Key points

• Principles applying to exercise of liquidators’ powers are the same as those prior to legislative changes
• Views of creditors influenced by personal considerations to be disregarded
• The overriding requirement is for liquidators to exercise their professional judgment in the best interests of creditors

The facts

Key Points

• Test for personal service of bankruptcy petition same as for claim forms
• Document to be handed to debtor or contents explained and left “with or near” debtor
• Rule 7.55 can be used to remedy any irregularity in service if necessary

The Facts

The U.S. Court of Appeals for the Sixth Circuit recently held that a bankruptcy court clearly erred in its finding that a debtor proposed a Chapter 11 plan in good faith, when the secured mortgagee would be paid only in part and very slowly after 10 years with no obligation by the debtor to maintain the building and obtain insurance, while a second class would be paid in full in two payments of $1,200 each over 60 days.

The U.S. Bankruptcy Court for the Southern District of Florida recently denied a mortgagee’s motion to reopen a Chapter 7 case to compel the surrender of real property, due to a five-year delay in filing the motion.

In so ruling, the court agreed with an earlier ruling from the U.S. Bankruptcy Court for the Middle District of Florida (In re Plummer, 513 B.R. 135 (Bankr. M.D. Fla. 2014)), distinguishing “surrender” from “foreclosure,” and holding that a creditor cannot use the Bankruptcy Code to circumvent the obligations imposed by state law.

Key Points

• Court considers the impact of the Spanish Insolvency Act on guarantees governed by English law
• Court holds that the liability under the guarantee was not extinguished

The Facts

Key Points

• An administrator may be able appeal an order restoring a company following dissolution
• The court has jurisdiction to backdate a winding up order made following restoration to the date of dissolution
• The court must exercise its discretion to do so with extreme caution

The Facts

Client Connection Limited (“Company”) was placed into administration and Ms Sharma (“A”) was appointed as administrator. Following a pre-pack sale of the business of the Company, A moved the Company to dissolution.

Key Points

• Court considers the ownership of assets situated at premises owned by the bankrupt in the context of limited relevant evidence
• Court emphasises the importance of joining the correct parties to litigation

The Facts

Key points

• Section 236 (inquiry into company’s dealings) does not have extra-territorial effect
• Section 237(3) (examination) only has extra-territorial effect where appropriate machinery exists in the foreign jurisdiction
• Taking of Evidence Regulation not available where litigation not commenced or contemplated

The facts

Two years ago, in Simon v. FIA Card Services, N.A., the Third Circuit held that alleged violations of the FDCPA resulting from conduct in a bankruptcy case were not precluded by the Bankruptcy Code.

Key Point

The mere fact that the law of the country in which an asset is situated does not recognise the trust concept does not necessarily invalidate the trust at least as far as English Courts are concerned.

The Facts