A recent ruling of the Bankruptcy Court for the Central District of California endorsed a path toward enforceability of prospective waivers of the automatic stay in certain circumstances. In short, such a waiver approved in a bankruptcy case may be enforceable in a subsequent bankruptcy case. This offers creditors a tactical opportunity to significantly better their position in such a subsequent case.

A recent ruling of the Seventh Circuit Court of Appeals resulted in an otherwise secured lender’s claim being rendered unsecured because the lender ignored warning signs casting doubt on the debtor’s right to pledge the collateral. In Grede v. Bank of New York Mellon Corp. (In re Sentinel Management Group, Inc.), 2016 U.S. App. LEXIS 284, the debtor was a cash management company. It invested its customers money and held the purchased securities for its customers’ accounts. The debtor also traded on its own account, and borrowed money to do so.

For the past several years, creditors in the Ninth Circuit were confounded by an interpretation of the bankruptcy code that permitted individual chapter 11 debtors to retain a significant portion of their assets without creditor consent.  The problem was particularly vexing in the context of high net worth individuals, some of whom held multiple ownership interests in entities that held valuable assets or generated significant income.  That loophole was finally closed on January 28, 2016 when the Ninth Circuit Court of Appeals determined that the “absolute priority rule” applies i

Immediately upon the commencement of a bankruptcy case an automatic stay prohibits actions against the debtor to, among other things, collect pre-petition obligations and to obtain control over property of the bankruptcy estate.  The automatic stay furthers fundamental policy goals of  providing a debtor with the “breathing space” to reorganize or otherwise address its problems, and providing an orderly process for dealing with creditor claims.  A violation of the stay can be costly, resulting in an award of actual and possibly punitive damages.  Two recent rulings of th

2015 was a rough year for the oil and gas industry.  The primary source of the trouble was (and continues to be) the dramatic fall in crude oil prices. In 2014, the price of U.S. crude oil averaged approximately $91 per barrel.  In 2015, the price dropped to an average of approximately $49 per barrel.  As of this writing, the price was approximately $36 per barrel.