Mandatory Subordination Does Not Compel Claim Disalowance and Does Not Apply to Individual Debtors

On behalf of Macdonald Fernandez LLP on Tuesday, December 23, 2014.

In Khan v. Barton (In re Khan), CC-14-1021-TaDKi, CC-14-1041-TaDKi, CC-14-1062-TaDKi (9th Cir. BAP Dec. 9, 2014), the Bankruptcy Appellate Panel of the United States Court of Appeals for the Ninth Circuit (the "BAP") held that mandatory subordination of a claim under Bankruptcy Code Section 510(b) does not compel disalowance of the claim and does not apply to individual debtors.In Khan, a creditor obtained judgment against the debtors and their corporation for conversion, fraud, breach of fiduciary duty and loss of common stock shares. Thereafter, each of the debtors filed a chapter 13 bankruptcy petition. The creditor filed proofs of claim in both cases. The creditor also commenced adversary proceedings to render the judgment nondischargeable. The debtors responded by filing adversary proceedings for mandatory subordination of the creditor's claims under Section 510(b) and for disallowance of the claims.The bankruptcy court ruled in favor of the creditor and dismissed the debtors' adversary proceedings with prejudice. On appeal, the BAP affirmed.The court held that subordination of a claim does not compel disallowance because it impacts only the order of distribution among creditors, not the validity of the claim itself. Moreover, Section 510(b) does not apply to individual debtors; it applies only to claims against corporate debtors.