Issue link: https://mbozikis.ufcontent.com/i/1422521
96 attempts to fashion a reorganization through the parameters of a 363 Sale, thereby circumventing the Chapter 11 requirements of confirmation. See Pension Benefit Guar. Corp. v. Braniff Airways, Inc. (In re Braniff Airways, Inc.), 700 F.2d 935, 940 (5th Cir. 1983). 48 However, in order to facilitate a debtor's ability to maximize the value of its assets, Section 363(f) authorizes the trustee to sell property free and clear of a third party's interest when: (i) applicable nonbankruptcy law permits such a sale; (ii) the third party consents; (iii) the interest is a lien and the price for the property exceeds the value of all liens on the property; (iv) the interest is in bona fide dispute; or (v) the third party could be compelled in a legal or equitable proceeding to accept a money satisfaction of its interest. Courts have attempted to define the scope of "interest" for purposes of Section 363(f). Although some courts have limited the definition to an in rem interest in property (see, e.g., Fairchild Aircraft, Inc. v. Cambell (In re Fairchild Aircraft Corp.), 184 B.R. 910 (Bankr. W.D. Tex. 1995) vacated, 220 B.R. 909 (Bankr. W.D. Tex. 1998)), most use a broader definition of the term that encompasses many other obligations that stem from ownership of the property. See In re Trans World Airlines, Inc., 322 F.3d 283 (3d Cir. 2003). 48 In In re Braniff Airways, Inc., the court rejected a proposed 363 sale primarily because the terms of the sale attempted to "dictat[e] some of the terms of any future reorganization plan." 700 F.2d 935, 940 (5th Cir. 1983). The court added that a debtor should not be able to evade the requirements of Chapter 11 confirmation "by establishing the terms of the plan sub rosa in connection with the sale of assets." Id. In In re Chrysler LLC, the Second Circuit held that a bankruptcy court's approval of a 363 sale was not an abuse of discretion, since the bankruptcy judge found good business reasons for the sale and determined that equity in the new company upon emergence from bankruptcy was "entirely attributable to new value . . . ." 576 F.3d 108, 118 (2d Cir. 2009), cert. granted and judgment vacated on other grounds, 130 S. Ct. 1015 (2009). Additionally, the Bankruptcy Court for the Southern District of New York held that a debtor's proposed sale did not constitute a sub rosa plan, since it did "not attempt to dictate or restructure the rights of creditors," but instead brought in value. In re Gen. Motors Corp., 407 B.R. 463, 495 (Bankr. S.D.N.Y. 2009), enforcement denied, 529 B.R. 510 (Bankr. S.D.N.Y. 2015).