Two recent Supreme Court of Canada decisions demonstrate that the corporate attribution doctrine is not a one-size-fits-all approach.
一、问题的提出
债务人向债权人借款,由保证人提供保证担保。借款到期后,债务人与保证人均未偿还该笔借款。后法院裁定受理保证人的破产申请,债权人因此向保证人的管理人申报债权,要求保证人就债务人所欠借款及利息承担保证责任。管理人审查并确认了该笔债权。(简见以下表1案型法律关系表)根据《最高人民法院关于适用〈中华人民共和国民法典〉有关担保制度的解释》(下称“《民法典担保制度解释》”)第22条之规定,[1]保证债权应当自保证人的破产申请受理时起停止计息。与债务人破产时保证债权随同主债权停止计息不同的是,保证人破产导致保证债权停止计息,却不能反向及于主债权也停止计息。其后债务人向债权人清偿了部分债务。此时,管理人将面临如下难题:在主债权未停止计息的情况下,债权人获得债务人部分清偿后,在保证人的破产程序中,管理人先前认定的债权数额是否须要调整?如果须要调整,应该如何进行调整?鉴于该问题在实务中相对较为前沿,笔者曾多次尝试检索与之相关的法规、判例、理论文献、实务文章等,对于解决该问题的资料寥寥无几。虽无前人的解决方案可供参照,但该问题仍然亟待解决。在缺乏相应法律规范的情况下,下文将通过民法基础理论的推演,尝试为解决这一问题提供思路。
Court approval of a sale process in receivership or Bankruptcy and Insolvency Act (“BIA”) proposal proceedings is generally a procedural order and objectors do not have an appeal as of right; they must seek leave and meet a high test in order obtain it. However, in Peakhill Capital Inc. v.
When being sued, corporate and individual defendants should always confirm that the plaintiff has not been previously discharged in bankruptcy and failed to disclose the claim in the proceeding as an asset of the bankruptcy estate. In Guay v. Burack, 677 F.3d 10 (1st Cir. 2012), the plaintiff brought numerous claims against various governmental entities, governmental officials and a police officer.
Masuda, Funai, Eifert & Mitchell routinely represents creditors in bankruptcy proceedings in order to protect their contractual and legal interests and rights to payment. The following is a list of some recent larger U.S. bankruptcy filings in various industries. To the extent you are a creditor to any of these debtors, or other entities which may have filed for bankruptcy protection, you as a creditor are entitled to certain protections under the Bankruptcy Code.
AUTOMOTIVE
The following is a list of some recent larger U.S. bankruptcy filings in various industries. To the extent you are a creditor to any of these debtors, or other entities which may have filed for bankruptcy protection, you as a creditor are entitled to certain protections under the Bankruptcy Code.
DINING
Giordano’s Enterprises Inc. filed for Chapter 11 bankruptcy along with 32 of its affiliates.
Garden Operations Realty LP, the parent of New York bagel manufacturer H&H Bagels, has filed for Chapter 11 protection.
The following is a list of some recent larger U.S. bankruptcy filings in various industries. To the extent you are a creditor to any of these debtors, or other entities which may have filed for bankruptcy protection, you as a creditor are entitled to certain protections under the Bankruptcy Code.
ADVERTISING
Advertising firm Vertis Holdings Inc. has landed in bankruptcy court for a second time, filing a prepackaged Chapter 11.
PUBLISHING
The following is a list of some recent larger U.S. bankruptcy filings in various industries. To the extent you are a creditor to any of these debtors, or other entities which may have filed for bankruptcy protection, you as a creditor are entitled to certain protections under the Bankruptcy Code.
HEATING & AIR CONDITIONING
Wolverine Tube Inc. and several affiliates filed prearranged Chapter 11 petitions after reaching a deal with noteholders.
FINANCIAL
Ambac Financial Group Inc. filed for Chapter 11 protection.
The following is a list of some recent larger US bankruptcy filings in various industries. To the extent you are a creditor to any of these debtors, or other entities which may have filed for bankruptcy protection, you as a creditor are entitled to certain protections under the Bankruptcy Code.
NOVELTY
Party and novelty goods company Oriental Trading Co., Inc. has filed for Chapter 11 protection with a prepackaged plan of reorganization.
OIL
The following is a list of some recent larger US bankruptcy filings in various industries. To the extent you are a creditor to any of these debtors, or other entities which may have filed for bankruptcy protection, you as a creditor are entitled to certain protections under the Bankruptcy Code.
GAMING
Riviera Holdings Corp., owner of Las Vegas’ Riviera Hotel & Casino, has filed for Chapter 11 protection.
RAZORS AND BLADES