So I took a look at Chapter 11 bankruptcy and liens and lienholders: First of all, it seems to be fairly common that a lien or liens ARE DISCHARGED in bankruptcy proceedings.
The court cited to a Fifth Circuit decision, In re Ahern Enterprises, 507 F.3d 817, 822 (5th Cir.2007), which explained that 1141(c) discharge requires the following:
1.the plan must be confirmed;
2.the property that is subject to the lien must be dealt with by the plan;
3.the lien holder must participate in the reorganization; and
4.the plan must not preserve the lien.”
Now, concerning BRTXQ:
1. From what I understand, the plan will be confirmed early September.
2. The IP is "dealt with" in the plan since ALL PROPERTY is dealt with in the plan. (Dealt With”: This term was not defined by the Fifth Circuit but the court adopted the Second Circuit standard, explaining that absent specific references, a general reference to “all property” categorically includes the disputed property... ie: in this case, the intellectual property of BRTXQ)
3. Concerning participation:
Second Circuit: Filing a proof of claim is participation. In re N. New Eng. Tel. Operations LLC, 795 F.3d 343 (2d Cir. 2015).Fourth Circuit: Creditor participated when it filed a proof of claim, served on a committee, discussed its claim with committee counsel. Universal Suppliers v. Reg'l Bldg. Sys., Inc. (In re Reg'l Bldg. Sys., Inc.), 254 F.3d 528 (4th Cir.2001).Fifth Circuit: Affirmative participation versus nonfeasance. Creditor must do something versus fail to act. In re S. White Transp., Inc., 725 F.3d 494, 497 (5th Cir. 2013).
In BRTXQ case, The lienholder (Desmaris) will "participate" by his need to respond to the lawsuit seeking dismissal of the lien.
4.The plan will NOT preserve the lien, else there is no plan!
It would be very easy for the court to decide that the debtholders consequent to Desmaris were lienholders BY STATUTE, who though not signing a specific agreement, nonetheless secured a claim on par with Desmaris to all property (including the IP) of the DEBTOR. Think construction, where ANY company who supplies labor and/or materials to a jobsite have lien rights to that property. This is by statute. The Desmaris "lien" is NON-statutory; that is, it was EXTRA STATUTORY; whereas, by statute, ALL debt-holders have a legal claim on the possessions of the debtor.
In other words, just because Desmaris signed an agreement placing a lien on the IP of BRTXQ, that "lien" does not supersede the statutory "lien" rights of all other debtors.
If the plan is okayed, the lien will be discharged (kaput)!
IMO
