Dishonest plaintiffs can make it difficult, and in some cases impossible, to successfully move for summary judgment. Indeed, a dishonest plaintiff who understands the legal landscape can easily defeat summary judgment by claiming that there exists “direct evidence” of discrimination in the form of an admission by management that the challenged employment action was motivated by discriminatory animus (e.g., “my supervisor told me he was firing me because of my age”).
Over the last several decades, the enforcement of intercreditor agreements ("ICAs") that purport to affect voting rights and the rights to receive payments of cash or other property in respect of secured claims have played an increasingly prominent role in bankruptcy cases. Although the Bankruptcy Code provides that "subordination agreement[s]" are enforceable in bankruptcy to the same extent such agreements are enforceable under applicable nonbankruptcy law, the handling of creditor disputes regarding such agreements has been inconsistent.i
The U.S. Court of Appeals for the Ninth Circuit recently reversed a ruling that disallowed an unsecured creditor’s claim filed in a California bankruptcy court based on the forum state’s statute of limitations.
In so ruling, the Ninth Circuit held that, although courts typically apply the forum state’s statute of limitations if the contract is silent on the issue, exceptional circumstances warranted the application of a longer statute of limitations here, because the creditor had no option but to enforce its claim in the forum based on where the bankruptcy petition was filed.
(6th Cir. B.A.P. April 17, 2017)
An important aspect of the Puerto Rico Oversight, Management, and Economic Stability Act, 48 U.S.C. §§ 2101–2241 ("PROMESA")—the temporary stay of creditor collection efforts that came into effect upon its enactment—was the subject of a ruling handed down by the U.S. Court of Appeals for the First Circuit. In Peaje Investments LLC v. García-Padilla, 845 F.3d 505 (1st Cir. 2017), the First Circuit affirmed in part and vacated in part a lower court order denying two motions for relief from the PROMESA stay.
ASARCO Standard
When the real estate market and financial markets tumbled during 2007-2008, the fallout was felt by financial institutions from large multi-billion dollar banks to small Community Banks. As these banks struggled to stay alive, a trend emerged for bank holding companies to market and sell a distressed bank through Section 363 of the Bankruptcy Code. This alternative was utilized in many instances as opposed to a traditional “reorganization plan” or takeover by the FDIC.
The U.S. Court of Appeals for the Eleventh Circuit recently held that a court cannot extinguish a secured creditor’s state-law security interests for failure to file a proof of claim during the administration of an equity receivership over entities involved in a Ponzi scheme.
A copy of the opinion in Securities and Exchange Commission v. Wells Fargo Bank is available at: Link to Opinion.
(Bankr. S.D. Ind. Apr. 14, 2017)
The court grants the debtor’s motion for a hardship discharge under 11 U.S.C. § 1328(b)(1). The debtor had made 44 plan payments but was unable to make the 16 remaining payments. The court finds the recent change in the debtor’s economic circumstances warranted the relief requested. Opinion below.
Judge: Carr
Attorney for Debtor: Steven P. Taylor
(Bankr. W.D. Ky. Apr. 11, 2017)