In Re: DORNIER AVIATION (NORTH AMERICA), INCORPORATED Debtor. FAIRCHILD DORNIER GMBH v. the Official Committee of Unsecured

Filed: June 30, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1930
(CA-05-352)
In Re: DORNIER AVIATION (NORTH AMERICA), INCORPORATED
Debtor.
-----------------------
FAIRCHILD DORNIER GMBH; EBERHARD BRAUN, Doctor
Creditors - Appellants,
versus
THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS,
Plaintiff - Appellee.
O R D E R
The court has modified its opinion caption.
For the Court
/s/ Patricia S. Connor
____________________________
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 In Re: DORNIER AVIATION (NORTH
AMERICA), INCORPORATED
Debtor.
FAIRCHILD DORNIER GMBH; 05-1930
EBERHARD BRAUN, DOCTOR
Creditors-Appellants,
v.
THE OFFICIAL COMMITTEE OF
UNSECURED CREDITORS
Creditor-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-05-352; BK-02-82003-SSM; AP-02-8199)
Argued: May 22, 2006
Decided: June 27, 2006
Before WILKINS, Chief Judge, and MOTZ and
KING, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Chief Judge Wilkins and Judge King joined.

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COUNSEL
ARGUED: Ronald Barliant, GOLDBERG, KOHN, BELL, BLACK,
ROSENBLOOM & MORITZ, LTD., Chicago, Illinois, for Appel-
lants. James Paul Campbell, CAMPBELL, MILLER & ZIMMER-
MAN, P.C., Leesburg, Virginia, for Appellee. ON BRIEF: Matthew
A. C. Zapf, David E. Morrison, GOLDBERG, KOHN, BELL,
BLACK, ROSENBLOOM & MORITZ, LTD., Chicago, Illinois;
Benjamin C. Ackerly, Sr., HUNTON & WILLIAMS, Richmond, Vir-
ginia; Linda Lemmon Najjoum, HUNTON & WILLIAMS, McLean,
Virginia, for Appellants.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
At the urging of unsecured creditors, the bankruptcy court
recharacterized a parent corporation’s sale of parts to one of its sub-
sidiaries as an equity contribution rather than a debt. The parent cor-
poration appeals the district court’s affirmance of the bankruptcy
court’s judgment. We affirm.
I.
Dornier Aviation (North America) (DANA) is a wholly-owned
indirect subsidiary of Fairchild Dornier GMBH (GMBH), a German
aircraft manufacturer.1 GMBH sold spare parts to DANA so that
DANA could provide warranty and provisioning support to GMBH
customers; DANA also resold some of these parts to non-warranty
end users for a profit. GMBH billed DANA with specific invoices for
the parts it sent;2 these invoices indicated that payment was due
1GMBH is the sole shareholder of Dornier Aviation Holdings North
America (DAHNA), which in turn is DANA’s sole shareholder. GMBH
is itself a subsidiary of Fairchild Dornier Corporation.
2As the bankruptcy court noted, the billing system between GMBH
and DANA was complicated; the parts that DANA provided to GMBH
customers as part of a warranty or initial provisioning package were
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within 30 days "unless otherwise agreed." In addition, during annual
reconciliations, GMBH and DANA typically signed a "statement of
account" that detailed the amounts that DANA owed GMBH. How-
ever, despite these written agreements, evidence produced at trial
demonstrated that DANA did not pay the invoices within 30 days. In
fact, Thomas Brandt, GMBH’s Chief Financial Officer, testified that
DANA and GMBH had an agreement that DANA did not have to
repay GMBH "until the whole operation turned positive." Brandt also
testified that GMBH treated DANA "specially" because GMBH
viewed its relationship with DANA as "a market investment"
designed to expand its access to the North American market.
Although Brandt explained that GMBH did expect DANA to repay
its debts eventually, he also explained that there was no fixed maturity
date and that GMBH would not seek repayment until DANA became
profitable.
In 2000, GMBH commissioned an audit report from Pricewater-
house Coopers. The audit calculated that the amount DANA actually
owed to GMBH was significantly less than the amount that DANA
and GMBH had agreed to three months earlier in the annual reconcili-
ation: while the Pricewaterhouse audit found that DANA owed
GMBH approximately $27 million, the annual reconciliation had indi-
cated that DANA owed GMBH approximately $83 million. To
account for the difference, the audit explained that GMBH had "as-
sumed" some of DANA’s losses because the two entities "are so close
that there is an extensive and also financial dependency of [DANA]
to [GMBH]."
In 2002, some of DANA’s former employees filed an involuntary
bankruptcy petition against DANA, which DANA did not oppose.
The case was converted to a Chapter 11 reorganization, but DANA’s
efforts to reorganize were unsuccessful, and DANA eventually pro-
credited against the amount that DANA owed. GMBH’s accounting
practices made it difficult to determine which invoices had been satisfied
because the credits were not linked to particular invoices "but were sim-
ply netted against the gross amounts billed to DANA for parts shipped.
As a result, there appears to be no way to distinguish between ‘open’ and
‘paid’ invoices."
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posed a liquidation plan that was confirmed in 2003.3 GMBH brought
an amended claim asserting that DANA owed GMBH approximately
$146 million. The Official Committee of Unsecured Creditors (the
Committee) objected to this claim, arguing that it should be either
recharacterized as equity or equitably subordinated.
Before trial, the bankruptcy court granted partial summary judg-
ment to the Committee and recharacterized about $44 million of
GMBH’s initial claim as equity.4 After a bench trial on the remaining
$102 million claim, the bankruptcy court rejected the Committee’s
equitable subordination argument, but found that GMBH had over-
stated its claim by $10 million and that $84 million of GMBH’s claim
— the spare parts claim — should be recharacterized as equity. The
recharacterization left GMBH with an allowed claim of $6.475 mil-
lion.
GMBH appealed the recharacterization determination to the district
court, arguing that the bankruptcy court lacked the power to recharac-
terize claims, erred in applying the recharacterization doctrine to
GMBH’s claim, and made a number of factual findings that were
clearly erroneous. The district court affirmed the judgment of the
bankruptcy court, and GMBH appeals. We review the bankruptcy
court’s legal determinations de novo and its factual findings for clear
error. See Canal Corp. v. Finnman (In re Johnson), 960 F.2d 396, 399
(4th Cir. 1992).
II.
The Bankruptcy Code instructs a bankruptcy court to allow a credi-
tor’s claim against the bankruptcy estate unless a party in interest
objects and a recognized exception applies. See 11 U.S.C. § 502
(2000). The Code sets forth, in § 726, a priority scheme for the distri-
bution of the debtor’s assets. See id. § 726. The statutory priority
scheme provides, inter alia, that the claims of all unsecured creditors
3The bankruptcy court estimated that the payout for general unsecured
claims would be between 3.5 cents and 41.1 cents on the dollar.
4GMBH does not appeal the bankruptcy court’s grant of partial sum-
mary judgment to the Committee with respect to this portion of the
claim.
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must be satisfied before holders of equity interests can recover any-
thing from the estate. See id. § 726(a). A bankruptcy court may alter
the priority of an allowed claim via equitable subordination; that is,
the court may reduce the priority of all or part of an allowed claim
if it finds that the creditor engaged in inequitable conduct. See id.
§ 510(c)(1); see also United States v. Noland, 517 U.S. 535, 538
(1996). The Code also authorizes a bankruptcy court to "issue any
order, process, or judgment that is necessary or appropriate to carry
out the provisions of this title." 11 U.S.C. § 105(a) (2000).
Despite the broad language in § 105(a) and the priority scheme in
§ 726, GMBH contends that the Bankruptcy Code does not permit a
bankruptcy court to recharacterize an allowed claim that is ineligible
for equitable subordination. GMBH argues that the bankruptcy
court’s decision to recharacterize the $84 million spare parts claim as
an equity contribution violates the principle that a bankruptcy court
may not use its equitable powers "to alter the substantive rights of the
parties." IRS v. Levy (In re Landbank Equity Corp.), 973 F.2d 265,
271 (4th Cir. 1992).
We disagree. In our view, recharacterization is well within the
broad powers afforded a bankruptcy court in § 105(a) and facilitates
the application of the priority scheme laid out in § 726. The Code
establishes a system in which contributions to capital receive a lower
priority than loans because "the essential nature of a capital interest
is a fund contributed to meet the obligations of a business and which
is to be repaid only after all other obligations have been satisfied." See
Diasonics, Inc. v. Ingalls, 121 B.R. 626, 630 (Bankr. N.D. Fla. 1990)
(quoting Asa S. Herzog & Joel B. Zweibel, The Equitable Subordina-
tion of Claims in Bankruptcy, 15 Vand. L. Rev. 83, 94 (1961)). Thus,
implementation of the Code’s priority scheme requires a determina-
tion of whether a particular obligation is debt or equity. Where, as
here, the question is in dispute, the bankruptcy court must have the
authority to make this determination in order to preserve the Code’s
priority scheme. If the court were required to accept the representa-
tions of the claimant, as GMBH appears to argue, then an equity
investor could label its contribution a loan and guarantee itself higher
priority — and a larger recovery — should the debtor file for bank-
ruptcy. Thus, denying a bankruptcy court the ability to recharacterize
a claim would have the effect of subverting the Code’s critical prior-
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ity system by allowing equity investors to jump the line and reduce
the recovery of true creditors. In light of the broad language of
§ 105(a) and the larger purpose of the Bankruptcy Code, we believe
that a bankruptcy court’s power to recharacterize is essential to the
proper and consistent application of the Code.
GMBH contends that recharacterization does not exist indepen-
dently of the bankruptcy court’s disallowance power under § 502(b)
or the court’s equitable subordination power under § 510(c). This
argument seems to be rooted in GMBH’s view that recharacterization
serves the same purposes and requires the same analysis as disallow-
ance or equitable subordination. In fact, contrary to GMBH’s argu-
ments, recharacterization requires a different inquiry and serves a
different function.
Disallowance of a claim under § 502(b) is only appropriate when
the claimant has no rights vis-à-vis the bankrupt, i.e., when there is
"no basis in fact or law" for any recovery from the debtor. Diasonics,
121 B.R. at 631 (quoting Herzon & Zweibel, supra, at 86). When a
bankruptcy court disallows a claim, the claim is completely dis-
charged. Id. at 631. By contrast, recharacterization is appropriate
when the claimant has some rights vis-à-vis the bankrupt. That is,
when a bankruptcy court recharacterizes a claim, it necessarily recog-
nizes the existence of a relationship between the debtor and the claim-
ant, but it determines that the relationship is one of an equity owner
rather than a creditor.
In the present case, GMBH presented evidence of a claim arising
out of the spare parts transactions between GMBH and DANA. The
bankruptcy court initially determined that a portion of this claim met
the formal requirements sufficient to support allowance under
§ 502(b). The allowance inquiry required the bankruptcy court to
determine whether there is support in fact and law for a payment of
any kind from the bankruptcy estate to the claimant. However, the
court correctly noted that the allowance determination "does not end
the inquiry." The recharacterization inquiry then required the court to
determine whether the spare parts claim was truly a loan or was
instead a capital contribution. The Bankruptcy Code mandates that
debt receive a higher priority than equity in distribution. See 11
U.S.C. § 726. Thus, even if a claimant is able to meet § 502’s mini-
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mal threshold for allowance of the claim, the bankruptcy court still
must look beyond the form of the transaction to determine the claim’s
proper priority.
Like disallowance, equitable subordination also differs markedly
and serves different purposes from recharacterization. While a bank-
ruptcy court’s recharacterization decision rests on the substance of the
transaction giving rise to the claimant’s demand, its equitable subor-
dination decision rests on its assessment of the creditor’s behavior.
As the Tenth Circuit has explained, when a claim is equitably subor-
dinated, "[t]he funds in question are still considered outstanding cor-
porate debt, but the courts seek to remedy some inequity or unfairness
perpetrated against the bankrupt entity’s other creditors or investors
by postponing the subordinated creditor’s right to repayment until
others’ claims have been satisfied." Sender v. Bronze Group, Ltd. (In
re Hedged-Invs. Assocs., Inc.), 380 F.3d 1292, 1297 (10th Cir. 2004);
see also id. ("The doctrine of equitable subordination, by contrast,
looks not to the substance of the transaction but to the behavior of the
parties involved."). Thus, although recharacterization and equitable
subordination lead to a similar result, they "address distinct concerns"
and require a bankruptcy court to conduct different inquiries. See
Cohen v. KB Mezzanine Fund II, LP (In re SubMicron Sys. Corp.),
432 F.3d 448, 454 (3d Cir. 2006). In the case at hand, the bankruptcy
court found that equitable subordination was inappropriate because
there was no evidence of GMBH engaging in inequitable conduct.
This finding does not in any way affect the court’s conclusion that
recharacterization was appropriate.
In holding that the recharacterization power is integral to the con-
sistent application of the Bankruptcy Code, we join every other circuit
that has considered the question. See SubMicron, 432 F.3d at 454;
Hedged-Invs., 380 F.3d at 1297; Bayer Corp. v. Masco Tech, Inc. (In
re AutoStyle Plastics, Inc.), 269 F.3d 726, 747-48 (6th Cir. 2001). We
find totally unpersuasive GMBH’s contention that AutoStyle Plastics
and Hedged-Investments should be read not as approving recharacter-
ization but as addressing disallowance under § 502(b). As GMBH
itself concedes, neither of those cases, nor SubMicron, even mentions
disallowance or § 502(b). See Brief of Appellant at 17 n.6. Nor do any
of these cases somehow implicitly support GMBH’s position; rather,
they conclude that in an appropriate case a bankruptcy court, wholly
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apart from § 502(b), can properly recharacterize a claim. See Hedged-
Invs., 380 F.3d at 1297-1300; AutoStyle Plastics, 269 F.3d at 747-53.5
A bankruptcy court’s equitable powers have long included the abil-
ity to look beyond form to substance, see Pepper v. Litton, 308 U.S.
295, 305 (1939), and we believe that the exercise of this power to
recharacterize is essential to the implementation of the Code’s man-
date that creditors have a higher priority in bankruptcy than those
with an equity interest. See In re Cold Harbor Assocs., 204 B.R. 904,
915 (Bankr. E.D. Va. 1997) ("This Court is not required to accept the
label of ‘debt’ or ‘equity’ placed by the debtor upon a particular trans-
action, but must inquire into the actual nature of a transaction to
determine how best to characterize it."). Accordingly, we reject
GMBH’s argument that a bankruptcy court may only exercise its
power to recharacterize a claim by disallowing the claim under
§ 502(b) or equitably subordinating the claim under § 510(c).
III.
GMBH maintains in the alternative that the bankruptcy court erred
in its application of the recharacterization doctrine to GMBH’s
claims. The factors a court may consider in determining whether it
should recharacterize a claim include:
(1) the names given to the instruments, if any, evidencing
the indebtedness; (2) the presence or absence of a fixed
5In addition, GMBH’s argument as to the proper interpretation of
AutoStyle Plastics and Hedged-Investments conflicts with its own asser-
tion that Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692
(5th Cir. 1977), prohibits the disallowance of claims if the court deter-
mines that the asserted debt is actually equity. In fact, a proper under-
standing of these cases shows that Mobile Steel concerned a different
question from the one we confront in this case: although Mobile Steel
held that disallowance was an inappropriate remedy for a determination
that a claim is equity rather than debt, it did not specifically address the
appropriateness of recharacterization as a remedy in such a situation.
Thus, Mobile Steel does not in any way conflict with our holding (and
the holdings of the Third and Tenth Circuits) that recharacterization is
distinct from both disallowance and equitable subordination.
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maturity date and schedule of payments; (3) the presence or
absence of a fixed rate of interest and interest payments; (4)
the source of repayments; (5) the adequacy or inadequacy of
capitalization; (6) the identity of interest between the credi-
tor and the stockholder; (7) the security, if any, for the
advances; (8) the corporation’s ability to obtain financing
from outside lending institutions; (9) the extent to which the
advances were subordinated to the claims of outside credi-
tors; (10) the extent to which the advances were used to
acquire capital assets; and (11) the presence or absence of
a sinking fund to provide repayments.
AutoStyle Plastics, 269 F.3d at 749-50.6 These factors all speak to
whether the transaction "appears to reflect the characteristics of . . .
an arm’s length negotiation." Id. at 750 (quoting Cold Harbor, 204
B.R. at 915) (amendment in original). This test is a highly fact-
dependent inquiry that will vary in application from case to case.
"None of these factors is dispositive and their significance may
vary depending upon circumstances." Hedged-Invs., 380 F.3d at
1298-99. As the court noted in SubMicron Systems, "[n]o mechanistic
scorecard suffices. And none should, for Kabuki outcomes elude dif-
ficult fact patterns." 432 F.3d at 456. We think it important to note
that a claimant’s insider status and a debtor’s undercapitalization
alone will normally be insufficient to support the recharacterization
of a claim. In many cases, an insider will be the only party willing
to make a loan to a struggling business, and recharacterization should
not be used to discourage good-faith loans. However, when other fac-
tors indicate that the transaction is not a loan at all, recharacterization
is appropriate to ensure the consistent application of the Bankruptcy
Code.
In this case, the bankruptcy court considered all of the above fac-
tors in analyzing the spare parts transaction between GMBH and
6The district court listed the 13-factor test articulated in Cold Harbor,
204 B.R. at 915, while the bankruptcy court discussed both the 11-factor
test from AutoStyle Plastics and the 13 factors used by the Tenth Circuit
in Hedged-Investments, 380 F.3d at 1298. The substance of all of these
multi-factor tests is identical.
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DANA. The court determined that, while some aspects of the transac-
tion were consistent with a loan, the transaction on the whole was
more consistent with a capital contribution. The court found particu-
larly significant (1) GMBH’s insider status, (2) "the lack of a fixed
maturity date" for the purported loan, (3) the fact that DANA would
not be required to pay until it became profitable, (4) DANA’s "long
history of unprofitability and the fact that its liabilities after the corpo-
rate restructuring far exceeded its assets," and (5) GMBH’s assump-
tion of DANA’s losses. We believe that these facts adequately
support the bankruptcy court’s recharacterization decision here.
GMBH raises several arguments to dispute the bankruptcy court’s
conclusion. We find none of them persuasive. First, GMBH maintains
that if recharacterization can apply at all, it may only apply to
advances of funds and not to transactions involving inventory.
According to GMBH, a transfer of inventory cannot constitute an
equity investment. The district court rejected this contention, finding
that "this argument again puts form over substance, as the relationship
between GMBH and DANA with regard to the debt also could be
viewed as ‘loan’ of the funds that otherwise would be due under the
sales arrangement." We agree with the district court. If we were to
adopt GMBH’s position, that would simply invite equity investors to
structure their capital contributions as "sales of inventory" thereby
undermining the purposes of recharacterization. Cf. Brown Shoe Co.,
Inc. v. Comm’r, 339 U.S. 583, 589 (1950) (finding that real property
and buildings transferred to corporation constituted "contributions to
capital" under the Tax Code).
GMBH also argues that the bankruptcy court erred in considering
events that took place after 1999, by which point most of the spare
parts transactions had already occurred. In support of this argument,
GMBH points out that, according to the courts that have recognized
the doctrine, "[r]echaracterization is only appropriate where the cir-
cumstances show that a debt transaction was ‘actually an equity con-
tribution [ ] ab initio.’" AutoStyle Plastics, 269 F.3d at 747-48
(quoting Cold Harbor, 204 B.R. at 915) (alteration in original). Here,
the bankruptcy court did consider GMBH’s continuing failure to col-
lect the alleged debts owed as well as GMBH’s 2001 management
report indicating that it had "taken over" many of DANA’s losses.
However, we again agree with the district court’s conclusion that this
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"use of later events to understand GMBH’s broader intent" accords
with the nature of recharacterization analysis. GMBH’s behavior
toward DANA after 1999 constitutes relevant evidence of GMBH’s
intent at the time the earlier transactions occurred. Accordingly, the
bankruptcy court did not err in relying in part on post-1999 evidence
of GMBH’s intent.
Additionally, GMBH insists that the bankruptcy court erred when
it relied upon the Pricewaterhouse audit’s statement that GMBH had
"assumed" losses arising out of its spare parts transactions with
DANA. The bankruptcy court found GMBH’s decision to assume
DANA’s losses significant because it was "an acknowledgment that
the sums which GMBH had been carrying on its books as intercom-
pany debt could not be characterized to outside investors as ordinary
debt receivables." GMBH asserts that, because it never intended to
forgive DANA’s debts, the bankruptcy court should not have consid-
ered the audit’s discussion of GMBH’s assumption of DANA’s losses.7
The district court found that "an eventual expectation of repayment
does not conflict with the bankruptcy court’s finding that on balance,
the substance of the relationship represented a capital contribution
designed to prop up the struggling subsidiary." After reviewing the
evidence underlying the bankruptcy court’s analysis, we reach the
same conclusion. Given the totality of the circumstances in this case,
we believe the bankruptcy court’s consideration of and reliance upon
GMBH’s assumption of losses was appropriate because this fact fur-
ther demonstrates that GMBH did not intend to recover from DANA
until DANA became profitable. Although this single piece of evi-
dence alone is not outcome determinative, the bankruptcy court prop-
erly considered and weighed it as relevant evidence.
7GMBH also criticizes the bankruptcy court’s use of the term "write-
down," arguing that a write-down never occurred because it did not for-
give DANA’s debts. Even if the bankruptcy court’s use of the term
"write-down" was in error, we agree with the district court that GMBH
"miss[es] the court’s emphasis not simply on the facial effect of
GMBH’s accounting mechanisms but on the Audit’s and Management
Report’s explanations of the ‘assumption’ of DANA’s debt, of GMBH’s
‘family’ relationship with DANA and of GMBH’s resulting self-interest
and motivation in supporting DANA financially."
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IV.
Finally, GMBH challenges many of the bankruptcy court’s factual
findings. We may only overturn the bankruptcy court’s findings of
fact if they are clearly erroneous. See Johnson, 960 F.2d at 399. Def-
erence to the bankruptcy court’s findings is particularly appropriate
when, as here, the bankruptcy court presided over a bench trial in
which witnesses testified and the court made credibility determina-
tions.
GMBH first argues that the bankruptcy court did not consider evi-
dence that GMBH regularly deferred payment for third parties and
that DANA itself regularly allowed customers to defer payment on
spare parts. However, even taking these facts into account, they do
not undermine the bankruptcy court’s finding that GMBH and DANA
had a special relationship. GMBH’s chief financial officer testified
that DANA was treated "specially," that the deferment of DANA’s
payments was a "market investment," and that DANA "was a sister
to us or a daughter." This testimony obviously supports the bank-
ruptcy court’s finding of a special relationship, and so we cannot con-
clude that its finding is clearly erroneous.
Nor do we find persuasive GMBH’s argument that the bankruptcy
court erred in finding a de facto subordination agreement between
GMBH and DANA. Although GMBH is correct that there is no direct
evidence that DANA would only pay GMBH after satisfying its other
creditors, there is substantial evidence that GMBH would only
recover from DANA after DANA was "positive" or "profitable." This
evidence, in conjunction with other evidence of the special relation-
ship between GMBH and DANA as well as GMBH’s interest in
DANA’s survival, supports the bankruptcy court’s finding as to
DANA and GMBH’s repayment arrangement.
GMBH additionally contends that the bankruptcy court should not
have recharacterized the $27 million claim that the audit found was
debt that DANA owed GMBH. The audit indicated that GMBH had
assumed many of DANA’s losses, but still showed an outstanding
balance of $27 million. In recharacterizing the entire spare parts
claim, the bankruptcy court recognized the audit’s identification of
$27 million in debt, but noted that the spare parts transactions contin-
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ued after the completion of the audit, thereby altering the audit’s find-
ings. In fact, records indicated that Dana made a payment of $27
million to GMBH four months after the completion of the audit. The
court concluded that there was no evidence suggesting that post-audit
transactions "should be treated as any less a ‘market investment’ than
those predating it." In addition, the district court pointed out that the
$27 million "that was still considered at the time of the Audit to be
a viable receivable did not correspond to any line item or discernable
combination of line items on the inter-company statement that had
been signed for the same fiscal reporting period." In light of these
facts, we cannot find that the bankruptcy court clearly erred when it
determined that the entire spare parts claim was in actuality an equity
investment.
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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