The long awaited reforms to Cayman Islands restructuring laws will come into force on 31 August 2022. The formal gazetting of these laws today (29 July 2022) has helpfully provided a hard-and-fast commencement date.
Debtors will now be able to file in the Cayman Islands court for the appointment of restructuring officers and obtain an immediate stay on unsecured creditor action, without the need to file a winding up petition.
These new proceedings, while retaining all that is positive with the prior law, will significantly enhance the Cayman Islands restructuring regime by:
In appointing restructuring provisional liquidators ("RPLs") to the Cayman Islands incorporated company, CW Group Holdings Limited ("CW"), in the face of opposition from a creditor seeking a remedy that may have led to CW's liquidation, the Cayman Islands court has reinforced its reputation in (i) putting company rescue first and (ii) seeking to ensure that returns to creditors are maximised. A significant step has also been taken in applying a more commercial and pragmatic reality to the question of officeholder independence.
In a decision that does much to reassert legal certainty for investors in Cayman Islands funds the Cayman Islands Court of Appeal ("CICA") has overruled a decision of the Grand Court concerning the circumstances in which an official liquidator of a solvent company could rectify the register of members, in In the matter of Herald Fund SPC (in official liquidation).
Consolidated and amended insolvency and restructuring rules and regulations come into force in the Cayman Islands on 1 February 2018 (the "Amended Rules").
The Amended Rules do not represent a comprehensive overhaul of the rules and regulations but they do make a number of significant changes to the procedural aspects of Cayman Islands domestic and cross-border insolvency and restructuring legislation. These changes largely reflect and codify existing practice.
Companies Winding Up Rules
(Bankr. S.D. Ind. Dec. 4, 2017)
The bankruptcy court grants the motion to dismiss, finding the defendant’s security interest in the debtor’s assets, including its inventory, has priority over the plaintiff’s reclamation rights. The plaintiff sold goods to the debtor up to the petition date and sought either return of the goods delivered within the reclamation period or recovery of the proceeds from the sale of such goods. Pursuant to 11 U.S.C. § 546(c), the Court finds the reclamation rights are subordinate and the complaint should be dismissed. Opinion below.
(Bankr. E.D. Ky. Nov. 22, 2017)
(B.A.P. 6th Cir. Nov. 28, 2017)
The Sixth Circuit B.A.P. affirms the bankruptcy court’s dismissal of the Chapter 12 bankruptcy case. The court finds that the bankruptcy court failed to give the debtor proper notice and opportunity to be heard prior to the dismissal. However, the violation of due process was harmless error. The delay in filing a confirmable plan and continuing loss to the estate warranted the dismissal. Opinion below.
Judge: Preston
Attorney for Appellant: Heather McKeever
(6th Cir. Nov. 14, 2017)
(Bankr. W.D. Ky. Nov. 1, 2017)
The bankruptcy court grants the creditor’s motion for stay relief to proceed with a state court foreclosure action. The creditor had obtained an order granting stay relief in a prior bankruptcy filed by the debtor’s son, the owner of the property. The debtor’s life estate interest in the property does not prevent the foreclosure action from proceeding. Opinion below.
Judge: Lloyd
Attorney for Debtor: Mark H. Flener
Attorney for Creditor: Bradley S. Salyer
The Sixth Circuit affirms the B.A.P., holding the entry of summary judgment in favor of the creditors in the nondischargeability action was appropriate. The creditors obtained a default judgment against the debtor in Tennessee state court. The default judgment was on the merits and the doctrine of collateral estoppel applied. Opinion below.
Judge: Rogers
Appellant: Pro Se
Attorneys for Creditors: Keating, Muething & Klekamp, Joseph E. Lehnert, Brian P. Muething, Jason V. Stitt