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The Bankruptcy StrategistFeaturesBankruptcyLitigation

Determining the Indubitable Equivalent of A Bankruptcy Claim

By Peter Gampel
June 01, 2024

A forensic accountant, litigation consultant or a business valuation expert is often tasked with the prospect of "interpreting" clauses in an agreement from a financial point of view without expressing a legal opinion. In addition, the expert may be required to then determine the financial consequences of that interpretation. Those results are often the subject of controversy when adversarial positions are posited by competing experts or when challenged in a court of law.

One aspect of the dispute, and one with significant consequences, centered around the term indubitable equivalent value for a Class 5 creditor in the context of a debtor's fifth amended Chapter 11 plan and objection to confirmation filed by creditor. The U.S. Bankruptcy Court, Middle District of Florida, Jacksonville Division (the court) opined on that issue (Spiderman Scott Mulholland and Tina Marie Foley Mulholland Debtors, Case No. 3:18-bk-04096-JAF, Chapter 11, Jan. 14, 2022).

By way of background, in 2018, the debtors (husband and wife) filed a voluntary petition for bankruptcy under Chapter 11 of the Bankruptcy Code. The creditor had filed a secured proof of claim pursuant to a state-court judgment in 2018 against the debtors. The judgment against the debtors was over $4.6 million and increased to $5.1 million in 2020 with post-judgment interest. The bankruptcy estate included 100% of the stock in an operating entity that provided remediation construction services. The debtor husband was the owner, key person and "rainmaker" as well as influencer for the business. The creditor, the daughter of the debtors, was in her mid-30s with no business experience and no involvement in the company.

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