essentially relieve GTN of its obliga-
tion to pay interest. We disagree. Liberty is free to classify GTN’s pay-
ment as interest or to pursue collection from GTN at any time. Any
IN RE: NATIONAL ENERGY & GAS TRANSMISSION 9
A contrary result would permit Liberty, or any other creditor, to
classify a payment on a debt from a non-debtor guarantor as non-
principal, thus preserving the full value of the principal for collection
in bankruptcy. If, for example, Liberty had classified GTN’s payment
of $140 million not as a payment on the debt but as consideration
received in return for a covenant not to sue, we would certainly look
behind the transaction and would not allow collection as principal of
the full $140 million. We must likewise look behind Liberty’s claim
here to find that the claim really constitutes post-petition interest dis-
guised as unpaid principal.
Our construction of Liberty’s claim is reinforced by the policy
interests represented by § 502(b)(2). As we noted earlier, the general
purpose of § 502 is "to ensure the fair allocation of assets between
creditors[.]" In re Kielisch, 258 F.3d 315, 325 (4th Cir. 2001). Thus,
in cases where the allowance of post-petition interest will not result
in administrative inconvenience or unfairness to creditors, post-
petition interest may be allowed. See, e.g., United States v. Ron Pair
Enterprises, Inc., 489 U.S. 235, 246 (1989) (noting pre-Bankruptcy
Code rule permitting the award of post-petition interest where estate
is solvent); Ford Motor Credit Co. v. Dobbins, 35 F.3d 860, 869 (4th
Cir. 1994) (referring to rule permitting an over-secured creditor to
collect interest to the extent of his over-security). In contrast, allowing
Liberty to collect the additional amount it seeks will have an impact
on ET Power’s creditors: namely, the loss of $17 million from the
estate which would otherwise be available for distribution. This being
so, the purpose of § 502(b)(2) is best served by barring Liberty’s col-
lection of an additional $17 million from the estate.
III
For these reasons, we conclude that § 502(b)(2) prevents Liberty
from collecting the additional $17 million which it seeks from the
limitation of Liberty’s right to recover from GTN the full amount it is
owed is due to the terms of GTN’s guarantee or to non-bankruptcy law,
not to our decision here. We merely hold that Liberty may not affect the
rights of a party in bankruptcy by its classification of a payment received
from a non-debtor guarantor.
10 IN RE: NATIONAL ENERGY & GAS TRANSMISSION
estate. Accordingly, we reverse the judgment of the district court and
remand for further proceedings consistent with this opinion. In so
doing, we do not reverse the allowance of Liberty’s claim for unpaid
invoices, which is not before us in this appeal.
REVERSED
WILSON, District Judge, concurring in the judgment:
As I view it, the overarching issue in this appeal is reduced to this:
does Liberty’s contractual right with GTN, a third party, to allocate
principal and interest, that is, to call payments from that guarantor
what it wants to call them, preclude the Bankruptcy Court from call-
ing those payments what they are vis-à-vis the bankrupt debtor. That
is, can Liberty allocate its way around § 502(b)(2)’s disallowance of
unmatured interest. In my view to do so is to simply call a rose by
another name.* Accordingly, I concur in the judgment.
DUNCAN, Circuit Judge, dissenting:
As the bankruptcy court succinctly stated in an order summarily
affirmed by the district court, the debtors here proffer no authority
"for the proposition that a non-debtor guarantor is exempt from liabil-
ity to pay interest accruing after the petition date of the debtor-
primary obligor" under 11 U.S.C. § 502(b)(2). Nat’l Energy & Gas
Transmission, Inc. v. Liberty Elec. Power, LLC (In re Nat’l Energy
& Gas Transmission, Inc.), No. 03-03104, at *6 (Bankr. D. Md. June
27, 2005) (emphasis added). Because the majority advances no sup-
port for its conclusion that bankruptcy law governs the contractual
*Two preliminary observations simplify the playing field for me. First,
I do not believe that Judge Shedd’s opinion challenges Liberty’s contrac-
tual rights under its guarantee from GTN to allocate principal and inter-
est in any fashion it sees fit in relation to GTN. Second, we are not
compelled to explore Liberty’s right to recover from NEGT under
NEGT’s guarantee because the Bankruptcy Court disallowed Liberty’s
claim against NEGT and Liberty did not appeal. Indeed, at the risk of
oversimplification, NEGT seems to be little more than a cheerleader for
ET Power or a surrogate for GTN in this appeal. The real dispute, there-
fore, is only between the primary obligor and its creditor.
IN RE: NATIONAL ENERGY & GAS TRANSMISSION 11
relationship between a creditor and a non-debtor guarantor—and
ample authority exists to the contrary—I respectfully dissent.
As the majority explains, an arbitration panel awarded Liberty
$140 million plus approximately $17 million in interest accrued after
the debtors’ bankruptcy petition had been filed. Liberty collected
$140 million from GTN, which was the maximum amount for which
GTN could be liable under the terms of its guarantee. Liberty charac-
terized GTN’s payment as first, a payment of the $17 million interest,
and next, a payment of part of the $140 million principal.
Liberty continued to assert its claim in bankruptcy against the debt-
ors for the full $140 million, recognizing, however, that it could not
collect more than the approximately $17 million needed to satisfy the
debt. In Liberty’s view, this $17 million represented principal for
which the debtors remained jointly and severally liable, even though
they had filed for bankruptcy.1
Proper analysis of Liberty’s claim begins with the basic principle
of contract law that Liberty is entitled to be paid in full, including
interest, by its jointly and severally liable debtors. When one or more
debtors file a bankruptcy petition, as here, it is undisputable that
§ 502(b)(2) bars a creditor from recovering interest not yet accrued as
of the date of the bankruptcy petition against such a debtor. See
Majority Op. at 7-8. However, it is also well-settled that § 502(b)(2)
has no impact on the accrual of unmatured interest against non-
debtors, including non-debtor guarantors. See, e.g., Bruning v. United
States, 376 U.S. 358, 362 n.4 (1964) (explaining that claims do not
"los[e] their interest-bearing quality" in bankruptcy, but that post-
petition interest is disallowed as a "rule of distribution"); Kielisch v.
Educ. Credit Mgmt Corp. (In re Kielisch), 258 F.3d 315, 323 (4th Cir.
2001) ("Section 502 bars creditors from making claims from the
bankruptcy estate for unmatured interest," but "does not purport to
limit the liability on those claims, i.e., ‘debts.’"); In re El Paso Refin-
ing, Inc., 192 B.R. 144, 146 (Bankr. W.D. Tex. 1996) (holding that
§ 502(b)(2) only bars "unmatured interest from becoming an allowed
claim against the debtor’s [bankruptcy] estate" and that "the obliga-
1
As the majority notes, only Liberty’s claim against ET Power is at
issue in this appeal.
12 IN RE: NATIONAL ENERGY & GAS TRANSMISSION
tion to pay interest vis-a-vis a guarantor is not tolled or eliminated by
operation of section 502(b)(2)" (emphasis omitted)).
The majority intermingles these independent principles to arrive at
its holding: that the $17 million that Liberty seeks to recover from ET
Power represents "disallowed post-petition interest no matter how
Liberty chooses to classify it." Majority Op. at 8. This approach, how-
ever, has the effect of limiting the non-debtor guarantor’s liability for
interest accruing after the debtor’s bankruptcy petition. That is, the
majority would have the bar to recovery of interest from the debtor
swallow the accrual of interest on the debt across all parties liable for
it. There is simply nothing in the Bankruptcy Code, applicable case
law, the relevant guarantee agreement, or nonbankruptcy law to sup-
port the jettisoning of basic contract law principles in favor of an
expansive reading of § 502(b)(2).2
In fact, the majority’s approach actually seems to run counter to
another section of the Bankruptcy Code. Section 524(e) provides that
the "discharge of a debt of the debtor does not affect the liability of
any other entity on, or the property of any other entity for, such debt."
See also El Paso, 192 B.R. at 146 (holding that § 524(e) mandated
that the independent obligations of a guarantor were unaffected by the
2
The majority attempts to justify its result by invoking this court’s duty
to "‘sift the circumstances surrounding’ the claim to determine the reality
of the transaction for purposes of the bankruptcy proceeding." Majority
Op. at 8 (citing Smith v. Robinson, 343 F.2d 793, 801 (4th Cir. 1965).
There is no reason, however, to allow "sift[ing] the circumstances" to
engulf even basic principles of contract law by restructuring the private
contracts of non-debtors.
The majority also seeks to place the blame for Liberty’s inability to
collect the full amount of its debt on the guarantee itself, which caps
GTN’s liability at $140 million. See id. at 8 n.5. If GTN’s liability under
the guarantee were unlimited, the majority apparently reasons, Liberty
could collect the full value of its claim from GTN. As a matter of con-
tract law, the majority is correct. But, as the bankruptcy court noted, "the
cap [on GTN’s liability in its contract with Liberty is] no impediment to
Liberty’s right to be paid in full from all sources" where the debtors are
jointly and severally liable for the principal debt. Nat’l Energy & Gas
Transmission, Inc., No. 03-03104, at *8.
IN RE: NATIONAL ENERGY & GAS TRANSMISSION 13
bankruptcy of the principal obligor); Stoller’s, Inc. v. Peoples Trust
Bank (In re Stoller’s, Inc.), 93 B.R. 628, 635-36 (Bankr. N.D. Ind.
1998) (holding guarantors liable for post-petition interest). The major-
ity’s holding appears to expressly violate § 524(e) by allowing the
bankruptcy filing of the debtors to dictate how Liberty accounts for
its contractual payment from GTN, or, in other words, allowing the
"discharge of a debt of the debtor [to] affect the liability of [GTN] on
. . . such debt," § 524(e).
Furthermore, in contrast to the majority’s contention, I do not
believe that a creditor’s receipt of payment from a non-debtor guaran-
tor implicates either of the purposes of § 502(b)(2): (1) avoiding "un-
fairness as between competing creditors" and (2) minimizing the
"administrative inconvenience" that repeated recomputation of inter-
est requires, Bruning, 376 U.S. at 362. With respect to the first, I fail
to see the unfairness in the fact that Liberty bargained, outside of
bankruptcy, for a guarantee of payment. That other creditors may not
have secured such a guarantee, and therefore might ultimately recover
proportionally less than Liberty, strikes me as no injustice. Second,
even the debtors do not argue that the bankruptcy court’s order below
would require burdensome recomputation of interest, as it specifies
the allowed amount of Liberty’s claim as determined in the arbitration
proceeding.
Therefore, because neither bankruptcy law nor the contract govern-
ing Liberty’s relationship with the non-debtor guarantor GTN limits
Liberty’s right to allocate its recovery from GTN in any manner that
it wishes, I would affirm the district court.