The following briefing provides a round-up of the Cayman legal and regulatory developments during the third quarter of 2022 that may be of interest to funds clients. We are pleased to note that there is nothing critical or requiring immediate action at this time.

Summary of recent legal and regulatory developments

Do you have Cayman vehicles that you are considering terminating?

If so, you should consider initiating the process now to minimise or eliminate 2020 annual fees. This note contemplates corporate vehicles but similar considerations apply to partnerships.

Termination by voluntary liquidation

In a significant ruling impacting commercial real estate lenders in Michigan, the Sixth Circuit Court of Appeals has ruled that an absolute assignment of rents that had been fully perfected (by demanding payment from tenants to the lender and related recording) precludes a debtor from asserting that such rents can be used as cash collateral in bankruptcy. The reasoning is that these rents do not constitute property of the bankruptcy estate. As such, the debtor could not proceed with its Chapter 11 case.

Background

Vendors — take note! The Delaware bankruptcy court in In re Reichhold Holdings US Inc. recently issued an important ruling for vendors asserting reclamation rights.

On May 16, 2016 the United States Supreme Court issued an opinion regarding the meaning of “actual fraud” under the Bankruptcy Code. Husky Int’l Electronics, Inc. v. Ritz represents a win for creditors by making it easier to show that a debtor committed fraud. A showing of a more general fraud, as opposed to a specific false representation by the debtor, will suffice to prevent certain debts from being discharged in bankruptcy.

Background

Over the past two or three years, we have seen an increasing number of cases where a client holds and wishes to sell or transfer shares in a Cayman Islands company which is in liquidation, or is seeking to purchase shares in such a company from another party.  In those circumstances, the transfer of the shares would be void absent the validation of the Grand Court of the Cayman Islands, as a result of section 99 of the Companies Law (2013 Revision) ("Section 99").  Section 99 is in the following terms:

The debtor in Law listed his house on his bankruptcy schedules, claiming a homestead exemption in the amount of $75,000 under Cal. Civ. Proc. Code § 704.730(a)(1). The debtor represented that the house was encumbered by two liens: a note and deed of trust for $147,156.52 in favor of Washington Mutual Bank, and a second note and deed of trust for $156,929.04 in favor of “Lin’s Mortgage & Associates.” Based on these representations, the debtor made it appear as if there was no nonexempt value in the house that the trustee could realize for the benefit of the estate.