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justify discrimination, although not "outcome determinative."213 Other cases have reached similar results, though usually with less analysis.214 The Ninth Circuit, however, was openly skeptical that "the continued services of ordinary tradespeople" was a "commercial necessity for an apartment operator in a large metropolitan area with many other providers of those
services."215
Assuming the plan proponent has satisfied all the classification issues and somehow satisfied § 1129(a)(10), there remains the issue of what treatment of the deficiency claim is permissible under § 1129(b). Of course payment of full present value of the claim is expressly permitted by § 1129(b)(2)(B)(i). Since cases dealing with the term of payment, amortization and present value have been discussed above in connection with the secured debt, they will not be repeated here.
That leaves only two other possible methods of treatment: either no junior class may receive or retain anything on account of their claims or interests, as specified in § 1129(b)(2)(B)(ii), or the plan must satisfy the requirements of the "new value corollary." The existence and requirements of the new value corollary were recently addressed by the
U.S. Supreme Court in 203 N. LaSalle,216 and is discussed more fully below. The nonretention of junior interests is far simpler but even it has had some interesting recent twists.
Even in real estate cases there may be instances where a debtor is prepared to relinquish all equity interests. One good example is Briscoe, which has been discussed above
213
Id. at 644.
214
E.g., In re Sentry Operation Co. of Tex., Inc., 264 B.R. 850 (Bankr. S.D. Tex. 2001)(unfair discrimination, and gerrymandering, to pay trade creditors 100% and investors' notes, of equal priority, only 1%); In re Krisch Realty Associates, L.P., 174 B.R. 914 (Bankr. W.D. Va. 1994)(full, deferred payment to trade creditors but only a 26% dividend on the deficiency claim must be evaluated under the unfair discrimination standard, noting that Bryson had acknowledged the holding in In re Aztec Co., 107 B.R. 585, 592 (Bankr. M.D. Tenn. 1989), but declining to reach that issue in the stay relief context); In re Westwood Plaza Apartments, 147 B.R. 692 (Bankr. E.D. Tex. 1992)(finds separate classification permissible and consistent with Greystone's guidelines, where unsecured deficiency claim is paid in full, with 3% interest, while balance of unsecured claims are paid only 50%; plan confirmed), rev'd, 192 B.R. 693 (E.D. Tex. 1996)(3% interest rate insufficient).
215 In re Ambanc La Mesa Ltd. Ptshp., 115 F.3d 650, 657 (9th Cir. 1997), citing In re Barakat, 173 B.R. 672, 681 (Bankr. C.D. Cal. 1994), aff'd, 99 F.3d 1520 (9th Cir. 1996).
216 Bank of America National Trust and Savings Assoc. v. 203 North LaSalle Street Partnership, 119 S. Ct. 1411 (1999).
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