Applying for permission to advance fresh evidence on appeal is a tricky application, which has had varying degrees of success in the courts. Zheng Yougxiong v Gate Ventures Plc(1) is a useful example of the application of the criteria, albeit in the context of insolvency proceedings.
Background
Mr Zheng was a shareholder in, and creditor of, Gate Ventures plc. He sought and failed to obtain an administration order against Gate Ventures plc on the basis of a £2.5 million debt (the First Application).
Owners of small business entities are frequently required to guaranty the debts of such entities. Those business entities might later file for Chapter 11, and may be able to achieve confirmation of a plan to restructure their indebtedness. The question then presented is whether this confirmation event affects the separate guaranty obligations of the owners? The Tenth Circuit Court of Appeals recently explored this issue in In re: Larry
Most loan contracts include provisions allowing the collection of attorneys’ fees in the event the borrower defaults. These attorney fee provisions are routinely enforced in collection suits brought in state courts.
Insiders who loot their corporate entities often dispose of the cash proceeds in transactions with third parties. A recent Seventh Circuit opinion, In re Equipment Acquisition Resources, Inc., 14-2174 (7th Cir. October 13, 2015) (the “EAR Opinion”)addresses a common risk faced by a third party who receives cash from the defrauding insider.
Parties continue to skirmish over the sufficiency of the “cram-down” interest rate required to confirm a Chapter 11 plan over a secured lender’s objection. Currently bankruptcy courts will give some weight to the “prime plus” formula set forth in Till v. SCS Credit Corp., 541 U.S. 465 (2004)(plurality opinion).
On August 4, 2015, we posted: “Equitable Mootness In The Third Circuit: Dead Or Alive?”, which analyzed the Third Circuit’s opinion in In re One2One Communications. The post predicted that Judge Krause’s concurrence would likely result in further opinions on equitable mootness. Less than a month later we have such an opinion. InAurelius v. Tribune, 14-3332 (3d Cir.
KEY POINTS
I previously commented on a controversial fraudulent transfer opinion issued by the Fifth Circuit Court of Appeals. In Janvey v. The Golf Channel, 780 F.3d 641 (5th Cir.
When a bankruptcy court ‘‘recharacterizes’’ debt, it causes something the parties have identified as debt to be converted into equity. Unlike an equitable subordination analysis, in which courts determine whether an acknowledged claim should be subordinated to that of other creditors due to a creditor’s inequitable conduct, a recharacterization analysis involves determining whether a debt actually exists.
Section 510(b) of the Bankruptcy Code permits the subordination of certain claims to all claims or interests senior or equal to the security on which the claim is based. A recent Fifth Circuit opinion delineates the scope of mandatory subordination under Section 510(b).