The recent Supreme Court decision in ACC Loan Management v Mark Rickard and Gerard Rickard has confirmed that a judgment creditor may apply to court to appoint a receiver by way of equitable execution over future entitlements due to a judgment debtor, such as the EU Basic Payment Scheme (“BPS”).
The High Court has refused a challenge by a liquidator to an invoice discounting agreement entered into by the Company prior to liquidation.
The liquidator argued that the invoice discounting agreement was in fact a loan agreement under which the Bank took a charge over the Company’s book debts. If that was the case, then those funds would be funds in the liquidation and the Bank an unsecured creditor, because the loan agreement was not registered and therefore void as against the liquidator.
“[C]ourts may account for hypothetical preference actions within a hypothetical [C]hapter 7 liquidation” to hold a defendant bank (“Bank”) liable for a payment it received within 90 days of a debtor’s bankruptcy, held the U.S. Court of Appeals for the Ninth Circuit on March 7, 2017.In re Tenderloin Health, 2017 U.S. App. LEXIS 4008, *4 (9th Cir. March 7, 2017).
The Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”) require each corporate party in an adversary proceeding (i.e., a bankruptcy court suit) to file a statement identifying the holders of “10% or more” of the party’s equity interests. Fed. R. Bankr. P. 7007.1(a). Bankruptcy Judge Martin Glenn, relying on another local Bankruptcy Rule (Bankr. S.D.N.Y. R.
A Chapter 11 debtor “cannot nullify a preexisting obligation in a loan agreement to pay post-default interest solely by proposing a cure,” held a split panel of the U.S. Court of Appeals for the Ninth Circuit on Nov. 4, 2016. In re New Investments Inc., 2016 WL 6543520, *3 (9th Cir. Nov. 4, 2016) (2-1).