The ability to "surcharge" a secured creditor's collateral in bankruptcy is an important resource available to a bankruptcy trustee or chapter 11 debtor in possession ("DIP"), particularly in cases where there is little or no equity in the estate to pay administrative costs, such as the fees and expenses of estate-retained professionals. However, as demonstrated by a ruling handed down by the Third Circuit Court of Appeals, the circumstances under which collateral may be surcharged are narrow. In In re Towne, Inc., 2013 BL 232068 (3d Cir. Aug.
Section 506(a) of the Bankruptcy Code contemplates bifurcation of a debtor's obligation to a secured creditor into secured and unsecured claims, depending on the value of the collateral securing the debt. The term "value," however, is not defined in the Bankruptcy Code, and bankruptcy courts vary in their approaches to the meaning of the term. In In re Heritage Highgate, Inc., 679 F.3d 132 (3d Cir.
The ability to sell an asset in bankruptcy free and clear of liens and any other competing “interest” is a well-recognized tool available to a trustee or chapter 11 debtor in possession (“DIP”). Whether the category of “interests” encompassed by that power extends to potential successor liability claims, however, has been the subject of considerable debate in the courts. A New York bankruptcy court recently addressed this controversial issue in Olson v. Frederico (In re Grumman Olson Indus., Inc.), 445 B.R. 243(Bankr. S.D.N.Y. 2011).
On Friday, the California Department of Financial Institutions closed Sonoma Valley Bank, headquartered in Sonoma, California, and appointed the FDIC as receiver.
On Friday, the Office of the Comptroller of the Currency closed Community National Bank at Bartow [http://www.occ.treas.gov/ftp/release/2010-101.htm], headquartered in Bartow, Florida, and Independent National Bank, headquartered in Ocala, Florida, and appointed the FDIC as receiver.
On Friday, the California Department of Financial Institutions closedButte Community Bank, headquartered in Chico, California, and Pacific State Bank, headquartered in Stockton, California, and appointed the FDIC as receiver for the two banks.
On Friday, the Office of Thrift Supervision closed Imperial Savings and Loan Association, headquartered in Martinsville, Virginia, and appointed the FDIC as receiver.
Friday, the Illinois Department of Financial and Professional Regulation, Division of Banking closed Lincoln Park Savings Bank, headquartered in Chicago, Illinois, and the FDIC was appointed receiver.
Friday, the Illinois Department of Financial and Professional Regulation, Division of Banking closed Wheatland Bank, headquartered in Naperville, Illinois, and the FDIC was appointed receiver.
Friday, the Office of the Comptroller of the Currency closed Amcore Bank, National Association, headquartered in Rockford, Illinois, and the FDIC was appointed receiver.