Opinion
NOT FOR PUBLICATION
Argued and Submitted at Sacramento, California: February 17, 2011
Appeal from the United States Bankruptcy Court for the Eastern District of California. Bk. No. 08-29045, Adv. Proc. No. 08-02364. Honorable David Russell, Bankruptcy Judge, Presiding.
Matthew Emrick argued for the Appellants.
Michael D. Senneff argued for the Appellees.
Before: DUNN, HOLLOWELL, and KIRSCHER, Bankruptcy Judges.
This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8013-1.
The bankruptcy court entered a money judgment on a judicial foreclosure claim for relief in favor of a private money lender with a security interest in raw land (" Unimproved Property") owned by the chapter 11 debtor. The judgment authorized the lender to sell the Unimproved Property. In awarding judgment to the lender, the bankruptcy court interpreted a release clause that was at the heart of the dispute between the parties. In light of its interpretation of the release clause, the bankruptcy court also entered judgment in favor of the lender and its general partner on the debtor's cross-complaint for damages for, inter alia, breach of the release clause. We AFFIRM.
Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. § § 101-1532. All " Rule" references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
I. FACTS
In 1999, Alexandra Spiegel acquired a title interest to approximately 80 acres of real property in Placer County, California (the " Improved Property"). Ms. Spiegel, with her husband, Blair Wallace, operated two water ski lakes and a commercial fish hatchery on the Improved Property.
In November 2004, Ms. Spiegel and Stephen Hung formed Stillwater Ranch Development, LLC (" Stillwater"), as an entity for purchasing the Unimproved Property, which is an 80-acre parcel adjacent to the Improved Property.
In 2006, the $800,000 balloon payment on the initial financing to purchase the Unimproved Property was coming due. Stillwater, through Mr. Wallace on Ms. Spiegel's behalf, and Mr. Hung obtained an appraisal on the Unimproved Property and began searching for a loan to replace the initial financing. The appraisal, dated April 7, 2006, set the value of the Unimproved Property at $3.1 million.
The Loan
Ultimately, Stillwater engaged the services of a mortgage broker, Scott Woods, to assist in finding a private money lender willing to loan $1.7 million to Stillwater. Mr. Woods " shopped" the loan request to Darryl Bailey, who shopped it to yet a third mortgage broker, John Fillipa. Mr. Fillipa then contacted one of his long-standing clients, Michael Wright, who agreed to fund the loan through the Wright Grandchildren, L.P. (" WGLP"), of which he was a general partner.
Because the appraised value of the Unimproved Property would support a loan with a 50% loan to value ratio (" LTV") of only $1.55 million, Mr. Wright insisted that Stillwater provide additional collateral with sufficient value to bring the LTV to not less than 50%. Ms. Spiegel agreed to grant a third position lien to WGLP on the Improved Property to facilitate the loan, provided that WGLP would agree to subordinate to a potential new loan on the Improved Property. At the time, the Improved Property was encumbered by a first deed of trust in the amount of $275,000, and a second deed of trust (the " Ricci Interest") in the amount of $950,000. While no appraisal had been performed with respect to the Improved Property, the parties ascribed to it the appraised value of the Unimproved Property: $3.1 million. On May 16, 2006, Mr. Fillipa prepared a Letter of Understanding which described the terms of the proposed loan. In the Letter of Understanding, WGLP " agree[d] to subordinate to a new 1st loan provided the combined LTV on both properties [did] not exceed 50%. Value can be determined by mutual agreement of lender and borrower or by new appraisal on both properties 1 and 2 with [WGLP] approving the appraiser." Ms. Spiegel signed the Letter of Understanding on May 19, 2006.
Immediately thereafter, Mr. Fillipa ordered preparation of the loan documents from PLM Loan Processing Center, Inc. (" PLM"). He directed that PLM include in the loan documents two provisions which related to the LTV issue. The first related to the subordination agreement requested by Ms. Spiegel, and provided:
[WGLP] agrees to subordinate to a new loan on [the Improved Property] provided the combined LTV does not exceed 50% of the existing loan amount. Value can be determined in 2 ways: 1) by mutual agreement of [WGLP] and Borrower or 2) by a new appraisal on both [the Unimproved Property and the Improved Property] with [WGLP] approving the appraiser to be used.
The second related to a release clause, also requested by Ms. Spiegel, and provided:
[WGLP] agrees to release [the Improved Property] provided the LTV does not exceed 50% of the existing loan amount. Value can be determined in 2 ways: 1) by mutual agreement of [WGLP] and Borrower or 2) by a new appraisal on the Unimproved Property with [WGLP] approving the appraiser to be used.
Mr. Hung, Mr. Wallace, and Ms. Spiegel all testified that they had little, if any, opportunity to review the loan documents until they went to the title company to sign them, and that no one explained the documents to them. Mr. Wallace accompanied Ms. Spiegel to her signing appointment and reviewed the documents on her behalf. Because he was concerned about the release language in the documents as prepared at the direction of Mr. Fillipa, Mr. Wallace had his attorney, Robert Harris, come to the title company office to review the documents. Mr. Harris made changes to the release language, which were given to the title officer. Through the title officer, Ms. Spiegel and Mr. Wallace learned that the language changes had been approved. As changed, the release clause (" Release Clause") now provided:
Mr. Hung testified he was surprised to find in the loan documents a personal guaranty that he was required to sign as a condition of the loan. He testified no guaranty had been requested prior to that time. Without the assistance of counsel or a full opportunity to review the guaranty, which contained a complete waiver of rights, Mr. Hung signed the guaranty. When judgment was entered in favor of WGLP, it included judgment against Mr. Hung in the amount of $2,336,546.30. Mr. Hung filed a separate notice of appeal with respect to the judgment. That appeal, EC-10-1247, was dismissed on September 20, 2010, on the stipulation of the parties.
[WGLP] agrees to release [the Improved Property] provided the [LTV] of [the Unimproved Property] does not exceed 50% of the existing loan balance. Value can be determined in one of two ways: 1) by mutual agreement of [WGLP] and Borrower or 2) by a new appraisal on the Unimproved Property with [WGLP] approving the appraiser to be used. If [the Improved Property] sells, the maximum dollar amount the Borrower has to pay is $150,000, but in no event more than is required to reduce the [LTV] to less than 50% on [the Unimproved Property]. [WGLP] shall release [the Improved Property] within 10 days of the value being determined under the terms of this paragraph.
The testimony at trial was that Mr. Fillipa accepted the Release Clause without talking with Mr. Wright. In fact, Mr. Wright was not aware of a change to the Release Clause until the events which led to the litigation between the parties took place. It is the language of the Release Clause that is the focus of the dispute between the parties.
Changes also were made to the subordination language at the request of Mr. Wallace and Mr. Harris, so that the final subordination clause provided:
[WGLP] agrees to subordinate to a new loan on [the Improved Property] provided the combined [LTV] does not exceed 50%. Value can be determined in one of two ways: 1) by mutual agreement of [WGLP] and Borrower or 2) by a new appraisal on both properties encumbered under this loan with [WGLP] approving the appraiser to be used. The term of the new loan shall not be greater than 30 years and the interest charged on the new loan shall not exceed 15% per annum.
The loan (" WGLP Loan") closed and was funded on or about June 5, 2006. The WGLP Loan amount was $1.7 million, and its term was three years. The WGLP Loan bore interest at 12% per annum. Interest only payments were to be made monthly in the amount of $17,000 until loan maturity on June 2, 2009. From the proceeds of the WGLP Loan, an interest reserve in the amount of $204,000 was created and escrowed at Mr. Fillipa's office to ensure the payment of the first twelve monthly interest payments.
The Final Closing Statement for the WGLP Loan reflects that from the loan proceeds, a loan origination fee in the amount of $21,250 was paid to Sequoia Pacific Loans (Mr. Bailey), a broker fee in the amount of $29,750 was paid to Mortgage Process Center dba Golden Lending (Mr. Woods), and a broker commission was paid to Pine Valley Mtg. & Inv. Co. (Mr. Fillipa). After various title, tax and escrow charges, the remaining WGLP Loan proceeds were applied to pay off the existing lien in the amount of $806,577.49, and a balance of $592,535.26 was released to the Borrowers.
At trial, Mr. Hung testified his investment into Stillwater was in the amount of $300,000. Mr. Hung received $200,000 of the loan proceeds disbursed to the Borrowers. Later, in February of 2007, Mr. Hung transferred all of his interests in Stillwater to Ms. Spiegel in return for a junior deed of trust in the amount of $100,000 on the Unimproved Property. WGLP was not notified of this change in ownership of Stillwater.
Performance Under the WGLP Loan
In May 2007, Ms. Speigel, through Mr. Wallace, asked WGLP to subordinate its interest in the Improved Property to a further advance from the Ricci Interest in the amount of $193,000. WGLP agreed, on the condition that $102,000 of the advance be used to prepay six months of interest payments due under the WGLP loan, which would have ensured the source of interest payments through December 2007.
Mr. Wallace acted on Ms. Spiegel's behalf throughout the course of events hereafter.
On November 7, 2007, prior to any loan default to WGLP, Mr. Wallace initiated contact with WGLP to advise that Ms. Spiegel likely would be unable to make the payment due on January 2, 2008. Mr. Wallace advised that Ms. Spiegel was trying to sell both the Unimproved Property for a price of $2.5 million, and the Improved Property, which Mr. Wallace valued at $3.5 million.
On December 1, 2007, Mr. Fillipa and Mr. Wright drove to and walked both properties. They also met with the real estate agent with whom the properties were listed, who stated that because the market value of developable land had decreased, she believed the Unimproved Property was worth no more than $1.8 million. She further stated that she was concerned that the Unimproved Property might be limited to mitigation or green belt use in the future, which would further reduce its value to $1.2 million. With respect to the Improved Property, the real estate agent stated that she believed its true value was closer to $2 million than to the $4 million which Mr. Wallace was trying to get in a sale.
On December 17, 2007, Mr. Wright received a Notice of Default and Election to Sell Under Deed of Trust from the Ricci Interest with respect to the Improved Property based on a payment default.
Ms. Spiegel and Stillwater did not make the January 2, 2008 payment due under the WGLP Loan, and have made no payments since. On January 11, 2008, Mr. Wallace called Mr. Wright to request that WGLP take a deed in lieu of foreclosure on the Unimproved Property and release the Improved Property because nothing was happening with the attempts to sell the properties. Thereafter, on January 17, 2008, WGLP sent Stillwater and Ms. Spiegel a Notice of Default and Election to Sell (" WGLP NOD") on its trust deed. On January 18, 2008, WGLP sent letters to Stillwater, Ms. Spiegel, and Mr. Hung (1) to make sure that they were aware of WGLP's actions because all communications had been through Mr. Wallace, (2) to demand that all rents and profits from the properties be applied to payments as provided in the loan documents, and (3) to warn that selling dirt from the Unimproved Property as threatened by Mr. Wallace could diminish the value of the property. In response to the letter, on about January 24, 2008, Mr. Wallace called and left a message for Mr. Wright that he remained willing to provide a deed in lieu of foreclosure for the Unimproved Property only, and that if that was not acceptable he would hire an attorney to " fight it out." Because Mr. Wright was away from his office for an extended period, he instructed his son, Stephen Wright, to contact Mr. Wallace to communicate that WGLP would only accept a deed in lieu of foreclosure for both properties. On January 29, 2008, Stephen Wright sent an email to his father, stating that Mr. Wallace's response to the proposal was that WGLP could sue them and " end up with 80 acres with holes in the ground and incur significant out-of-pocket costs or accept a deed in lieu now."
In his communication with Stephen Wright, Mr. Wallace asserted that WGLP was in breach of the loan documents for failure to release the Improved Property for $150,000 in connection with a proposed sale of the Improved Property in January 2007. Mr. Wright testified this was the first he learned of any proposed sale in January 2007.
No further information about this alleged proposed sale is reflected in the record.
On February 12, 2008, Mr. Wright received a letter from Mr. Emrick on behalf of Mr. Wallace, advising that the Improved Property was in the process of being sold, and invoking the release clause with respect to the Improved Property, demanding a release of the WGLP security interest in the Improved Property upon payment to WGLP of $150,000.
Thereafter the record reflects communications passed between Mr. Emrick, demanding a release of the Improved Property, and Mr. Senneff, counsel for WGLP, requesting information to evaluate the proposed sale. Finally, on April 9, 2008, Mr. Wright received a copy of the signed purchase and sale agreement between Kristi Schaffner and Ms. Spiegel with respect to the Improved Property. The " sale" in fact was a proposal that Ms. Schaffner would operate the north half of the Improved Property with an ultimate purchase to take place at some point in the future. The sale did not contemplate immediate payment of funds to Ms. Spiegel. Further, the sale was not contingent upon a release of WGLP's interest in the Improved Property, as had been represented to WGLP.
Although Appellants assert in their reply brief that they tendered the $150,000 to Mr. Wright to obtain a release, there is no evidence in the record that any tender was in fact made. At most they made offers to tender the funds.
On April 11, 2008, WGLP (1) sent a letter to the title company demanding full payment of the WGLP Loan in connection with the proposed sale of the Improved Property to Ms. Schaffner, and (2) filed a judicial foreclosure complaint, which resulted in a termination of the sale to Ms. Schaffner.
On July 3, 2008, Ms. Spiegel filed a chapter 11 bankruptcy, and she removed the foreclosure proceedings, together with the cross claims she had filed against Mr. Wright, to bankruptcy court on July 14, 2008.
The chapter 11 case was converted to chapter 7 after this appeal was filed. Mr. Wallace has since purchased the chapter 7 estate's interest in the debtor's cross-claims against Appellees.
In January 2010, the Ricci Interest foreclosed on the Improved Property, eliminating the WGLP security interest.
The bankruptcy court conducted a four day trial which began May 3, 2010. Oral findings of fact and conclusions of law were made on the record on May 6, 2010. Pivotal to the decision of the bankruptcy court was its interpretation of the Release Clause. The bankruptcy court found that Mr. Wright's intent was to maintain a 50% LTV at all times. The bankruptcy court also recognized that Ms. Spiegel's concerns related to obtaining a quick release of the Improved Property in the event of a sale. However, the Release Clause as drafted by Mr. Harris had the effect of allowing an immediate release upon payment of $150,000 (or less), only if the LTV in the Unimproved Property had increased by $150,000 (or more). The bankruptcy court ruled that, to be effective to require an absolute release upon a sale, the Release Clause should have provided simply that the Improved Property " will be released upon the payment of $150,000." Judgment was entered June 9, 2010. Ms. Spiegel timely filed her Notice of Appeal.
II. JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. § § 1334 and 157(b)(2)(A) and (O). We have jurisdiction under 28 U.S.C. § 158.
III. ISSUE
Whether the bankruptcy court erred in interpreting the Release Clause.
IV. STANDARDS OF REVIEW
A trial court's interpretation of contract provisions is reviewed de novo. United States v. 1, 377 Acres of Land, 352 F.3d 1259, 1264 (9th Cir. 2003); Simpson v. Burkart (In re Simpson), 366 B.R. 64, 70-71 (9th Cir. BAP 2007), aff'd, 557 F.3d 1010 (9th Cir. 2009). De novo review requires that we consider a matter anew, as if it had not been heard before, and as if no decision had been previously rendered. United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988); B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008).
However, when in interpreting a contract the trial court admitted extrinsic evidence on issues, such as intent, we review findings of fact for clear error while reviewing de novo principles of law applied to those facts. Tamen v. Alhambra World Inv., Inc. (In re Tamen), 22 F.3d 199, 203 (9th Cir. 1994); see also Estreito v. Citirealty Corp. (In re Estreito), 111 B.R. 294, 295 (9th Cir. BAP 1990). Clear error will only be found if we are " left with the definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001).
V. DISCUSSION
This appeal turns on the meaning of the Release Clause, drafted by Mr. Harris, agreed to by Mr. Fillipa, and included in the Note and the Trust Deed for the WGLP Loan:
[WGLP] agrees to release [the Improved Property] provided the [LTV] of [the Unimproved Property] does not exceed 50% of the existing loan balance. Value can be determined in one of two ways: 1) by mutual agreement of [WGLP] and Borrower or 2) by a new appraisal on the Unimproved Property with [WGLP] approving the appraiser to be used. If [the Improved Property] sells, the maximum dollar amount the Borrower has to pay is $150,000, but in no event more than is required to reduce the [LTV] to less than 50% on [the Unimproved Property]. [WGLP] shall release [the Improved Property] within 10 days of the value being determined under the terms of this paragraph.
A. Mr. Wright and WGLP Are Bound By the Release Clause.
As a preliminary matter, we determine that there is no basis for Appellees' assertion that they are not bound by the Release Clause because Mr. Fillipa was the agent of Ms. Spiegel and Mr. Hung, not of Mr. Wright or WGLP. The facts clearly establish otherwise, notwithstanding the execution by Ms. Spiegel and Mr. Hung of an Agreement to Procure Lender. Neither Ms. Spiegel nor Mr. Hung ever met with Mr. Fillipa during the transaction. Mr. Fillipa did not " find" a loan on behalf of the borrowers to the transaction. He found an investment opportunity for one of his long-standing clients, Mr. Wright. He presented the terms acceptable to Mr. Wright and WGLP, and negotiated with the borrowers' broker to obtain the additional security required by his client. Mr. Fillipa's email message to Mr. Wright on May 12, 2006, clearly establishes that Mr. Fillipa was not advocating the interests of the borrowers in the transaction:
The Agreement to Procure Lender was a part of the WGLP Loan documents; its purpose was to ensure that Mr. Fillipa would receive a commission.
I have been told late today that the borrowers are not sure they want to cross collateralize. I told them to let me know for sure by Monday morning if they want to do business with us and we need a signed agreement to move forward. If they do not respond I will tell them our offer is off and see what happens.
When he submitted the document order worksheet to PLM to draft the loan documents, he identified himself as a broker acting as agent for the lender only.
B. California Law Applies to Interpretation of the Release Clause.
The Deed of Trust provides that it is governed by the law of the jurisdiction in which the property is located. Thus we apply California contract law in interpreting the Release Clause.
1. Rules of Interpretation
In interpreting a contract we are charged " simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." Cal. Civ. Proc. Code § 1858.
California Civil Code § 1636 provides that " [a] contract must be interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." See also TRB Investments, Inc. v. Fireman's Fund Ins. Co., 40 Cal.4th 19, 50 Cal.Rptr.3d 597, 145 P.3d 472, 476-77 (Cal. 2006). As Appellees point out, California courts have recognized that release clauses in lending contracts constitute material provisions. White Point Co. v. Herrington, 268 Cal.App.2d 458, 466, 73 Cal.Rptr. 885 (1968). Without question, the release language was material to Ms. Spiegel. However, " [p]articular clauses of a contract are subordinate to its general intent." Cal. Civ. Code § 1650.
It is a primary rule of interpretation that contracts must be construed from their four corners, and the intention of the parties must be collected from the entire instrument and not detached portions thereof, it being necessary to consider all of the parts to determine the meaning of any particular part as well as of the whole. Individual clauses and particular words must be considered in connection with the rest of the agreement, and all of the writing and every word of it will, if possible, be given effect.
Indenco, Inc. v. Evans, 201 Cal.App.2d 369, 374, 20 Cal.Rptr. 90 (1962). Finally, " the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist." Cal. Civ. Code § 1654.
2. Application of the Rules of Interpretation
The record on appeal establishes that WGLP would not make the loan unless the LTV was not more than 50%. It was for this reason that the Improved Property was provided as additional collateral for the WGLP Loan in the first instance.
Mr. Fillipa, on behalf of Mr. Wright and WGLP, drafted the initial language to govern a possible future release of the Improved Property. However, Mr. Harris and Mr. Wallace, acting on behalf of the intended beneficiary of the release language, Ms. Spiegel, did not believe that the language proposed by Mr. Fillipa would allow Ms. Spiegel sufficient flexibility to obtain a release of the WGLP encumbrance on the Improved Property. Therefore, Mr. Harris revised the language, and his version of the Release Clause was substituted in the WGLP Loan documents for that proposed by Mr. Fillipa. As a consequence, to the extent the Release Clause created uncertainty as to its application, the Release Clause is to be interpreted most strongly against Ms. Spiegel.
We agree with the bankruptcy court that the Release Clause drafted by Mr. Harris is " ambiguous at best." If Ms. Spiegel wanted an absolute right to obtain a release of WGLP's security interest in the Improved Property in exchange for the payment of $150,000, the Release Clause could have been written as suggested by the bankruptcy court: " [the Improved Property] will be released upon the payment of $150,000." Instead, the Release Clause as written is conditional. " [WGLP] agrees to release [the Improved Property] provided the [LTV] of [the Unimproved Property] does not exceed 50% of the existing loan balance. . . ." (Emphasis added.)
The provision relating to release upon a sale of the Improved Property is ambiguous as to an absolute release. That language reads: " If [the Improved Property] sells, the maximum dollar amount the Borrower has to pay is $150,000, but in no event more than is required to reduce the [LTV] to less than 50% on [the Unimproved Property]." (Emphasis added.) This language retains the reference to the requirement that the LTV on the Unimproved Property be maintained at 50%. The record reflects that by December 2007, the value of the Unimproved Property had declined from $3.1 million to at most $2.5 million, but possibly as low as $1.2 million. In light of the declining value of the Unimproved Property, it was impossible to implement the release provision by its express terms, even given the existence of a sale.
Ms. Spiegel asserts that the bankruptcy court erred when it " implied a term" into the Release Clause. The implied term, according to Ms. Spiegel, was that the parties assumed the Unimproved Property would increase in value. We find no error in the bankruptcy court's observation that the Release Clause would only make sense if Ms. Spiegel assumed that the value of the Unimproved Property would increase.
Finally, Ms. Spiegel points out that, in addition to modifying the Release Clause, Mr. Harris also modified the acceleration clause in the WGLP Note, which by its terms was " subject to the release clause . . . ." However, the only change made to the acceleration clause was to substitute for the phrase " said real property" the lot description for the Unimproved Property. The modification was intended by Ms. Spiegel to ensure that a sale of the Improved Property could not form the basis of an acceleration of the WGLP Loan. The acceleration clause was exercised in response to the failure to make payments due under the terms of the WGLP Note beginning with the January 2008 interest payment.
3. Mr. Wright Did Not Breach the Agreement
Ms. Spiegel asserts that even under the bankruptcy court's interpretation of the Release Clause, Mr. Wright breached the " agreement" (1) by failing to disclose to Ms. Spiegel his own estimate of the value of the Unimproved Property, and (2) by asking Ms. Spiegel for an appraisal of the Unimproved Property when it was the obligation of WGLP, not of Ms. Spiegel, to select an appraiser.
Mr. Wright counters that in arriving at his opinion of value he relied on Ms. Spiegel's agent, the realtor who was attempting to sell the Unimproved Property. Further, he and his attorneys repeatedly requested information from Ms. Spiegel regarding the value of the property without response. Finally, he contends that the Release Clause did not require WGLP to hire an appraiser, only to " approve" the appraiser who was selected.
These inactions complained of by Ms. Spiegel neither constitute a breach of the Release Clause, nor evidence that Mr. Wright was acting in bad faith vis-a-vis the Release Clause.
C. Motion to Strike Portions of Appellees' Brief.
Appellants filed a last minute motion seeking to have stricken four portions of Appellees' brief. We deny the motion for the following reasons. First, the proposed sale of the Improved Property to Ms. Schaffner, Appellees' concerns with the terms of that " sale, " and the removal of dirt from the Unimproved Property by Appellants, all are part of the factual record. Second, we are unable to find in Appellees' Brief, or in the record for that matter, any " contentions and implications" that Appellants misused the loan funds, let alone any which might constitute " unsupported slander." Finally, whether the modifications to the Release Clause must be construed against Appellants is a matter of law, which we are required to determine in our disposition of this appeal. As such, it is an appropriate subject for inclusion in Appellees' Brief.
VI. CONCLUSION
Appellants' motion to strike portions of Appellees' Brief is DENIED.
The bankruptcy court reasonably interpreted the Release Clause to mean that Ms. Spiegel was entitled to a release of the Improved Property only if the LTV on the Unimproved Property would not exceed 50% as a result. Accordingly, we AFFIRM.